PEOPLE v. MARTIN

No. E064718.

THE PEOPLE, Plaintiff and Respondent, v. SEMAJ AMME MARTIN, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division Two.


Attorney(s) appearing for the Case

Susan K. Shaler , under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris , Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Julie L. Garland , Assistant Attorney General, A. Natasha Cortina and Mary Katherine Strickland , Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

RAMIREZ, P. J.

After being told to leave a convenience store in the afternoon, defendant, Semaj Amme Martin, grabbed a 12-pack and a few other packs of beer and left. Later, in the evening of the same day, defendant re-entered the same convenience store with a gun, and robbed the two clerks in the presence of a customer. He was charged, tried, and convicted of two counts of robbery with use of a firearm (Pen. Code,1 §§ 211, 12022.53, subd. (b)), four counts of assault with a firearm (§§ 245, subd. (a)(2), 12022.5, subd. (a)), and one count of commercial burglary (§ 459), along with an allegation that he had suffered a prior felony conviction for which he had served a prison term, "prison prior" (§ 667.5, subd. (b)), one serious felony prior, "nickel prior" (§ 667, subd. (a)), and one strike prior. (§ 667, subds. (c), (e)(1).) Defendant was sentenced to an aggregate term of 33 years in prison and appealed.

On appeal, defendant argues that the trial court erred in staying, rather than striking, the term for the prison prior enhancement, where the same conviction formed the basis for the enhancement for his nickel prior. The People concede the error, and we modify the sentence accordingly.

BACKGROUND

Because the facts are not directly relevant to the error addressed on appeal, we include only a brief description of the events underlying the charges.

On April 29, 2014, defendant entered a convenience store in Moreno Valley in the afternoon, along with some other individuals.2 The store clerk did not see defendant take anything but suspected he had done so because defendant had shoplifted there in the past. A few hours later, the defendant entered the store a second time. The clerk, who had seen defendant earlier, told defendant he could not be in the store until he had spoken to the store manager, and called the police. Defendant told the clerk he would give the clerk a reason to call the police; he then proceeded to take a 12-pack of Heineken and two three-packs of Tecate beer, and exited the store without paying.

The third time defendant came into the convenience store was after the clerk got off work, after 9:30 p.m. The original clerk's brother was also present, as was a second clerk and a customer. Defendant entered the store wearing a black hoodie and sunglasses, carrying a handgun, which was pointed initially at the original clerk and his brother, but eventually was pointed at all the persons in the store. Defendant ordered everyone to raise their hands. Defendant directed the clerk's brother and the customer to the back of the store, and told them to get on their knees with their hands on their heads. Defendant then directed the second clerk to give him money from the register, and the second clerk complied.

Defendant then demanded that the second clerk remove money from another register, but the second clerk was unable to do so because his personal code had already been used to open the first register. The first clerk jumped in to open the second register as his coworker joined the others in the back of the store. The first clerk removed cash from the second register and put it on the counter. He asked if defendant wanted a bag, and defendant indicated he did. Then defendant asked for cigarettes, so the clerk gave him three cartons of cigarettes, Newports and Mavericks. Then defendant left.

While serving a search warrant at a residence located a very short distance from the convenience store, a Moreno Valley officer received information that led him to another address in Moreno Valley, defendant's residence. Defendant was brought back to the police station where he was interviewed and confessed to the robbery.

Defendant was charged by way of an amended information with robbery of the two clerks (§ 211, counts 1 and 2), four counts of assault by means of a firearm (§245, subd. (a)(2), counts 3, 4, 5, and 6), and one count of commercial burglary. (§459, count 7.) It was further alleged with respect to counts 1 and 2 that defendant personally used a firearm within the meaning of section 12022.53, subdivision (b), and with respect to counts 3 through 6, that he personally used a firearm within the meaning of section 12022.5, subdivision (a). Further, it was alleged that defendant had suffered a prior felony conviction for which he had been sentenced to prison (prison prior) (§ 667.5, subd. (b)), a prior serious felony conviction (nickel prior) (§ 667, subd. (a)), and a prior serious or violent felony under the "Three Strikes" law. (§ 667, subds. (c), (e)(1).) All three of the prior conviction allegations related to the same conviction for robbery.

Defendant was tried by a jury and convicted of all counts, with true findings on all the firearm enhancements. At sentencing, defendant admitted the prison prior, nickel prior, and strike prior allegations. The court committed defendant to state prison, designating count 1 as the principal term, and imposing the midterm of six years on that count, along with a consecutive 10-year term for the firearm enhancement. The court imposed consecutive one-third the midterm sentences for counts 2, 5, and 6, along with one-third the enhancement for count 2, and one-third the midterm for the firearm enhancements on counts 5 and 6. The court stayed the terms for counts 3, 4, and 7, and the enhancement for the prison prior. Defendant received an aggregate sentence of 33 years in prison. Defendant timely appealed.

DISCUSSION

On appeal, defendant raises a single claim of error: that the trial court erred in staying, rather than striking, the prison prior, pursuant to section 667.5, subdivision (b). The People agree with defendant's assessment, and we accept the concession.

Section 667.5, subdivision (b), provides, in part, that the court shall impose a one-year term for each separate prior prison term or county jail term for which sentence is not suspended. Section 667, subdivision (a), requires the imposition of an additional five-year term as an enhancement for each prior serious felony that has been brought and tried separately.

However, where multiple statutory enhancements under sections 667 and 667.5 relate to the same prior offense, only the greater enhancement may be imposed. (People v. Jones (1993) 5 Cal.4th 1142, 1152-1153 (Jones); People v. Lopez (2004) 119 Cal.App.4th 355, 363-364, citing Jones, supra, at p. 1150.)

In the present case, the allegation regarding the nickel prior (§ 667, subd. (a)) was based on the same prior conviction as the prison prior. As a result, the trial court stayed the one-year enhancement pertaining to the prison prior allegation, § 667.5, subd. (b). However, it should have stricken, rather than stayed, the enhancement. "`Unless a statute says otherwise, an enhancement may be imposed or stricken, but . . . may not be stayed; to do so is an illegal sentence. [Citation.]' (People v. Harvey (1991) 233 Cal.App.3d 1206, 1231. . . .)" (People v. Haykel (2002) 96 Cal.App.4th 146, 151.)

The stay of the term for the prison prior was unauthorized. We therefore order that it be stricken.

DISPOSITION

The prison prior is hereby stricken. The clerk of the Riverside County Superior Court is directed to amend the sentencing minutes as well as the abstract of judgment to reflect this modification and forward them to the Department of Corrections and Rehabilitation. Except as modified, the judgment is affirmed.

McKINSTER, J. and SLOUGH, J., concurs.

FootNotes


1. All further statutory references will be to the Penal Code unless otherwise stated.
2. The store had a video surveillance system, and the video of defendant's appearances in the store was played for the jury, although no evidentiary foundation was laid on the record.

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