P. v. Delgado

Filed 3/3/06 P. v. Delgado CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Gary J. Ferrari, Judge. Reversed in part, affirmed in part.

Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Ana R. Duarte and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

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Jesse Delgado appeals from the judgment entered following his plea of no contest to carrying a loaded firearm and possession of a firearm by a felon (Pen. Code, §§ 12031, subd. (a)(1), 12021, subd. (a)(1)),[1] with admissions as to the first count that he was an active participant in a criminal street gang (§ 12031, subd. (a)(2)(C)) and as to both counts that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). He admitted two prior felony convictions that were alleged under the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and section 667.5, subdivision (b). He was sentenced to 11 years in prison, including a one-year enhancement for one of the section 667.5, subdivision (b) priors.

Appellant contends (1) that the one-year section 667.5, subdivision (b) enhancement was erroneously imposed because not all of the elements of the allegation were proved or admitted; and (2) that the restitution fine and parole revocation fine each must be reduced from $2,200 to $200 in accordance with the negotiated disposition. We agree with the first claim and reject the second.

FACTS AND PROCEDURAL BACKGROUND

The record discloses that on March 3, 2004, appellant attempted to hide a loaded blue steel handgun he had been carrying on his person. The gun was recovered by Los Angeles police officers. Appellant admitted membership in the Westside Wilmas gang.

Appellant was charged with the two offenses and the criminal street gang allegations set forth above. The information alleged three prior convictions within the meaning of the three strikes law and two prior felony convictions for which appellant served separate prison terms within the meaning of section 667.5, subdivision (b). At the outset of proceedings, the prosecutor struck one of the alleged strike priors because it was a juvenile adjudication that did not qualify as a strike. She indicated, however, that despite the nature of the current offenses and the policy of the district attorney's office to treat such matters as second-strike cases, her office had determined, based on appellant's record of criminality, that this matter would be prosecuted as a third-strike case.

Defense counsel asked the trial court to strike one of the remaining prior strikes. The trial court stated that if appellant entered an open plea to all the charges and allegations, it would strike one of the two remaining strike priors and would impose an 11-year term, the longest it could impose upon him as a second-strike defendant. The trial court indicated that it did not â€