Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino CountySuper.Ct.No. FSB18188. Donna G. Garza, Judge. Affirmed.
Amanda F. Benedict, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Scott C. Taylor and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
McKINSTER, J.
INTRODUCTION
On July 6, 1999, a jury found defendant guilty of 10 counts of robbery. (Pen. Code, § 211.) As to all 10 counts, the trial court found true the allegations that defendant suffered one prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), a prior serious felony (§ 667, subd. (a)(1)), and three prison priors (§ 667.5, subd. (b)). The trial court sentenced defendant to 36 years eight months in state prison. Defendant appealed and this court affirmed the judgment of the trial court. Defendant petitioned the United States District Court for the Central District of California, Western Division, for a writ of habeas corpus, which the court granted as to all counts, except count 9. On February 15, 2007, defendant was resentenced to 17 years in state prison.
In order to thoroughly and fully state the factual and procedural background, we take judicial notice of the record in defendant’s previous case, No. E025725. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends that his sentence must be reduced because (1) the trial court erred by utilizing defendant’s prior 1993 robbery conviction for the dual purposes of imposing a five-year serious felony enhancement (§ 667, subd. (a)(1)) and a one-year enhancement for having served a prison term for the conviction (§ 667.5, subd. (b)); and (2) the trial court erred by using defendant’s prior 1993 robbery conviction a third time to justify the imposition of the upper prison term. We affirm the judgment because the multiple factual errors made by defendant completely undermine his arguments.
In defendant’s briefs, he refers to his “1992 robbery conviction.” Defendant’s conviction occurred in 1993, therefore, we describe this conviction as taking place in 1993 rather than 1992.
FACTS
A. Facts of the Case
The remaining robbery conviction (count 9) involved the taking of personal property on or about March 21, 1998. (§ 211.) As to that count, the prosecution made five allegations concerning prior convictions.
1. Defendant’s June 1993 Robbery Conviction
The first allegation was that defendant suffered a prior strike conviction for robbery (§ 211) on June 4, 1993 (case No. KA015058). (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).)
The second allegation utilized the same prior robbery conviction, but alleged that it was a prior serious felony, which would require the imposition of a five-year sentence enhancement. (§ 667, subd. (a)(1).)
We discern that the amended information contains an error because where it charges defendant with suffering a prior serious felony (§ 667, subd. (a)(1)) the conviction is described as having occurred on January 4, 1993; however, the crime and case number are the same as that associated with defendant’s conviction on June 4, 1993. We have examined defendant’s probation report and have found that he did not suffer a conviction in January 1993. Consequently, we conclude that the amended information is incorrect as to defendant’s prior serious felony conviction (§ 667, subd. (a)(1)) and that the same June 4, 1993, conviction charged as a prior strike was also charged as a prior serious felony.
2. Defendant’s Prior Convictions for Which He Served Prison Terms
The third allegation was that defendant suffered a prior conviction for theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)) on November 28, 1994 (case No. BA098203), and that defendant served a prior prison term for that offense, which would result in a one-year sentence enhancement (§ 667.5, subd. (b)).
The fourth allegation was that defendant suffered a prior conviction for possession of controlled substances where prisoners are kept (§ 4573.6) on June 16, 1993 (case No. BA075420), and that defendant served a prior prison term for that offense, which would result in a one-year sentence enhancement (§ 667.5, subd. (b)).
The fifth allegation was that defendant suffered a prior conviction for theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)) on August 9, 1985 (case No. A768069), and that defendant served a prior prison term for that offense, which would result in a one-year sentence enhancement (§ 667.5, subd. (b)).
3. Resentencing Hearing
At the resentencing hearing on February 15, 2007, defendant’s counsel argued that the trial court should follow the recommendation of the probation officer and sentence defendant to 14 years in state prison. The court declined to do so and sentenced defendant in a five-part procedure. First, the trial court struck one of defendant’s three prior prison enhancements (§ 667.5, subd. (b)), “pursuant to the Court’s authority in Penal Code section 1385.” Second, the court used the prior prison term, which it had stricken, as a factor in aggravation to justify the imposition of the upper term of five years. (§ 213.) Third, the court doubled the sentence to 10 years, ostensibly due to defendant’s prior strike conviction for the June 1993 robbery. (§ 1170.12, subd. (c)(1).) Fourth, the court utilized defendant’s June 1993 robbery conviction as a prior serious felony conviction to enhance defendant’s sentence with a five-year term. (§ 667, subd. (a)(1).) Fifth, the court enhanced defendant’s sentence again with two one-year terms due to defendant’s two prison priors. (§ 667.5, subd. (b).)
B. Errors in Defendant’s Opening Brief and Reply Brief
In his briefs, defendant correctly asserts that the June 1993 robbery conviction was the basis for the prior strike finding (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and the prior serious felony finding (§ 667, subd. (a)(1)); however, defendant incorrectly alleges that the June 1993 robbery conviction was also utilized as a prison prior (§ 667.5, subd. (b)). The prison priors resulted from three separate and distinct cases, none of which were the June 1993 robbery conviction. Further, defendant incorrectly asserts that the trial court used the June 1993 robbery conviction as a basis for imposing the aggravated term. The record reflects that the court struck one of the three prison priors and then used that stricken conviction as its justification for imposing the upper term.
C. Errors in Respondent’s Brief
In the respondent’s brief, the People repeat the factual errors made by defendant. In addition, the People incorrectly argue that the trial court struck one of defendant’s prison priors (§ 667.5, subd. (b)) in order to impose the five-year serious felony enhancement (§ 667, subd. (a)(1)). However, the record reflects that the five-year serious felony enhancement resulted from defendant’s June 1993 robbery conviction, not from one of defendant’s three prison priors.
DISCUSSION
A. Dual Use of Defendant’s Robbery Conviction
Defendant contends that the trial court erred by using his June 1993 robbery conviction for the dual purpose of imposing a five-year enhancement for a prior serious felony and to impose a one-year enhancement for a prior conviction resulting in a prison term.
As noted, ante, defendant has misstated the actions of the trial court. The court did not utilize defendant’s June 1993 robbery conviction to impose a one-year enhancement. (§ 667.5, subd. (b).) The record reflects that the convictions that resulted in the one-year sentence enhancements were separate and distinct from the June 1993 robbery conviction, which was utilized as a prior strike and justification for the imposition of the five-year sentence enhancement. Accordingly, we conclude defendant’s argument has no merit. Additionally, we note that the trial court did not err by using defendant’s June 1993 robbery conviction both as a prior strike and a prior serious felony. (People v. Nelson (1996) 42 Cal.App.4th 131, 141.)
B. Upper Term
Defendant contends the trial court erred by using his June 1993 robbery conviction for the dual purpose of imposing a five-year serious felony enhancement and as a factor in aggravation to justify the imposition of the upper term. The People concede that this was an error, but argue that the error was harmless.
Both defendant and the People have mischaracterized the actions of the trial court. The trial court did not utilize defendant’s June 1993 robbery conviction to justify the imposition of the upper term. Rather, the court struck one of defendant’s prison priors and used that prior conviction as a reason to support the aggravated prison term. Accordingly, we conclude defendant’s argument has no merit.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J., RICHLI, J.