Opinion
C084700
03-13-2018
THE PEOPLE, Plaintiff and Respondent, v. ERIN ALAN QUICK, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CR23738)
Appointed counsel for defendant Erin Alan Quick has asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We shall modify the judgment to strike a prior prison term enhancement that was imposed and stayed and affirm the judgment as modified.
I
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On July 17, 2015, around 2:45 p.m., defendant entered the BBVA Compass Bank in Martell, walked up to teller Chelsea Dougherty's window, and mumbled, "Robbery, hundreds, fifties, twenties." Dougherty reached into her cash drawer and gave defendant approximately $3,850. She was scared and a bit panicked. The cash she gave to defendant included two $50 bills with previously recorded serial numbers. Another bank employee pressed the alarm button as defendant left.
Defendant was subsequently apprehended at a minivan parked in the Jackson Rancheria Casino parking lot. One of the $50 bills with recorded serial numbers was found in his wallet.
Testifying on his own behalf, defendant said he committed the robbery because his mother was losing her home due to her giving him money while he was in prison. He did not look at the bank teller, made no threats, and did not have a weapon. He did ask her for twenties, fifties, and hundreds, but never used the word "robbery."
Following a jury trial, defendant was convicted of second degree robbery (Pen. Code, § 211) and second degree commercial burglary (§ 459). The trial court sustained two strike allegations (§ 667, subds. (b)-(i)), two serious felony allegations (§ 667, subd. (a)(1)), and two prior prison term allegations (§ 667.5, subd. (b)). The trial court struck one of the prison priors and sentenced defendant to 36 years to life for the robbery count, a six-year term for the burglary count, stayed pursuant to section 654, ordered various fines and fees, and awarded 739 days of presentence credit (643 actual & 96 conduct).
Undesignated statutory references are to the Penal Code. --------
II
Counsel filed an opening brief that sets forth the facts of the case and requests that we review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed and we received no communication from defendant.
There is an error in the sentence imposed on the burglary count that does not change defendant's sentence. On the robbery count, the trial court imposed a 25-year-to-life term under the three strikes law plus a consecutive 10 years for the serious felony allegations and one year for the prison prior, for a total of 36 years to life. As to the burglary count, the trial court imposed a three-year middle term, doubled to six years for the strike, and a consecutive one year for the prison prior. The court stayed sentence on the burglary count pursuant to section 654. There are two abstracts, one for each offense, with the prison prior imposed on the robbery count and imposed and stayed for the burglary count.
A prison prior enhancement can be imposed only once as a component of an aggregate term. (§§ 667.5, 1170.1; People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 386-387.) Having imposed the one-year term for the prison prior as part of the aggregate term, it was error to impose the same one-year term on the burglary count. We shall therefore strike the prison prior imposed on the burglary count. Since that sentence was stayed pursuant to section 654, our modification of the judgment does not change defendant's sentence.
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The prior prison term enhancement imposed on the burglary count is stricken. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Renner, J.