P. v. Smith

Filed 11/16/06 P. v. Smith CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Larry W. Allen, Judge. Affirmed with directions.

Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney

General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Kathryn Gayle, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Dwayne Smith appeals from judgment entered following jury convictions for second degree robbery (Pen. Code, § 211)^[1] and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)). The trial court dismissed the great bodily injury allegations due to insufficient evidence. In a bifurcated trial, the trial court found true allegations that defendant had one prior strike conviction (§§ 667, subds. (b)-(i) and 1170.12, subds. (a)-(d)), one prior serious felony conviction (§ 667, subd. (a)), and seven prison priors (§ 667.5, subd. (b)). The court sentenced defendant to an aggregate prison term of 17 years.

Defendant contends the trial court committed reversible error when the judge and prosecutor told the jury the codefendants pleaded guilty to robbery in this case. Defendant also complains there was insufficient evidence identifying defendant as one of the perpetrators of the robbery, and the trial court erred in excluding evidence of the victim's prior misdemeanor conduct. Defendant further asserts that his sentence for assault (count 2) must be stayed under section 654; one prior prison term enhancement must be stricken because it is based on concurrent prison terms; the prior prison term enhancement that was stayed must be dismissed; and the upper term sentence on count 1 violates Blakely v. Washington (2004) 542 U.S. 296 and Apprendi v. New Jersey (2000) 530 U.S. 466, and therefore must be reduced to the middle term.

We conclude there is no reversible error other than the following sentencing errors: (1) under section 654, the court erred in imposing concurrent sentences for robbery and assault because the two offenses were part of a continuing course of conduct; (2) one of defendant's prior prison term enhancements must be stricken because defendant was sentenced concurrently to two of the underlying prior prison offenses; and (3) the prior prison term which the trial court stayed must be dismissed because it is based on the same conviction used to impose a five-year term for a serious felony prior.

1. Factual Background

During the evening of September 9, 2004, truck driver James Drucker parked his big rig truck at Truck Stops of America in Ontario. He intended to spend the night there in his cab, which contained sleeping quarters resembling a small apartment. While monitoring his CB radio, he heard a woman named Brown Sugar soliciting sex. Later, Drucker encountered Brown Sugar, also known as Tiffany Jackson, at the truck stop picnic area. She introduced herself to Drucker as Brown Sugar and asked him if he would like to engage in â€