P. v. Hislar

Filed 5/25/10 P. v. Hislar CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles Horan, Judge. Affirmed and remanded with directions.

Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Anthony Brandon Hislar was convicted by jury of 33 of 38 felony counts, which the trial court identified as having been committed on 17 occasions. The trial court imposed consecutive sentences for one offense in each of the 17 incidents and concurrent sentences as to all other counts. The term on each count was 25 years to life in state prison pursuant to the three strikes law, except for terms of 27 years to life for carjacking convictions in counts 1 and 6. The total indeterminate sentence was 429 years to life; a determinate sentence of 83 years was also imposed.   Concurrent time in state prison was imposed on a probation violation.

FACTS AND PROCEDURAL HISTORY

1. The September 8 and 14, 2008 Offenses (Counts 10‑14)

A Mercedes belonging to Dennis Clemente was stolen on September 3, 2008. Defendant was stopped while driving the stolen vehicle on the morning of September 14, 2008, but fled from officers at speeds of up to 90 miles per hour, crossing into the opposing lanes of traffic. Defendant eluded the officers. The Mercedes was seen in a garage, but defendant was not in the vehicle. At a nearby residence, defendant accosted a woman at gunpoint and robbed the woman and her husband of money, a credit card, and a car.

Based on this conduct, defendant was convicted of the following offenses: count 10 unlawful taking or driving the Mercedes (Veh. Code, 10851, subd. (a)); count 11felony evading of an officer (Veh. Code,  2800.2, subd. (a)); count 12first degree burglary (Pen. Code, 459)^[1]with findings the victim was present at the time of the burglary, and defendant personally used a firearm ( 12022.53, subd. (b), 12022.5, subd. (a)); and counts 13 and 14first degree robbery ( 211) with findings on personal use of firearm allegations ( 12022.53, subd. (b), 12022.5, subd. (a)).

2. The September 15, 2008 offenses (Counts 15 and 40)

Defendant entered the Vans Store in Hermosa Beach. After selecting items purportedly for purchase, he obtained money at gunpoint from the cashier.

Based on this conduct, defendant was convicted in count 15 of second degree robbery ( 211) with true findings on the firearm allegations ( 12022.53, subd. (b), 12022.5, subd. (a)), and in count 40, of possession of a firearm by a felon ( 12021, subd. (a)(1)).

3. The September 17, 2008 Offenses (Counts 16, 17, and 41)

Defendant purported to be shopping for shoes and clothing at the Stix Rideshop store in Monrovia. While at the register, he displayed a handgun to two clerks and demanded money, which he took along with the shoes and clothing.

As a result of this incident, defendant was convicted in counts 16 and 17 of second degree robbery ( 211) with true findings on the firearm allegations ( 12022.53, subd. (b), 12022.5, subd. (a)). In count 41, defendant was convicted of possession of a firearm by a felon ( 12021, subd. (a)(1)).

4. The September 19, 2008 Offenses (Counts 1‑9 and 18‑28)

Defendant attempted to break into the residence occupied by Eric Fielder and his family in Azusa by entering through a sliding glass door. Because the door was blocked by a piece of metal, it could only open two to three inches. Defendant stuck a gun through the doors opening, pointed at Fielder. Defendant kicked in the door and demanded keys to a Range Rover and cash.

Shortly thereafter, defendant entered the home of Radha Kancharla in Arcadia. Defendant demanded the keys to her car but left without taking them. He did take a laptop computer from the home.

Brigida Macias was home in Arcadia, drying her hair, when she heard the screen door open and defendant enter her home. Her husband and children were home at the time. Defendant kept telling Macias to be quiet, as though he were trying to get away from police officers. Defendant was in possession of a handgun and a laptop computer. She gave defendant her car keys and later noticed her Ford Expedition was gone.

Officer Brian Long heard a radio call regarding the offenses at the Kancharla residence. After hearing a female scream, Officer Long saw defendant get into Maciass Expedition. After a high speed chase, Officer Long and other officers cancelled the pursuit due to the risk involved.

Defendant parked the Expedition in the driveway of the residence of Huan Jung Yen in Arcadia. Defendant, who had a gun, said he needed to use Yens car as his vehicle had broken down. When Yen went to protect his wife and daughter, defendant took Yens keys and wallet, as well as additional money. Defendant left in Yens minivan.

Phil Ahn was in his wifes Toyota outside their apartment in El Monte. Defendant took the vehicle at gunpoint from Ahn. Ahn lost sight of defendant on Rosemead Boulevard.

Dr. Daniel Chan was in his office on Rosemead Boulevard when he heard a knock on the door, who he thought was a patient. Instead, defendant entered and demanded Chans car keys at gunpoint. Defendant struck Chan on the head twice with the gun, and when Chan ran, defendant shot him in the chest. Defendant left with Chans cell phone.

Defendant then took the Ford Explorer belonging to Carmen Bolivar after ordering her and her children out of the vehicle. He also took her keys and wallet.

Defendant also took Ralph Haros vehicle. Haro unsuccessfully attempted to stop defendant by holding onto the car.

