People v. Cooper CA3

Filed 3/28/16 P. v. Cooper CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C078205

Plaintiff and Respondent, (Super. Ct. No. 13F03880)

v.

BILLIE LEE COOPER,

Defendant and Appellant.

Defendant Billie Lee Cooper was sentenced to an aggregate term of 84 years to life for offenses that included throwing a Molotov cocktail into the bedroom of his ex- girlfriend. On appeal, he contends the trial court erred in imposing certain one-year prior prison term enhancements, arguing three of the enhancements must be struck because they arose from prior prison terms that were served consecutively. The People concede the error because multiple sentences of incarceration served consecutively or

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concurrently give rise to only a single prior prison term enhancement, under Penal Code section 667.5, subdivision (b);1 we will strike the enhancements as improper.

PROCEDURAL BACKGROUND

A jury convicted defendant of arson (§ 451, subd. (b)—count one); possessing an explosive device (§ 18715, subd. (a)(3)—count two); attempted criminal threats (§ 664/422—count three); attempted oral copulation (§ 664/288a, subd. (c)(2)—count four); and misdemeanor battery (§ 243, subd. (e)(1)—count five). The trial court found that defendant had three prior strikes: convictions for burglary and assault with a deadly weapon with great bodily injury in 1999 and a conviction for second degree robbery in 2008. Defendant served the two terms for the 1999 convictions consecutively.

For each felony count, the trial court imposed an indeterminate term of 25 years to life plus three one-year enhancements, under section 667.5, subdivision (b), for defendant’s three prior prison terms. The court then stayed imposition of sentence for count two, possession of a destructive device, under section 654. For the misdemeanor battery count, the court imposed a one-year term to run concurrently. In total, the court imposed an aggregate term of 84 years to life (28 years to life, each, for counts one, three, and four).