P. v. Criton
A jury convicted defendant Leon Roger Criton of residential robbery (Pen. Code, 211 count I) and misdemeanor battery on a domestic partner ( 243, subd. (e)(1) count II). However, the jury did not sign and return a verdict on the allegation defendant had a prior serious felony conviction within the meaning of the Three Strikes law ( 667, subds. (b) (i)), a fact overlooked by the court and counsel at sentencing. After denying probation and a request to strike the strike, the court sentenced defendant to six years in prison: the lower term of three years for count I plus three years for the strike; and one year for count II, to run concurrently. On appeal, defendant contends the prosecutor committed misconduct when he asked defendant were they lying questions during cross-examination. He also claims misconduct occurred during closing argument when the prosecutor compared defendant to a rat in a trap with motivation to lie in order to avoid conviction of the charged crimes. Because defense counsel did not object to the prosecutors alleged misconduct, defendant contends that he was denied effective assistance of counsel. Court requested supplemental briefing in response to our stated intent to strike the three years imposed for the strike alleged in the information but not included in the verdicts returned by the jury.
Court vacate the sentence and remand for resentencing with directions to strike the three years imposed for the strike, and affirm the judgment as modified.
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