People v. Clay CA2/7

Filed 3/16/15 P. v. Clay CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B255384

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA075790) v.

ROY DYCRUS CLAY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Elden Fox, Judge. Affirmed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback II and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

______________________

Two years after being sentenced as a second strike offender in accordance with the trial court’s indicated sentence following an open plea of guilty to charges that included two prior strikes, Roy Dycrus Clay filed a postjudgment motion challenging his sentence as unauthorized and seeking a reduction in the prison term imposed because the trial court dismissed the wrong prior strike conviction. The trial court denied the motion. We affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2010 Clay was charged in an amended felony complaint with one count of automobile burglary and two counts of grand theft of personal property with special allegations he had suffered two prior serious or violent felony convictions (burglary in 1977 and robbery in 1981) within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and had served 12 separate prison terms for felonies (Pen. Code, § 667.5, subd. (b)). Clay pleaded not guilty and denied the special allegations. In 2011, following a discussion off the record among the court, the prosecutor and defense counsel, Clay waived his rights to a preliminary hearing and to a jury trial, entered an open plea of guilty to the charges and admitted all the alleged prior felony convictions. It appears from the plea hearing transcript that, after the prosecutor indicated she would not object if Clay admitted only one of the prior strike convictions, the court suggested Clay admit the 1977 burglary conviction as a prior strike conviction. Clay then admitted the burglary conviction as a prior strike and the 1981 robbery conviction solely as a Penal Code section 667.5, subdivision (b), prior prison term enhancement. Before entering his plea, Clay was advised by the trial court that he faced a potential state prison sentence of 87 years to life, but the court was considering imposing a suspended state prison sentence and formal probation, so long as Clay made all of his court appearances and no new charges were filed against him during the pendency of this case. The sentencing hearing was continued several times. By the time the hearing occurred on May 4, 2012, Clay had been convicted and sentenced in another case to a