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P. v. Rodriguez CA4/2

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P. v. Rodriguez CA4/2
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12:19:2018

Filed 10/10/18 P. v. Rodriguez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCUS PHILLIP RODRIGUEZ,

Defendant and Appellant.

E066341

(Super.Ct.No. RIF1503017)

OPINION

APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. Affirmed as modified with directions.

Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and a shotgun-wielding accomplice committed a “room invasion” robbery (the victims were renting one bedroom of a house). Both victims identified both perpetrators, to the police as well as at trial. After the jury returned its verdict, however, one of the victims contacted the prosecution and said that she had been mistaken in her identification of defendant’s accomplice — although she was still certain of her identification of defendant.

Defendant’s main appellate contention is that the trial court should have granted his motion for new trial based on this new evidence. We disagree. The trial court concluded that this evidence was not likely to bring about a different result with respect to defendant; this was not an abuse of discretion. Accordingly, aside from modifying the judgment to correct two sentencing errors, we will affirm.

I

FACTUAL BACKGROUND

A. Prosecution Evidence.

1. Victim Harris’s testimony.

One “Tammy” owned a house on Camino del Sol in Riverside. It was a “drug house”; people came there to use methamphetamine. In mid-June, 2015, Dayne Harris and his girlfriend Lisa Jaramillo started renting a bedroom there. In addition to Tammy, Harris, and Jaramillo, some ten other people also lived in the house.

Harris was disabled by multiple sclerosis; he used a wheelchair. At one time, he had been a methamphetamine user, but he stopped using about three years before the crimes. He admitted a prior felony conviction for possession of a controlled substance while armed with a loaded firearm.

Harris and defendant had once been friends; Harris knew him “really well.” Back in 2013, however, Harris had been in jail, in protective custody. When he got out and went back to his old neighborhood (near Tammy’s house), he ran into defendant, who called him a “PC snitch” and told him that “[he] had a lot of nerve showing [his] face here.”

Shortly before Harris moved into Tammy’s house, he ran into defendant again, in the same neighborhood. Defendant told him, “You better get out of here.”

On the night of June 29, 2015, Harris and Jaramillo were alone in their room, sitting on the bed, when someone knocked on the door. As Jaramillo started to open the door, two men shoved it open, knocking her back onto the bed.

Both men were both wearing black hoodies, with the hoods up, and black pants. They were also wearing black bandannas over the lower part of their faces. One of them was holding a 12-gauge shotgun.

At trial, Harris identified Jesse Ahumada as the man with the shotgun. He had met Ahumada once before.

Harris identified defendant as the other man. He recognized defendant’s voice. Also, when defendant’s bandanna slipped down, Harris recognized his face.

Defendant “rushed” Harris and punched him twice. In between punches, he called Harris a “‘PC son of a bitch.’”

Defendant ordered the victims to lie on the bed and cover their faces. They complied, but they covered their faces in a way that let them still see.

Defendant then started “taking things.” He took the loot down a hallway that dead-ended at Tammy’s bedroom. At first, Ahumada stood guard, but then he joined in taking things. The items ultimately taken included two guitars, an amplifier, two desktop computers, a laptop computer, two Nintendo Wiis, a television, and CDs.

Jaramillo kept a deactivated cell phone under her pillow to play games. She used it to call 911. Before the police arrived, however, the robbers left.

When the police first interviewed Harris, he was “groggy” and under the influence of pain medication. He identified defendant by name. He described Ahumada, but he did not tell the police his name or that he knew him. He also identified Ahumada in a photo lineup.

Harris told the police that Jaramillo did not call 911 until some 30 to 45 minutes after the robbery.

Harris also told the police, “Beto set this whole thing up.” Beto was a friend of defendant; shortly before the robbery, he came to Harris’s room several times and asked about some of Harris’s possessions.

2. Victim Jaramillo’s testimony.

Jaramillo’s account was generally consistent with Harris’s, with the following additions and exceptions.

