Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, Super. Ct. No. BA277042., Patricia M. Schnegg, Judge.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Adrian N. Tigmo, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Kennedy Wright appeals his conviction by jury of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(2)) and making a criminal threat (§ 422) with special findings that he personally inflicted great bodily injury (§ 12022.7) and personally used a firearm within the meaning of section 12022.5, subdivision (a) and section 12022.53, subdivision (b). The trial court sentenced appellant to eight years state prison.
Unless otherwise stated, all statutory references are to the Penal Code.
We direct the trial court to correct the March 23, 2006 minute order to reflect that the true finding on the section 12022.53 firearm enhancement is a legal nullity and stricken as surplusage. As modified, the judgment is affirmed. (§ 1260.)
Facts and Procedural History
On January 5, 2005, appellant told Stephen Buchanan not to visit Jennifer Milligan, the daughter of appellant's finance, at the family residence. Appellant was angry that Buchanan had disregarded prior requests to stay away from the house.
Buchanan was confused and asked, "What's your problem?" Appellant replied, "This is my problem" and drew a handgun. He raised the handgun and hit Buchanan in the forehead. The blow knocked Buchanan to the ground, fracturing his skull.
Jennifer witnessed the attack and tried to help. Appellant threatened to kill Jennifer if she called the police.
Appellant was sentenced to eight years state prison as follows: On count 1 for ADW, the trial court imposed a two-year low term plus three years for infliction of great bodily injury and three years for personal use of a firearm. (§ 12022.5, subd. (a).) On count 2 for making a criminal threat, it imposed a concurrent eight-month sentence (one-third the midterm). Although the trial court did not specifically refer to the section 12022.53 enhancement (a 10 year enhancement) at the sentencing hearing, the minute order states: "Court strikes all remaining special allegations pursuant to Penal Code section 1385."
Section 12022.53 Enhancement
Appellant argues and the Attorney General agrees that the true finding on the section 12022.53 enhancement must be stricken. "Section 12022.53, also known as the '10-20-life' law (Assem. Bill No. 4 (1997-1998 Reg. Sess.)), was enacted in 1997 to substantially increase the penalties for using firearms in the commission of enumerated felonies. . . . [Citations.]" (People v. Palmer (2005) 133 Cal.App.4th 1141, 1148-1149.) Appellant was convicted of ADW (§ 245, subd. (a)(2)), a crime to which section 12022.53 does not apply. The jury finding on the section 12022.53 enhancement was a legal nullity and properly stricken, as reflected in the court minutes. (§ 1385, subd. (a); People v. Allen (1974) 41 Cal.App.3d 821, 826.) Section 1385, subdivision (a), however, requires that the trial court set forth its reasons in the minutes. (People v. Orin (1975) 13 Cal.3d 937, 943-945; People v. Humphrey (1997) 58 Cal.App.4th 809, 811.)
The trial court is directed to correct the March 23, 2006 minute order to reflect that the true finding on the section 12022.53 enhancement is a legal nullity and stricken as surplusage. The judgment and eight year prison sentence is affirmed in all other respects.
We concur: GILBERT, P.J., COFFEE, J.