The People v. McKim CA3

Filed 9/16/13 P. v. McKim CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE, C070228

Plaintiff and Respondent, (Super. Ct. No. 11-2230)

v.

JASON McKIM,

Defendant and Appellant.

In exchange for a stipulated sentence of 16 years four months, defendant Jason McKim pleaded no contest to two counts of robbery (Pen. Code, § 211 -- counts 1 & 2),1 one count of vandalism (§ 594 -- count 3) and one count of resisting or obstructing a peace officer (§ 148, subd. (a)(1) -- count 4). He also admitted a deadly weapon enhancement as to the second robbery charge (§ 12022, subd. (b)(1)), two prior serious felony enhancements (§§ 667, subds. (a)(1), (c), (e)(1), 1192.7) and a prior prison term

1 Undesignated statutory references are to the Penal Code.

1

enhancement (§ 667.5, subd. (b)). Defendant contends the imposition of a one-year term for the deadly weapon enhancement was unauthorized because it violates the requirements of section 1170.1. We find the court improperly designated count 1 as the principal term. This error requires the abstract of judgment be amended. BACKGROUND Because of the nature of the claim on appeal a detailed recitation of the substantive facts underlying the offenses is not necessary. In March 2011, defendant stole money from the cash register drawer at a pharmacy. Approximately two months later, he went to a sandwich shop and demanded cash from the store clerk at knife point. After his arrest for robbery, defendant attempted to escape from the Woodland Police Department. In his escape efforts, he damaged doors to the building. Defendant was charged with two counts of second degree robbery (counts 1 & 2), one count of vandalism (count 3) and one count of misdemeanor resisting or obstructing a peace officer (count 4). It was also alleged defendant used a deadly weapon in the commission of the robbery in count 2. It was further alleged defendant had a prior strike conviction (§ 667, subd. (a)(1)), a prior serious felony conviction (§ 667, subds. (c), (e)(1)), and had served two prior prison terms (§ 667.5, subd. (b)). The parties agreed to a plea in which defendant admitted committing both robberies, vandalism, and the deadly weapon enhancement. Defendant also admitted the prior conviction enhancements and one of the prior prison term enhancements. The remaining charges were dismissed and defendant agreed to a stipulated sentence of 16 years four months. In accordance with the plea, the trial court sentenced defendant to an aggregate term of 16 years four months. The sentence was reached as follows: the trial court designated the robbery in count 1 as the principal term and sentenced defendant to a term of three years, doubled because of the strike to six years; a one-year (one-third the midterm) term was imposed on the robbery in count 2, as a subordinate term, doubled to