P. v. Davis

 

 

 

 

 

 

 

 

 

 

 

 

Filed 6/4/13  P.
v. Davis CA5

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT

 
>

THE PEOPLE,   Plaintiff and Respondent,                           v.   DAMIEN LEE DAVIS,   Defendant and Appellant.

F064698   (Super. Ct. No. VCF235804)     >OPINION

 

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tulare
County.  Darryl B. Ferguson, Judge.

            Gregory
Chappel, under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton
Bowers, Deputy Attorneys General for Plaintiff and Respondent.

-ooOoo-

 

 

 

            A jury convicted
appellant, Damien Lee Davis, of assault with a deadly weapon (Pen. Code, § 245,
subd. (a)(1)),href="#_ftn2" name="_ftnref2"
title="">^[1] and found true allegations that in committing
that offense, appellant personally used a deadly weapon (§ 12022, subd. (b)(1))
and personally inflicted great bodily href="http://www.sandiegohealthdirectory.com/">injury (§ 12022.7, subd.
(a)).  In a separate proceeding, the
court found true a prior prison term enhancement allegation (§ 667.5, subd.
(b)) and allegations that appellant had suffered six prior felony convictions,
each of which qualified as a “strike”href="#_ftn3" name="_ftnref3" title="">^[2] and as a prior serious felony conviction
within the meaning of section 667, subdivision (a) (section 667(a)).  The court imposed a prison term of 47 years
to life.

            Appellant
argues (1) the evidence was insufficient to establish the truth of two of the
strike allegations and two of the section 667(a) prior serious felony
enhancement allegations, and (2) the court erred in calculating appellant’s
sentence under section 1170.12, subdivision (c)(2)(iii).  The People concede these points.  We reverse true findings on two of the strike
allegations, vacate the sentence, and remand for resentencing.

DISCUSSION

Sufficiency of the Evidence – Strikes

            A strike is
a prior conviction of any of the felonies designated as “serious” under section
1192.7, subdivision (c) or “violent” under section 667.5, subdivision (c).  (§§ 667, subd. (d)(1), 1170.12, subd.
(b)(1).)  Assault with a firearm, in
violation of section 245, subdivision (a)(2) (section 245(a)(2)) is a serious
felony (§ 1192.7, subd. (c)(31)), and thus a prior conviction of that offense
qualifies as a strike.

            Here, the court
found true strike allegations that appellant suffered six prior convictions of
assault with a firearm in Tulare County Superior Court case No. VF-39282-A
(case No. 39282-A).  However, as the
parties agree, the record demonstrates that two of these purported strikes were
actually convictions of non-strike offenses.

            Documentary
evidence submitted by the prosecutor to prove the strike allegations included
the abstract of judgment in case No. 39282-A, which indicates appellant
suffered convictions of violating 245(a)(2) in counts 2, 3, 4, 5, 6 and
10.  However, the prosecutor also
submitted the following documentary evidence from case No. 39282-A:  the minute order of the judgment proceeding,
which shows appellant was convicted, in counts 5 and 6 respectively, of
“Violation of ... section 496 - Receiving stolen property” and “Violation of
... section 12020(a) ... - Short-barreled shotgun or rifle activity”; the
felony complaint, which shows that “receiving stolen property, in violation of
... section 496[1]” (sic) and “short
barreled shotgun or rifle activity, in violation of ... section 12020(a))”
(unnecessary capitalization omitted) charged in counts 5 and 6, respectively;
and a Department of Corrections record, which contains handwritten notations
identifying the count 5 offense as a violation of “496(a) RSP” and the count 6
offense as “12010(A) Mfg/Sale/Poss.”  

In addition, the abstract shows
that eight-month subordinate terms were imposed on each of counts 5 and 6.  Unless otherwise provided by law, the
determinate sentencing statute provides the subordinate term shall be one-third
the middle term of imprisonment for the conviction.  (§ 1170.1, subd. (a).)  In 1999, the midterm for violations of former
sections 496, subdivision (a) and 12020, subdivision (a) was two years, and
thus a subordinate term for each those offenses would have been eight
months.  (Former §§ 496, subd. (a),
12020, subd. (a), 18.)  The midterm for
assault with a firearm, on the other hand, was and is three years, and
therefore one-third of the midterm would be one year, not eight months.  (§ 245(a).)

