P. v. Gill

Filed 7/19/06 P. v. Gill CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Francis J. Hourigan III and John Vernon Meigs, Judges. Affirmed and remanded for resentencing.

John D. O'Loughlin, 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, Lawrence M. Daniels, Michael C. Keller, and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.

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Wiley Gill (Gill) was convicted of felony possession of cocaine and misdemeanor possession of paraphernalia used for smoking a controlled substance. Gill appeals, contending: he should not have received two, separate enhancements for prior prison terms that were served concurrently; and his right to a jury trial was violated when Judge Francis J. Hourigan III made findings of fact to impose the upper term on the conviction for felony possession of cocaine. In a supplemental brief, Gill argues that Judge John Vernon Meigs erred when he terminated Gill's self-representation. In the People's brief, the People urge us to affirm the judgment but to modify it to add another year to Gill's sentence. According to the People, Gill's sentence was illegal because Judge Hourigan neglected to impose a one-year enhancement for Gill's prior prison term in case No. A953996.

We affirm the judgment. The matter is remanded to the trial court with directions to either impose a one-year enhancement for Gill's prior prison term in case No. A953996 or strike that prior and articulate the basis.

FACTS

The information

In the People's two count information, Gill was charged with the crime of possession of cocaine in violation of Health and Safety Code section 11350, subdivision (a), a felony, and the crime of possession of a smoking device in violation of Health and Safety Code section 11364, a misdemeanor. Pursuant to Penal Code sections 1170.12, subdivisions (a) through (d) and 667 subdivisions (b) through (i),[1] the People alleged that Gill suffered two prior convictions. With respect to Health and Safety Code section 11370, subdivisions (a) through (c), it was alleged that Gill suffered convictions under Health and Safety Code sections 11350, 11351.5, and 11352. Finally, the People alleged that Gill served separate prison terms for purposes of section 667.5 in case Nos. A953996, A989647, VA014101, PA024033 and BA214211 and that within five years of serving those terms he committed an offense resulting in a felony conviction and failed to remain free of prison custody.

Gill's self-representation

On July 16, 2004, after receiving representation from the public defender's office for eight months, Gill informed Judge Meigs that he wanted to act as his own attorney and needed 60 days to prepare and investigate. Judge Meigs expressed concern that Gill was attempting to delay trial, and that he did not understand the issues that would be at the heart of the litigation. In Judge Meigs's view, Gill's lack of understanding of the issues was what led to discord with Diane Wiseman (Wiseman), the attorney assigned to Gill's case by the Public Defender's office. Nonetheless, Judge Meigs granted the motion, but not before explaining that â€