 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Moustirats1/12/2005
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
A jury found Oscar Moustirats guilty of residential burglary, and the trial court found true allegations that Moustirats suffered two prison prior convictions (Pen. Code, § 667.5, subd. (b)), two prior strikes under the three strikes law (§ 667, subds. (b)-(i)), and two prior serious felony convictions (§ 667, subd. (a)(1)). At the sentencing hearing, the court granted Moustirats's motion to strike one of the prior strikes.
The court imposed a 20-year sentence, consisting of: (1) the four-year middle term for the current burglary count, doubled under the three strikes law; (2) two consecutive five-year sentence enhancements for the two prior serious felony convictions; and (3) two one-year sentence enhancements for the two prison priors. Additionally, a four-year consecutive sentence was imposed for an unrelated case, resulting in a total sentence of 24 years for both cases.
On appeal, Moustirats challenges only the court's sentencing order. He contends the trial court abused its discretion in refusing to strike both of his prior strike convictions and the sentence constitutes cruel and unusual punishment. These contentions are without merit. Moustirats further contends the trial court erred in imposing separate enhancements for the prior prison terms and prior serious felonies based on the same convictions. The Attorney General concedes this was error. We agree, and strike the two prior prison term enhancements. We affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2003, Moustirats burglarized a family home. Moustirats gained entry by forcing open the back door of the home, breaking the door frame in the process. He took approximately $1,500 worth of jewelry out of a glass bowl but left his fingerprints.
After the jury found him guilty of first degree residential burglary (§§ 459, 460, subd. (a)), Moustirats waived his right to a jury trial on the prior conviction allegations. The prosecution then presented evidence showing that Moustirats was convicted of residential burglary in 1986 and served a prison sentence. Shortly after he was released from prison in 1989, he committed another residential burglary in 1990 and served a two-year prison term. Based on this evidence, the court found true allegations that Moustirats suffered two prison prior convictions (§ 667.5, subd. (b)), two prior strikes (§ 667, subds. (b)-(i)), and two prior serious felony convictions (§ 667, subd. (a)(1)).
At sentencing, the court considered the current probation report detailing Moustirats's criminal history and serious drug abuse problems. The trial court also considered prior probation reports, Moustirats's statement of mitigation, a psychological evaluation of Moustirats, testimony from a member of Moustirats's family, and counsels' arguments. This information revealed that Moustirats was 35 years old at the time of the current offense, and had used marijuana and methamphetamine daily since he was a young teenager. Moustirats's criminal record began in 1982 when 15-year-old Moustirats committed a residential burglary. One year later, Moustirats committed a receiving stolen property offense. In addition to these juvenile offenses and the two prior residential burglary offenses in 1986 and 1990, Moustirats pled guilty in March 2003 to driving under the influence and
Page 1 2 3 4 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|