People v. Lewis CA5

Filed 9/13/16 P. v. Lewis CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, F070565 Plaintiff and Respondent, (Super. Ct. No. 1434688) v.

PHILANDER LEWIS, OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Stanislaus County. Nan Cohan Jacobs, Judge. John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- INTRODUCTION After a 2014 trial, a jury convicted Philander Lewis of two counts of home invasion robbery in concert, one count of burglary, and two counts of assault, along with accompanying sentencing enhancements. The jury acquitted him of one count of

attempted murder. Lewis also admitted seven prior prison terms. He was sentenced to 20 years in prison. On appeal, Lewis argues that his sentence should be reduced from 20 years to 16 years, four months because (1) there was insufficient evidence to convict him of first degree robbery of an inhabited dwelling in concert with two or more persons, and (2) the trial court imposed an unauthorized sentence in its imposition of an arming enhancement. We find only his second contention meritorious and in turn hold that he is entitled to have his sentence reduced to 19 years, four months. STATEMENT OF THE CASE On April 20, 2012, an information filed in Stanislaus County charged Lewis and codefendant Robert Belfield with: count I - the attempted murder of Douglas Oliver (Pen. Code,1 §§ 664, 187, subd. (a)); counts II and III – first degree robbery of an inhabited dwelling in concert with two or more persons (of Oliver and Carmela Grays) (§§ 212.5, subd. (a), 213, subd. (a)(1)(A)); count IV - residential burglary (§ 459); and counts V and VI - assault with a firearm upon Oliver and Grays (§ 245, subd. (a)(2)). The information further alleged that Lewis was armed with a firearm in counts I through VI (§ 12022, subd. (a)(1)) and had served seven prior prison terms (§ 667.5, subd. (b)). A jury trial began on March 25, 2014. On April 23, 2014, the jury returned verdicts acquitting Lewis of count I, but convicting him on all remaining counts, and finding the firearm enhancement true. Lewis admitted the prior prison term enhancements. On November 18, 2014, Lewis was sentenced to a total term of 20 years in prison as follows: the aggravated term of nine years on count II (§§ 212.5, subd. (a), 213, subd. (a)(1)(A)), plus one year for the arming enhancement (§ 12022, subd. (a)(1)); two years (one-third of the middle term) on count III (§§ 212.5, subd. (a), 213, subd. (a)(1)(A)),