People v. Lazalde CA5

Filed 8/6/14 P. v. Lazalde 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F067087 Plaintiff and Respondent, (Super. Ct. No. F11904098) v.

GILBERT ANTHONY LAZALDE, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Denise L. Whitehead, Judge. Sara H. Ruddy, under appointment by the Court of Appeal, for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent. -ooOoo-

* Before Gomes, Acting P.J., Detjen, J. and Peña, J.

Defendant Gilbert Anthony Lazalde contends on appeal that the trial court erroneously relied on the same prior conviction to impose a one-year prior prison term enhancement pursuant to section 667.5, subdivision (b) and a five-year prior serious felony enhancement pursuant to section 667, subdivision (a). He also contends the minute order and abstract of judgment do not accurately reflect the court’s oral pronouncement of judgment. The People concede on both points and we agree. Accordingly, we will strike the one-year prior prison term enhancement and order that the minute order and abstract of judgment be corrected. PROCEDURAL SUMMARY A jury found defendant guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)),1 but found the great bodily injury allegation (§ 12022.7, subd. (a)) not true. In a bifurcated proceeding, the trial court found true three allegations regarding defendant’s 1991 and 1997 prior convictions: that they constituted prior strike convictions pursuant to section 667, subdivisions (b) through (i) (the Three Strikes law); that they constituted prior serious felony convictions pursuant to section 667, subdivision (a); and that the time defendant served for them constituted prior prison terms pursuant to section 667.5, subdivision (b). Defendant raised a Romero2 motion to dismiss the two prior strike convictions. The trial court dismissed the 1991 prior strike conviction, but not the 1997 prior strike conviction. In sentencing defendant, the court imposed the midterm of three years, doubled under the Three Strikes law due to the 1997 prior strike conviction, plus a one-year enhancement for the 1991 prior prison term pursuant to section 667.5, subdivision (b). The court struck the 1997 prior prison term. The court also imposed two