P. v. Simmons

Filed 4/18/06 P. v. Simmons CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Thomas L. Bender, Judge.

Carol A. Navone, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

On October 4, 2004, the prosecutor filed a First Amended Information charging appellant, Antonio Demetrius Simmons, with robbery (Pen. Code, § 211, count one), misdemeanor possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1), count two), and commercial burglary of a service station (Pen. Code, § 459, count three).^[1] Count one included gun use allegations pursuant to sections 12022.5, subdivision (a) and 12022.53, subdivision (b). Count three included allegations that Simmons personally used a firearm within the meaning of section 12022.5, subdivision (a). On October 13, 2004, a jury found Simmons guilty of each count and found true each special allegation.

The trial court sentenced Simmons to prison for 3 years on count one plus 10 years for the section 12022.53, subdivision (b) enhancement. On count one, the court imposed and stayed the section 12022.5, subdivision (a) gun enhancement. The court sentenced Simmons to a concurrent two-year term on count two. The court sentenced Simmons to 2 years on count three plus 10 years for the section 12022.5, subdivision (a) gun enhancement. The court, however, stayed all sentences on count three pursuant to section 654. The court imposed a restitution fine and granted applicable custody credits.

On appeal, Simmons raises three issues which are each conceded by respondent. Appellant contends the trial court erred in sentencing count two as a felony because it was charged as a misdemeanor and the jury found him guilty of a misdemeanor, not a felony. Appellant contends the section 12022.5, subdivision (a) gun enhancement was improperly imposed by the trial court on count one because the court had already sentenced him using section 12022.53, subdivision (b). Appellant further argues the abstract of judgment should be amended to reflect that the jury found true an allegation in count three that he used a gun pursuant to section 12022.5, subdivision (a), not pursuant to subdivision (b) as set forth in the abstract of judgment.^[2]

MISDEMEANOR ALLEGATION

The First Amended Information alleged in count two that appellant violated section 12316, a misdemeanor, by possessing ammunition. The jury found appellant guilty of this offense as alleged in the First Amended Information, which stated the offense was a misdemeanor, not a felony. The trial court sentenced appellant to a felony violation of this statute in error.

A wobbler offense is one that can be punishable as either a felony or a misdemeanor. (People v. Briceno (2004) 34 Cal.4th 451, 459.) A wobbler is deemed a felony unless it is charged as a misdemeanor. (People v. Statum (2002) 28 Cal.4th 682, 685.) The prosecutor's decision to charge a wobbler as a felony or a misdemeanor is not reviewable by an appellate court. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976-977.)

The trial court, therefore, did not have the authority to impose a felony sentence on appellant. The trial court's error occurred because the original information alleged count two as a felony. The jury found appellant guilty of count two as alleged in the First Amended Complaint, which charged section 12316 as a misdemeanor. We will vacate the trial court's sentence on count two.

TWO FIREARM ENHANCEMENTS

Count one alleged two firearm enhancements pursuant to sections 12022.5, subdivision (a) and 12022.53, subdivision (b). The court imposed the 10-year enhancement pursuant to section 12022.53, subdivision (b). The court then imposed and stayed a 10-year enhancement pursuant to section 12022.5, subdivision (a). The court imposed the second enhancement in error.

Section 12022.53, subdivision (f) provides that only one additional term of imprisonment under that section shall be imposed for each crime. This statute expressly provides that an enhancement imposed pursuant to several provisions, including section 12022.5, â€