Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. YA073781 John Vernon Meigs, Judge.
Ann Krausz, 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, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Michael Earl Grady was convicted, following a jury trial, of one count of robbery in violation of Penal Code section 211. Appellant admitted that he had suffered a prior serious felony conviction within the meaning of section 667, subdivisions (b) through (i) and 1170.12 (the "Three Strikes law") and section 667, subdivision (a)(1), and that he had served a prison term for that felony within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to a total term of 12 years in state prison, consisting of the middle term of three years for the robbery conviction, doubled to six years pursuant to the Three Strikes law, plus a five-year enhancement term pursuant to section 667, subdivision (a)(1), plus a one-year enhancement term pursuant to section 667.5.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending that the trial court erred in imposing the one-year enhancement term pursuant to section 667.5. Appellant is correct, and the enhancement is ordered stricken. The judgment of conviction is affirmed in all other respects.
Facts
About 3:40 p.m., on December 15, 2008, appellant approached 16-year-old Jose Juarez as he was walking through a park. Appellant demanded that Juarez give him his iPod and a gold "J" medallion with a diamond on it. When Juarez did not comply, appellant pulled the items away from him. Juarez went to a friend's house and called the police. The officers went to the park and found appellant, wearing Juarez's necklace and in possession of Juarez's iPod. Juarez later picked appellant out of a field show-up as the robber.
Discussion
Appellant contends that the trial court erred in imposing both a five-year enhancement pursuant to section 667, subdivision (a)(1) and a one-year enhancement pursuant to section 667.5, subdivision (b) based on the same prior conviction. Respondent agrees. We agree as well.
The same prior conviction was alleged and admitted for both enhancement allegations. Under such circumstances, only the five-year enhancement pursuant to section 667, subdivision (a)(1) can be imposed. (See People v. Jones (1993) 5 Cal.4th 1142, 1149-1150; People v. Garcia (2008) 167 Cal.App.4th 1550, 1562.) The section 667.5 enhancement must be stricken.
Disposition
The one-year enhancement imposed pursuant to section 667.5, subdivision (b) is ordered stricken. Appellant's sentence is recalculated to be 11 years. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting these changes and to deliver a copy to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: KRIEGLER, J. WEISMAN, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.