P. v. Murria
Filed 10/16/06 P. v. Murria CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FOUR
| THE PEOPLE, Plaintiff and Respondent, v. STACY MURRIA, Defendant and Appellant. | B187185 (Los Angeles County Super. Ct. No. BA277932) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Carol H. Rehm, Jr., Judge. Modified and affirmed.
Murray A. Rosenberg, 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, Senior Assistant Attorney General, Ana R. Duarte, Lawrence M. Daniels, and Catherine Okawa Kohn, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Stacy Murria was convicted by a jury of two counts of robbery, one count of attempted robbery, and one count of residential burglary. He was found to have used a firearm during the commission of each of the crimes. (Pen. Code, §§ 211; 664; 459; 12022.53, subd. (b); 12022.5, subd. (a).)[1] Following a jury waiver, the trial court found defendant had suffered one prior serious felony conviction and two prior felony convictions for which he had served a separate prison term. (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i); 667, subd. (a); 667.5, subd. (b).) Defendant was sentenced to 25 years in prison. He appeals, alleging the trial court based its sentence on factual determinations not made by the jury and violated his right to a jury trial as established in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Both parties agree that the sentence must be modified with regard to some of the terms imposed for defendant’s prior convictions. We will modify the sentence and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
As defendant is appealing only his sentence, a statement of the facts underlying his convictions is unnecessary. At defendant’s sentencing hearing, the trial court selected the robbery conviction in count one as the principal term. The court, relying on a number of factors in aggravation, chose the high base term of five years. That term was doubled pursuant to sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). An additional 10-year term was imposed pursuant to section 12022.53, subdivision (b) and a five-year sentence was imposed pursuant to section 667, subdivision (a). Two 1-year terms were added for the prior convictions pursuant to section 667.5, subdivision (b); however the court stayed imposition of those sentences. As to the remaining three counts, which were either ordered to run concurrently with the sentence in count one or stayed pursuant to section 654, the court also enhanced the sentences with a five-year term under section 667, subdivision (a) and two stayed 1-year terms under section 667.5, subdivision (b).[2]
DISCUSSION
Defendant asserts the trial court violated the holding in Blakely when it relied on factors not found true by the jury to select the high base term for each count. Recognizing that our Supreme Court has held that the California sentencing scheme does not run afoul of the rule in Blakely (People v. Black (2005) 35 Cal.4th 1238 (Black)), defendant nonetheless urges that we refrain from issuing a decision in light of the United States Supreme Court’s pending review of our sentencing law. (Cunningham v. California, No. 05-6551, cert. granted Feb. 21, 2006, 126 S.Ct. 1329.) As an intermediate Court of Appeal, we are bound by the holding in Black (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and find the trial court committed no error in imposing the high base term for each count, as it appropriately determined the factors in aggravation outweighed those in mitigation.
Both parties agree the court did err in imposing sentence for certain enhancements. The court added a five-year sentence pursuant to section 667, subdivision (a) to each of the counts. This enhancement may be imposed only once in connection with one aggregate sentence. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1163-1164.) In addition, as to each count, the court imposed and stayed the enhancement pursuant to section 667.5, subdivision (b). The sentence must either be imposed or stricken. (People v. Haykel (2002) 96 Cal.App.4th 146, 151.) It is clear from reading the transcript of the sentencing proceedings that the trial court did not intend that defendant serve the additional sentence for each of the section 667.5, subdivision (b) priors. Accordingly, we shall order the section 667, subdivision (a) enhancements under counts two, three, and four and the section 667.5, subdivision (b) enhancements under all counts stricken.
DISPOSITION
The trial court is ordered to prepare a new abstract of judgment to reflect one enhancement pursuant to section 667, subdivision (a). The remaining sentences imposed pursuant to sections 667, subdivision (a) and 667.5, subdivision (b) are to be stricken. The trial court shall forward a copy of the amended abstract to the Department of Corrections. The judgment in all other respects is affirmed.
This ruling is without prejudice to a further application for relief should the United States Supreme Court’s decision in Cunningham v. California, supra, 126 S.Ct. 1329, favor defendant’s position.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
EPSTEIN, P.J.
WILLHITE, J.
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[1] All further statutory references are to the Penal Code.
[2] The court also selected the high base term for each count and doubled the sentence pursuant to the Three Strikes law.
