People v. Luque CA5

Filed 10/25/22 P. v. Luque 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F083762 Plaintiff and Respondent, (Super. Ct. Nos. CRF67253, v. CRF67307)

DAVID ROBERT LUQUE, OPINION Defendant and Appellant.

THE COURT * APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M. Seibert, Judge. Michele A. Douglass, under appointment by the Court of Appeal, for Defendant Appellant. Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Smith, J. and Snauffer, J.

Defendant David Robert Luque pled guilty to burglary and receiving stolen property as part of a plea deal. The trial court imposed concurrent sentences. On appeal, defendant argues his sentence for receiving stolen property should have been stayed pursuant to Penal Code section 654. 1 We agree and affirm in all other respects. PROCEDURAL BACKGROUND The Tuolumne County District Attorney (district attorney) charged defendant with multiple crimes in two separate matters. This appeal involves sentencing in the second case (No. CRF67307). On July 30, 2021, the district attorney filed a complaint (case No. CRF67253) charging defendant with bringing heroin into a jail (§ 4573). It was further alleged defendant had suffered one prior strike conviction within the meaning of the “Three Strikes” law (§§ 667, subd. (b)–(i), 1170.12, subd. (a)–(d)) and six felony convictions within the meaning of section 1203, subdivision (e)(4). On August 6, 2021, the district attorney filed a separate complaint (case No. CRF67307) charging defendant with second degree burglary (§ 459; count 1) occurring on or about July 27, 2021, and receiving stolen property exceeding $950 in value (§ 496, subd. (a); count 2) occurring on or about July 29, 2021. Consistent with the first case, the complaint further alleged that defendant had suffered one prior strike conviction (§§ 667, subd. (b)–(i), 1170.12, subd. (a)–(d)) and six felony convictions (§ 1203, subd. (e)(4)). On August 13, 2021, defendant pled guilty as charged in both cases and admitted the prior strike in exchange for a referral to drug court. Defendant entered the plea in hopes he would be accepted into the drug court program, but no promises were made regarding sentencing or acceptance into the program. Defendant’s acceptance into the program hinged on the court’s willingness to dismiss the prior strike pursuant to People