People v. Huerta CA5

Filed 1/5/16 P. v. Huerta 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F068531 Plaintiff and Respondent, (Super. Ct. No. VCF274843A) v.

JOHNNY MARTINEZ HUERTA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. (Retired judge of the Tulare County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Hayes H. Gable III, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Peter H. Smith and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Detjen, J. and Peña, J.

A jury convicted appellant Johnny Martinez Huerta of two counts of second degree robbery (count 1 & 2/Pen. Code, § 211)1 and conspiracy to commit robbery (count 3/§§ 182, subd. (a)(1) & 211) and found true two firearm enhancements in count 1 (§§ 12022.53, subd. (b) & 12022, subd. (b)(1)) and a firearm enhancement in count 2. On appeal, Huerta contends: (1) he is entitled to an additional day of presentence custody credit; and (2) his abstract of judgment contains several errors. Respondent contends the court erred by its failure to impose sentence on count 3. We will find merit in Huerta’s second contention and in respondent’s contention and remand to allow the trial court to impose sentence on count 3 and issue an amended abstract of judgment that accurately memorializes the judgment. In all other respects, we will affirm. FACTS2 On October 22, 2012, Huerta was armed with a gun when he and another man robbed a bank in Visalia, California. The following day, at approximately 5:38 p.m., police officers located Huerta and questioned him. Although Huerta denied any involvement in the robbery, during a warrant search of Huerta’s house, officers found evidence linking him to it. Huerta was arrested and transported to jail. However, the record does not disclose when he was actually booked into jail. On February 5, 2013, the district attorney filed an information charging Huerta with the charges he was convicted of and the enhancements that were found true. The information also charged Huerta with a serious felony enhancement (§ 667, subd. (a)(1)) and with having a prior conviction within the meaning of the three strikes law (§ 667, subd. (b)-(i)).