California Court of Appeals, First District, Fifth Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
Superior Court of Contra Costa County, No. 05-110750-7, Mary Ann O’Malley, Judge.
[Copyrighted Material Omitted]
Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Catherine A. Rivlin, Deputy Attorneys General, for Plaintiff and Respondent.
SIMONS, Acting P.J.
Appellant Anthony Brewer was convicted, after a jury trial, of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a); count one); assault with intent to commit forcible sodomy, sexual penetration, and/or oral copulation during the course of a burglary (id., § 220, subd. (b); count two); and false imprisonment by means of violence, menace, fraud, or deceit (id., §§ 236, 237, subd. (a); count three). He argues on appeal his conviction on count two lacks substantial evidence; he also asserts certain errors in his sentence.
In the published portion of this opinion, we address the following issue: Where a defendant has served a prison term for a felony conviction and
that term is alleged and proved as an enhancement under section 667.5, subdivisions (a) and (b) (hereafter sections 667.5(a) and 667.5(b)), after imposing the former, should the trial court stay the latter or strike it? We conclude the court must stay the section 667.5(b) enhancement and affirm the decision to do so by the trial court, though we rely on different reasoning. In the unpublished portion of the opinion, we reject ...