P. v. Morales

Filed 8/31/06 P. v. Morales CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Theodore D. Piatt, Judge. Modified and affirmed with directions.

Allen G. Weinberg, 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, Margaret E. Maxwell and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.

________________

Danny Morales appeals from the judgment entered upon his conviction by jury of carjacking and two counts of second degree robbery (Pen. Code, §§ 215, subd. (a), 211), with findings that he personally used a handgun in the commission of one of the robberies and that a principal was armed with a firearm as to all three counts (Pen. Code, §§ 12022.53, subd. (b), 12022.5, subd. (a)(1), 12022, subd. (a)(1)).^[1] Appellant was sentenced to 17 years in prison.

Appellant contends (1) that the trial court erred in imposing a full one-year consecutive term, rather than one-third the midterm, for the principal armed enhancement in count 3, one of the robbery counts; (2) that the punishment for carjacking should have been stayed pursuant to section 654; (3) that the abstract of judgment should be corrected; (4) that the trial court erred in imposing the upper term and consecutive sentences in violation of his rights to a jury trial and due process; and (5) that the jury was improperly instructed with CALJIC No. 17.41.1.

We asked the parties to address the issue of whether a section 12022, subdivision (a)(1) enhancement was properly imposed on count 3 under sections 1170.1, subdivision (a), and 667.5, subdivision (c), as they read in 1998, the year of the offense.^[2]

FACTS

The evidence established that in the early morning hours of December 7, 1998, as Roderick Boone sat in a car outside a West Covina restaurant, appellant and a male companion got out of a white Buick, held handguns to Boone's head, and demanded his money. When Boone said he had none, one of the men punched him and took a video camera from the backseat of his car. The two men pulled ski masks or stocking caps over their faces and drove off. Boone called the police and provided the Buick's license plate number.

Shortly thereafter, as Jonathan Nahm walked up to the service window of a 24-hour West Covina auto parts store, appellant and a male companion, wearing masks or nylon stockings over their faces, got out of a white Buick and accosted him. Appellant's companion pointed a gun at Nahm. The men told him that this was a stickup, threatened to shoot him, demanded everything he had, and ordered him to turn around and put his hands over his head.

Appellant's companion went over to Nahm's car and opened the door, which Nahm had left unlocked. The companion then walked up to Nahm, placed a gun against his back, and went through each of Nahm's pockets until he found Nahm's car keys. He removed the keys and some cash and then took Nahm's fanny pack, which contained his wallet with two $100 bills folded in a particular manner, a $20 bill, and two or three Susan B. Anthony dollars. The companion drove off in Nahm's car.

Appellant then approached Nahm. He shoved and kicked him, threatened to shoot him, and told him that he would be back in five minutes to kill him. Despite appellant's threats, Nahm never saw appellant in possession of a gun. Appellant then drove off in the Buick. Nahm called the police and provided a license plate number and description of the Buick.

A police officer observed the Buick a few minutes later and appellant, the sole occupant, was arrested. A black knit cap or stocking mask with eyeholes cut out was found on the driver's seat, and appellant was found in possession of a $100 bill, folded as Nahm's had been folded, as well as two Susan B. Anthony dollars.

SENTENCING

At sentencing, the trial court imposed the upper term of five years and a 10-year section 12022.53, subdivision (b) firearm use enhancement for the robbery of Boone in count 1. It imposed a consecutive term of one year, or one-third the midterm, with a one-year section 12022, subdivision (a)(1) principal armed enhancement for the robbery of Nahm in count 3, and a concurrent sentence of five years for the carjacking of Nahm in count 2. The trial court stated that â€