Two days before the robbery, both Harris and Jaramillo used methamphetamine. At the time of the robbery, however, Jaramillo was not under the influence.

When the robbers first came in, the man with the shotgun told Jaramillo to lie on the bed; she complied.

Jaramillo recognized defendant by his eyes and by his voice. She knew him; she had seen or spoken to him at least 50 times. Defendant was wearing a black hoodie, but Ahumada was wearing a dark blue hoodie. Both men’s hoods were down.

Defendant punched Harris at least six times. Also, Ahumada hit Harris with the butt of the shotgun. Defendant then ordered Harris, too, to lie on the bed and ordered both victims to cover their faces. He selected things to take, but it was Ahumada who took them out of the room.

Jaramillo told the police that defendant was one of the robbers. During the robbery, she did not recognize the robber with the shotgun. However, she identified Ahumada at an in-field showup. She then realized that he was her son’s roommate. However, she did not tell the police this. She told the police that she recognized him by “his eyes and the way he carried himself.” She was “real sure” of her identification of Ahumada.

Jaramillo also did not tell police that the stolen goods were taken to Tammy’s room. Jaramillo believed that Tammy was involved in the robbery.

3. The apprehension of Ahumada.

In response to Jaramillo’s 911 call, officers were dispatched to the scene at 10:00 p.m. They arrived five or ten minutes after the robbers left. One officer saw a man in black T-shirt walking away from the house. When the man saw the officer, he started running, but the officers managed to apprehend and arrest him. He turned out to be Ahumada.

None of the stolen property was ever recovered. The shotgun was never found.

B. Defense Evidence.

Defendant presented two alibi witnesses — his girlfriend, Maria Duke, and her friend, Sabrina Padilla. They both worked at the same Del Taco, in San Bernardino. They also shared an apartment in San Bernardino.

Duke testified that, on June 29, 2015, she and defendant were together all night. Around 9:00 p.m., they went to the Del Taco. They were there for 15 to 20 minutes. Around 1:00 or 1:30 a.m., they picked Padilla up from the Del Taco when her shift ended. Otherwise, they spent the whole evening at the apartment. Duke admitted prior felony convictions for grand theft and for check fraud.

Padilla confirmed that defendant and Duke arrived at the Del Taco between 8:30 or 9:30 p.m. and remained there for 15 to 20 minutes. She also confirmed that they picked her up at 1:00 a.m. However, she had told an investigator that she was not sure whether the date of these events was in fact June 29, 2015.

Both women agreed that defendant did not have a car.

II

PROCEDURAL BACKGROUND

Defendant was tried jointly with Ahumada.

A jury found defendant guilty of two counts of first degree robbery (Pen. Code, §§ 211, 212.5, subd. (a)), one count of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)), and one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2)). With respect to the first three counts, it also found an armed principal enhancement to be true. (Pen. Code, § 12022, subd. (a)(1).)[1]

In a bifurcated proceeding, after waiving a jury, defendant admitted one “strike” prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), one prior serious felony enhancement (Pen. Code, § 667, subds. (a)), and one prior prison term enhancement (Pen. Code, § 667.5, subd. (b)).

The trial court sentenced defendant to a total of 25 years and 8 months in prison.

III

MOTION FOR NEW TRIAL BASED ON ONE VICTIM’S PARTIAL RECANTATION

Defendant contends that the trial court erred by denying his motion for new trial, which was based on the fact that victim Jaramillo had come to believe that her identification of Ahumada was incorrect.

A. Additional Factual and Procedural Background.

Defendant filed a motion for new trial based on newly discovered evidence. The motion showed that, about three months after the jury verdict, victim Jaramillo contacted the prosecutor’s office and said that she had been mistaken in her identification of Ahumada. Apparently Ahumada filed a similar motion. The trial court held an evidentiary hearing at which Jaramillo testified.

