People v. Patton CA2/4

Filed 1/20/16 P. v. Patton CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B264076

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA065829) v.

DONDI LAMAR PATTON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Affirmed. California Appellate Project, Jonathan B. Steiner, Executive Director, and Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

In 1993, defendant Dondi Lamar Patton was convicted in Los Angeles Superior Court Case No. BA065829 of two counts of assault on a peace officer. (Pen. Code, § 245, subd. (d)(1).)1 This court affirmed the judgment in an unpublished opinion (B075884). In 2003, defendant was convicted in Riverside Superior Court Case No. RIF102007 of five counts of robbery (§ 211), six counts of false imprisonment (§ 236), and one count of possession of a stolen car (§ 496d). In that case, the two prior Los Angeles convictions were found to be strikes (§§ 667, subds. (b) – (i), 1170.12, subds. (a) – (d)), as well as serious felonies (§ 667, subd. (a)), and defendant was sentenced to a third strike sentence of 60 years to life in state prison. On appeal, the Riverside judgment was affirmed by the Fourth District Court of Appeal, Division 2, in an unpublished opinion, with a modification (as here relevant) striking one of the five-year enhancements for the two prior serious felony convictions. The court of appeal noted that in the prior Los Angeles case, “[t]he probation report indicates that defendant was convicted of two counts of assault with a firearm upon a peace officer in violation of section 245, subdivision (d)(1). . . . At the trial on the priors, defense counsel pointed out that both shootings were part of the same incident and tried together but were charged separately because defendant shot two different officers at the time. The prosecutor concurred. Thus, the multiple convictions were not [brought and tried separately as required by section 667, subdivision (a) and In re Harris (1989) 49 Cal.3d 131, 136], and imposition of consecutive sentencing enhancements was improper. . . . One of the two 5-year terms pursuant to section 667, subdivision (a) must therefore be stricken from defendant’s sentence.”