(Super. Ct. No. 09F00694)
The opinion of the court was delivered by: Mauro ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Maurice Daniels of burglary, battery resulting in serious bodily injury, unlawful possession of a firearm and ammunition, and resisting arrest. The trial court found defendant had a prior juvenile adjudication for robbery and sentenced him to an aggregate term of 21 years 8 months in state prison.
On appeal, defendant first contends that the trial court should not have used his juvenile adjudication for robbery as a basis to impose a five-year sentence enhancement. The People concede the error. We agree that juvenile adjudications do not qualify as criminal convictions for purposes of the five-year sentence enhancement under Penal Code section 667, subdivision (a)(1).*fn1
Defendant also asserts that, pursuant to Penal Code section 654, the trial court erred in failing to stay the sentences for aggravated battery and possession of ammunition. We conclude that the sentence for battery should have been stayed because it was part of the same objective and course of conduct as the burglary. But the trial court did not abuse its discretion regarding the sentence for possession of ammunition, because there is no evidence defendant was in possession of a loaded firearm during the incident, the jury found defendant did not personally use the firearm during the attack, the evidence did not establish that the ammunition defendant possessed was of the type useable in that firearm, and the trial court implicitly found that possession of the firearm and possession of the ammunition had separate and divisible objectives.
We will modify defendant's sentence to reduce it to 14 years 8 months and otherwise affirm.
The victim, John Pratt, lived with his girlfriend, Naisi Saeteurn, in a small apartment in Sacramento. Pratt supplemented his social security income by repairing various items, including automobiles. In late 2008, defendant's half-brother, Timothy Granderson, Jr., asked Pratt to make certain repairs on Granderson's Chevy Blazer. Pratt made the requested repairs but the Blazer still would not start. Granderson did not pay Pratt for the repairs, did not provide money for further repairs, and did not retrieve his Blazer, despite multiple calls from Pratt. After several months, the apartment manager arranged to tow the Blazer.
Just before the Blazer was towed, Granderson came to Pratt's apartment with his father and defendant. As Pratt attempted to explain the situation to Granderson's father, Granderson punched Pratt in the nose and the three men left.
Around 5:00 p.m. on January 26, 2009, Pratt and Saeteurn were accosted by Granderson and defendant. Saeteurn testified the men came to the apartment twice. The first time, they tried to force their way into the apartment, asked about the car, began swinging at Pratt and struck him in the head. One of the men grabbed a shovel and tried to enter the apartment again. When Pratt grabbed a steak knife to defend himself, the men said they were coming back with a gun and left.
Saeteurn obtained a telephone from her sister's apartment. Pratt called 911 and reported the incident. But within minutes, before the police arrived, defendant and Granderson returned with a gun. Saeteurn initially told police that defendant carried the gun, but she testified at trial that Granderson carried it. Based on Saeteurn's description of the gun, it may have been a sawed-off shotgun.
Defendant and Granderson told Saeteurn to leave the apartment and then they attacked Pratt. Saeteurn witnessed some of the attack through the window. Saeteurn saw them move Pratt to the bedroom, continue hitting him, and then move him to the computer table. She heard sizzling as ...