Filed 5/13/10 P. v. Perez CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
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.
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
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.
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
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.
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.
"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.
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
BENKE, Acting P. J.