P. v. Succaw

Filed 8/14/06 P. v. Succaw 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Tulare County. Patrick O'Hara, Judge.

Susan D. Shors, 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, Julie a. Hokans and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Vincent Juarez owed appellant $25 for crack cocaine. When appellant attempted to collect and Juarez did not have the money, appellant shot Juarez seven times. Juarez survived. About a month later, appellant was arrested at his girlfriend's apartment, where he had 22 separately packaged bindles of crack cocaine and another firearm. A jury found appellant guilty of attempted murder (Pen. Code, § 664/187, subd. (a); count 1), assault with a firearm (Pen. Code, § 245, subd. (a)(2); count 2), possession of cocaine base for sale (Health & Saf. Code, § 11351.5; count 3), and possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1; count 4). On the attempted murder count, the jury also found true special allegations that appellant personally used a firearm (Pen. Code, § 12022.53, subd. (b)), personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subd. (c)), personally and intentionally discharged a firearm causing great bodily injury (Pen. Code, § 12022.53, subd. (d)), and personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). On the assault with a firearm count, the jury found true special allegations that appellant personally used a firearm (Pen. Code, § 12022.5, subd. (a)) and personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). Just prior to trial, appellant entered a plea of no contest to charges of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1); count 5) and possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1)). Allegations that appellant suffered a prior conviction (Pen. Code, § 1170.12, subd. (c)(1) and Pen. Code, § 667, subd. (a)) and served a prior prison term (Pen. Code, § 667.5, subd. (b)) were bifurcated from the charges tried to the jury. After the jury's verdict, appellant waived his right to trial on the prior conviction and prior prison term allegations, and admitted the truth of those allegations.

The court sentenced appellant to a determinate term of 12 years in state prison on the possession for sale (count 3), with this determinate term to run consecutively to an indeterminate term of 45 years to life on the attempted murder (count 1). The 45 years to life on count 1 consisted of 14 years to life for the attempted murder, plus 25 years to life for personally and intentionally discharging a firearm causing great bodily injury (Pen. Code, § 12022.53, subd. (d)), plus five years for the prior felony conviction (Pen. Code, § 667, subd. (a)(1)), plus one year for the prior prison term (Pen. Code, § 667.5, subd. (b)). Sentences on the other counts were ordered stayed pursuant to Penal Code section 654,^[1] except for a four-year term imposed for the possession of ammunition by a felon (count 6). This four-year term was ordered to be served concurrently with the sentence on count 1. The court also imposed various fines and fees.

APPELLANT'S CONTENTIONS

Appellant contends: (1) misconduct by the prosecutor deprived appellant of due process of law; (2) the court erred in imposing both a section 667.5, subdivision (b) prior prison term enhancement and a section 667, subdivision (a) prior conviction enhancement; and (3) some fines and fees imposed by the court are not authorized by statute. As we shall explain, we find appellant's contention of prosecutorial misconduct to be without merit. Respondent concedes that the section 667.5, subdivision (b) prior prison term enhancement was improper. Both appellant and respondent agree that it should be stricken. (See People v. Jones (1993) 5 Cal.4th 1142.) Appellant and respondent also agree that the record on appeal is unclear as to the amount of and authority for the fines and fees imposed, and that a remand to the superior court for the purpose of clarifying the fines and fees imposed would be appropriate.^[2] Accordingly, we will direct the trial court to strike the one-year section 667.5, subdivision (b) prior prison term enhancement and to clarify the amounts of and authority for each fine and fee it imposes. In all other respects, we will affirm the judgment.

FACTS

Vincent Juarez was at a barbecue in Tulare on September 29, 2004. A man named â€