People v. Lopez CA3

Filed 8/21/20 P. v. Lopez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (El Dorado) ----

THE PEOPLE, C089927

Plaintiff and Respondent, (Super. Ct. Nos. S17CRF0063, 17FE003837, 18FE007678) v.

BRANDON MICHAEL LOPEZ,

Defendant and Appellant.

After finding defendant Brandon Michael Lopez guilty of first-degree residential burglary (Pen. Code, §§ 459, 460, subd. (a); unless otherwise stated, statutory section references that follow are found in the Penal Code), and finding true the special allegation that defendant suffered a prior prison commitment (§ 667.5), the trial court imposed a sentence of six years four months without imposing or striking the one-year enhancement for the prior prison term. On appeal, defendant argues we must strike the

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prior prison term allegation that was found true. We agree. In all other respects, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

The underlying facts of defendant’s crime are irrelevant to the issues raised on appeal. Simply put, after an April 2019 bench trial, the trial court found defendant guilty of first-degree residential burglary of a hostel in South Lake Tahoe. The trial court also found true the allegation that defendant suffered a prior prison commitment for an offense under the Vehicle Code. Because defendant was already serving a sentence imposed by the Sacramento Superior Court in January 2019, the trial court pronounced a single aggregate term of six years four months, consisting of: a principal term of four years (the middle term) for the burglary; a consecutive 16-month subordinate term (one-third the middle term) for defendant’s Sacramento County offense of infliction of corporal injury on a spouse (§ 273.5, subd. (a)) having previously suffered a section 273.5 conviction within seven years (§ 273.5, subd. (f)); and a consecutive a one-year term (one-third the middle term) for defendant’s Sacramento County offense of battery causing serious injury (§ 243, subd. (d)). The trial court did not impose the prior prison term enhancement contemplated by the version of section 667.5, subdivision (b) in effect at the time, which provided for an additional one-year term “for each prior separate prison term.” Defendant timely appealed.