P. v. Norman

Filed 4/20/06 P. v. Norman CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

Pursuant to a negotiated plea for a stipulated sentence of 18 years, defendant Brian Lamont Norman pleaded guilty to assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b))^[1] and assault with a firearm (§ 245, subd. (a)(2)). He also admitted allegations of firearm use (§ 12022.5, subd. (a)) and street gang activity (§ 186.22, subd. (b)(1)).

On appeal, defendant contends (1) that his plea to the 18-year stipulated term resulted in an unauthorized sentence requiring that the matter be remanded to permit him to either withdraw his plea or agree to the unauthorized sentence; (2) the trial court prejudicially erred when, after relieving first appointed counsel and appointing second counsel to represent defendant on his motion to withdraw his plea, it reappointed first counsel to represent defendant at sentencing; and (3) imposition of a consecutive term violated the principles of Blakely v. Washington (2005) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely).

The People concede that the sentence was unauthorized and that remand for resentencing is required. Given their concession, the People conclude that defendant's other contentions are moot and do not address them. We do not accept the People's concession. Instead, we reject each of defendant's contentions and shall affirm the judgment.

PROCEDURAL HISTORY

Defendant was charged by information as follows:^[2]

Shootings on September 17, 2002

Counts 1 and 2: assault with a semiautomatic firearm

(§ 245, subd. (b)) on Damadre Thompson and Darnell Payne, with a firearm use allegation (§ 12022.5, subd. (a)) as to each count.

Count 3: shooting at an inhabited dwelling (§ 246), with an allegation of street gang activity (§ 186.22, subd. (b)(1)).

Count 4: street terrorism (§ 186.22, subd. (a)).

Shootings on September 20, 2002

Count 5: attempted murder (§§ 664, 187) of Clifton Simmons, with allegations of great bodily injury (§ 12022.7), firearm use (§§ 12022.5, subd. (a), 12022.53, subds. (b), (c) & (d)), and street gang activity (§ 186.22, subd. (b)(1)).

Count 6: street terrorism (§ 186.22, subd. (a)).

Count 7: assault with a firearm on Christopher Chessman (§ 245, subd. (a)(2)), with an allegation of firearm use (§ 12022.5, subd. (a)).

Count 8 was charged only against codefendant Brown.

Possession of a Firearm on September 30, 2002

Count 9: possession of a loaded firearm by an active participant in a criminal street gang (§ 12031, subd. (a)(2)(C)).

Plea and Sentence

On September 23, 2003, defendant entered a negotiated settlement whereby, in exchange for a stipulated term of 18 years and the dismissal of all but two of the above counts, he pleaded guilty to count 1, assault with a semiautomatic firearm (§ 245, subd. (b)), and to count 2, amended to reflect assault with a firearm (§ 245, subd. (a)(2)). He also admitted, as to count 1, the firearm use allegation (§ 12022.5), and, as to count 2, a street gang allegation (§ 186.22, subd. (b)(1)). Although the sentence was stipulated, sentencing was continued to afford defendant the opportunity to get married.

Prior to sentencing, while represented by appointed counsel, Jeffrey Hirschfield, defendant informed the court that he wanted to withdraw his plea because of dissatisfaction with Hirschfield. The court appointed Tony Agbayani to represent defendant on the motion.

Attorney Agbayani thereafter filed and argued a motion to withdraw plea which the court denied. Following a short recess, Attorney Hirschfield resumed representing defendant for sentencing and the agreed upon 18-year term was imposed as follows: Count 1, assault with a semiautomatic firearm, the low term of three years, enhanced by four years for the firearm use and 10 years for the street gang enhancement, even though this latter enhancement had been admitted with respect only to count 2. Count 2, assault with a firearm, a consecutive term of one year (one-third the midterm of three years).

DISCUSSION

I

Defendant contends that his sentence is unauthorized because he admitted the street gang enhancement in conjunction with count 2, but the trial court erroneously imposed this enhancement as part of the principal term on count 1. While it is true that the court erred as described, neither remand nor further action is required.

â€