Espinoza

Introduction

Rudolfo Espinoza challenges his conviction of attempted second degree burglary. He raises evidentiary and instructional issues, and challenges his sentence under the “Three Strikes” law. In the published portion of this opinion we conclude that when a current felony is an attempt crime and sentencing is in the context of the Three Strikes law, that law supersedes the general statute for punishment of attempts and governs the sentence that must be imposed. We find no error and affirm.

Factual and Procedural Summary

The facts pertinent to this appeal are undisputed and may be briefly summarized. Frank Fullbright and his daughter, Franchessa Denison, watched a man try to pry open a parked car while a second man, appellant, stood about 10 feet away. The two men ducked twice when cars passed by. Ms. Denison called 911, and police responded. The men fled when the police arrived. There were pry marks and scratches on the car, and a screwdriver was inserted in the passenger doorjamb. Another screwdriver was found near the rear tire.

Appellant was charged with attempted second degree burglary of a vehicle in violation of Penal Code sections 664 and 459. The object…