People v. Zammarippa CA2/2

Filed 12/3/15 P. v. Zammarippa CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B260832

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA419468) v.

DAVID JOE ZAMMARIPPA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Mark A. Young, Judge. Affirmed with modification.

Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Blythe J. Leszkay, Deputy Attorney General for Plaintiff and Respondent.

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A jury convicted David Joe Zammarripa (defendant) of kidnapping to commit robbery, and the trial court imposed a sentence of life in prison with parole eligibility after 17 years. On appeal, defendant argues that that court erred in not striking his 1995 attempted robbery conviction as a “strike” under the “Three Strikes” law, and that the abstract of judgment is incorrect. We agree with defendant on the second point, but conclude that the court did not abuse its discretion in denying his motion to strike. We accordingly affirm with instructions to modify the abstract of judgment. FACTUAL AND PROCEDURAL BACKGROUND Defendant approached a 63-year-old woman sitting in her Porsche, accused her late husband of causing him to lose his house, slapped her in the head a few times, shoved her into the passenger’s seat, got into the car and started driving. He insisted that she owed him money. As they drove, defendant pulled out a gun and told her that it was “exactly like [the gun] held at your [adult] son’s head right now.” Defendant eventually let the woman go, and abandoned her car elsewhere. No one ever threatened the woman’s son. The People charged defendant with kidnapping to commit robbery (Pen. Code, 1 § 209, subd. (b)(1)). The People further alleged that defendant personally used a firearm (§ 12202.53, subd. (b)); that his 1995 conviction for attempted robbery (§§ 211, 664) constituted a strike within the meaning of the Three Strikes law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)); and that he had served seven prior prison terms (§ 667.5, subd. (b)). Defendant proceeded to trial, and a jury convicted him of the kidnapping offense but was unable to reach a verdict on the firearm enhancement. After defendant admitted the prior convictions, the trial court proceeded to sentencing. The court announced a tentative prison sentence of 21 years to life: The statutory minimum sentence of 7 years to life for the kidnapping offense, doubled to 14 years because of the prior strike, plus