People v. Grayson CA6

Filed 5/22/14 P. v. Grayson CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039089 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1065816)

v.

MICHAEL LEE GRAYSON, JR.,

Defendant and Appellant.

Defendant Michael Lee Grayson, Jr., appeals from a judgment of conviction entered after he pleaded guilty to six counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c) - counts 1-6),1 one count of attempted second degree robbery (§§ 664, 211, 212.5, subd. (c) - count 7), three counts of criminal threats (§ 422 - counts 8-10), and five counts of false imprisonment (§§ 236, 237, subd. (a) - counts 11-15). Defendant also admitted three prior strike convictions (§§ 667, subd. (b)-(i), 1170.12) and three prior serious felony convictions (§ 667, subd. (a)). The trial court imposed a prison term of 100 years to life consecutive to a determinate term of 60 years. On appeal, defendant contends: (1) the trial court erred by imposing two prior serious felony enhancements pursuant to section 667, subdivision (a) when the two underlying convictions were not charged and tried separately; (2) the imposition of

1 All further unspecified statutory references are to the Penal Code.

serious felony enhancements as to counts 8 through 10 must be reversed because defendant was neither charged with nor did he admit enhancements as to these counts; and (3) the abstract of judgment must be corrected to reflect the oral pronouncement of judgment as to counts 11 through 15. We agree and modify the judgment. As modified, the judgment is affirmed.

I. Statement of Facts2 A. Counts 1 to 3 (§ 211), Counts 8 & 9 (§ 422), Counts 11 to 13 (§§ 236, 237) At approximately 6:15 p.m. on October 25, 2009, defendant entered a Radio Shack store in San Jose and told Jesse Griego, an employee, that he had a gun in his waistband and motioned toward his waist. Defendant then escorted Griego to the store counter where there were two other employees, Paola Arango and Airica Musa. Defendant took $40, a driver’s license, and credit cards from Griego’s wallet. Defendant told Arango, “I am not playing games. I have a gun! Give me all the cash and everything in your pockets and your wallet.” After taking approximately $700 from the cash register, defendant accused Griego of lying about whether there was no additional cash and threatened to shoot him. Defendant then took the three employees to the rear of the store before he fled the scene.