P. v. Cardenas

Filed 2/14/07  P. v. Cardenas CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FIVE

            APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Schuit, Judge.  Affirmed and remanded for resentencing.

            California Appellate Project, Jonathan B. Steiner, Executive Director, Suzan E. Hier, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Susan S. Kim, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

            In this appeal, defendant and appellant Francisco Javier Cardenas (defendant) contends that two one-year sentence enhancements that the trial court imposed pursuant to Penal Code section 667.5, subdivision (b)[1] in effectuating a plea agreement must be stricken because the complaint did not allege, the prosecution did not prove, and he did not admit any enhancement under that section.  Respondent concedes that the trial court erred in imposing two one-year sentence enhancements under section 667.5, subdivision (b), but requests that we affirm the judgment and remand the case for resentencing rather than strike two years from defendant's sentence for those enhancements.  We affirm the judgment and remand the case for resentencing.

BACKGROUND

            Because resolution of the issue defendant raises on appeal does not involve the facts of his offenses, we dispense with a recitation of those facts.  Instead, we set forth that part of the procedural history of the case relevant to the issue on appeal.

            The District Attorney of Los Angeles County filed a complaint charging defendant with one count of first degree residential robbery (§ 211), one count of first degree burglary (§ 459), three counts of assault with a deadly weapon by means likely to produce great bodily injury (§ 245, subd. (a)(1)), and two counts of making a criminal threat (§ 422).  The complaint alleges that a principal was armed with a firearm (§ 12022, subd. (a)(1))[2] in the commission and attempted commission of the robbery, burglary, and criminal threats offenses (a summary of the charges and allegations at the end of the complaint, however, indicates that the section 12022, subdivision (a)(1) allegation applies to all counts[3]).  As to all charged offenses, the complaint alleges that defendant suffered a prior felony conviction within the meaning of section 667, subdivision (a)(1) and sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) (Three Strikes law).  The complaint does not allege that defendant suffered a prior felony conviction for which he served a prison term as set forth in section 667.5, subdivision (b).

            The prosecution and defendant, proceeding in pro per, entered into a plea agreement pursuant to which defendant was to â€