(Super. Ct. No. 08F06142)
The opinion of the court was delivered by: Hull , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Gary Lamont Bunn was convicted of five counts of robbery (Pen. Code, § 211 (counts one through four and seven); undesignated statutory references are to the Penal Code) and two counts of attempted robbery (§§ 664/211 (counts five and six)) with enhancements for personal use of a firearm, elder victimization, and in-concert. (§§ 12022.53, subd. (b) (counts one through seven), 667.9, subd. (a) (count three), 213 (counts one through four and seven).) The trial court sentenced defendant to 37 years in state prison.
On appeal, defendant contends there is insufficient evidence to support the sentence enhancements for personal use of a firearm alleged in counts two and three. We reverse the enhancements in those counts and remand for resentencing.
At around midnight on July 7, 2008, defendant, Reginald Williams, and Jamal Lewis went to the South Sacramento residence of Barbara C. to commit a robbery. Defendant and Williams entered the house through the unlocked garage door while Lewis remained in the car.
The 65-year-old Barbara C. awoke to find defendant and Williams entering her bedroom. Williams held a gun to her head while defendant, who was also armed, ransacked her house. They took her credit and ATM cards, jewelry, other items, and obtained her personal identification number for her ATM card.
Lewis then drove off with defendant and Williams. Defendant unsuccessfully tried to use the ATM card to withdraw money at a nearby ATM. He next used Barbara C.'s card to pay for gas at a nearby gas station and for food at a local fast food restaurant. Defendant then went to an Elk Grove Wal-Mart, where he unsuccessfully tried to withdraw cash with the ATM card.
Defendant, Williams, and Lewis ended up at the apartment of Stephen Crisler, who agreed to join the three in another robbery. They waited about four hours and went to a senior citizens' apartment complex near Barbara C.'s home. Lewis again remained in the car, while defendant, Williams, and ...