People v. Black CA2/2

Filed 11/24/14 P. v. Black CA2/2 Opinion following rehearing NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B249727

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA056966) v.

DARNELL BLACK,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Eric Harmon, Judge. Modified, remanded with directions and affirmed.

Davina T. Chen, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Gerald Engler, Chief Assistant Attorneys General, Lance E. Winters, Assistant Attorney General, Yun K. Lee, Margaret E. Maxwell and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION In an opinion filed on October 27, 2014, we affirmed the judgment of conviction and held, among other things, that six prior prison terms were served separately by appellant Darnell Black, which was the basis for the enhancement, by six years, of appellant’s sentence. Appellant filed a petition for rehearing in which he pointed out that the probation report showed that two of the six prior prison terms were served concurrently, not separately. We requested a reply to the petition for rehearing. In the reply, respondent cites the certified RAP sheet, which was People’s exhibit 13, that indicates, as we discuss in detail in section 4 of the Discussion part of our opinion, that the probation report is in error and that the sentences were served separately. We agree with respondent that this factual conflict should be resolved by the trial court and therefore remand the case with directions to the trial court to determine whether the sentences on the two prior convictions in question were served separately. Having granted appellant’s petition for rehearing, we issue this opinion that is identical to the opinion filed on October 27, 2014, with four exceptions. They are the addition of the Introduction section, a change in the text of footnote 5, a new section 4 of the Discussion part of this opinion and a new Disposition section. With the exception of the modification already noted in our previous opinion striking prior conviction case No. VA039282 and the remand with directions to determine whether the sentences on the two prior convictions were served separately, we affirm the judgment. STATEMENT OF THE CASE In an information filed on August 23, 2012, appellant Darnell Black was charged with two counts of second degree burglary in violation of Penal Code, section 211,1 involving two victims (counts 1 & 2) and with second degree commercial burglary in