P. v. Ward















Filed 10/18/10 P. v.
Ward 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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)








>

THE PEOPLE, Plaintiff and Respondent, v. JERRY LYNN WARD, Defendant and Appellant.

C062931 (Super. Ct. No. 07F11169)

A jury found
defendant Jerry Lynn Ward guilty of two counts of second degree robbery (Pen. Code, § 211;
counts one and two)[1]
and found not true an allegation he was armed with a firearm during the
commission of count two (§ 12022, subd. (a)(1)). In a bifurcated proceeding, the trial court
found he had two prior strikes (§ 667, subds. (b)-(i)) and a prior felony conviction (§ 667, subd. (a)) and served three prior
prison terms (§ 667.5, subds. (a),(b)).
The trial court initially sentenced defendant to 60 years to life in
prison, consisting of two consecutive terms of 25 years to life on the two
robbery counts, plus a consecutive five years for the prior felony conviction,
a consecutive three years for one of the prior prison terms, and a consecutive
one year each for the two remaining prison terms. A week later, the court modified defendant's
sentence on count two to run concurrent with his sentence on count one, thereby
reducing his aggregate sentence to 35 years to life.

On appeal,
defendant asks us to conduct an independent review of the records that were the
subject of his Pitchess[2]
motion. (See Evid. Code, § 1043.) In addition, he contends the trial court
abused its discretion in refusing to strike at least one of his prior strike
convictions. The People agree we should
conduct an independent review of the sealed records but assert the trial court
properly declined to strike defendant's prior strike convictions. The People further contend that the trial
court lacked the discretion to run defendant's sentence on count two concurrent
with his sentence on count one, and that defendant's sentence must be modified
to correct the error. We shall conclude
the trial court did not abuse its
discretion in refusing to (1) disclose any documents in response to defendant's
Pitchess motion or (2) strike one or
more of his prior strike convictions. We
shall further conclude the trial court was required, under section 667,
subdivision (c)(6) to sentence defendant consecutively on counts one and
two. We shall modify the judgment
accordingly, and affirm it as modified.

FACTUAL AND PROCEDURAL
BACKGROUND

In November 2007,
defendant and Shawn Porter entered a Valero gas station on Greenback
Lane in Sacramento. Porter placed a bag on the counter and told
the cashier to â€