People v. Hearon CA2/4

Filed 5/16/16 P. v. Hearon CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B258486 (Los Angeles County Plaintiff and Respondent, Super. Ct. No. BA251403)

v.

STEVEN HEARON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Laura F. Priver, Judge. Affirmed. Steven Hearon in pro per; Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent.

In 2004, appellant Steven Hearon was convicted of battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and assault by means of force likely to produce great bodily injury (id., § 245, subd. (a)(1)). The court found true that appellant had been convicted of three prior felonies: second degree murder in 1988, second degree robbery in 1978, and first degree robbery in 1977. Appellant was sentenced under the “Three Strikes” law (Pen. Code §§ 1170.12, subd. (a)-(d) & 667, subd., (b)-(i)) to 25 years to life in prison for the battery conviction. The sentence for the assault conviction was imposed and stayed pursuant to Penal Code section 654. In 2006, this court affirmed the conviction and sentence. (See People v. Hearon (Jan. 18, 2006, B176310) [nonpub. opn.].) In July 2014, appellant, acting in propria persona, moved for modification of his sentence, contending that the sentencing court had made improper “dual use[]” of facts, and that he had been subjected to multiple punishments for the same course of conduct.1 The trial court denied his motion, finding there had been no dual use of any facts in sentencing appellant. (See Rules of Court, rule 4.420(c) [prohibiting “[a] fact that is an element of the crime” from being used “to impose the upper term”]; Pen. Code, § 1170, subd. (b) [sentencing court may not rely on same fact in imposing both an upper term and sentencing enhancement].) The court also noted that appellant had been sentenced to 25 years to life for the battery, but that the sentence on the assault had been imposed and stayed pursuant