According to Jaramillo, several weeks after the trial, Freddy “Toker” Amador contacted her. He told her that his brother, “Beto” Amador, committed the robbery. She testified that Toker described “exactly what was taken from my house, what was taken from my purse, . . . everything.”

Toker also told her there were actually five people involved in the robbery: “There was one in the vehicle waiting outside. There was one that was taking the stuff from the room to the vehicle. . . . [T]here was one standing outside the door. And then there was two in my room.”

Beto was not one of the robbers in the room; she would have recognized him. She thought he was the one standing outside the room. She believed that Beto “set the whole thing up,” because he had come to her room three or four times that day asking to borrow things; when she told him no, he was upset. The robbers took “the exact things he asked for.”

Since the trial, Jaramillo had come to “know” that Ahumada was not the robber with the shotgun. Originally, she had identified him because he was wearing dark clothing, because he always wore a bandanna around the neighborhood, and because the police told her that he had run away from them. However, she had changed her mind after “r[unning] over it in [her] head over and over again.” In addition, her son had told her that “it’s not [Ahumada] because [Ahumada] was with him.”

Jaramillo confirmed, however, that defendant was the other robber: “I know it wasn’t Jesse, but I know for a fact it was Mark.”

When asked if she felt “pressure” from Harris to identify Ahumada, Jaramillo responded that, after the trial, when she asked Harris if he had doubts, he said he did not care who it was because he did not like anybody in the neighborhood. Jaramillo, however, did care.

Both Jaramillo and her son had received threats about testifying against defendant.

Jaramillo also testified that both she and Harris used methamphetamine on the day of the robbery and “were on methamphetamine at the time.”

The trial court granted the motion with respect to Ahumada, and the prosecution dismissed the case as against him.

After hearing argument, the trial court denied the motion as to defendant. It explained: “I don’t believe that it’s probable on a retrial of Mr. Rodriguez that there would be a different result . . . .”

B. Discussion.

A trial court may grant a motion for new trial when “new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial.” (Pen. Code, § 1181, subd. 8.)

“‘In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: “‘1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.’” [Citations.]’ [Citation.]” (People v. Howard (2010) 51 Cal.4th 15, 43.)

“‘“‘The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.’” [Citations.]’” (People v. Howard, supra, 51 Cal.4th at pp. 42-43.)

Here, Jaramillo testified that she was mistaken in her identification of Ahumada, but she remained certain of her identification of defendant. Thus, the trial court did not abuse its discretion in concluding that it was unlikely that, if defendant were retried, he would enjoy a more favorable result.

Defendant argues that the new evidence impeached Jaramillo’s credibility in general and thus cast doubt on her identification of him. To the contrary, however, the fact that she came forward voluntarily to retract her identification of Ahumada bolstered her credibility tremendously; it established her as someone who would fess up to a mistake rather than see the wrong person convicted. In addition, defendant had threatened both her and her son. Thus, the fact that she stuck to her identification of defendant actually made that identification all the more probative.

Moreover, Jaramillo’s identification of defendant did not stand alone. It was corroborated by Harris. Harris, much like Jaramillo, knew defendant very well, but he had met Ahumada only once. As the People point out, it was further evidence of identity that the robber called Harris a “‘PC son of a bitch,’” whereas defendant had previously called him a “PC snitch.” And Beto — who Harris and Jaramillo both concluded was the mastermind behind the robbery — was a friend of defendant.

Even assuming one could take a different view, the view that Jaramillo’s testimony remained credible is not an abuse of discretion.

Defendant cites People v. Martinez (1984) 36 Cal.3d 816 for the proposition that “a motion for a new trial should be granted when the newly discovered evidence contradicts the strongest evidence introduced against the defendant. [Citations.]” (Id. at p. 823.) Here, however, the strongest evidence consisted of the dual identifications of defendant by Jaramillo and Harris. Jaramillo did not contradict her identification; she reaffirmed it. Her recantation of her identification of Ahumada merely impeached her on a different point. At most, it cast doubt on her identification, but it did not directly contradict it.

