People v. Emory CA2/4

INTRODUCTION

A jury convicted defendant Saune Emory of first degree residential burglary. (Pen. Code, § 459.)1 In a bifurcated proceeding, defendant admitted that he had suffered a prior conviction of a serious felony. (§ 667, subd. (a)(1).) The trial court sentenced defendant to a total of 17 years in state prison, consisting of the high term of six years, doubled pursuant to the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), plus five years pursuant to section 667, subdivision (a)(1). Before trial, the court dismissed (pursuant to § 1385) a second count alleged against defendant of receiving stolen property (§ 496, subd. (a)). In addition, prior to resting its case, the prosecution moved to dismiss a special allegation that defendant committed the burglary for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(B).)2 On appeal, defendant contends that his conviction should be reversed because the prosecutor told the jury during her opening statement that it would hear evidence regarding defendant’s gang affiliation, but she offered no such evidence during trial. He argues this prejudicially tainted the jury so that he did not receive a fair…