P. v. Calhoun

Filed 6/9/06 P. v. Calhoun CA2/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles D. Sheldon, Judge. Affirmed in part, vacated in part, and remanded with directions.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Lisa J. Brault, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Donald Paul Calhoun appeals from the judgment entered following his convictions by jury on two counts of first degree residential robbery (Pen. Code, § 211; counts 2 and 4) armed with a firearm (Pen. Code, § 12022, subd. (a)(1)) and on count 5 - possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) with an admission that he served a prior prison term (Pen. Code, § 667.5, subd. (b)). The court resentenced him to prison for seven years.[1]

In this case, we hold the trial court properly resentenced appellant to consecutive sentences on counts 2 and 4. The fact that, during initial sentencing, the trial court, as an exercise of leniency, imposed concurrent sentences as to those counts because they occurred close in time did not preclude the trial court, following appellate remand for unrelated sentencing error, from reconsidering sentencing factors and imposing consecutive terms on those counts.

We hold the trial court failed to reach a disposition as to the armed enhancement pertaining to count 4; therefore, we will remand to permit the trial court to reach a disposition as to that enhancement.

We conclude there is no need for this court to correct the judgment to award custody credit; since we are remanding for other reasons, we are confident the trial court will correctly award credit. Finally, we conclude that respondent's claim that this case must be remanded to permit the trial court to impose or strike a Penal Code section 667.5, subdivision (b) enhancement is well-taken.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on November 12, 2003, Stanley Powell and David Menefield were in Powell's Long Beach apartment. Anthony Butler knocked at the door, and Butler and appellant later entered. Butler asked to buy marijuana.

Butler later produced a gun and ordered Powell and Menefield to the floor. Butler pointed a gun at Powell's head and asked for the location of drugs and money. Powell indicated there were none. Powell had a baggie of marijuana on the kitchen counter. Butler accused Powell of lying. Butler searched rooms while appellant stood over Menefield. Appellant indicated Powell should stay down or Butler would shoot Powell.

Butler returned and threatened to shoot Powell unless he answered Butler's question. Butler placed the gun behind a pillow and pushed it in front of Powell's face. Powell pushed the pillow away, Butler threatened to kill Powell, and the two eventually struggled. Appellant repeatedly indicated Powell was lying and encouraged Butler to shoot Powell. Butler shot Powell in the chest. Appellant took money and a driver's license from Menefield. Butler and appellant left, and the baggie of marijuana was missing.

CONTENTIONS

Appellant contends the trial court (1) erred during resentencing by imposing consecutive terms on counts 2 and 4, and relying on factors which the trial court, during initial sentencing, concluded supported concurrent sentences, (2) failed to impose an armed enhancement as to count 4; therefore, the amended abstract of judgment should be further amended to reflect that fact, and (3) erred during resentencing by failing to award actual custody credit. Respondent claims this case must be remanded to permit the trial court to impose or strike a Penal Code section 667.5, subdivision (b) enhancement.

DISCUSSION

1. The Trial Court Properly Imposed Consecutive Sentences on Counts 2 and 4.

a. Pertinent Facts.

1) Calhoun I.

In Calhoun I (see fn. 1), the jury convicted appellant as previously indicated. Powell and Menefield were the victims in counts 2 and 4, respectively. The trial court in Calhoun I sentenced appellant to prison for eight years eight months. This consisted of a six-year middle term on count 2 plus one year for its armed enhancement, with a concurrent six-year middle term on count 4, a consecutive subordinate term of eight months on count 5, and a consecutive one year term for the prison term enhancement. (Calhoun I, supra, B175354, at p. 4.)

As mentioned, at initial sentencing the court imposed concurrent sentences on counts 2 and 4. As appellant notes, the trial court indicated counts 2 and 4 â€