P. v. Campbell CA5

California Court of Appeal Jul 1, 2013 No. F065150Unpublished

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Holding. The court held that the trial court's designation of the defendant's first degree burglary conviction as a 'violent felony' was erroneous because the record lacked evidence that another person was present during the commission of the crime.

Issues

Whether the evidence was sufficient to support the trial court's finding that the defendant's first degree burglary conviction constituted a 'violent felony' under Penal Code section 667.5, subdivision (c).

Disposition. Affirmed as modified

Quotations verified verbatim against the opinion

“First degree burglary qualifies as a “violent felony” under section 667.5, subdivision (c) if “it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.””

“Here, as the parties agree, there was no evidence supporting this factor.”

“We order the erroneous finding be stricken, direct the trial court to issue an amended minute order, and otherwise affirm.”

Filed 7/1/13 P. v. Campbell 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F065150 Plaintiff and Respondent, (Super. Ct. No. CRF37435) v.

ERIC SCOTT CAMPBELL, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge. Michael L. Pinkerton, 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, Louis M. Vasquez and Tiffany J. Gates, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Gomes, A.P.J., Detjen, J. and Peña, J.

A jury convicted appellant, Eric Scott Campbell, of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)); receiving stolen property (Pen. Code, § 496, subd. (a));1 possession of a firearm by a felon (§ 29800, subd. (a)(1)); possession of ammunition (§ 30305, subd. (a)(1)); and possession of marijuana for purposes of sale (Health & Saf. Code, § 11359). The court suspended imposition of sentence and placed appellant on five years‟ probation, with various terms and conditions, one of which was that he serve one year in county jail. The “MINUTE ORDER and ORDER GRANTING PROBATION” (minute order), signed by the court, states, in relevant part, that appellant was convicted of first degree burglary, “a violent felony within the meaning of [section 667.5, subdivision (c)] ....” Appellant‟s sole contention on appeal is that the evidence was insufficient to support the court‟s finding that the instant first degree burglary was a violent felony within the meaning of section 667.5, subdivision (c). The People concede the point, and we agree. We order the erroneous finding be stricken, direct the trial court to issue an amended minute order, and otherwise affirm. FACTS On December 3, 2011, Sarah Campbell (Sarah)2 was at the home of her father, Gary Hartman, when she noticed several of her father‟s firearms were missing. She informed the Tuolumne County Sheriff‟s Department (TCSD) of the missing weapons. Hartman had last noticed the firearms were in his house approximately one month prior. Sarah and Hartman suspected appellant, Sarah‟s estranged husband, had taken the guns. On a Tuesday or Wednesday in early December or late November of 2011, appellant and a friend took several firearms to a gun store in Jamestown for appraisal.

P. v. Campbell CA5

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