(Super. Ct. No. SF111216A)
The opinion of the court was delivered by: Duarte , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
At issue in this case is whether defendant's conviction for first degree robbery can stand where the final accusatory pleading charged only second degree robbery. Under the unique circumstances of this case, which we hope will never recur, we conclude the answer is "yes."
Defendant also contends the trial court erred in using the same 2002 burglary conviction for both a five-year prior serious felony enhancement (Pen. Code, § 667, subd. (a)) and one-year prior state prison term enhancement (Pen. Code, § 667.5, subd. (b)). The People concede the error. We agree with the parties and shall stay one of the one-year enhancements and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Given the limited contentions on appeal, we recount only facts relating to the robbery. When Shari G. returned home with her children, defendant was waiting in her attached garage with a gun.*fn1 He told her to go into the house where he had her put various items such as jewelry, a camera, a laptop computer and video games in bags. Later, defendant returned most of the property, except the jewelry, and took a generator from the garage.
Defendant admitted he took property from Shari G.'s house, but claimed she gave it to him so he could buy more drugs.
The complaint charged defendant with first degree robbery*fn2 and other crimes. At the preliminary hearing, Shari G. testified defendant took items at gunpoint while inside her house. Based on this testimony, the court found probable cause to hold defendant to answer on first degree robbery.
The information charged defendant with multiple crimes, including first degree robbery. It alleged defendant "did willfully, unlawfully and by means of force and fear take personal property from the person, possession, and immediate presence of SHARI G., and said offense was perpetrated in an inhabited dwelling house . . . ." An amended information included the same charge.*fn3
The day before the trial commenced, the prosecutor indicated he was going to dismiss certain charges, such as carjacking and assault. He told the court he would file a new amended information "just for clarity;" "I'll clean it up." He did not mention any change to the robbery charge.
At the same hearing, the parties discussed a summary of the case for the jurors. The trial court suggested, "You can do something like Mr. Thomas is accused on February 5th, 2009, of entering a house with the intent ...