People v. Nunley

Citation154 Cal.App.3d 868,203 Cal.Rptr. 153
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Barry L. NUNLEY, Defendant and Appellant. A020511.
Decision Date23 April 1984
CourtCalifornia Court of Appeals

Cause Retransferred, see 214 Cal. Rptr. 652, 699 P.2d 1259 R. Charles Johnson, San Anselmo, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Ann K. Jensen and Stanley M. Helfman, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

BARRY-DEAL, Associate Justice.

In the published portion of this opinion we consider the effect of several provisions of Proposition 8 on the propriety of the verdicts of guilt and of the trial court's application of Penal Code section 667 1 in sentencing appellant for a series of residential burglaries, five of which occurred before June 9, 1982, the effective date of that initiative's changes in constitutional and statutory law, and six of which occurred after that date. We modify the judgment and affirm it as modified.

I. The Facts

Appellant was charged in information No. 108525 with one count of burglary. (§ 459.) He was alleged to have suffered four prior convictions for serious felonies within the meaning of section 667, namely, three burglaries of residences and one robbery. He was also charged with having suffered two prior prison terms within the meaning of section 667.5 for two of the burglaries.

Appellant was also charged in information No. 108697 (as amended) with one count of first degree burglary, one count of attempted burglary, and eight counts of second degree burglary. This information alleged the same priors as those specified in No. 108525.

A jury found appellant guilty of all counts as charged. The facts supporting the jury verdicts which are pertinent to our inquiry are summarized as follows:

Information No. 108525

Count I (second degree burglary): On July 16, 1982, between 2 and 3:45 p.m., while Dennison and Belton were away, appellant unlawfully entered their apartment on 22nd Avenue at Fulton Street through a kitchen window and took an Apple computer, a Sony Betamax video tape recorder, a Sony color television, a camera and lenses, a cassette recorder, a microcassette recorder, $12 in Canadian cash, some jewelry, and a pillowcase. Appellant was arrested shortly after commission of the crime, while in possession of much of the stolen property, and positive identification of his palm print at the point of entry was made.

Information No. 108697 (Amended)

Count I (second degree burglary): On April 28, 1982, between 2:30 and 6:30 p.m., while the Roschingers were away, appellant unlawfully entered their apartment at 741 Balboa Street by removal of a window in the front door and took a television set and approximately $30 in cash. Positive identification of appellant's thumb print on the glass removed by the burglar from the front door was made.

Count II (first degree burglary): On May 12, 1982, between 9 p.m. and 2:10 a.m., while Hughes and Walker were away, appellant unlawfully entered their apartment at 191 Frederick Street by removal of a glass window from the front door and took a tape recorder, a calculator, coins, and a pillowcase. Positive identification of appellant's fingerprint on the glass removed by the burglar from the front door was made.

Count III (second degree burglary): On May 18, 1982, between 8 a.m. and 4:30 p.m., while Ritter and Hernandez-Martin were away, appellant unlawfully entered their apartment at 275 Grattan Street via a bathroom window and took a camera and lenses, jewelry, and a large box. Positive identification of appellant's fingerprint at the point of entry was made.

Counts IV and V (second degree burglary and attempted burglary): On May 20, 1982, at approximately 4:45 p.m., while Bers, the occupant of apartment No. 5, was away, appellant unlawfully entered the apartment building at 351 Cornwall Street and then attempted to jimmy the front door to apartment No. 5. Eyewitness identification of appellant as the perpetrator was made, as well as identification of appellant's car and clothing as that used by the perpetrator. Positive identification of appellant's fingerprint at the attempted point of entry to apartment No. 5 was made.

Count VI (second degree burglary): On June 17, 1982, between 8:30 a.m. and 6:30 p.m., while the Thomases were away, appellant unlawfully entered their apartment at 131 Central Avenue via a bedroom window and took a television, cameras and lenses, a watch, and a calculator. Positive identification of appellant's fingerprint on the broken window glass at the burglar's point of entry was made.

Count VII (second degree burglary): On June 20, 1982, between 3 p.m. and 8:30 p.m., while Bullwinkel was away, appellant unlawfully entered Bullwinkel's apartment at 1634 Fell Street via a back door/window and took a television, $50 in currency, and coins. Positive identification of appellant's fingerprint on the glass jar from which some of the coins had been taken was made.

