People v. Lopez CA2/6

Filed 4/20/16 P. v. Lopez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B262622 (Super. Ct. No. VA071747) Plaintiff and Respondent, (Los Angeles County) v. ELEOBARDO LOPEZ, Defendant and Appellant.

Eleobardo Lopez appeals a March 11, 2015 order resentencing him to life plus 90 years four months state prison following his conviction by jury for two counts of 1 kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1)) , 17 counts of false imprisonment (§ 236), and 17 counts of robbery (§ 211) with firearm enhancements (§§ 12022, subd. (a)(1); 12022.53, subd. (b)) and a great taking enhancement (property exceeding $50,000 in value; (former § 12022.6, subd. (a)). We vacate the false imprisonment conviction on count 37 because it is a lesser included offense to count 1 for kidnapping for robbery. (See e.g., People v. Chacon (1995) 37 Cal.App.4th 52, 65.) There are clerical errors in the sentencing minute order and abstract of judgment. We direct the superior court clerk to correct the March 11, 2015 sentencing minute order and abstract of judgment to reflect that: (1) the one-year firearm enhancement (§ 12022, subd. (a)(1)) on count 1 for kidnapping for robbery was stayed; (2) the trial court imposed a

1 All statutory references are to the Penal Code unless otherwise stated.

one-year taking enhancement (taking in excess of $50,000; (former § 12022.6, subd. (a)) on count 1 for kidnapping for robbery; (3) the conviction and eight month sentence on count 37 for false imprisonment is vacated; and (4) a five year upper term was imposed on count 19 for robbery and stayed pursuant to section 654. Appellant's sentence is reduced to life plus 89 years eight months state prison. As modified, the judgment is affirmed. Procedural History In 2002, appellant and two cohorts robbed a food warehouse at gunpoint, forced 17 employees into the bathroom, and took seven pallets of baby formula. Appellant ordered two employees (forklift operators) to move the pallets consisting of $82,034.40 worth of baby formula. Appellant was convicted of two counts of kidnapping to commit robbery (counts 1-2; § 209, subd. (b)(1)), 17 counts of false imprisonment (counts 3-16, 18, 37- 38; § 236), and 17 counts of robbery (counts 19-34, 36; § 211.) On each count, the jury returned true findings that appellant personally used a firearm (§ 12022.53, subd. (b)) and a principal was armed with a firearm (§ 12022, subd. (a)(1)). On the aggravated kidnapping counts (count 1-2) and robbery counts, the jury found that the property taking exceeded $50,000 (former § 12022.6, subd. (a)). The trial court dismissed the conviction on count 2 for kidnapping for robbery based on insufficiency of the evidence and granted a judgment of acquittal on three robbery counts (counts 21, 22 & 29). Appellant was sentenced to life plus 90 years four months state prison. In 2008, we affirmed the conviction in an unpublished opinion. (B196287.) In 2014, appellant filed a habeas petition on the theory that section 12022.53 firearm enhancements were erroneously imposed on the false imprisonment counts. (See § 12022.53, subd. (a) [enhancement applies only to certain enumerated felonies].) We issued an order to show cause returnable to the trial court. (B255120.) On March 11, 2015, appellant was resentenced to life plus 90 years four months state