As a result of these incidents, defendant was convicted of the following offenses: count 1carjacking ( 215, subd. (a)), with true findings on firearm allegations ( 12022.53, subd. (b), 12022.5, subd. (a)); count 2assault with a firearm ( 245, subd. (a)(2)) with true findings on great bodily injury and firearm use allegations ( 12022.7, subd. (a), 12022.5, subd. (a)); count 5second degree robbery ( 211) with true findings on firearm allegations ( 12022.53, subd. (b), 12022.5, subd. (a)); count 6carjacking ( 215, subd. (a)); and count 9possession of a firearm by a felon ( 12021, subd. (a)(1)).

Defendant was also convicted of the following offenses: count 18first degree burglary ( 459) with findings the victim was present at the time of the burglary and defendant personally used a firearm ( 12022.53, subd. (b), 12022.5, subd. (a)); count 19first degree robbery ( 211) with true findings on firearm allegations ( 12022.53, subd. (b), 12022.5, subd. (a)); count 20first degree burglary ( 459) with a finding that the victim was present at the time of the offense; count 21first degree robbery ( 211); count 23first degree burglary ( 459) with findings that the victim was present at the time of the burglary and that defendant personally used a firearm ( 12022.53, subd. (b), 12022.5, subd. (a)); count 24first degree robbery ( 211) with findings that defendant personally used a firearm ( 12022.53, subd. (b), 12022.5, subd. (a)); count 25first degree burglary ( 211); count 26felony evading of an officer (Veh. Code,  2800.2, subd. (a)); count 27first degree burglary ( 459) with findings that the victim was present at the time of the burglary and that defendant personally used a firearm ( 12022.53, subd. (b), 12022.5, subd. (a)); and count 28first degree robbery ( 211) with findings that defendant personally used a firearm ( 12022.53, subd. (b), 12022.5, subd. (a)).

5. The September 21, 2008 Offenses (Counts 32‑34)

Various items were stolen from the vehicle belonging to L. Scott Miller in Los Angeles. Also on the same day, defendant was found in the home of Erica Hankin in Los Angeles. After threatening Hankin and her children, defendant left, taking jewelry, electronics, and her Honda SUV. Hankins Honda was left shortly thereafter at the nearby home of Adleen Gibbs in Los Angeles. The Honda contained paperwork taken from Miller. Gibbss Mercedes, which had been in her garage, was missing. It was recovered on September 24, 2008, at Disneyland, when defendant was taken into custody in possession of the key to the Mercedes.

Defendant was convicted of the following offenses as a result of these incidents: count 32grand theft ( 487, subd. (a)); count 33first degree burglary ( 459) with a finding the victim was present at the time of the burglary; and count 34grand theft of an automobile ( 487, subd. (d)(1)).

6. The September 23, 2008 Offenses (Counts 35 and 36)

After getting assistance from Kimberly Parra at the Tillys in Long Beach, defendant produced a gun at the counter and demanded money, while threatening Parra and a coworker. Defendant fled with bags of merchandise. Defendant was convicted of second degree robbery ( 211) on counts 35 and 36.

7. The September 26, 2008 Offenses (Counts 37 and 38)

Defendant was being transported to a medical center while in custody. Although restrained with chains, defendant ran, with deputies in pursuit. Defendant was unsuccessful in commandeering a car and was recaptured. Based on this incident, defendant was convicted in count 37 of escape with force or violence ( 4532, subd. (a)(2)), and in count 38 with resisting an executive officer ( 69).

8. Recidivist Allegations and Sentencing

In a separate proceeding, the trial court found defendant had suffered three prior convictions within the meaning of the three strikes law ( 1170.12, subds. (a)‑(d), 667, subds. (b)-(i)). The trial court also found defendant had suffered two prior serious or violent felony convictions within the meaning of section 667, subdivision (a). In sentencing defendant, the trial court imposed one five‑year enhancement for each of the prior convictions under section 667, subdivision (a).

9. The Appeal

Defendant filed a timely notice of appeal from the judgment. This court appointed counsel to represent defendant on appeal. On December 31, 2009, appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, raising no issues, but requesting this court to independently review the record. Defendant was advised by a letter dated December 31, 2009, that he could file a brief with this court within 30 days raising any issues defendant wished to be considered. No brief has been filed by defendant.

After conducting our independent review of the record, we invited the parties to brief whether the trial court erred by failing to impose the two section 667, subdivision (a) five-year prior convictions as to each count under the three strikes law. (People v. Williams (2004) 34 Cal.4th 397, 402-405 (Williams).) The Attorney General filed a letter brief arguing the trial court was required to impose the additional five-year enhancements on each of the 33 counts. Counsel for defendant filed a letter brief indicating he had nothing to add to the discussion. We conclude the trial court must impose the section 667, subdivision (a) enhancements on each count.

Our Supreme Court held in Williams that the trial court must impose a section 667, subdivision (a) enhancement to each count when a defendant is sentenced to an indeterminate term under the three strikes law. (Williams, supra, 34 Cal.4th at p. 405 [section 667[, subdivision] (a) enhancements are to be applied individually to each count of a third strike sentence].) The trial courts failure to do so in this case resulted in an unauthorized sentence, which we now order corrected.

Disposition

The cause is remanded to the trial court with directions to impose a five-year enhancement for both Penal Code section 667, subdivision (a) prior convictions as to each count in which an indeterminate sentence was imposed under the three strikes law. In all other respects, the judgment is affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

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^[1] All further statutory references are to the Penal Code, unless otherwise stated.