People v. Garcia

Opinion

BOREN, P. J.

Raymond J. Garcia appeals from the judgment entered upon his conviction by jury of two counts of second degree robbery and two counts of second degree burglary (Pen. Code, §§211, 459), with findings, after a court trial, of two prior serious felony convictions within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d), a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a), and a prior felony

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conviction for which he served a separate prison term within the meaning of Penal Code section 667.5, subdivision (b).

1

Appellant was sentenced to 25 years to life plus 8 years 4 months, calculated as follows: The court imposed the third strike term of 25 years to life on count 1, robbery, with a 5-year section 667, subdivision (a) enhancement, and stayed the sentence for burglary in count 2. The court exercised its discretion as to the prior convictions pursuant to section 1385 with respect to counts 3 and 4, robbery and burglary, and imposed consecutive sentences of one-third the midterm, doubled, or two years and sixteen months, respectively, on those counts.

Appellant contends that (1) the trial court erred in using two counts arising from a single conviction as two strikes, and (2) the trial court erred in adding a five-year section 667, subdivision (a) enhancement to his three strikes term.

Respondent contends that the matter must be remanded for resentencing because the trial court imposed an unauthorized sentence by striking one prior conviction with respect to two of the counts, while otherwise finding two prior convictions true and imposing a third strike term of 25 years to life on another count.

Facts

The evidence as to counts 1 and 2 established that on February 14, 1996, appellant entered Telas El Remate, the store owned by Maria Partida. After waiting until all the customers had left, he opened the cash register and grabbed nearly $300. When Partida tried to prevent him from escaping with the money, he tripped her, kicked her, and fled.