P. v. Montoya
It was alleged in an information as follows: Appellant, Fonzie Eddie Montoya, committed second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c);[1] count 1), short-barreled shotgun or rifle activity (§ 12020, subd. (a)(1); count 2), possession of a firearm by a felon (§ 12021, subd. (a)(1); count 3), and misdemeanor possession of ammunition (§ 12316, subd. (b)(1); count 4); he personally used a firearm in committing the count 1 offense (§ 12022.53, subd. (b)); he had suffered a prior felony conviction that qualified as both a serious felony within the meaning of section 667, subdivision (a) and as a “strikeâ€;[2] and he had served three separate prison terms for prior felony convictions, within the meaning of section 667.5, subdivision (b) (section 667.5(b)).
Jury trial began, but in the midst of trial, after the court gave an indicated sentence of 21 years, appellant pled no contest to the substantive offense charges and admitted the strike and enhancement allegations. Thereafter, appellant moved to withdraw his plea, and the court denied the motion.
The court imposed a prison term of 21 years calculated as follows: on count 1, six years, consisting of the three-year midterm, doubled pursuant to the three strikes law; 10 years on the accompanying firearm use enhancement; and five years on the prior serious felony enhancement (§ 667, subd. (a)). The court imposed concurrent four-year terms on each of counts 2 and 3, and specifically stated it was imposing no time on count 4. The court made no mention of the three section 667.5(b) prior prison term enhancements.
Appellant requested, and the court issued, a certificate of probable cause (§ 1237.5).
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant himself has filed a brief in which he argues, as best we can determine, that his plea was the product of ineffective assistance of counsel and judicial misconduct. We conclude the court erred in failing to impose sentence on the section 667.5(b) enhancements, remand for resentencing, and otherwise affirm.
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