P. v. Madera
A jury convicted defendant Enrique Madera of conspiracy to commit robbery of Ricardo Hernandez (Pen. Code, §§ 182, subd. (a)(1), 211—count I),[1] attempted robbery of Hernandez (§§ 211, 664—count II), and assault with a deadly weapon (§ 245, subd. (a)(1) of Hernandez (count III), David Barajas (count IV), and Arney Giron (count V). An allegation that defendant personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) was found true as to count II but not true as to count I. Defendant’s motion for acquittal was granted on counts of burglary (§ 459—count VI) and conspiracy to commit burglary (§§ 182, subd. (a)(1), 459—count VII).
Defendant was sentenced to state prison for eight years, consisting of five years on count I (Hernandez), one year on count IV (Barajas), one year on count V (Giron), and one year for the weapon enhancement on count II. The trial court orally accepted the defense argument that section 654 applies to count III because the victim, Hernandez, was also the target victim of the count I conspiracy. The court did not orally address the identical argument with respect to count II. The clerk’s minutes and the abstract of judgment list the terms on counts II and III as concurrent, not stayed pursuant to section 654. Defendant was awarded 273 days of custody credit and 273 days of conduct credit pursuant to the relevant 2010 amendment to section 2933.
Defendant contends, and the Attorney General concedes, the sentences on counts II and III must be stayed pursuant to section 654. The parties further agree that, because count II must be stayed, so too must its weapon enhancement be stayed. We shall modify the judgment.
Comments on P. v. Madera