P. v. Hicks

Filed 7/28/06 P. v. Hicks CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Kathryne Ann Stoltz, Judge. Vacated in part, remanded with directions, and affirmed in part.

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Rodney Richard Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Michael T. Hicks of four felonies, including one burglary. On three of those charges, including the burglary, the jury also found that Hicks used a firearm. Hicks appeals from the resulting judgment. He contends that the court imposed the firearm use enhancement on the burglary under the wrong code section and requests that the matter be remanded for resentencing. We reject the contention but remand for the trial court to amend the minute order and abstract of judgment to reflect the correct code section authorizing the enhancement. In all other respects we affirm the judgment.

FACTS

On March 4, 2004, Hicks entered a hotel room at gunpoint and robbed the two occupants of jewelry, cash, and clothing. He was charged with two counts of residential robbery (counts 1 and 2), one count of residential burglary (count 3), and with being a felon in possession of a firearm (count 4). (Pen. Code §§ 211, 212.5, subd. (a); 459, 460, subd. (a); 12021, subd. (a)(1); all further section references are to the Pen. Code). Both residential robbery charges also alleged that he personally used a firearm in the commission of the robberies as defined by section 12022.53, subdivision (b). That section requires imposition of a consecutive 10-year term when a defendant personally uses a gun in the commission of certain enumerated violent felonies, including robbery. (Burglary is not one of the felonies included in section 12022.53.) The residential burglary charge (count 3) alleged that Hicks personally used a gun in the commission of the burglary as defined in section 12022.5, subdivision (a)(1). Section 12022.5, subdivision (a), requires imposition of an increased term of either 3, 4, or 10 years when a defendant personally uses a firearm in the commission of any felony. The jury convicted Hicks of all four charges and found each enhancement true. In particular, with regard to the burglary the jury found â€