People v. Ward CA5

Filed 7/23/14 P. v. Ward 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F066792 Plaintiff and Respondent, (Super. Ct. No. F10905141) v.

ANTHONY DERRICK WARD, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. James M. Petrucelli, Judge. Han N. Tran, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Charity S. Whitney, Deputy Attorneys General, for Defendant and Respondent. -ooOoo-

* Before Levy, Acting P.J., Cornell, J. and Franson, J.

A jury convicted appellant, Anthony Derrick Ward, of two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c);1 counts 1, 2) and one count of reckless driving while evading a peace officer (Veh. Code, § 2800.2, subd. (a); count 3), and found true allegations that in committing each of the robberies, appellant personally used a dangerous or deadly weapon (§ 12022, subd. (b)(1)). The jury also found true allegations that appellant had suffered two prior serious felony convictions within the meaning of section 667, subdivision (a) and 11 “strikes,”2 and that he had served six separate prison terms for prior felony convictions (§ 667.5, subd. (b)). The court imposed terms of 25 years to life on each of counts 1 and 2, and ordered the terms to run consecutively. On the count 1 enhancements, the court imposed terms of five years on each of the two prior serious felony enhancements; one year on the accompanying weapon use enhancement, and one year on each of four prior prison term enhancements, and on the count 2 enhancements, the court imposed terms of five years on each of the two prior serious felony enhancements, and struck the weapon use and prior prison term enhancements. The court ordered that the total 25-year determinate term on the enhancements be served prior to the indeterminate terms. The court also imposed a concurrent six-year term on count 3, consisting of the three-year upper term, doubled pursuant to the Three Strikes law (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). On appeal, appellant argues that the court mistakenly believed it did not have the discretion to impose concurrent sentences on the count 1 and count 2 substantive offenses and, therefore, remand for resentencing is required. We vacate the sentence, remand for resentencing, and otherwise affirm.