People v. Scarbrough CA3

Filed 2/10/14 P. v. Scarbrough CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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

THE PEOPLE, C072596

Plaintiff and Appellant, (Super. Ct. No. 111614)

v.

MICHAEL GILBERT SCARBROUGH,

Defendant and Appellant.

Defendant Michael Gilbert Scarbrough was sentenced to 13 years in state prison after being convicted of numerous felonies and misdemeanors resulting from several instances of domestic violence he perpetrated upon his live-in girlfriend. Defendant appeals, contending the trial court made improper dual use of his prior conviction for inflicting corporal injury at sentencing. We disagree with that contention. The People also appeal, contending the trial court erroneously ordered the terms imposed for the first-charged felony and a felony defendant committed while released on

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bail to be served concurrently. We agree with the People’s contention and reverse the judgment and remand for resentencing.

FACTS AND PROCEEDINGS We dispense with the recitation of the facts underlying defendant’s offenses as they are not necessary to the disposition of this appeal. Defendant in this case was charged in Siskiyou County Superior Court in two separate cases, which were later consolidated. The consolidated information, filed on January 10, 2012, under case No. 111614, charged defendant, as follows: assault with a deadly weapon on October 12, 2011 (Pen. Code, § 245, subd. (a)(1); statutory references that follow are to the Penal Code) (count one); inflicting corporal injury on a spouse on October 12, 2011, having had a prior conviction for that same offense within the past seven years (former § 273.5, subds. (a) and (e)) (count two); inflicting corporal injury on a spouse on November 17, 2010, having had a prior conviction for that same offense within the past seven years (former § 273.5, subds. (a) and (e)) (count three); misdemeanor violation of a court’s order of protection on October 12, 2011 (§ 166, subd. (c)(1)) (count four); and misdemeanor violation of a court’s order of protection on April 2, 2011 (§ 166, subd. (c)(1)) (count five). Defendant pled guilty to all counts and admitted the allegations. On November 15, 2012, the trial court sentenced defendant to 13 years in state prison, as follows: the middle term of four years for inflicting corporal injury on a spouse as charged in count two; a consecutive four years for the great bodily injury enhancement; a consecutive two years for the on-bail enhancement; three consecutive years for the prior prison terms; a concurrent middle term of four years for inflicting corporal injury on a spouse as charged in count three; and a consecutive three years for assault with a deadly weapon, stayed pursuant to section 654.