Neither receiving stolen property
nor short-barreled short gun activity is listed as a serious or violent
felony.  (§§ 667.5, subd. (c), 1192.7,
subd. (c).)  We recognize offenses not otherwise
listed as serious or violent felonies may nonetheless qualify as such based on
the circumstances surrounding the commission of the offense.  For example, serious felonies include any
felony in which the defendant personally used a dangerous or deadly
weapon.  (§ 1192.7, subd. (c)(23).)  Here, however, as appellant contends and the
People concede, there is no evidence in the record that such circumstances
apply to the count 5 and count 6 offenses in case No. 39282-A. 

“When a defendant challenges the
sufficiency of the evidence to uphold a finding that his prior convictions
qualified as strikes, the test on appeal is whether a reasonable trier of fact
could have found that the prosecution sustained its burden.  We review the record in the light most
favorable to the trial court’s findings.” 
(People v. Towers (2007) 150
Cal.App.4th 1273, 1277.)  Here, as
demonstrated above and as the parties agree, the evidence was insufficient to
establish two of the prior convictions found to be strikes were in fact
strikes.

Calculation of Sentence Under Section 1170.12, subdivision (c)(2)(iii)

            “Under
the three strikes law, a trial court must sentence a defendant with two or more
... strikes to an indeterminate term of life imprisonment.  These defendants ‘become eligible for parole
on a date calculated by reference to a “minimum term.”’  [Citation.] 
This minimum term of the indeterminate sentence is the ‘greater’ of
three options.  ([§ 1170.12,] [s]ubd.
(c)(2)(A)(i)-(iii).)  Under the first
option (option (i)), the defendant’s minimum indeterminate term is calculated
by tripling ‘the term otherwise provided as punishment’ for the current
conviction.  ([§ 1170.12,] [s]ubd.
(c)(2)(A)(i).)  ...  [¶] 
Option (ii) is 25 years.  ([§
1170.12, s]ubd. (c)(2)(A)(ii).)  While
the terms under options (i) and (iii) will vary from case to case, option (ii)
essentially acts as a default to ensure that the defendant’s indeterminate term
will always be a minimum of 25 years.… 
[¶]  Under option (iii), the
defendant’s minimum indeterminate term is calculated, as relevant in this case,
by adding applicable enhancements to the term selected for the current
conviction.  [§ 1170.12,] [s]ubd.
(c)(2)(A)(iii).)”  (People v. Dotson (1997) 16 Cal.4th 547, 552-553, fn. omitted.)

            The parties
agree on the following, as do we:  The
trial court calculated appellant’s minimum indeterminate term under option
(iii).  That calculation included five
years for each of the >six section 667(a) prior serious felony
enhancements.href="#_ftn4" name="_ftnref4"
title="">^[3]  However, “section 667(a)(1) provides that a
defendant who is convicted of a serious felony, as defined in section 1192.7,
shall receive a five-year sentence enhancement for each previous conviction for
a serious felony ‘on charges brought and tried separately.’  ... 
‘[T]he requirement in section 667 that the predicate charges must have
been “brought and tried separately” demands that the underlying proceedings
must have been formally distinct, from filing to adjudication of guilt.’”  (People
v. Wiley (1995) 9 Cal.4th 580, 585.) 
Here, appellant’s prior serious felony enhancements did not arise out of
“‘formally distinct’” (ibid.)
proceedings.  Rather, as indicated above,
all six prior serious felony enhancements were based on a single case.  Thus, any calculation under option (iii) could
include only five years for a single section 667(a) enhancement, not 30 years
for six such enhancements.  Given this
factor, calculation of the minimum indeterminate term under option (iii) would
necessarily yield a term of less than 25 years. 
Moreover, application of option (i) would also a yield a term of less
than 25 years.  Therefore, the correct
minimum indeterminate term here is 25 years, under option (ii).  The court erred in calculating appellant’s
minimum indeterminate term under option (iii).href="#_ftn5" name="_ftnref5" title="">^[4]  

>DISPOSITION

The true findings on two of the six
strike allegations are reversed, the sentence is vacated and the judgment is
otherwise affirmed.  The matter is remanded to the trial court for
resentencing.