P. v. Smith
Defendant appeals from judgment entered following jury convictions for second degree robbery (Pen. Code, S 211) and assault by means likely to produce great bodily injury (S 245, subd. (a)(1)). The trial court dismissed the great bodily injury allegations due to insufficient evidence. In a bifurcated trial, the trial court found true allegations that defendant had one prior strike conviction (SS 667, subds. (b)-(i) and 1170.12, subds. (a)-(d)), one prior serious felony conviction (S 667, subd. (a)), and seven prison priors (S 667.5, subd. (b)). The court sentenced defendant to an aggregate prison term of 17 years.
Defendant contends the trial court committed reversible error when the judge and prosecutor told the jury the codefendants pleaded guilty to robbery in this case. Defendant also complains there was insufficient evidence identifying defendant as one of the perpetrators of the robbery, and the trial court erred in excluding evidence of the victim's prior misdemeanor conduct. Defendant further asserts that his sentence for assault (count 2) must be stayed under section 654; one prior prison term enhancement must be stricken because it is based on concurrent prison terms; the prior prison term enhancement that was stayed must be dismissed; and the upper term sentence on count 1 violates Blakely v. Washington (2004) 542 U.S. 296 and Apprendi v. New Jersey (2000) 530 U.S. 466, and therefore must be reduced to the middle term.
Court conclude there is no reversible error other than the following sentencing errors: (1) under section 654, the court erred in imposing concurrent sentences for robbery and assault because the two offenses were part of a continuing course of conduct; (2) one of defendant's prior prison term enhancements must be stricken because defendant was sentenced concurrently to two of the underlying prior prison offenses; and (3) the prior prison term which the trial court stayed must be dismissed because it is based on the same conviction used to impose a five year term for a serious felony prior.
Court affirm the judgment of conviction but remand this case to the superior court to correct the sentence as follows: The trial court is directed to (1) stay the prison term imposed for assault (count 2); (2) strike one of the one year terms for a prison prior (S 667.5, subd. (b)); and (3) dismiss the prison prior term which the trial court imposed and stayed
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