P. v. Vital













Filed 10/12/10 P. v. Vital CA2/7

















NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115 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




>

THE PEOPLE, Plaintiff and Respondent, v. GUSTAVO VITAL Defendant and Appellant.

B219204 (Los Angeles County Super. Ct. No. NA079173)

APPEAL from
a judgment of the Superior Court
of Los Angeles
County,

Jesse I. Rodriguez, Judge.
Affirmed as modified.



David L.
Bernstein, under appointment by the Court of Appeal, for Defendant and
Appellant.



Edmund G.
Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria Wilson
and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.



________________________________





Gustavo
Vital appeals from the judgment entered following his conviction by jury on two
counts of second degree robbery (Pen.
Code, § 211).[1] Vital was sentenced as a second strike
offender to an aggregate term of 18 years in state prison. We appointed counsel to represent Vital on
appeal. After examination of the record,
counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 441, in which no issues
were raised. At our request, the parties briefed the issue
of whether the trial court properly imposed both serious felony (§ 667, subd.
(a)) and prior prison term (§ 667.5, subd. (b)) enhancements for the same prior
felony conviction pursuant to People v.
Jones (1993) 5 Cal.4th 1142, 1148-1149.
The parties agree the trial court erred in this regard, however,
the People request we remand this case to the trial court for further
proceedings. We deny this request and
strike the improperly imposed prior prison term enhancement.

FACTUAL AND PROCEDURAL BACKGROUND

Vital was
charged by information with the second degree robbery of Bryan Mateik (count 1)
and of Dorian King (count 2). The
information further alleged as to both counts that Vital had suffered one
serious or violent felony conviction (voluntary manslaughter in case No.
NA037887) under the â€