People v. Carpenter CA3

Filed 7/12/16 P. v. Carpenter CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE,

Plaintiff and Respondent, C078757

v. (Super. Ct. No. SF125430C)

STEVEN JOHN CARPENTER,

Defendant and Appellant.

A jury found defendant Steven John Carpenter guilty of first degree robbery, first degree burglary with a person present, possession of a firearm by a convicted felon, and dissuading a witness. Defendant subsequently pleaded guilty to active participation in a criminal street gang which had been charged in the same case but was bifurcated from the other charges. The trial court sentenced him to 10 years in prison, including a consecutive eight-month term for active participation in a criminal street gang. Defendant now contends the trial court should have stayed execution of the sentence for active participation in a criminal street gang pursuant to Penal Code section 654.1 The People agree and we do too. Because correction of the error will require the trial court to exercise its discretion, we will remand the matter for resentencing and otherwise affirm the judgment.

1 Undesignated statutory references are to the Penal Code.

1

BACKGROUND Defendant and his friend Charles Perry entered defendant’s grandmother’s home on September 9, 2013. Two minors were inside the home. Perry, armed with defendant’s gun, approached one of the minors, put the gun to the minor’s head, and grabbed a gold chain from the minor’s neck. The second minor, who was upstairs, started walking down the stairs. Defendant told Perry to get that minor’s gold chain as well. Perry put the gun to the second minor’s head and grabbed the chain from his neck. Defendant and Perry fled. The jury found defendant guilty of first degree robbery (§ 212.5, subd. (a)), first degree burglary with a person present (§ 459), possession of a firearm by a convicted felon (§ 29800, subd. (a)(1)), and dissuading a witness (§ 136.1, subd. (a)(1)). Thereafter, defendant pleaded guilty to the bifurcated count of active participation in a criminal street gang. (§ 186.22, subd. (a).) The parties stipulated the factual basis for the plea was found in the transcript from the preliminary hearing, at which the People’s gang expert testified defendant was a member of the Flyboys, a criminal street gang. He further opined that the home invasion robbery committed by defendant and Perry was gang-related, and stealing the gold chains would benefit the gang by allowing gang members to sell them in order to obtain money for guns and drugs. In exchange for defendant’s plea, the People moved to dismiss the gang enhancement allegations. The trial court granted the People’s motion and later sentenced defendant to an aggregate term of 10 years in state prison, including eight months for active participation in a criminal street gang. DISCUSSION Defendant contends his sentence for active participation in a criminal street gang must be stayed because it is based upon the same acts as the other offenses for which he was punished. The People agree.