P. v.Richards CA5

Filed 10/27/15 P. v.Richards 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F068894 Plaintiff and Respondent, (Super. Ct. No. F012904565) v.

JAMES DEMARCO RICHARDS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge. Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Detjen, J. and Franson, J.

Defendant James DeMarco Richards was convicted by jury trial of several counts of sex offenses and two counts of dissuading a witness by force or threat. On appeal, he contends, and the People concede, that the weapon use enhancements attached to the two counts of dissuading a witness by force or threat were improper. We will strike the two enhancements, vacate the sentence, and remand for resentencing. BACKGROUND In the original information, defendant was charged with six counts of various sex offenses and, in counts 5 and 8, two counts of second degree robbery (Pen. Code, § 211).1 Two types of weapon use allegations were charged in connection with the crimes. Connected to each sex offense was an allegation that defendant used a deadly weapon, a knife, pursuant to section 12022.3, subdivision (a)—a weapon use enhancement specific to certain sex offenses.2 Connected to both counts 5 and 8 was an allegation that defendant personally used a deadly or dangerous weapon, a knife, pursuant to section 12022, subdivision (b)(1)—a weapon use enhancement applicable to felony offenses.3 In the first amended information, count 8 was changed from robbery to dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). For an unknown reason, the weapon use allegation connected to it was changed from a section 12022, subdivision (b)(1) felony allegation to a section 12022.3, subdivision (a) sex offense allegation.

1 All statutory references are to the Penal Code unless otherwise noted. 2 Section 12022.3, subdivision (a) provides: “For each violation of Section 220 involving a specified sexual offense, or for each violation or attempted violation of Section 261, 262, 264.1, 286, 288, 288a, or 289, and in addition to the sentence provided, any person shall receive the following: [¶] (a) A 3-, 4-, or 10-year enhancement if the person uses a firearm or a deadly weapon in the commission of the violation.” 3 Section 12022, subdivision (b)(1) provides: “A person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.”