People v. Blair CA3

Filed 8/18/16 P. v. Blair CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C079867

Plaintiff and Respondent, (Super. Ct. No. 15F00078)

v.

MAURICE LEON BLAIR,

Defendant and Appellant.

A jury found defendant Maurice Leon Blair guilty of first degree burglary. (Pen. Code, § 459.)1 After finding true the allegation that defendant was previously convicted of a strike offense, the trial court sentenced him to eight years in state prison. On appeal, defendant contends the trial court failed to properly instruct the jury on first degree burglary, erred in refusing to instruct the jury on trespass as a lesser included

1 Undesignated statutory references are to the Penal Code.

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offense of burglary, and abused its discretion in refusing to strike defendant’s prior strike conviction. We affirm the judgment. BACKGROUND2 On January 3, 2015, Yolanda Arde returned to her home after being gone for a week. Her fence was kicked in and her key would not work in the front door. She forced her way into the house and saw the house had been vandalized. She then saw a woman in a towel running from a bedroom to a bathroom.3 Arde called the police and waited at the entryway of the house. The police soon arrived and brought defendant out of the bathroom. The police searched defendant and found an ID card, a bracelet, a pocket knife, and a MP3 player in his pocket. He said he found them on the floor; all the items belonged to Arde. The police inspected the property and found the locking mechanism for the rear sliding glass door was tampered with. Arde also inspected the property and found many items missing; she also found several items in the house that did not belong to her. The People charged defendant with first degree residential burglary. (§ 459.) The People also alleged defendant was previously convicted of first degree burglary, a strike offense. (§§ 667, subds. (b)-(i), 1170.12.) A jury found defendant guilty as charged and the trial court found true the prior strike conviction. Prior to sentencing, defendant moved the trial court to strike his prior conviction for burglary. Following argument, the trial court ruled as follows: “I have considered the defendant’s age, the number of priors he has suffered as an adult, his previous incarcerations, the nature and circumstances of the defendant’s past and present