Defendant points to the fact that originally, Jaramillo was “real sure” of her identification of Ahumada. Even so, in context, it was clearly less reliable than her identification of defendant. She knew defendant very well. She had seen or spoken to him at least 50 times. She recognized him “immediately.” By contrast, she knew Ahumada only as her son’s roommate. She did not recognize him at all during the robbery (which is consistent with her later admission that he was not there); she realized who he was only at the in-field showup.

Defendant also points to the new evidence that five people were involved and that the loot was taken to a vehicle. However, this was based on information that Jaramillo received from Toker after the trial. It did not significantly impeach her own perceptions, during the event, that there were two robbers and that they took the loot down the hall toward Tammy’s room. Indeed, Toker’s statement that the loot was taken from “the room” to the vehicle may have referred to Tammy’s room.

Finally, defendant contrasts Jaramillo’s testimony at the new trial hearing that she and Harris were “on” methamphetamine at the time of the robbery with her testimony at trial that they were not under the influence and had not used methamphetamine for two days. This minor discrepancy, coming almost a year after the robbery, is understandable; it did not add substantially to the impeachment value of her retraction of her identification of Ahumada — which, in itself, was insufficient to require a new trial.

We therefore conclude that the trial court did not err by denying defendant’s motion for new trial.

IV

PENAL CODE SECTION 654

Defendant contends that the trial court imposed multiple punishment in violation of Penal Code section 654 (section 654) by imposing a term for assault with a firearm separately and consecutively to the terms for robbery.

A. Additional Factual and Procedural Background.

At sentencing, defense counsel argued that section 654 applied, because the “[f]orce was used . . . to accomplish the robbery.” The trial court disagreed: “I don’t think that was the intent of the defendant when he entered the premises. In other words, what amounts to pistol-whipping one of the victims , . . . who was . . . obviously handicapped. He sustained injuries to his face and had to be . . . transported to the hospital. I don’t think that’s the same intent as robbery. So I see that as a different intent.”

B. Discussion.

Section 654, section (a), as relevant here, provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”

“Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]” (People v. Hester (2000) 22 Cal.4th 290, 294.) “‘“‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may [not] be punished . . . for more than one.’”’ [Citation.]” (People v. Jackson (2016) 1 Cal.5th 269, 354.) “If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.)

“‘“‘A trial court’s . . . finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.’ [Citation.]” [Citation.]’ [Citations.]” (People v. McKinzie (2012) 54 Cal.4th 1302, 1368, disapproved on other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)

“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Pen. Code, § 211.) Accordingly, when an assault is used to satisfy the force or fear element of robbery, section 654 generally prohibits separate punishment for the assault. (E.g., People v. Ridley (1965) 63 Cal.2d 671, 678.)

However, “an act of ‘gratuitous violence against a helpless and unresisting victim . . . has traditionally been viewed as not “incidental” to robbery for purposes of Penal Code section 654.’ [Citations.]” (People v. Bui (2011) 192 Cal.App.4th 1002, 1016; accord, People v. Cleveland (2001) 87 Cal.App.4th 263, 271-272; People v. Sandoval (1994) 30 Cal.App.4th 1288, 1300; People v. Nguyen (1988) 204 Cal.App.3d 181, 190.) Here, the mere display of the shotgun was more than enough force or fear to commit the robbery of an unarmed man, confined to a wheelchair, and an unarmed woman. The victims never even tried to resist. It is reasonably inferable that defendant’s accomplice hit Harris with the shotgun simply because he viewed him as a “PC snitch.”

