People v. Austin

[549]Opinion

CARR, J. Defendant Gerald Ray Austin appeals from a judgment sentencing him to prison for a total term of thirteen years and four months after his plea of guilty to one count of burglary in the first degree (Pen. Code, §§ 459, 460),1 one count of robbery with the personal use of a firearm allegation (§§ 211, 12022.5), and a prior serious felony conviction for attempted exhibition of a firearm in the presence of a peace officer. (§§ 417, subd. (b); 664; 667.) Defendant contends (1) the offense of attempted exhibition of a firearm in the presence of a police officer is not a “serious felony” for enhancement purposes; (2) the prior conviction providing the basis for enhancement must have resulted from a “trial” rather than a plea; (3) enhancement under section 667 is not authorized by section 1170.1; (4) the court erred in imposing the upper term for the robbery conviction on the basis of multiple victims; and (5) the court erred in failing to give credit for presentence custody time. We find merit in the contention that attempted exhibition of a firearm is not a “serious felony” under section 667 and shall strike the five-year term imposed for this enhancement. In all other respects, we shall affirm.

Factual and Procedural Background

On February 17, 1984, a complaint was filed charging defendant with eight counts of burglary in the second degree, one count of burglary in the first degree, and three counts of robbery with the personal use of a firearm. An additional allegation charged defendant with a prior “serious felony” conviction for attempted exhibition of a firearm in the presence of a peace officer. (§§ 417, subd. (b); 667.)2 The robbery counts arose out of a single incident in which defendant and two companions robbed the employees of a restaurant in Chico. At the time of defendant’s arrest on the present charges, he was in custody in the Nevada County jail following a judgment sentencing him to six years imprisonment for an unrelated robbery.

Defendant pleaded guilty to the first degree burglary charge, to one count of robbery with the use of a firearm and admitted the prior conviction. The [550]court sentenced defendant to the upper term of five years for the robbery conviction, citing as aggravating circumstances that the crime involved multiple victims and extensive planning and defendant had previously been committed to the California Youth Authority without success. (Cal. Rules of Court, rule 421(a)(4), (a)(8), (b).) The court added a two-year consecutive enhancement for the firearm use (§ 12022.5) and a five-year consecutive enhancement for the prior serious felony conviction (§ 667). The court sentenced defendant to 16 months for the burglary conviction, ordering it to run consecutively for the reason that the crimes were committed at different times and places. (Cal. Rules of Court, rule 425(a)(3).) The total term imposed was 13 years 4 months, to run concurrently with the sentence in the Nevada County conviction.