P. v. Simonian

Filed 4/14/06 P. v. Simonian CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County,

Lisa B. Lench, Judge. Modified and, as so modified, affirmed.

Murray A. Rosenberg, 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, Assistant Attorney General, Ana R. Duarte and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

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Daniel Thomas Simonian appeals the judgment entered after his conviction by jury of two counts of carjacking and two counts of robbery. (Pen. Code, §§ 215, subd. (a), 211.)^[1] The jury found Simonian personally used a firearm in the commission of each offense. (§ 12022.53, subd. (b).) The trial court found Simonian had two prior convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) and section 667, subdivision (a), as well as two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced Simonian to a Third Strike term of 80 years to life in state prison.

We reject Simonian's claim of error in the denial of his Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) but stay the concurrent terms imposed for robbery.

FACTUAL AND PROCEDURAL BACKGROUND

1. The trial evidence.

a. Robbery of Wong.

On August 24, 2004, Simonian approached Ka Yee Wong as she exited her car in front of her home. Simonian produced a gun, pointed it at Wong and demanded her money. After Wong complied, Simonian ordered her to lie on the ground. Simonian then entered her car and drove away.

b. Robbery of Pantoja.

On August 25, 2004, Larry Pantoja drove into the parking lot of an apartment complex and waited for a friend. Simonian and another man drove into the lot in a Honda. Simonian approached Pantoja and, after making a few comments, produced a gun and demanded Pantoja's gold chain and a cell phone. After Pantoja complied, Simonian ordered Pantoja to exit the car and leave the key in the ignition. Simonian then drove the vehicle from the scene.

c. Sentencing considerations.

A jury found Simonian guilty as charged. The trial court found Simonian had prior convictions of carjacking and robbery in 1995 and that he had served a prison term for those offenses and for a 1993 conviction of receiving stolen property.

Simonian filed a motion to strike one of the 1995 prior convictions based on his assertion both convictions stemmed from the same operative facts and involved a single victim. The motion recounted the facts of the 1995 conviction as follows: On June 25, 1994, Simonian approached the victim in his car, displayed a screwdriver and took the victim's wallet and chain. Simonian then got into the car and drove for about a mile with the victim inside. Simonian then stopped the car and ordered the victim out. Simonian argued he could not be punished both for the robbery and the carjacking. Thus, the trial court should dismiss one of the prior convictions in the furtherance of justice.

The trial court indicated it had reviewed the reporter's transcript of the change of plea in the prior case and noted the prosecutor â€