P. v. Davis CA5

California Court of Appeal Jun 4, 2013 No. F064698Unpublished

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Holding. The court held that the evidence was insufficient to support two strike allegations and that the trial court erred in calculating the defendant's minimum indeterminate sentence under the Three Strikes law.

Issues

Whether the evidence was sufficient to support six strike allegations.
Whether the trial court correctly calculated the defendant's minimum indeterminate sentence under section 1170.12, subdivision (c)(2)(iii).

Disposition. reversed, vacated, and remanded

Quotations verified verbatim against the opinion

“the evidence was insufficient to establish two of the prior convictions found to be strikes were in fact strikes.”

“The court erred in calculating appellant‟s minimum indeterminate term under option (iii).”

“The true findings on two of the six strike allegations are reversed, the sentence is vacated and the judgment is otherwise affirmed.”

Filed 6/4/13 P. v. Davis 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F064698 Plaintiff and Respondent, (Super. Ct. No. VCF235804) v.

DAMIEN LEE DAVIS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge. Gregory Chappel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Kane, J. and Franson, J.

A jury convicted appellant, Damien Lee Davis, of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)),1 and found true allegations that in committing that offense, appellant personally used a deadly weapon (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). In a separate proceeding, the court found true a prior prison term enhancement allegation (§ 667.5, subd. (b)) and allegations that appellant had suffered six prior felony convictions, each of which qualified as a “strike”2 and as a prior serious felony conviction within the meaning of section 667, subdivision (a) (section 667(a)). The court imposed a prison term of 47 years to life. Appellant argues (1) the evidence was insufficient to establish the truth of two of the strike allegations and two of the section 667(a) prior serious felony enhancement allegations, and (2) the court erred in calculating appellant‟s sentence under section 1170.12, subdivision (c)(2)(iii). The People concede these points. We reverse true findings on two of the strike allegations, vacate the sentence, and remand for resentencing. DISCUSSION Sufficiency of the Evidence – Strikes A strike is a prior conviction of any of the felonies designated as “serious” under section 1192.7, subdivision (c) or “violent” under section 667.5, subdivision (c). (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1).) Assault with a firearm, in violation of section 245, subdivision (a)(2) (section 245(a)(2)) is a serious felony (§ 1192.7, subd. (c)(31)), and thus a prior conviction of that offense qualifies as a strike.

P. v. Davis CA5

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