P. v. Stokes

Filed 2/14/07  P. v. Stokes 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

          APPEAL from a judgment of the Superior Court of Los Angeles County, Michael A. Cowell, Judge.  Affirmed as modified. 

          Jeffrey Lewis, 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, Linda C. Johnson and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

          Lawrence Stokes appeals from judgment entered following a jury trial in which he was convicted of second degree commercial burglary, count  1 (Pen. Code, §  459), and uttering a forged prescription, count  2 (Health & Saf. Code, §  11368).  He admitted he suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, §§  667, subds. (b)-(i); 1170.12, subds. (a)-(d))[1] and served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).  He was sentenced to prison, in count  1, to the upper term of three years, doubled as a consequence of his admission of the strike prior, for a total of six years.  Imposition of sentence on count  2 and the prior prison term enhancement was stayed.  He contends the trial court's denial of his Romero[2] motion was an abuse of discretion, and the trial court's selection of an upper term sentence violated his Sixth Amendment right to a trial by jury and proof beyond a reasonable doubt.[3]  For reasons explained in the opinion, we strike the one-year enhancement and in all other respects affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

          On February 15, 2006, appellant and codefendant Yul Lubrien walked into a Target store in Pico Rivera, and each dropped off a prescription for Oxycontin to be filled.  The two prescriptions were consecutively numbered, from the same doctor's office, and signed by two different doctors.  The pharmacist became suspicious because although different doctors had signed each prescription, the handwriting on the two prescriptions appeared to be the same.  After learning the prescriptions were not valid, the pharmacist notified her asset protection team, and they called the police.  Appellant and his co-defendant were thereafter arrested.

DISCUSSION

I

          Appellant contends the trial court abused its discretion when it denied his Romero motion to strike his prior conviction for voluntary manslaughter.  At sentencing, appellant argued that the prior conviction was remote, occurring in 1980.  It had been a â€