Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA044138, Rand S. Rubin, Judge.
Jeffrey Lewis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, P.J.
A jury found Nicolas R. Pasea guilty of two counts of attempted robbery (Pen. Code, §§ 664, 211) and two counts of assault with a semi-automatic firearm (§ 245, subd. (b)). On this appeal, Pasea challenges his sentence, and the People concede error. We affirm Pasea’s convictions, modify his sentence, and remand the case to the trial court to prepare a new abstract of judgment.
All section references are to the Penal Code.
FACTS
On November 20, 2008, Pasea donned a bandana mask, and entered the home of Damian and Patrizio Barcenas without invitation. Upon entering the home, Pasea pointed a handgun at Damian. When Patrizio entered the room, Pasea also pointed the handgun at him. Pasea demanded money. Damian grabbed the pistol, a fight ensued, and Pasea discharged the weapon. Eventually, the brothers were able to take the pistol away from Pasea, and physically remove him from their home. During the fight, Pasea’s mask came off, revealing his identity. After being left on the ground outside, Pasea got up and ran from the scene. Police responded to the Barcenas’ home and recovered a semi-automatic 45-caliber handgun. Police later caught up with Pasea at a local hospital.
In March 2009, the People filed a second amended information charging Pasea with the following offenses: first degree burglary (count 1; § 459); attempted residential robbery of Damian (count 2; §§ 664 & 211); attempted residential robbery of Patrizio (count 3; §§ 664 & 211); assault with a semi-automatic firearm upon Damian (count 4; § 245, subd. (b)); assault with a semi-automatic firearm upon Patrizio (count 5; § 245, subd. (b)); criminal threats (count 6; § 422); and attempted premeditated murder of Damian (count 7; §§ 664 & 187, subd. (a)). Various personal firearm use and discharge enhancements were alleged. The charges were tried to a jury in late 2009, at which time the People presented evidence establishing the facts summarized above through testimony from Damian, Patrizio, two others in the family home at the time of the armed robbery, a neighbor who helped subdue Pasea outside, and the investigating detective. Pasea testified in his own defense. His version of events was that he went to the Barcenas’ home to sell them the handgun, that they took the handgun, and then beat him.
On December 18, 2009, the jury returned verdicts finding Pasea guilty as charged in count 2 of attempted residential robbery of Damian, with a finding that Pasea personally used a firearm in the commission of the offense as alleged under section 12022.53, subdivision (b); in count 3 of the attempted residential robbery of Patrizio, with a finding that Pasea had personally used a firearm as alleged under section 12022.53, subdivision (b); in counts 4 and 5 of assault with a semi-automatic firearm upon Damian and Patrizio, respectively, each with a finding that he personally used a firearm as alleged under sections 1203.06, subdivision (a)(1), and 12022.5, subdivision (a). The jury found Pasea not guilty of residential burglary in count 1, criminal threats in count 6, and attempted murder in count 7.
On February 24, 2010, the trial court sentenced Pasea to an aggregate term of 17 years and 6 months as follows:
Count 2 (§§ 664 & 211 of Damian) →low term of 1 year, 6 months, plus 10 years for the firearm use;
Count 3 (§§ 664 & 211of Patrizio) →one-third the midterm for 8 months, plus one-third of 10 years for the firearm use, for 3 years, 4 months, consecutive;
Count 4 (assault on Damian) →3 years, concurrent, plus 1 year under section 12022.5, consecutive;
Count 5 (assault on Patrizio) →3 years, concurrent, plus 1 year under section 12022.5, consecutive.
Pasea filed a timely notice of appeal.
DISCUSSION
Pasea contends, the People concede, and we find that he was improperly sentenced on counts 4 and 5, the assaults with a semi-automatic firearm upon Damian and Patrizio. The parties’ unified position is that the assaults with a semi-automatic firearm on Damian and Patrizio alleged in counts 4 and 5 were not severable from the robberies of Damian and Patrizio alleged in counts 2 and 3. Accordingly, the sentences on counts 4 and 5 should have been imposed and stayed, and not imposed and ordered to run concurrent to the punishments on counts 2 and 3. (§ 654; People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Further, because the three-year sentences on counts 4 and 5 must be stayed under section 654, so too must the one-year firearm enhancements attached to counts 4 and 5 be stayed. (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310.) The trial court should impose the terms applicable to counts 4 and 5, including the count-specific firearm enhancements, and then stay those aggregate terms. (People v. Alford (2010) 180 Cal.App.4th 1463, 1468-1469.)
Because a modified sentence in accord with this opinion will resolve Pasea’s claim that his due process rights were implicated by a deviation from California sentencing law, we need not consider his due process claim.
DISPOSITION
Pasea’s convictions are affirmed. His sentence is modified as described in this opinion, and the cause is remanded to the trial court to issue a new abstract of judgment accordingly.
We concur: RUBIN, J., GRIMES, J.