People v. Smith

Introduction

A jury found the defendant guilty of robbery (Pen. Code, § 211) and burglary (§ 459); the jury also found true a special allegation that defendant was armed with a firearm (§ 12022, subd. (a)) during the commission of the burglary. The jury found that defendant did not use a firearm during the commission of robbery, as alleged. (§ 12022.5.) The court imposed the upper term of five years for robbery. The court also imposed the middle term of two years for burglary and one year for its enhancement, both to run concurrent to the robbery sentence. The aggregate term was five years. The defendant appeals contending: (1) the court erred in failing to grant his motion to suppress certain evidence (§ 1538.5); (2) the evidence is insufficient to support the verdicts; (3) the punishment for being armed with a firearm is barred by section 654; and (4) the court erred in imposing the upper term for robbery. We agree with (3) and shall direct the judgment be modified. As to the other contentions, we disagree and shall affirm.

Testimony at the Suppression Hearing

Evidence Presented at Trial

Jose Hernandez was working as a bartender in Ortega’s Bar in Sacramento during…