People v. Burns CA3

Filed 9/9/20 P. v. Burns CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE, C089058

Plaintiff and Respondent, (Super. Ct. No. 18F5127)

v.

DWAYNE BRIAN BURNS,

Defendant and Appellant.

A jury found defendant Dwayne Brian Burns guilty of making criminal threats and violating a restraining order. Defendant also stipulated to having served two prior prison terms under former Penal Code section 667.5, subdivision (b).1 The trial court sentenced defendant to three years in state prison but suspended execution of that sentence and placed defendant on probation. On appeal, defendant contends there was insufficient evidence to support his conviction. He further contends that, although the court failed to impose sentence on the prior prison term enhancements, under Senate Bill No. 136, the true findings related to

1 Further undesignated statutory references are to the Penal Code.

1

those enhancement allegations must be stricken. We will strike the findings. We also note a clerical error in the court’s February 8, 2019 minute order, which we will order corrected. We affirm the judgment as modified. I. BACKGROUND On July 31, 2018, defendant was at the home of Daryl and Teresa in violation of a restraining order. Teresa and defendant got into a lengthy argument about money (defendant wanted money from Teresa). Defendant waived a kitchen knife at Daryl and Teresa and called Teresa a bitch. Defendant threatened to cut them. Daryl told defendant to leave, reminding him of the restraining order. Defendant refused, saying he knew the police and nobody would believe Teresa or Daryl. Afraid defendant would hurt them, Daryl moved in between Teresa and defendant and tried to get the knife. Defendant cut Daryl’s thumb. Daryl pushed defendant backward into a table, Teresa called 911, and defendant left. The People charged defendant with several crimes, including making criminal threats toward Teresa and violating a restraining order. The People also alleged defendant personally used a deadly weapon and served two prior prison terms under former section 667.5, subdivision (b). Daryl testified at trial. Teresa refused to testify. The court declared Teresa to be a victim of domestic violence, found she could not be imprisoned for refusing to testify under Family Code section 6211, subdivision (f) and Code of Civil Procedure section 1219 and declared her to be an unavailable witness under Evidence Code section 240. The parties, however, stipulated to the authenticity of Teresa’s call to 911 and the call was played for the jury. The call was several minutes long; the jury was provided with transcripts.2