Opinion
2d Crim. No. B226846 Super. Ct. No. TA110504
08-29-2011
THE PEOPLE, Plaintiff and Respondent, v. RASHAD FAIR, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County
Rashad Fair appeals from the judgment entered after his conviction by a jury of attempted first degree murder. (Pen. Code, §§ 664, subd. (a), 187, subd. (a), 189.) The jury found true an allegation that he had intentionally discharged a firearm causing great bodily injury. (§ 12022.53, subd. (d).) The trial court found true allegations of one prior serious felony conviction (§ 667, subd. (a)(1)), two prior prison terms (§ 667.5, subdivision (b)), and one prior serious or violent felony conviction within the meaning of California's "Three Strikes" law. (§§ 1170.12, subds.(a)-(d); 667, subds. (b)-(i).
All statutory references are to the Penal Code.
For the attempted first degree murder, the trial court sentenced appellant to prison for 15 years to life. Because of the prior strike, the court doubled the minimum term to 30 years. For the firearm enhancement, the court added a consecutive term of 25 years to life. As to the prior serious felony enhancement, the court declared, "[T]he term of five years is stayed." The court neither imposed nor struck the prior prison term enhancements. Thus, the aggregate unstayed sentence was 55 years to life (30 years to life for attempted first degree murder with the strike plus 25 years to life for the firearm enhancement). The court awarded appellant credit for 149 days of actual time served in presentence custody. It did not award him conduct credit.
Appellant contends and the People agree that the trial court made several sentencing errors. We vacate the sentence and remand for resentencing. In all other respects, we affirm.
Because the underlying facts have no bearing on the sentencing errors, we omit the customary statement of facts.
Sentencing Errors
The trial court's first error was to impose a 15-year-to-life term for attempted first degree murder. Pursuant to sections 664 and 3046, the court should have imposed a life term with a minimum parole eligibility period of seven calendar years. Section 664, subdivision (a) provides that the punishment for attempted first degree murder shall be life imprisonment with the possibility of parole. Section 3046, subdivision (a) provides in relevant part: "No prisoner imprisoned under a life sentence may be paroled until he or she has served . . . [¶] (1) A term of at least seven calendar years." Because of the prior strike, the seven-year minimum term should have been doubled to 14 years. (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1); People v. Jefferson (1999) 21 Cal.4th 86, 96.) Thus, the total sentence for attempted first degree murder with the strike should have been life imprisonment with a minimum parole eligibility period of 14 calendar years.
The trial court's second error was to stay the five-year enhancement for the prior serious felony conviction of robbery. (§§ 211, 667, subd. (a)(1).) "It has been held that '[w]hen the truth of the allegation of conviction of a crime qualifying for a five-year enhancement has been established, it is mandatory that the enhancement be imposed.' [Citation.] Thus, '[c]ourts lack discretion to strike or stay allegations of prior serious felony conviction[s] under section 667, subdivision (a)(1).' [Citations.]" (People v. Jordan (2006) 141 Cal.App.4th 309, 319; see also § 1385, subd. (b) ["This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667"].) "The failure to impose a five-year section 667, subdivision (a) prior serious felony conviction enhancement is a jurisdictional error which may be corrected for the first time on appeal. [Citations.]" (People v. Garcia (2008) 167 Cal.App.4th 1550, 1562.)
The trial court's third error was to fail to impose or strike a one-year prior prison term enhancement (§ 667.5, subd. (b)) for the prior nonserious felony conviction of carrying a concealed firearm. (§ 12025, subd. (a)(2).) The other prior prison term enhancement was for the prior serious felony conviction of robbery. A one-year prior prison term enhancement cannot be imposed for the robbery because it was the basis for imposing the section 667, subdivision (a)(1) five-year prior serious felony enhancement. (People v. Jones (1993) 5 Cal.4th 1142, 1144-1145, 1152-1153; People v. Garcia, supra, 167 Cal.App.4th at p. 1562.)
Unlike a section 667, subdivision (a)(1) prior serious felony enhancement, "a section 667.5, subdivision (b) prior prison term enhancement may be stricken pursuant to section 1385, subdivision (a). [Citation.]" (People v. Garcia, supra, 167 Cal.App.4th at p. 1561.) The trial court, therefore, "was required to impose the section 667.5, subdivision (b) prior prison term enhancement[] or strike [it] in whole or in part pursuant to section 1385, subdivision (a)." ( Ibid. )"[T]he failure to either impose or strike a section 667.5 prior prison term enhancement pursuant to section 1385, subdivision (a) is a jurisdictional error which may be corrected for the first time on appeal. [Citation.]" (People v. Garcia, supra, 167 Cal.App.4th at p. 1562.)
The trial court's fourth error was to fail to award appellant conduct credit for 15 percent of the 149 days of actual time served in presentence custody. Pursuant to section 2933.1, subdivisions (a) and (c), and section 667.5, subdivision (c)(12), presentence conduct credit shall not exceed 15 percent of the actual period of confinement for a defendant convicted of attempted murder. When 149 days is multiplied by 15 percent, the result is 22.35 days. The .35 fraction must be dropped because section 2933.1 requires that appellant be awarded "the greatest whole number of days which does not 'exceed 15[.00] percent of the actual period of confinement . . . .' (§ 2933.1, subd. (c).)" (People v. Ramos (1996) 50 Cal.App.4th 810, 816.) Thus, appellant is entitled to 22 days of conduct credit.
Conclusion
As we calculate the sentence, for first degree attempted murder with the strike, the court should have imposed a life sentence with a minimum parole eligibility period of 14 calendar years, plus a consecutive term of 25 years to life for the firearm enhancement. To this indeterminate sentence the court was required to add a consecutive, unstayed determinate term of five years for the prior serious felony conviction of robbery (§§ 211, 667, subd. (a)(1) ["the terms of the present offense and each enhancement shall run consecutively"]; see also People v. Williams (2004) 34 Cal.4th 397, 403 ["Under the Three Strikes law, this determinate term must be consecutive to the minimum term of the indeterminate life sentence"].)
As to the one-year prior prison term enhancement for the prior nonserious felony conviction of carrying a concealed firearm (§§ 12025, subd. (a)(2), 667.5, subd. (b)), the matter must be remanded to the trial court with directions "to either impose the prior prison term enhancement or strike it pursuant to section 1385, subdivision (a)." (People v. Bradley (1998) 64 Cal.App.4th 386, 390, 400, fn. omitted; see also People v. Garcia, supra, 167 Cal.App.4th at pp. 1561, 1563; People v. Bowden (2002) 102 Cal.App.4th 387, 395.) "We do not address the issue of whether it would constitute an abuse of discretion to strike [the] prior prison term enhancement. [Citations.] The trial judge has never exercised [his] discretion and it is appropriate [he] be given the opportunity to do so in the first instance. [Citations.]" (People v. Bradley, supra, 64 Cal.App.4th at p. 400, fn. 5; see also People v. McCray (2006) 144 Cal.App.4th 258, 267.) As to the one-year prior prison term enhancement for the prior serious felony conviction of robbery (§§ 211, 667.5, subd. (b)), the enhancement must be stricken. (People v. Jones, supra, 5 Cal.4th at pp. 1152-1153.)
Finally, appellant is entitled to an award of 171 days of presentence custody credit, consisting of 149 days of actual custody and 22 days of conduct credit.
Disposition
The sentence is vacated, and the matter is remanded for resentencing consistent with this opinion. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P.J.
COFFEE, J.
Ricardo R. Ocampo, Judge
Superior Court County of Los Angeles
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Idan Ivri, Deputy Attorney General, for Plaintiff and Respondent.