Fear Not Law Articles: P. v. Espinoza

P. v. Espinoza

Filed 6/20/08 P. v. Espinoza CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

ROBERT P. ESPINOZA,

Defendant and Appellant.

E044145

(Super.Ct.No. RIF131963)

O P I N I O N

APPEAL from the Superior Court of Riverside County. Roger A. Luebs, Judge. Affirmed with directions.

Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Donald W. Ostertag, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant of attempted murder (count 1Pen. Code, 664, 187, subd. (a))^{^[1]}and assault with a deadly weapon (count 2 245, subd. (a)(1)). Additionally, the jury found true allegations that defendant had personally used a deadly weapon in his commission of the count 1 offense ( 12022, subd. (b)(1)) and had inflicted great bodily injury in his commission of both offenses ( 12022.7, subd. (a)). Thereafter, defendant admitted that he had suffered a prior conviction for burglary on October 6, 2004, which was alleged as a strike prior, prior serious felony, and the underlying basis for a prior prison term enhancement. ( 667, subds. (a), (c) & (e)(1), 667.5, subd. (b).) The court imposed an indeterminate sentence of 14 years to life plus a determinate sentence of 10 years consisting of the following: the seven-year-to-life midterm on count 1, doubled pursuant to the strike prior; a consecutive three-year term for the great bodily injury enhancement; a consecutive one-year term for the deadly weapon enhancement; a consecutive five-year term for the prior serious felony; and a consecutive one-year term for the prior prison term. As to count 2, the court sentenced defendant to the midterm of three years, doubled pursuant to the strike prior, and a consecutive three-year term for the great bodily injury enhancement; however, the court stayed imposition of sentence on count 2 and its enhancement pursuant to the dictates of section 654. On appeal, defendant contends the court erred in imposing sentence on the prior prison term enhancement because his sentence had already been enhanced for the same conviction from which that prison term was derived. The People concede the issue. We agree and, therefore, remand the matter to the trial court with directions to strike the one-year enhancement imposed for defendants prior prison term. In all other respects, the judgment is affirmed.

I. FACTS

Defendant and Ronald Milum were involved in a physical altercation in late July 2006. During subsequent weeks, Milum saw defendant at least twice, but there were no physical or verbal confrontations. In fact, the two exchanged greetings, leading Milum to believe their issues were resolved. On August 26, 2006, Milum walked down the street and heard defendant call his name. Defendant requested a cigarette or rolling paper from Milum, so Milum crossed the street and approached him. Defendant stuck out his hand to shake Milums. Milum shook defendants hand, during which defendant removed a knife from his pocket with his other hand and stabbed Milum in his lung between his third and fourth ribs.

II. DISCUSSION

Section 667, subdivision (a)(1) provides for a consecutive enhancement of five years when a prior conviction qualifies as a serious felony. Section 667.5, subdivision (b) provides for a one-year enhancement if a prior conviction resulted in a prison sentence. In People v. Jones (1993) 5 Cal.4th 1142, 1150 through 1153, the California Supreme Court held that only the enhancement with the greater term of imprisonment can be imposed when the same prior offense qualifies as a serious felony under section 667, subdivision (a), and resulted in a prior prison term under section 667.5, subdivision (b). Here, both the enhancements for the prior serious felony and the prior prison term were based on defendants conviction for burglary on October 6, 2004. Thus, sentence could not legally be imposed on both enhancements. The enhancement carrying the lesser term must, therefore, be stricken.

III. DISPOSITION

The matter is remanded to the trial court with directions to strike the one-year enhancement imposed for defendants prior prison term. The trial court is directed to deliver a certified copy of the corrected minute order and abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

We concur:

/s/ McKinster

Acting P.J.

/s/ Miller

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^{^[1]} All further statutory references are to the Penal Code unless otherwise indicated.

Description	A jury convicted defendant of attempted murder (count 1Pen. Code, 664, 187, subd. (a))[1]and assault with a deadly weapon (count 2 245, subd. (a)(1)). Additionally, the jury found true allegations that defendant had personally used a deadly weapon in his commission of the count 1 offense ( 12022, subd. (b)(1)) and had inflicted great bodily injury in his commission of both offenses ( 12022.7, subd. (a)). Thereafter, defendant admitted that he had suffered a prior conviction for burglary on October 6, 2004, which was alleged as a strike prior, prior serious felony, and the underlying basis for a prior prison term enhancement. ( 667, subds. (a), (c) & (e)(1), 667.5, subd. (b).) The court imposed an indeterminate sentence of 14 years to life plus a determinate sentence of 10 years consisting of the following: the seven-year-to-life midterm on count 1, doubled pursuant to the strike prior; a consecutive three-year term for the great bodily injury enhancement; a consecutive one-year term for the deadly weapon enhancement; a consecutive five-year term for the prior serious felony; and a consecutive one-year term for the prior prison term. As to count 2, the court sentenced defendant to the midterm of three years, doubled pursuant to the strike prior, and a consecutive three-year term for the great bodily injury enhancement; however, the court stayed imposition of sentence on count 2 and its enhancement pursuant to the dictates of section 654. On appeal, defendant contends the court erred in imposing sentence on the prior prison term enhancement because his sentence had already been enhanced for the same conviction from which that prison term was derived. The People concede the issue. Court agree and, therefore, remand the matter to the trial court with directions to strike the one-year enhancement imposed for defendants prior prison term. In all other respects, the judgment is affirmed.
Rating	0/5 1 2 3 4 5 0/5 based on 0 votes.