California Court of Appeal Jan 9, 2015 No. E059906Unpublished
Filed 1/9/15 P. v. Carter CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059906
v. (Super.Ct.No. FVA1200113)
SYDNEY RAYNARD CARTER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Dan Detienne,
Judge. Affirmed with directions.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Michael
Joseph Benke, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Sydney Raynard Carter is serving 21 years and four
months in prison as a second-striker after a jury convicted him of several charges relating
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to his theft of shoes from a store. Defendant challenges one of the one-year prior prison
term enhancements because the trial court also imposed a five-year serious felony
information to a police officer (§ 148.9, subd. (a)). The People also alleged defendant
had two strike priors under section 1170.12, subdivisions (a)-(d), seven prison term priors
under section 667.5, subdivision (b), and two serious felony priors under section 667,
subdivision (a).
The People later amended the information to delete one of the prior convictions as
both a strike prior and a serious felony prior.
On March 20, 2013, the jury convicted defendant of each of the charges except
petty theft.
On March 21, 2013, after a bench trial on the prior conviction allegations, the
court struck two of the seven prison term priors, but found true the single remaining
strike prior, the five remaining prison priors, and the remaining serious felony prior. The
strike prior, the serious felony prior, and one of the prison term priors are all based on a
single conviction for robbery on January 13, 1987, in Los Angeles Superior Court case
No. A792959.
On October 22, 2013, the court sentenced defendant to a total of 21 years and four
months in prison as follows: the high term of five years for the robbery, doubled to ten
years for the strike prior, plus eight months for the drug possession, doubled to 16 months
for the strike prior, plus 180 days in jail for the misidentification, to be served
concurrently, plus one year for each of the five prison priors, plus five years for the
serious felony prior.
This appeal followed.
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DISCUSSION
Defendant contends the trial court incorrectly used defendant’s 1987 robbery
conviction to impose both a five-year prior serious felony enhancement under section
667, subdivision (a), and a one-year prior prison term enhancement under section 667.5,
subdivision (b). Therefore, defendant argues, we must strike the one-year prior prison
term enhancement based on the 1987 robbery conviction. The People concede the point.
That concession is appropriate.
The trial court found true five prior convictions––a robbery conviction on January
13, 1987, plus four other convictions that qualified as prison term priors under section
667.5, subdivision (b). As described above, both the information and the sentencing
court used the 1987 robbery conviction in three different ways—as a strike prior, a
serious felony prior, and a prison term prior. The trial court should have imposed only
four prior prison term enhancements because the court could not use defendant’s 1987
robbery conviction to impose both a prior serious felony enhancement and a prior prison
term enhancement. (People v. Jones (1993) 5 Cal.4th 1142, 1149-1153.) Accordingly,
we will direct the trial court to strike the one-year prior prison term enhancement
imposed in connection with defendant’s 1987 robbery conviction.
In addition, defendant argues, the People concede, and this court agrees, that the
minute order and abstract of judgment incorrectly reflect that the sentencing court
imposed an additional one-year prior prison term enhancement (“prior # 6”). The record
transcript shows the court did not impose this enhancement. The court’s oral
pronouncement of judgment controls over the minute order and abstract of judgment.
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(People v. Mesa (1975) 14 Cal.3d 466, 471.) The minute order and abstract of judgment
should be amended to show a total of four one-year prior prison term enhancements and a
sentence of 20 years, four months.
DISPOSITION
The matter is remanded to the trial court with directions to strike the one-year
prior prison term enhancement based on defendant’s 1987 robbery conviction in case No.
A792959, and to prepare and forward to the appropriate governmental agencies a
corrected abstract of judgment reflecting a total of four one-year prior prison term
enhancements and a sentence of 20 years and four months. The judgment is affirmed in
all other respects.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
GAUT J.* We concur:
RAMIREZ P. J.
MILLER J.
*Retired Associate Justice of the Court of Appeal, Fourth Appellate District, Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a prior conviction cannot be used to impose both a serious felony enhancement and a prior prison term enhancement, and that the abstract of judgment must be corrected to reflect the court's oral sentencing pronouncement.
Issues
Whether a single prior conviction can support both a serious felony enhancement and a prior prison term enhancement.
Whether the minute order and abstract of judgment must be amended to match the court's oral pronouncement of sentence.
Disposition. Affirmed with directions
Quotations verified verbatim against the opinion
“The trial court should have imposed only four prior prison term enhancements because the court could not use defendant’s 1987 robbery conviction to impose both a prior serious felony enhancement and a prior prison term enhancement.”
“The court’s oral pronouncement of judgment controls over the minute order and abstract of judgment.”