P. v. Ross



















Filed 8/15/12 P. v. Ross CA2/5









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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




>

THE PEOPLE, Plaintiff and Respondent, v. ARTHUR JAMES ROSS, JR., Defendant and Appellant.

B238327 (Los Angeles County Super. Ct. No. MA028210)

APPEAL from
an order of the Superior Court
of Los Angeles
County, Lisa Mangay Chung, Judge. Judgment modified with directions.

Richard B.
Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Daniel C. Chang and Nima Razfar, Deputy Attorneys General for
Plaintiff and Respondent.

>

Arthur James Ross, Jr., stands
convicted of crimes involving multiple victims:
false imprisonment (Pen. Code,^[1] § 237, subd. (a)) (count 1); second degree
robbery (§ 211) (count 2); three counts of attempted second degree robbery (§§ 211, 664)
(counts 3, 4, 5); and two counts of semiautomatic
firearm assault (§ 245, subd. (b)) (counts 6 and 7). The jury also found as to all counts that a
principal was armed with a firearm. (§
12022, subd. (a)(1).) The trial court
found defendant was previously convicted of a serious felony. (§§ 667, subd. (b)-(i), 1170.12.) He was sentenced to 20 years, 8 months in
state prison. Defendant appeals from the
denial of his motion to vacate the judgment and correct an unauthorized
sentence.

Defendant
contends, the Attorney General concedes, and we agree that the trial court
imposed an unauthorized sentence insofar as it enhanced counts 6 and 7 pursuant
to section 12022, subdivision (a)(1).^[2] Under the present narrow circumstances, the
post judgment order denying defendant’s motion to vacate the judgment and
correct an unauthorized sentence is appealable.
(People v. Thomas (1959) 52
Cal.2d 521, 527-529; see People v. Totari
(2002) 28 Cal.4th 876, 885-886; People
v. Ramirez (2008) 159 Cal.App.4th 1412, 1422-1423, 1425-1428.) It is well established that we have
jurisdiction to correct an unauthorized sentence whenever it comes to our
attention. (People v. Barnwell (2007) 41 Cal.4th 1038, 1048, fn. 7; >People v. Cunningham (2001) 25 Cal.4th
926, 1044-1045; People v. Dotson (1997)
16 Cal.4th 547, 554, fn. 6; People v.
Scott (1994) 9 Cal.4th 331, 354; In
re Ricky H. (1981) 30 Cal.3d 176, 191; People
v. Serrato (1973) 9 Cal.3d 753, 763, disapproved on another point in >People v. Fosselman (1983) 33 Cal.3d
572, 583, fn. 1; In re Sandel (1966)
64 Cal.2d 412, 417-419.) Section 12022,
subdivision (a)(1) provides: “. . .
[A]ny person who is armed with a firearm in the commission of a felony or
attempted felony shall be punished by an additional and consecutive term of
imprisonment . . . for one year, unless
the arming is an element of that offense.
This additional term shall apply to any person who is a principal in the
commission of a felony or attempted felony if one or more of the principals is
armed with a firearm, whether or not the person is personally armed with a
firearm.” (Italics added.) Here, defendant was convicted of two counts
of assault with a semiautomatic firearm where a principal was armed with a
firearm. Use of a firearm is an
essential element of assault with a semiautomatic firearm. (Cf. People
v. Sinclair (2008) 166 Cal.App.4th 848, 855-856 [§ 245, subd. (a)(2)]; >People v. Hill (1989) 207 Cal.App.3d
1574, 1577, fn. 8 [same].) Therefore,
the punishment for that crime may not be enhanced pursuant to section 12022,
subdivision (a)(1). (Cf. >People v. Sinclair, supra, 166
Cal.App.4th at pp. 855-856 [§ 245, subd. (a)(2) conviction cannot be enhanced
under § 12022, subd. (a)(1)]; People v.
Summersville (1995) 34 Cal.App.4th 1062, 1069-1070 [§ 245, subd. (a)(1)
conviction cannot be enhanced under § 12022, subd. (b)]; People v. McGee (1993) 15 Cal.App.4th 107, 110 [§ 245, subd. (a)(1)
conviction cannot be enhanced pursuant to § 12022, subd. (b)].)

The section
12022, subdivision (a)(1) one-year enhancements imposed on counts 6 and 7,
assault with a semiautomatic firearm, are stricken. Upon remittitur issuance, the clerk of the
superior court shall prepare an amended abstract of judgment and deliver a copy
to the Department of Corrections and
Rehabilitation.

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS



TURNER,
P. J.



We concur:



ARMSTRONG,
J.



KRIEGLER,
J.