Defendant relies on People v. Mitchell (2016) 4 Cal.App.5th 349, in which the defendant entered the victim’s store several times and took several items; one of these times, he brandished a pair of scissors. (Id. at p. 352.) The court held that section 654 precluded separate punishment for robbery and assault with a deadly weapon. (Id. at p. 353.) It rejected the argument that the use of the scissors constituted a gratuitous act of violence — in part because the use of the scissors was a “single act,” to which the intent and objective test does not apply, and in part because the assault was not “so ‘extreme and gratuitous’ that it goes far beyond what was needed to accomplish the robbery.” (Id. at p. 354.) Mitchell is readily distinguishable, because in it, there was only one act of force or fear, which was used to accomplish the robbery. Here, by contrast, in addition to the assault with the shotgun, there was the display of the shotgun.

Defendant reads Mitchell to stand for the proposition that, for the “gratuitous act of violence” line of cases to apply, the assault must both (1) consist of “extreme violence rising to the attempted murder level” and (2) be committed after the robbery. We disagree. Obviously, if an assault does consist of extreme violence, and if it is committed after a robbery, that is strong evidence that it was indeed gratuitous. The ultimate issue, however, is whether the defendant had an intent and objective separate from the robbery. The degree of the violence and the timing of the assault are not the only ways to prove this. Here, there is evidence that the violence used in the assault, even if not extreme, occurred after the perpetrators had already gained control of the victims by means of fear. There is also evidence of a separate motive for the assault.

Defendant also relies on People v. Corpening (2016) 2 Cal.5th 307, which stated: “Whether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses. [Citation.]” (Id. at p. 313.) Here, the force and fear element of robbery was established once defendant’s accomplice displayed the shotgun. Hitting Harris with the shotgun was not necessary to complete the actus reus of robbery. Thus, the two crimes were not a single physical act.

We therefore conclude that the sentence did not violate section 654.

V

THE SENTENCE ON THE ROBBERY COUNTS

Defendant contends that the trial court used the wrong sentencing range for purposes of the two robbery counts.

A. Additional Factual and Procedural Background.

The sentencing range for first degree robbery is three, four, or six years. (Pen. Code, § 213, subd. (a)(1)(B).)

Here, the probation officer reported. mistakenly, that the sentencing range for counts 1 and 2 was three, six, or nine years. She seems to have been thinking of the sentencing range for first degree residential robbery in concert. (See Pen. Code, § 213, subd. (a)(1)(A).) However, the additional factors that would have been necessary to impose this sentence were not pleaded and were not found by the jury. (See In re Jonathan T. (2008) 166 Cal.App.4th 474, 479 [fact that robbery is “in concert” is a sentence enhancement that must be pleaded and proved].)

At sentencing, the trial court sentenced defendant on count 1 to “the mid term of six years,” doubled because of the strike. It explained, “I did consider imposing the low term, but there are no factors in mitigation . . . .” On count 2, it sentenced him to “one-third the mid term[,] [which] would be two years,” also doubled because of the strike. Defense counsel did not object.

B. Discussion.

The People concede that the trial court used the wrong sentencing range. They also concede that, with respect to count 2, this mistake resulted in an unauthorized sentence, which is correctable on appeal even if there was no objection below. (People v. Scott (1994) 9 Cal.4th 331, 354.)

With respect to count 1, however, the People argue that the sentence was not unauthorized, because it was within the applicable three, four, or six-year sentencing range. Thus, in their view, defense counsel forfeited the error by failing to object. Defendant — anticipating this response — also contends that, if so, then the failure to object constituted ineffective assistance of counsel.

“An attorney’s performance is constitutionally deficient if (1) it falls below an objective standard of reasonableness under prevailing professional norms; and (2) there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citation.] . . . ‘When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation.’ [Citations.]” (People v. Grimes (2016) 1 Cal.5th 698, 735.)

