P. v. Spade

Filed 6/18/08 P. v. Spade CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. We have reviewed the record as required by Wende, and have found an error in sentencing which requires us to remand the matter to the trial court for resentencing. In all other respects, we affirm the judgment.

We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

In March 2006, Steven Terrell was an asset protection specialist at Target. He was trained to identify and apprehend shoplifters. On March 3, 2006, Terrell was working in the security office monitoring the closed circuit television monitors. He saw defendant, Stephen Craig Spade, and a woman, Deidre, enter the store. Defendant looked familiar to him and Deidre was carrying a very large, obviously empty shoulder bag. Defendant and Deidre both began randomly selecting cosmetics merchandise. They then left the cosmetics area and headed to the health and beauty section. Because he could not continue to watch them on the video cameras, Terrell left the security office and went to the sales floor to observe defendant and Deidre. Terrell witnessed them remove 20-25 items from their shopping cart and place them into Deidres shoulder bag. When they had finished, they quickly walked towards the exit.

When defendant and Deidre exited the store, Terrell followed them. He came up directly behind Deidre, placed his hand on her shoulder and identified himself as Target security. Deidre pulled away from Terrell and began yelling and screaming. Terrell grabbed her shoulder and defendant tried to grab Deidres other arm to pull her away from Terrell. When this was unsuccessful, Deidre started screaming Get him and defendant repeatedly punched Terrell in the back of the head. Deidre was arrested and defendant ran off into the parking lot. The bag, with approximately $200 in merchandise in it, was recovered. Terrell called the police and paramedics were called to examine his head which was bleeding. About one hour later, Terrell viewed a photo lineup and identified defendant as the man shoplifting with Deidre and assaulting Terrell.

Defendant was charged with attempted robbery (Pen. Code,^[1]

664/211), petty theft with a prior ( 666), and misdemeanor battery. ( 242.) It was further alleged defendant had sustained two prior serious felony convictions and had served a prior prison term. ( 667, subd. (a), 667, subds. (b)-(i), 667.5, subd. (b), 1170.12.)

Jury trial began on December 18, 2006. On December 20, 2006, the jury found defendant guilty as charged on all counts. The court then found the prior strike convictions and prior prison term allegations true.

At the sentencing hearing, the court denied defendants motion to strike his prior convictions. A trailing violation of probation matter was also resolved by the court. Defendant agreed to submit the probation violation on the evidence heard at the trial. The court found defendant in violation of probation.

Defendant was sentenced to an aggregate term of 11 years in state prison. This sentence consisted of the middle term of two years in state prison on the attempted robbery conviction, doubled to four years pursuant to the strike. The middle term of two years was imposed for the petty theft with a prior conviction, doubled to four years pursuant to the strike. The sentence on the petty theft conviction was stayed under section 654. In addition, the court revoked defendants probation, denied further probation and sentenced defendant to the middle term of three years on the earlier conviction. That sentence was ordered to run consecutively to the attempted robbery conviction and two years of that term were stayed. Defendant was also sentenced to a consecutive five-year term on the prior serious felony conviction, and an additional and consecutive one year for the prior prison term conviction. Various fines and fees were also imposed.

Counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. Nonetheless, we have found an error which requires remand for resentencing. In addition to the felony convictions and the probation violation, defendant was also convicted of a misdemeanor battery. However, the trial court failed to impose sentence on this count. This failure to impose a sentence was error. ( 12; People v. Morrow (1969) 275 Cal.App.2d 507, 514.)

DISPOSITION

The matter is remanded to the trial court for sentencing on count three, a violation of section 242. The judgment is otherwise affirmed.

BLEASE , Acting P. J.

We concur:

HULL, J.

BUTZ , J.

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^[1] Further undesignated statutory references are to the Penal Code.