P. v. Astorga
Filed 9/10/08 P. v. Astorga CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, Plaintiff and Respondent, v. RIGOBERTO ASTORGA, Defendant and Appellant. | B199380 (Los Angeles County Super. Ct. No. KA077191) |
APPEAL from a judgment of the Superior Court of Los Angeles County,
Bruce F. Marrs, Judge. Affirmed as modified.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_____________________________________
Pablo Sanchez was dating Rigoberto Astorgas sister, who gave birth to Sanchezs child. On November 26, 2006, Sanchez was driving his brother and another passenger in a mobile home park. At an intersection, Sanchez encountered a car in which Astorga was a passenger. Astorga got out of the car, approached Sanchez and began to argue with him about impregnating his sister. At some point, Astorga pulled out a handgun and struck Sanchez with his fist. Sanchez immediately accelerated, and Astorga fired one shot into the moving car, wounding Sanchez in the back.
A jury convicted Sanchez of attempted murder (Pen. Code, 187, subd. (a), 664) (count 1),[1]shooting at an occupied motor vehicle ( 246, subd. (a)) (count 2) and assault with a firearm ( 245, subd. (a)) (count 3). As to all counts, the jury found true the alleged firearm-use enhancements ( 12022.53, subds. (b), (c) & (d), 12022.5, subd. (a)).
In a bifurcated proceeding, Astorga waived his rights to a court trial and admitted having suffered a 2002 robbery conviction, a serious or violent felony within the meaning of section 667, subdivision (a)(1), as well as the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). He also admitted having served a separate prison term for the 2002 robbery conviction ( 667.5, subd. (b)).
The trial court heard and denied Astorgas new trial motion and his Romero motion.[2] The court also denied Astorgas motion to stay sentencing on count 2, shooting at an inhabited vehicle, under section 654.
Astorga was sentenced on count 1 to a base term of seven years for attempted murder, doubled under the Three Strikes law to 14 years, plus a consecutive term of 25 years to life for the section 12022.53, subdivision (d) enhancement, an additional consecutive term of five years for the section 667, subdivision (a)(1) enhancement, and a concurrent term of one year for the section 667.5, subdivision (b) enhancement. On count 2, the court imposed a term of 20 months for shooting at an inhabited motor vehicle, doubled under the Three Strikes law to a term of 40 months (three years four months), plus a consecutive term of 25 years to life for the section 12022.53, subdivision (d) enhancement. The remaining enhancements were stricken. On count 3, the court stayed sentencing for assault with a firearm and accompanying enhancements under section 654. Astorga received presentence custody credit of 203 days (177 actual days and 26 days of conduct credit). The court ordered Astorga to pay a $20 security assessment and a $10,000 restitution fine. A parole revocation fine was imposed and suspended pursuant to section 1202.45.
We appointed counsel to represent Astorga on this appeal. After examination of the record counsel filed an Opening Brief in which no issues were raised. On April 24, 2008, we advised Astorga he had 30 days within which to personally submit any contentions or issues he wished us to consider. We have received no response to date. We have examined the entire record and are satisfied Astorgas attorney has fully complied with the responsibilities of counsel, and no arguable issues exist. (Smith v.Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v.Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.)
On August 28, 2008, we notified Astorgas attorney and the Office of the Attorney General that in the absence of an objection we would correct the trial courts unauthorized sentence of a concurrent one-year term for the section 667.5, subdivision (b) enhancement based on the 2002 robbery conviction. When a defendant has suffered a prior serious felony conviction under section 667, subdivision (a), and served a prison term for that felony, it is inappropriate to impose both the five-year and the one-year enhancements for that same conviction. (People v. Jones (1993) 5 Cal.4th 1142, 1145, 1152-1153.) Accordingly, the one year prior prison term enhancement for the robbery conviction is stricken on count 1. Neither party objected to the proposed correction.
DISPOSITION
The one-year section 667.5 subdivision (b) enhancement for the robbery conviction in case No. KA056602 is stricken. As modified the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WOODS, J.
We concur:
PERLUSS, P.J. JACKSON, J.
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[1] Statutory references are to the Penal Code unless otherwise indicated.
[2] In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 the Supreme Court held section 1385, subdivision (a), vests a trial court with discretion to dismiss a prior conviction, including a qualifying Three Strikes conviction, in furtherance of justice. (Romero, at pp. 529-530.)
