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Filed 51310 P v Perez CA41 NOT TO BE PUBLISHED IN OFFICIAL

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Filed 51310 P v Perez CA41 NOT TO BE PUBLISHED IN OFFICIAL Powered By Docstoc
					Filed 5/13/10 P. v. Perez CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D053244

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD206214)

NOE MORALES PEREZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Albert T.

Harutunian III, Judge. Affirmed as modified.

                                                             I

                                                 INTRODUCTION

         Defendant Noe Perez appeals from the sentence imposed on him after a jury

convicted him of robbery and assault with a deadly weapon. The jury also found true two

weapons enhancements related to the robbery count—one for Perez's personal use of a

knife during the robbery, and one for his accomplice's use of a firearm during the
robbery. The trial court sentenced Perez to three years in prison for the robbery, and

imposed two consecutive one-year sentences for the weapon enhancements.

       On appeal, Perez contends that the trial court imposed an unauthorized sentence

because Penal Code1 sections 12022, subdivision (e) and 1170.1, subdivision (f)

prohibited the court from imposing multiple weapon enhancements for the same offense.

The People agree with Perez that the trial court erred in imposing two consecutive one-

year weapon enhancements. The parties also agree that the appropriate remedy is for this

court to modify Perez's sentence by staying imposition of one of the weapon

enhancements. We therefore modify the judgment to reflect a stay of the weapon

enhancement arising from Perez's accomplice's use of a firearm during the commission of

the robbery.

                                            II

                  FACTUAL AND PROCEDURAL BACKGROUND

A.     Factual background

       On the night of April 27, 2007, Donald Freeman and his friend Maria Hector were

sitting inside Freeman's van watching a movie on a DVD player. Freeman saw Perez and

Fernando Casillas outside the van. Freeman unlocked the door of the van because he

thought the men wanted cigarettes or money. When Freeman unlocked the door, Perez

and Casillas rushed inside the van, and Perez began trying to stab Freeman in the

stomach. Perez eventually managed to stab Freeman in the leg. Casillas shot a gun in



1      Further statutory references are to the Penal Code unless otherwise indicated.
                                             2
Freeman's direction. Freeman rushed to get out of the van, and heard a second gunshot as

he was getting out of the vehicle.

       Hector, who was still in the van, covered herself with a blanket. She remained

there as Perez and Casillas took Freeman's DVD player and a number of DVDs from

inside the van. After Freeman saw the two men get out the passenger side of the van, he

returned to check on Hector. Freeman then followed the men in his van while calling

911. Police officers stopped Perez and Casillas, and Freeman identified the men at a

curbside lineup.

B.     Procedural background

       A jury convicted Perez of robbery (§ 211) and assault with a deadly weapon (§

245, subd. (a)(1)). The jury found true the allegations that Perez personally used a knife

during the commission of the robbery (§§ 1192.7, subd. (c)(23), 12022, subd. (b)(1)), and

that a principal in the robbery offense was armed with a firearm

(§ 12022, subd. (a)(1)).

       On June 13, 2008, the trial court sentenced Perez to three years in prison for the

robbery, plus a concurrent term of three years for the assault, which the court stayed

under section 654. The court also imposed a consecutive one-year term for the knife

enhancement, and an additional consecutive one-year term for the firearm enhancement.

Perez filed a timely notice of appeal the same day.




                                             3
                                            III

                                      DISCUSSION

       Perez contends that the trial court erred in imposing both the section 12022,

subdivision (a)(1) enhancement and the section 12022, subdivision (b)(1) enhancement.

According to Perez, the sentence that the trial court imposed is unauthorized because

subdivision (e) of section 12022 and subdivision (f) of section 1170.1 prohibit the

imposition of multiple weapon enhancements for the same offense. Perez asks this court

"to modify the judgment by staying the imposition of the one-year term on one of the two

enhancements." The People agree with Perez that imposition of a one-year sentence on

both section 12022 enhancements, without staying one of them, constitutes an

unauthorized sentence. The People also agree that the proper remedy is for this court to

modify the judgment to stay imposition of one of the section 12022 enhancements.

       Subdivision (e) of section 12022 provides: "For purposes of imposing an

enhancement under Section 1170.1, the enhancements under this section shall count as

one, single enhancement." Section 1170.1, subdivision (f) provides in relevant part:

"When two or more enhancements may be imposed for being armed with or using a

dangerous or deadly weapon or a firearm in the commission of a single offense, only the

greatest of those enhancements shall be imposed for that offense."

       Perez was sentenced to prison for three years on the robbery count, plus an

additional two years―one year for his personal use of a deadly weapon (knife) (§ 12022,

subd. (b)(1)) and one year for Casillas' use of a firearm during the robbery (§ 12022,

subd. (a)(1)). The court should have stayed imposition of one of the two enhancements.

                                             4
"Though the enhancements under subdivisions (a) and (b) of Penal Code section 12022

are equal and thus neither is 'greater' than the other, the clear import of the quoted section

is to permit imposition of only one enhancement for weapons." (People v. Espinoza

(1983) 140 Cal.App.3d 564, 566.) We must therefore modify the trial court's sentence.

                                             IV

                                       DISPOSITION

       The judgment is modified to reflect that the enhancement imposed pursuant to

section 12022, subd. (a)(1) on the robbery count is stayed. In all other respects, the

judgment is affirmed. The trial court is directed to prepare an amended abstract of

judgment reflecting this modification and to deliver the amended abstract of judgment to

the Department of Corrections and Rehabilitation. As so modified, the judgment is

affirmed.




                                                                                  AARON, J.

WE CONCUR:



              BENKE, Acting P. J.



                    HUFFMAN, J.




                                              5

				
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