P. v. Debose

Filed 4/10/06 P. v. Debose CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Gloria White-Brown, Judge. Affirmed in part, vacated in part, and remanded with directions.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, and Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Louis Lovell Debose challenges his robbery and assault with a firearm convictions on the grounds that he could not properly be convicted of both second degree robbery with a personal firearm use enhancement and the lesser included offense of assault with a firearm with a personal firearm use enhancement. He also contends the trial court misunderstood its discretion to direct that his three third strike prison terms run concurrently. We agree that the trial court did not understand its sentencing discretion, but conclude appellant was properly convicted of both robbery and assault with a firearm, as enhancements are not considered when determining whether one offense is necessarily included in another.

BACKGROUND AND PROCEDURAL HISTORY

Appellant entered a Papa John's pizza establishment and pointed a gun at the manager and two employees. He demanded money, which the manager gave him. After appellant left, the manager followed him in a delivery vehicle. During the pursuit, the manager wrote down the license plate number of appellant's car. When the manager saw a parked police car, he stopped and told the officers about the incident at the pizza establishment. Police officers apprehended appellant nearby. When he was apprehended, appellant had a bag containing a gun, currency, and checks made out to Papa John's.

A jury convicted appellant of three counts of second degree robbery and three counts of assault with a firearm. The jury found appellant personally used a firearm in the commission of each offense. The court found appellant had suffered seven prior serious felony convictions within the scope of the Three Strikes Law and Penal Code section 667, subdivision (a)(1). The court also found prior prison term allegations (Pen. Code, § 667.5, subd. (b)) true. Appellant was sentenced to three consecutive prison terms of 25 years to life, plus 31 years 8 months.

DISCUSSION

1. Appellant was properly convicted of both robbery and assault

with a firearm.

Appellant contends he could not properly be convicted of both second degree robbery with a personal firearm use enhancement and assault with a firearm with a personal firearm use enhancement. He argues that, when the enhancements to each charge are considered, assault with a firearm is a lesser included offense of robbery.

A defendant may not be convicted of both a greater offense and a necessarily included offense based upon the same set of facts. (People v. Sanchez (2001) 24 Cal.4th 983, 987.) An offense is necessarily included in another if either the statutory elements of the greater offense or the facts alleged in the accusatory pleading include all of the elements of the lesser offense, so that the greater offense cannot be committed without also committing the lesser. (Id. at p. 988.)

It has long been the rule in California that enhancements and penalty provisions are not considered in determining whether one offense is necessarily included in another.^[1] (People v. Bright (1996) 12 Cal.4th 652, 661 overruled on another ground in People v. Seel (2004) 34 Cal.4th 535; People v. Wolcott (1983) 34 Cal.3d 92, 101; In re Jose H. (2000) 77 Cal.App.4th 1090, 1095.) We decline appellant's invitation to depart from this settled rule. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Because a robbery may be committed without the use of a firearm, but assault with a firearm necessarily requires the use of a firearm, the latter is not a lesser included offense of the former. Accordingly, appellant was properly convicted of both offenses.^[2]

2. The trial court misunderstood its sentencing discretion.

Appellant was charged with three counts of second degree robbery, one for each of the three employees present at the pizza establishment when he pointed a gun and took money from the cash registers and manager's office. The trial court imposed a 25-years-to-life sentence for each of the three robbery convictions. During sentencing, the court stated, without explanation or discussion, â€