Fear Not Law Articles: P. v. Robinson

P. v. Robinson

Filed 6/25/07 P. v. Robinson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

JOHNNY RAY ROBINSON,

Defendant and Appellant.

F051214

(Super. Ct. No. BF111962A)

OPINION

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Jr., Judge.

William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Wanda Hill Rouzan, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

On April 13, 2006, appellant Johnny Ray Robinson pled no contest to possession of methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code, 11370.1, subd. (a), count 1), possession of methamphetamine for sale (Health & Saf. Code, 11378, count 2), being an ex-felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1), count 3), and unlawfully possessing ammunition (Pen. Code, 12316, subd. (b)(1), count 4).^{^[1]} Appellant admitted an allegation in count 2 that he was armed with a firearm within the meaning of section 12022, subdivision (c). Appellant also admitted allegations that he was previously convicted of a serious felony within the meaning of the Three Strikes law ( 667, subds. (c) through (j)) and had served two prior prison terms ( 667.5, subd. (b)).

In taking appellants plea, the trial court informed him the maximum prison term he could receive would be 13 years and he would serve a minimum term of 32 months. On August 8, 2006, the court sentenced appellant to prison for the midterm of two years on count 2. The court imposed the midterm sentence on counts 3 and 4, but stayed execution of sentence pursuant to section 654. On count 1, the court stated it was imposing the midterm sentence of two years.^{^[2]} The court exercised its discretion to strike the prior serious felony allegation. The court imposed a term of four years for the section 12022, subdivision (c) allegation, plus two years for the two prior prison term enhancements.^{^[3]} Appellants total prison term is eight years. The court granted applicable custody credits and imposed a restitution fine.

On appeal, appellant contends and respondent concedes that the trial court erred in applying and then staying sentence on the two prior prison term enhancements to each count. Appellant also contends the court announced a sentence of two years on count 1 and that the abstract of judgment should be corrected to reflect that appellant received the lower prison term. Respondent asserts there is an ambiguity in the courts sentence and the case should be remanded for clarification.

IMPOSITION OF PRIOR PRISON TERM ENHANCEMENTS

Respondent accurately points out that prior prison term enhancements under section 667.5, subdivision (b) are applied to the offender as a recidivist and are not applied to specific counts of alleged criminal conduct. (People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on another ground in People v. Ewoldt (1994) 7 Cal.4th 380, 401; see also People v. McClanahan (1992) 3 Cal.4th 860, 870-871.) We will order the trial court to strike the section 667.5, subdivision (b) prior prison term enhancements imposed and stayed on counts 1, 3, and 4.

SENTENCE ON COUNT 1

Appellant contends that because the trial court stated it was imposing a sentence of two years on count 1, he is entitled to the two-year mitigated term for his Health and Safety Code section 11370.1, subdivision (a) conviction. Respondent observes that the court not only stated it was imposing a term of two years on count 1, the court further stated it was imposing the midterm on count 1. The midterm for this offense is three years, not two years. Respondent argues, and we agree, that the court created an ambiguity in its pronouncement of judgment that cannot be resolved from the record. Accordingly, we will remand for the trial court to clarify its sentence on count 1.

DISPOSITION

The case is remanded for the trial court to clarify its sentence on count 1. The court shall prepare an amended abstract of judgment setting forth its sentence on count 1 and striking the section 667.5, subdivision (b) enhancements from counts 1, 3, and 4. The court shall forward the amended abstract of judgment to the proper authorities. The judgment is otherwise affirmed.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^* Before Harris, Acting P.J., Dawson, J. and Kane, J.

^{^[1]} Unless otherwise noted, all statutory references are to the Penal Code.

^{^[2]} The sentencing triad for a violation of Health and Safety Code section 11370.1, subdivision (a) is two, three, or four years.

^{^[3]} The court added the sentences to two prior prison term enhancements to each count, staying sentence on counts 1, 3, and 4.

Description	On April 13, 2006, appellant pled no contest to possession of methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code, 11370.1, subd. (a), count 1), possession of methamphetamine for sale (Health & Saf. Code, 11378, count 2), being an ex-felon in possession of a firearm (Pen. Code, 12021, subd. (a)(1), count 3), and unlawfully possessing ammunition (Pen. Code, 12316, subd. (b)(1), count 4). Appellant admitted an allegation in count 2 that he was armed with a firearm within the meaning of section 12022, subdivision (c). Appellant also admitted allegations that he was previously convicted of a serious felony within the meaning of the Three Strikes law ( 667, subds. (c) through (j)) and had served two prior prison terms ( 667.5, subd. (b)). In taking appellants plea, the trial court informed him the maximum prison term he could receive would be 13 years and he would serve a minimum term of 32 months. On August 8, 2006, the court sentenced appellant to prison for the midterm of two years on count 2. The court imposed the midterm sentence on counts 3 and 4, but stayed execution of sentence pursuant to section 654. On count 1, the court stated it was imposing the midterm sentence of two years.[2] The court exercised its discretion to strike the prior serious felony allegation. The court imposed a term of four years for the section 12022, subdivision (c) allegation, plus two years for the two prior prison term enhancements. Appellants total prison term is eight years. The court granted applicable custody credits and imposed a restitution fine. On appeal, appellant contends and respondent concedes that the trial court erred in applying and then staying sentence on the two prior prison term enhancements to each count. Appellant also contends the court announced a sentence of two years on count 1 and that the abstract of judgment should be corrected to reflect that appellant received the lower prison term. Respondent asserts there is an ambiguity in the courts sentence and the case should be remanded for clarification.
Rating	0/5 1 2 3 4 5 0/5 based on 0 votes.