People v. West CA5

Filed 10/9/13 P. v. West CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F065139 Plaintiff and Respondent, (Super. Ct. No. F11905843) v.

MICHAEL DAVID WEST, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. D. Tyler Tharpe, Judge. Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Poochigian, J. and Detjen, J.

STATEMENT OF THE CASE On October 12, 2011, a complaint was filed, charging defendant Michael David West with attempted second degree robbery involving the personal use of a firearm (Pen. Code,1 §§ 211, 664, 12022.53, subd. (b); count 1), second degree robbery involving the personal use of a firearm (§§ 211, 12022.53, subd. (b); count 2), and possession of a firearm by a felon (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1); count 3).2 At arraignment, defendant pleaded not guilty to all charges. On April 13, 2012, the parties entered into a plea agreement. Defendant waived his preliminary hearing, and his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. The court advised defendant of the consequences of an admission of guilt, including an indicated sentence of no more than 15 years 4 months in prison. The parties stipulated to a factual basis for the plea, and the court ordered the police report incorporated into and made part of the record. Defendant pled guilty to counts 1 and 2, and admitted the firearm use allegation as to each count. The court found a knowing, intelligent, and voluntary waiver of rights and guilty plea. In exchange for defendant’s guilty plea, count 3, as well as six other cases defendant had pending, were dismissed on motion of the prosecutor. On May 15, 2012, defendant was sentenced to 12 years in prison, calculated as the mitigated term of two years plus a consecutive 10 years for the firearm enhancement on count 2, with a concurrent term on count 1.3 He was awarded custody credits of 255 days

1 All statutory references are to the Penal Code unless otherwise stated. 2 Ann Marie Vasquez was charged in counts 4 through 6 of the complaint. Her case is not before us on this appeal. 3 The original sentencing minute order and abstract of judgment contained an error in the award of time credits that the trial court subsequently corrected. Both the original and corrected documents erroneously show the court imposed a two-year term on count 1 (attempted robbery) and a concurrent 16-month term on count 2 (robbery). In reality, the