People v. Austin

*549 Opinion

Defendant Gerald Ray Austin appeals from a judgment sentencing him to prison for a total term of thirteen years and four months after his plea of guilty to one count of burglary in the first degree (Pen. Code, §§ 459, 460), 1 one count of robbery with the personal use of a firearm allegation (§§ 211, 12022.5), and a prior serious felony conviction for attempted exhibition of a firearm in the presence of a peace officer. (§§ 417, subd. (b); 664; 667.) Defendant contends (1) the offense of attempted exhibition of a firearm in the presence of a police officer is not a “serious felony” for enhancement purposes; (2) the prior conviction providing the basis for enhancement must have resulted from a “trial” rather than a plea; (3) enhancement under section 667 is not authorized by section 1170.1; (4) the court erred in imposing the upper term for the robbery conviction on the basis of multiple victims; and (5) the court erred in failing to give credit for presentence custody time. We find merit in the contention that attempted exhibition of a firearm is not a “serious felony” under section 667 and shall strike the five-year term imposed for this enhancement. In all other…