In re Rodabaugh CA2/4

Filed 3/25/13 In re Rodabaugh CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

B237139 In re DALE S. RODABAUGH (Los Angeles County Super. Ct. No. PA021193)

on Habeas Corpus.

ORIGINAL PROCEEDINGS: Petition for writ of habeas corpus. Meredith C. Taylor, Judge. Writ granted in part, denied in part. Lisa M. J. Spillman for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Jason C. Tran and Kenneth C. Byrne, Deputy Attorneys General for Plaintiff and Respondent.

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In his habeas corpus petition, petitioner Dale S. Rodabaugh raises several challenges to his convictions and sentencing in People v. Rodabaugh (Super. Ct. L.A. County, 1999, No. 021193) and the direct appeal of that case to this court. (People v. Rodabaugh (Sept. 11, 2000, B135546) [nonpub. opn.].) We directed respondent to show cause on the limited issue of the enhancements ordered by the trial court under Penal 1 Code section 12022, subdivision (b). Petitioner contends that imposition of two 2-year enhancements for personal use of a deadly weapon on separate counts of second degree robbery (§ 211) was unauthorized. He argues section 12022, subdivision (b), authorizes two-year enhancements only when the defendant is convicted of carjacking or attempted carjacking. Respondent concedes the two-year enhancements were unauthorized. We conclude the two enhancements should each be reduced from two years to one year in accordance with section 12022, subdivision (b). Habeas relief as to the remaining issues is denied. 2 FACTUAL AND PROCEDURAL SUMMARY Petitioner was convicted of three counts of second degree robbery (§ 211) and two counts of assault (§ 245, subd. (a)(1)) for a series of purse-snatching incidents. The jury also found true allegations of personal use of a deadly weapon (§ 12022, subd. (b)) on four of the counts and infliction of great bodily injury (§ 12022.7, subd. (a)) on one of the assault counts. The court sentenced defendant to a total term of 95 years to life. This included two-year enhancements for the allegations under section 12022, subdivision (b). Petitioner appealed the convictions and sentencing determinations to this court. (People v. Rodabaugh, supra, B135546.) We concluded the trial court erred in imposing two-year enhancements for personal use of a deadly weapon on the two counts of assault (counts 2 and 5). (Ibid.) We found that section 12022, subdivision (b) prescribes an