People v. Easter CA1/1

Filed 12/16/13 P. v. Easter CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A136925 v. DERRYL R. EASTER, (Del Norte County Super. Ct. No. CRPB125102) Defendant and Appellant.

INTRODUCTION Defendant Derryl R. Easter appeals from his conviction of two counts of battery by a prisoner on a non-prisoner. He maintains the trial court erred in imposing the aggravated term, claiming the court made dual use of the fact of a firearm enhancement from his prior first degree murder conviction. We affirm. BACKGROUND We set forth only those facts necessary to consideration of the issue on appeal. Defendant was charged by information with two counts of battery by a prisoner on a non- prisoner. The information also alleged he had a prior strike conviction for first degree murder. The evidence showed defendant battered a correctional officer on two separate occasions. On January 29, 2012, he kicked a correctional officer in the groin. On April 23, 2012, he threw a liquid, which smelled like a disinfectant called “cell block 64,” in a correctional officer’s face. A jury found defendant guilty of both counts and found true the prior conviction allegation.

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The probation report recommended, based on the aggravating factors of numerosity and seriousness of prior convictions and his prior prison term, a total sentence of 10 years—an aggravated term of four years for count 1, one-third the midterm, or one year, for count 2, and a doubling of the sentence under Penal Code section 667, subdivision(e)(1).1 After denying defendant’s Romero motion2 to dismiss the strike allegation under section 1385 for defendant’s conviction for first degree murder, the court agreed with the probation department’s recommendation and sentenced defendant to a 10-year term. The court explained: “I am inclined to follow the recommendation of the probation department. It would appear to me that because of the defendant’s record, that this is an aggravated case, not so much for the facts that actually occurred here, but because of the defendant’s prior record. As I’ve indicated, it would appear to me that the Court is required to give consecutive sentences as the Court doesn’t really have discretion in that regard. [¶] So it would be my intention to give the aggravated four-year term plus one year consecutive for Count 2. And then double it because of [the] prior strike conviction for a total of ten years.” “[G]iven his record and his continued violence, that’s why I’m coming down on the . . . side of finding this to be an aggravated case.” “I have considered the factors in aggravation and mitigation as set forth in [California Rules of Court, r]ules 4.421 and 4.423. And because of the defendant’s prior record of violence and his continuing violence in this case . . . this appears to me to be a case that’s aggravated. [¶] I’m taking into consideration the information that I’ve received at the time of the shackling motion, that this was a cold-blooded killing that he was put in prison for. He put a gun to a woman’s head and pulled the trigger.[3] He is a very violent