People v. Webb CA1/4

Filed 9/23/16 P. v. Webb CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION 4

THE PEOPLE, Plaintiff and Respondent, A144062 v. KENNETH MARCHE WEBB, (Alameda County Super. Ct. No. H54520B) Defendant and Appellant.

A jury convicted defendant Kenneth Marche Webb of one count of second degree robbery, and found that he had personally used a firearm during the commission of the offense. The trial court sentenced defendant to 45 years to life, consisting of 25 years to life on the robbery count, a ten-year firearm enhancement under Penal Code section 12022.53, subdivision (b)1, and two five-year enhancements under section 667, subdivision (a)(1) for two previous robbery convictions. The trial court did not impose or strike two one-year enhancements for prior prison terms associated with defendant’s previous robberies under section 667.5, subdivision (b). Defendant appeals his sentence, arguing that substantial evidence did not support the application of the firearm enhancement and that the trial court erred in failing to strike the two one-year prior prison term enhancements under section 667.5, subdivision (b). We affirm, but remand with directions for the trial court to strike the one-year enhancements.

1 All further statutory references are to the Penal Code.

1

I. BACKGROUND On August 2, 2012, at around 8:30 p.m., defendant Kenneth Webb and co- defendant William Barnes robbed a Shell gas station and convenience store in San Leandro. Barnes stayed by the door while defendant came behind the counter and stood within two feet of the cashier, 20 year old Josue Rodriguez. Rodriguez looked down and saw a handgun in defendant’s hand, which defendant kept at his side by his right hip. Defendant ordered Rodriguez to “ ‘empty the register.’ ” Rodriguez opened the register and placed the money inside on the counter. Barnes came to the counter and put the money into a bag. The two men then left the store. A jury convicted defendant of one count of second degree robbery and found that he personally used a firearm within the meaning of section 12022.53, subdivision (b), which defines “ ‘firearm’ ” as “a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion.” (§§ 12001; 16520, subd. (a).) The information alleged that defendant had two previous robbery convictions for which he had served two prison terms, and he admitted those convictions. Defendant was sentenced to a prison term of 45 years to life, consisting of 25 years to life on the robbery count, two five-year enhancements for the prior robbery convictions, and a ten-year firearm enhancement.