People v. Scott CA5

Filed 12/14/21 P. v. Scott CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F082188 Plaintiff and Respondent, (Super. Ct. No. BF180435A) v.

GARY SCOTT, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. David R. Zulfa, Judge. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Peña, Acting P. J., Snauffer, J., and De Santos, J.

STATEMENT OF APPEALABILITY This appeal is from a final judgment which disposes of all issues between the parties. (Pen. Code, § 1237, 1 Cal. Rules of Court, rule 8.304(a).) STATEMENT OF THE CASE On July 29, 2020, 2 after a preliminary examination, an information was filed charging Scott with first degree burglary (§ 460, subd. (a); count 1); assault with a deadly weapon, a pickaxe (§ 245, subd. (a)(1); count 2); and misdemeanor resisting arrest (§ 148, subd. (a)(1), count 3). As to count 1, it was further alleged that a person other than an accomplice was present in the residence and that Scott personally used a deadly weapon, a pickaxe. (§§ 667.5, subd. (c)(21), 12022, subd. (b)(2).) On October 26, trial commenced. Count 3 was dismissed. On November 4, the jury found Scott guilty on counts 1 and 2. The person present and use allegations were found true. On December 2, Scott was sentenced to the upper term of 6 years in prison on count 1. The use allegation was stricken by the court. The sentence of 4 years on count 2 was stayed pursuant to section 654. Various fines and fees were imposed. Scott received 69 days presentence custody credit. On December 23, Scott filed a timely notice of appeal. STATEMENT OF FACTS A. The Prosecution’s Case On March 16, between 11:00 and 11:30 p.m., five members of the M. family were at their Bakersfield residence. E., his wife M., and his mother B. were in the kitchen; R. and G. were in their respective bedrooms. E. and M. live in a motor home/trailer on the back patio.

1 Subsequent statutory references are to the Penal Code. 2 Subsequent references to dates are to dates in 2020 unless otherwise stated.