P. v. Diaz CA5

Filed 6/19/13 P. v. Diaz 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F064787 Plaintiff and Respondent, (Super. Ct. No. 11CM2175) v.

ANGEL AYALA DIAZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Kane, J. and Poochigian, J.

Defendant and appellant Angel Ayala Diaz contends the trial court abused its discretion in failing to strike, for sentencing purposes, one of his prior convictions for a serious or violent felony. He contends his two prior offenses arose from the same act. That fact is not demonstrated by the present record. Accordingly, in affirming the judgment against appellant, we are not required to, and do not, reach the legal theory defendant asserts. FACTS AND PROCEDURAL HISTORY Defendant testified he was in prison for other offenses and then was released on parole. Shortly after his release, parole officers searched defendant’s house and discovered a weapon (described in his brief as a short-barrel shotgun). Defendant was arrested and jailed. Defendant pled to two strike felonies on March 9, 2011: “I didn’t even know I was going to take two strikes until I found out my dad was dying. I threw two strikes at them to let me go home to see my dad,” defendant testified in the present case. He was released from custody and told to report for sentencing on April 8, 2011. On that day, he was sentenced to an operative term of three years, four months, on the two strikes, composed of the lower term (16 months) on count 1 (Pen. Code, § 12020, subd. (a)(1)) together with a two year gang enhancement under Penal Code section 186.22, subdivision (b)(1)(A), and a concurrent lower term of 16 months on count 3 (Pen. Code, § 186.22, subd. (a)). Defendant was remanded to custody, where it was determined that he had secreted three bindles in his rectum. Two of the bindles contained marijuana and methamphetamine. Defendant was charged by information with one count of bringing a controlled substance into a jail, a violation of Penal Code section 4573. The information alleged two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) based on 2005 and 2007 convictions, a gang enhancement pursuant to Penal Code section 186.22, subdivision (b)(1), and, most significantly for this appeal, two strikes pursuant to Penal Code sections 667, subdivisions (b) through (i), and 1170.12,