People v. Hays CA2/7

Filed 1/14/15 P. v. Hays CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B253027

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA077539) v.

MARCUS DESHONNE HAYS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Alan B. Honeycutt, Judge. Affirmed as modified.

Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

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We review for a second time this appeal arising from Marcus Deshonne Hays’s convictions on two counts of robbery and two counts of kidnapping with a special finding he had personally used a firearm to commit the offenses. (People v. Hays (Apr. 18, 2013, B236411) [nonpub. opn]) (Hays I). Hays contends the trial court erred in failing to strike a Penal Code section 667.5, subdivision (b) 1 enhancement at his sentencing hearing on remand. We affirm the judgment as modified. FACTUAL AND PROCEDURAL BACKGROUND 1. Original Trial Court Proceedings On January 15, 2012, Hays and a confederate entered a check cashing store in Inglewood and took money, money orders and checks from the two proprietors at gunpoint. (Hays I, at p. 2 fn. 1.) In addition to charging Hays with two counts of robbery and two counts of kidnapping, in an information filed March 15, 2011, the People alleged Hays had suffered three prior serious felony convictions—one each for armed robbery, kidnapping and aggravated assault—all with a conviction date of July 28, 1998 in Fulton County, Georgia, and had served a prison term for those offenses as described in section 667.5, subdivision (b). (Id. at pp. 2-3.) At the bifurcated hearing following Hays’s conviction, the People introduced properly authenticated documents establishing Hays had, in fact, pleaded guilty to those offenses in 1998 and had been sentenced to concurrent terms of 20 years for each, 10 years of which were served in the Georgia state penitentiary.2 No other information concerning the facts underlying the guilty pleas was proffered; a police report relating to the incident, which contained inadmissible hearsay, was presented to the court solely for its consideration in sentencing. (Hays I, at p. 3.) At the conclusion of the hearing, the trial court (the Honorable James R. Brandlin) found the Georgia convictions for armed robbery and aggravated assault to be true and