P. v. Garibay
On March 3, 2006, appellant, entered pleas of no contest to three felony counts of attempted robbery (Pen.Code, SS 664 and 211, counts one, two and three) and one felony count of participation in a criminal street gang (Pen. Code, S 186.22, subd. (a), count four). Appellant admitted using a firearm (S 12022.53, subd. (e)(1)) and acting forthe benefit of a criminal street gang (S 186.22, subd. (b)(1)) during the commission of counts one, two and three. Prior to taking appellant's plea, the trial court noted that the indicated sentence would be between 12 and 17 years in prison.
The trial court sentenced appellant to the two year midterm on each count, but made appellant's sentences on counts two, three, and four concurrent to his sentence on count one. The court imposed the 10-year gun enhancement alleged on count one. The court imposed 10-year terms on the gun enhancements on counts two and three, but ordered these to be served concurrently. The court stayed the gang enhancements on counts one, two, and three. Appellant's total prison term is 12 years. The court awarded applicable custody credits and imposed a restitution fine.
Appellant contends the section 12022.53,subdivision (e)(1) gun use enhancement is not predicated on his personal use of the gun, but his participation in a criminal street gang in which a gun was used. Because he was sentenced on both this enhancement and count four(participation in a criminal street gang), appellant argues that the trial court violated section 654 in sentencing him to both allegations. Appellant, however, failed to obtain a certificate of probable cause. As court explain, the appeal must be dismissed.
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