Count VIII (second degree burglary): On July 1, 1982, between 4:30 p.m. and 7:30 p.m. while Bex was away, appellant unlawfully entered Bex' apartment at 125 Lyon Street via a bedroom window and took a camera, a portable radio, and headphones. Positive identification of appellant's fingerprint on the window glass at the burglar's point of entry was made.

Count IX (second degree burglary): On July 8, 1982, between 12:30 and 6:15 p.m., while Stein was away, appellant unlawfully entered Stein's apartment on 2070 Fell Street by breaking a glass window in the back door and took a cassette stereo, jewelry, an antique statue, and coins. Positive identification of appellant's fingerprint on the broken glass from the door was made.

Count X (second degree burglary): On July 19, 1982, between 5:40 and 6:40 p.m., while Lau was away, appellant unlawfully entered Lau's apartment at 1880 Fulton Street via a kitchen window and took photography equipment worth $5,000, jewelry, personal checks, and a pillowcase. Positive identification of appellant's fingerprint on the metal drainpipe adjacent to the kitchen window was made.

After a separate trial on the alleged prior felony convictions, the jury found the following allegations true: (a) appellant was previously convicted of a serious felony (robbery), in violation of section 211, on March 27, 1974, within the meaning of section 667; (b) appellant was previously convicted of a serious felony (burglary of a residence), in violation of section 459, on May 25, 1976, within the meaning of section 667; (c) appellant was previously convicted of a serious felony (burglary of a residence), in violation of section 459, on January 27, 1977, within the meaning of section 667; (d) appellant was previously convicted of a serious felony (burglary of a residence), in violation of section 459, on November 24, 1978, within the meaning of section 667; (e) appellant was previously convicted of a felony (burglary, second degree), in violation of section 459, on January 27, 1977, within the meaning of section 667.5, subdivision (b); (f) appellant was previously convicted of a felony (burglary, second degree), in violation of section 459, on November 24, 1978, within the meaning of section 667.5, subdivision (b).

Appellant's sentence is discussed below.

II. Discussion **

III. Discussion

A. The Sentence

The trial court sentenced appellant to a total unstayed term of 21 years, as follows:

                 COUNT a             CRIME b        DATE (1982)        SENTENCE
                -------------  ------------------  -----------------  -------------------------
                                     (victim)       (Pre- or post-
                                                    Proposition 8)
                II             Hughes & Walker     5/12 (pre)          6 years principal term
                               (1st degree)                             (upper base)
                               ------------------
                I              Roschinger          4/28 (pre)          8 months consecutive c
                VI             Thomas              6/17 (post)         8 months consecutive
                VII            Bullwinkel          6/20 (post)         8 months consecutive
                VIII           Bex                 7/1 (post)          8 months consecutive
                IX             Stein               7/8 (post)          8 months consecutive
                X              Lau                 7/18 (post)         8 months consecutive
                I              Dennison & Belton   7/16 (post)         8 months consecutive
                               (Information No. 108525)
                V              Bers                5/20 (pre)         4 months consecutive
                                                                      -------------------------
                               (Attempt)
                               ------------------
                                                                      [5 years total
                                                                        consecutive]
                III            Ritter &            5/18 (pre)         (2 years concurrent
                                 Hernandez-                             stayed)
                                 Martin
                IV             351 Cornwall        5/20 (pre)         (2 years concurrent
                                                                        stayed)
                Priors d       11/24/78                                5 years consecutive
                (§ 667)        ------------------
                               1/27/77                                 5 years consecutive
                                                                      -------------------------
                                                   TOTAL              21 years unstayed term
                                                   -----------------
                -------------------------------------------------------------------------------
                

Note a. All counts are in action No. 108697 unless otherwise indicated.

Note b. All offenses are second degree burglary unless otherwise indicated.

Note c. All consecutive sentences are one-third of the middle term. (§ 1170.1,

subd. (a).)

Note d. Enhancement was imposed for the two...

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3 cases
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    • California Court of Appeals Court of Appeals
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