People v. Bennett CA3

Filed 7/6/16 P. v. Bennett CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Tehama) ----

THE PEOPLE, C078348

Plaintiff and Respondent, (Super. Ct. No. NCR79498)

v.

BENJAMIN MICHAEL BENNETT,

Defendant and Appellant.

Defendant Benjamin Michael Bennett was convicted by a jury of attempted criminal threats (count II), assault and battery (count III), and false imprisonment (count IV). He admitted a prior serious felony strike conviction and three prior prison terms. The trial court sentenced him to 13 years eight months in state prison, comprised of the upper term, doubled for six years, on count IV; plus one-third the middle term, doubled for eight months, on count II; the five-year enhancement for a prior serious felony; and a one-year term for each of the two prison priors (the third prison prior was stayed), with a misdemeanor sentence on count III to run concurrently.

1

On appeal, this court agreed that the trial court violated Penal Code section 654 by separately punishing defendant for both the attempted criminal threats conviction and the false imprisonment conviction.1 We stayed the punishment for attempted criminal threats (count II) and affirmed the judgment in all other respects. (People v. Bennett (May 11, 2012, C067356) [nonpub. opn.] (Bennett).) Pursuant to our opinion, the trial court amended the abstract of judgment to stay the eight-month sentence on count II and impose an amended aggregate sentence of 13 years in state prison. On September 19, 2013, defendant filed a petition for writ of habeas corpus in the trial court claiming, among other things not relevant here, that the five-year prior serious felony enhancement pursuant to section 667, subdivision (a)(1) (hereafter section 667(a)(1)) should have been stayed in light of this court’s order staying sentence on count II, a serious felony to which the enhancement was attached. On September 30, 2013, the trial court denied defendant’s habeas corpus petition as follows: “. . . Petitioner claims he should not be incarcerated for the enhancements as a result of the Appellate Court finding his conviction of Criminal Threats to be in violation of Penal Code Section 654. However, the trial court prepared a new Abstract of Judgment wherein the Petitioner received no additional time for the conviction of Criminal Threats. The enhancements imposed related to the conviction of False Imprisonment and therefore were properly imposed.” On December 12, 2013, this court denied defendant’s habeas corpus petition “for failure to state a prima facie case.” (In re Bennett (Dec. 12, 2013, C075290) [petn. den. by order].)