People v. Nahman CA2/2 ( 2016 )

Filed 2/18/16 P. v. Nahman CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B259175
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA076612)
v.
DAVID NAHMAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Gregory A. Dohi, Judge. Reversed and remanded with directions.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
In an amended information filed by the Los Angeles County District Attorney,
defendant and appellant David Nahman was charged with attempted murder (Pen. Code,
§§ 664/187, subd. (a), count one),1 dissuading a witness by force or threat (§ 136.1,
subd. (c)(1), count two), grand theft (§ 487, subd. (a), count three), two counts of second
degree commercial burglary (§ 459, counts four & five), and grand theft from a
pawnbroker or secondhand dealer (§ 484.1, subd. (a), count six). As to counts one
through four, the information alleged that the charges involve a pattern of related felony
conduct involving the taking of more than $150,000. (§ 186.11, subd. (a).) As to counts
three through six, it was alleged that appellant took, damaged, and destroyed property of
a value exceeding $150,000 (§ 12022.6, subd. (a)(2)) and was on bail when he committed
the offenses (§ 12022.1). Appellant pleaded not guilty and denied the allegations.
Appellant’s motion to bifurcate the out-on-bail allegation was granted. Trial on
the remaining charges and allegations was by jury. At the close of the prosecution’s case,
appellant’s motion to dismiss count four pursuant to section 1118.1 was granted. Before
the matter was submitted to the jury, the trial court granted the People’s request that it
strike the aggravated white collar crime allegation. (§ 186.11, subd. (a).) The jury found
appellant guilty on counts three, five, and six, and found true the allegation that the
property taken exceeded the value of $200,000 (§ 12022.6, subd. (a)(2).) The jury was
unable to reach a verdict on counts one and two, and a mistrial was declared on those
counts. The bifurcated on-bail allegation was not submitted to the jury.
Appellant was sentenced to an aggregate term of five years in state prison,
consisting of the upper term of three years on count three, plus a two-year enhancement
for the monetary loss enhancement. He was also sentenced to a two-year concurrent term
on count five and a two-year term on count six, which was stayed pursuant to section
654.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
Appellant timely appealed from the sentence. He contends that his offense was
punishable in county jail; thus, the matter must be remanded for resentencing. The
People agree.
We agree with the parties and remand the matter for resentencing.2 (§ 1170,
subd. (h)(2).)
DISPOSITION
The matter is reversed and remanded to the trial court with directions to resentence
appellant to county jail instead of state prison.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________________, J.
ASHMANN-GERST
We concur:
______________________________, P. J.
BOREN
______________________________, J.
CHAVEZ
2 Appellant has filed a petition for writ of habeas corpus, case No. B263749, which
is being considered concurrently with this appeal. A separate order will be filed in that
matter.
3