People v. Schrubb CA3

Filed 1/13/16 P. v. Schrubb CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Placer) ----

THE PEOPLE, C077295

Plaintiff and Respondent, (Super. Ct. No. 62-34687)

v.

KEVIN RAY SCHRUBB, SR.,

Defendant and Appellant.

Defendant Kevin Ray Schrubb, Sr.,1 appeals from the trial court’s orders denying his Penal Code section 1170.1262 petition for resentencing on the ground that some of his

1 While it appears from the record that this is defendant’s full name, the abstract of judgment indicates he is a “Jr.”; we will direct the trial court to make this determination and prepare the amended abstract accordingly. 2 Undesignated statutory references are to the Penal Code.

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current convictions were for serious or violent felonies. He contends the court erred in finding him ineligible for resentencing on three of his 19 counts and asks us to strike the unauthorized prior prison term (§ 667.5, subds. (a), (b)) and prior serious felony enhancements (§ 667, subd. (a)). We reverse the trial court’s order regarding the convictions that are not serious or violent felonies, remand for additional proceedings on those convictions, and order the trial court to strike the unauthorized enhancements.

PROCEDURAL BACKGROUND

Defendant participated in the armed robbery of a Bank of America in Loomis on March 17, 2003. (People v. Schrubb (Dec. 7, 2005, C048225) [nonpub. opn.].) In 2004 a jury convicted him of conspiracy to commit robbery (§ 182, subd. (a)(1)), five counts of second degree robbery (§ 211), 11 counts of assault with a semiautomatic firearm (§ 245, subd. (b)), unlawful taking or driving of a vehicle (Veh. Code, § 18051, subd. (a)), and felony evading an officer (Veh. Code, § 2800.2, subd. (a)), and sustained enhancements for personal use of a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)(1)) and principal armed with a firearm (§ 12022, subd. (a)(1)), as well as allegations of two prior serious and violent felony convictions (§ 667, subd. (a)(1)), two strikes (§§ 667, subds. (b)-(i), 1170.12), and five prior prison terms (§ 667.5, subds. (a), (b)). (People v. Schrubb, supra, C048225.) The trial court sentenced defendant to 340 years to life in state prison.