Opinion
B163215.
7-3-2003
THE PEOPLE, Plaintiff and Respondent, v. OSCAR ESTRADA, Defendant and Appellant.
Richard Jay Moller, 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, Marc J. Nolan and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.
Oscar Estrada appeals from the judgment entered upon his conviction by jury of attempted carjacking in which he personally used a firearm, possession of a short-barreled shotgun, being a felon in possession of a firearm, and unlawful driving or taking of a vehicle (Pen. Code, §§ 664 /215, subd. (a), 12022.53, subd. (b), 12020, subd. (a), 12021, subd. (a)(1); Veh. Code, § 10851, subd. (a)). The trial court found that he had sustained a prior serious felony conviction within the meaning of the three strikes law ( §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and section 667, subdivision (a), as well as three prior felony convictions for which he served separate prison terms ( § 667.5, subd. (b)) and a prior conviction within the meaning of Vehicle Code section 10851, subdivision (e). He was sentenced to 27 years in prison, including two 1-year prison term enhancements.
Unless otherwise specified, all further statutory references are to the Penal Code.
Appellant contends that the trial court erred in imposing one of the prison term enhancements because it was based on the same prior conviction for which it imposed a five-year section 667, subdivision (a) enhancement. In addition, we asked the parties to address the issue of whether the trial court erred in failing to double the sentence for the subordinate term under the requirements of the three strikes law. As the parties agree, both of these errors require modification of the judgment.
FACTS AND PROCEDURAL BACKGROUND
The record reflects that on February 6, 2002, appellant, who was driving a stolen minivan, approached a man who was pumping gas into a Honda Accord at a Los Angeles gas station. Appellant pointed a shotgun at the man, racked the weapon, and demanded the mans car and keys. As appellant reached for the keys, the victim grabbed the shotgun, which proved to be unloaded, and ran with it into the street. Appellant fled in the minivan. A witness flagged down a patrol vehicle and appellant was apprehended.
The trial court found that appellant had suffered a 2000 conviction of robbery in case No. GA041622 as alleged for purposes of the three strikes law, section 667, subdivision (a), and section 667.5, subdivision (b). The trial court also found true two additional prior conviction allegations pursuant to section 667.5, subdivision (b), one of which, superior court case No. VA036777, was a conviction of violating Vehicle Code section 10851 that also resulted in the trial courts finding of a prior conviction as alleged within the meaning of Vehicle Code section 10851, subdivision (e).
The trial court observed that the information contained a typographical error, alleging the prior Vehicle Code violation under subdivision (d) of Vehicle Code section 10851, rather than subdivision (e), on which it made its finding.
In sentencing appellant, the trial court imposed the upper term for attempted carjacking and doubled that sentence in accordance with the provisions of the three strikes law. The trial court imposed a consecutive sentence of one year, which is one-third the midterm of the sentence set forth in section 666.5, for the unlawful driving or taking of a vehicle with a prior conviction in violation of Vehicle Code section 10851, subdivisions (a) and (e). The trial court then imposed a five-year enhancement pursuant to section 667, subdivision (a) for the prior robbery conviction. In imposing the section 667.5, subdivision (b) enhancements, the trial court imposed a one-year term for the prior prison term served for the robbery conviction and a one-year term for the prior prison term served in superior court case No. BA156698 for a conviction of grand theft. It ordered the one-year enhancement for the prior prison term in superior court case No. VA036777 stricken because it had used that prior Vehicle Code conviction for purposes of Vehicle Code section 10851, subdivision (e).
It appears that the prison term for superior court case No. VA036777 was served concurrently with the term for superior court case No. BA156698, and therefore the enhancement in case No. VA036777 would properly have been stricken in any event. (People v. Riel (2000) 22 Cal.4th 1153, 1203, 998 P.2d 969.)
DISCUSSION
Appellant contends, and respondent concedes, that the trial court erred in imposing both a section 667, subdivision (a) enhancement and a section 667.5, subdivision (b) enhancement based on the same prior robbery conviction. (People v. Jones (1993) 5 Cal.4th 1142, 1153, 857 P.2d 1163.) In that case, the Supreme Court held that "when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." (Id. at p. 1150.) Accordingly, the one-year enhancement based on the robbery conviction must be stricken. (Id. at p. 1153.)
As the parties agree, the trial court erred in failing to double the consecutive sentence imposed for unlawful driving of a vehicle with a prior conviction in count 2 because, under the three strikes law, a consecutive determinate sentence for a second-strike defendant is doubled. Thus, the subordinate one-year term imposed for the Vehicle Code section 10851 violation should have been doubled. (People v. Nguyen (1999) 21 Cal.4th 197, 207, 980 P.2d 905.) We will modify the judgment to reflect a sentence of two years on count 2.
The parties assume that one-third the midterm for appellants violation of Vehicle Code section 10851 should have been eight months. However, appellant was sentenced under section 666.5 because the trial court found, as alleged pursuant to Vehicle Code section 10851, subdivision (e), that he had a prior similar conviction. Under section 666.5, the sentence range for unlawful driving or taking of a vehicle with a prior similar conviction is 2, 3, or 4 years.
DISPOSITION
The judgment is modified by striking the one-year section 667.5, subdivision (b) enhancement imposed for case No. GA041622 and by reflecting a two-year consecutive term, rather than one year, for unlawful driving or taking of a vehicle with a prior conviction. The total sentence remains 27 years in prison. The superior court is directed to send a corrected abstract of judgment reflecting these modifications to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: NOTT, Acting P.J., and DOI TODD, J.