People v. Safarov CA1/3

Filed 7/2/21 P. v. Safarov CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A157776 v. RUSHAN SAFAROV, (San Mateo County Defendant and Appellant. Super. Ct. No. 18SF007770A)

This is an appeal from judgment after a jury convicted defendant Rushan Safarov of felony burglary. Defendant, who when sentenced was serving preexisting sentences for convictions in Sacramento and Placer Counties, contends the trial court imposed an unauthorized sentence in violation of Penal Code sections 669 and 1170, subdivision (a)1 because it failed to pronounce on the record a new, aggregate sentence that included his unfinished, previous sentences. Defendant contends the court’s failure renders his sentence in this case concurrent (rather than consecutive) by operation of law. For reasons that follow, we remand this matter to the trial court for pronouncement of an aggregate sentence in accordance with the applicable law, and in all other regards affirm the judgment.

1 Unless otherwise stated, all statutory citations herein are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND On December 31, 2018, an information was filed charging defendant with one count of first degree burglary with a person present (§ 460, subd. (a)). It was further alleged that the charged offense was a violent felony within the meaning of section 667.5, subdivision (c) in that another person other than an accomplice was present in the residence during the burglary. A trial began on May 13, 2019, at which the following evidence was received. On March 19, 2017, around 7:00 a.m., Jacqueline W. left her home in an unincorporated area of San Mateo County. When she returned before 10:00 a.m. and drove into her garage, she noticed the side door of her garage was forced open and broken off its hinge. Jacqueline left her car and attempted to enter her house through the interior door connecting the garage to her kitchen, but she found the door was locked. Although Jacqueline knew she had not locked that door, she used her key to unlock it and entered the kitchen. At this point, Jacqueline heard “thudding and crashing” followed by the sound of someone running through the back of the house in the area of the master bedroom. Terrified, Jacqueline ran out the front door to the street and heard what sounded like someone climbing over the fence that separated her yard from her neighbor’s yard. As she tried to call the police, Jacqueline saw a white male climb over the fence to her neighbor’s yard before proceeding to a small, white car parked on the street. This male, later identified as defendant, was wearing a black ski hat and carrying a black backpack that appeared full. After defendant got into the car and left the area, Jacqueline returned to her house and found it ransacked, with $7,000 worth of property missing. In addition, the master bedroom’s screen door was smashed and off of its