Opinion
G046573
10-22-2012
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY LEE THOMAS, Defendant and Appellant.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, William M. Wood, Supervising Deputy Attorney General, Kathryn Kirschbaum, Deputy Attorney
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 05CF0277)
OPINION
Appeal from a judgment of the Superior Court of Orange County, William Froeberg, Judge. Affirmed with directions.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, William M. Wood, Supervising Deputy Attorney General, Kathryn Kirschbaum, Deputy Attorney
We previously affirmed the convictions of defendant Johnny Lee Thomas and three co-defendants, but remanded for resentencing in People v. Graham (Jan. 30, 2009, G037997) (nonpub. opn.); we take judicial notice of this case. Thomas and his co-defendants separately appealed their new sentences. We again remanded for resentencing, in People v. Graham (August 27, 2010, G042419) (nonpub. opn.) and in People v. Thomas (Sept. 08, 2011, G044471) (nonpub. opn.); we take judicial notice of these cases. We once more remand the case for corrections required to be made in the sentence as it relates to count 2 for theft of a vehicle in violation of Vehicle Code section 10851, subdivision (a).
Thomas was convicted of a large number of crimes connected to two home invasion robberies.
1. Sentence Imposed
Following Thomas' last appeal, we vacated his sentence for the second time and remanded for resentencing. On remand, the trial court was to stay Thomas' street terrorism conviction pursuant to Penal Code section 654 (all further statutory references are to this code) and also correct several discrepancies between Thomas' original sentence and the sentence issued on remand.
On remand, with respect to count 2, the court sentenced Thomas to the middle term of two years. The court sentenced him to a consecutive 10-year term for the firearm enhancement under section 12022.53, subdivision (b) after finding it to be true as it relates to count 2. It struck the section 186.22, subdivision (b), street gang enhancement under section 12022.53, subdivision (e)(2) and stayed the sentence on count 2 pursuant to section 654.
2. The Firearm Enhancement Cannot Attach to Count 2
Section 12022.53, subdivision (b), the firearm enhancement at issue here, enumerates specific crimes to which the enhancement may attach. Theft of a vehicle in violation of Vehicle Code section 10851 is not included. (See § 12022.53, subd. (a)(1)-(18).) Thus, the court erred in applying the firearm enhancement to count 2.
Section 186.22, subdivision (b), the criminal street gang enhancement, which was also alleged with respect to count 2, may properly attach to a vehicle theft conviction under Vehicle Code section 10851. The court struck the criminal street gang enhancement and imposed and stayed the firearm enhancement to count 2. On remand, it must strike the improper firearm enhancement and exercise its discretion to strike, impose, or stay the criminal street gang enhancement as it relates to count 2.
DISPOSITION
The case is remanded for corrections required to be made in the sentence as it relates to count 2. In all other respects, the judgment is affirmed.
RYLAARSDAM, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.