Here, there could be no satisfactory explanation for defense counsel’s failure to object. Why on earth would you let your client receive a longer sentence than the one statutorily applicable? Certainly the People do not suggest any explanation. The trial court said nothing to indicate that, if it knew one element of the sentence had to be shorter, it would have made some other element longer — e.g., that was trying to reach some particular total sentence. Quite the contrary, it indicated that it was looking for a way to impose a shorter sentence on count 1 but could not find one.

In sum, then, we must reverse the sentence on count 1, either because the sentence was unauthorized or because defense counsel rendered ineffective assistance. We need not decide which rationale actually applies. (See Bus. & Prof. Code, § 6086.7, subd. (a)(2).)

Finally, the People ask that, if we reverse the sentence on count 1, we remand to the trial court for resentencing rather than modify the sentence ourselves. We recognize that “[a] determinate sentence is one prison term made up of discrete components. When one of them is invalid, the entire sentence is infected. [Citations.]” (People v. Calderon (1993) 20 Cal.App.4th 82, 88.) Thus, “the trial court is entitled, on remand, to reconsider its entire sentencing scheme and choices [citation], and may elect to impose an aggregate sentence up to the aggregate term originally imposed [citation] . . . .” (People v. McElroy (1989) 208 Cal.App.3d 1415, 1431, disapproved on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) Here, however, given the trial court’s comment that it wanted to impose the low term, it seems clear that, if we were to remand, the trial court would impose the same sentence, except that it would use the correct midterm for purposes of both counts 1 and 2. Accordingly, remand would be an idle act. (See People v. Coelho (2001) 89 Cal.App.4th 861, 889.)

VI

SENTENCING ON THE ARMED PRINCIPAL ENHANCEMENTS

Defendant contends that the trial court erred by doubling the terms on the armed principal enhancements.

The information purported to allege armed principal enhancements under Penal Code section 12022, subdivision (d). Likewise, using the verdict forms they were given, the jury purported to find enhancements under Penal Code section 12022, subdivision (d) to be true.

This particular enhancement carries a two-year term. However, it applies only when the underlying offense is one of several specified drug offenses. (See Pen. Code, § 12022, subd. (c).) Thus, it could not and it did not apply to defendant. Despite the typo, however, defendant was properly subject to an armed principal enhancement under Penal Code section 12022, subdivision (a)(1), which carries a one-year term. (See People v. Fialho (2014) 229 Cal.App.4th 1389, 1397.)

No one seems to have noticed the typo below. Thus, the trial court imposed two years on the enhancement to count 1 and eight months (one-third of two years) on the enhancement to count 2, to be served consecutively. As the People concede, this was error. Both sides agree that we may correct the sentence without remanding.

The People also assert that the trial court erred by failing to either strike or impose a term on the armed principal enhancement to count 3 (although it then stayed the entire sentence on count 3). That is incorrect. The record reflects that it struck this enhancement.

VII

DISPOSITION

The base term imposed for robbery in count 1 is reduced from twelve years (six years doubled) to eight years (four years doubled). The base term imposed for robbery in count 2 is reduced from four years (two years doubled) to two years eight months (one year four months doubled).

The term imposed on the armed principal enhancement to count 1 is reduced from two years to one year. The term imposed on the armed principal enhancement to count 2 is reduced from eight months to four months.

As a result of these modifications, the total sentence is reduced from 25 years 8 months to 19 years.

The modified judgment is affirmed. The superior court clerk is directed to prepare an amended sentencing minute order and an amended abstract of judgment and to forward a certified copy of the amended abstract to the Director of the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

SLOUGH

J.

FIELDS

J.


[1] The information and the verdict forms cited the wrong subdivision for this enhancement. (See part V, post.)





Description Defendant and a shotgun-wielding accomplice committed a “room invasion” robbery (the victims were renting one bedroom of a house). Both victims identified both perpetrators, to the police as well as at trial. After the jury returned its verdict, however, one of the victims contacted the prosecution and said that she had been mistaken in her identification of defendant’s accomplice — although she was still certain of her identification of defendant.
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