Filed 5/22/14 P. v. Grayson CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039089
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1065816)

         v.

MICHAEL LEE GRAYSON, JR.,

         Defendant and Appellant.



         Defendant Michael Lee Grayson, Jr., appeals from a judgment of conviction
entered after he pleaded guilty to six counts of second degree robbery (Pen. Code,
§§ 211, 212.5, subd. (c) - counts 1-6),1 one count of attempted second degree robbery
(§§ 664, 211, 212.5, subd. (c) - count 7), three counts of criminal threats (§ 422 -
counts 8-10), and five counts of false imprisonment (§§ 236, 237, subd. (a) -
counts 11-15). Defendant also admitted three prior strike convictions (§§ 667,
subd. (b)-(i), 1170.12) and three prior serious felony convictions (§ 667, subd. (a)). The
trial court imposed a prison term of 100 years to life consecutive to a determinate term of
60 years. On appeal, defendant contends: (1) the trial court erred by imposing two prior
serious felony enhancements pursuant to section 667, subdivision (a) when the two
underlying convictions were not charged and tried separately; (2) the imposition of


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         All further unspecified statutory references are to the Penal Code.
serious felony enhancements as to counts 8 through 10 must be reversed because
defendant was neither charged with nor did he admit enhancements as to these counts;
and (3) the abstract of judgment must be corrected to reflect the oral pronouncement of
judgment as to counts 11 through 15. We agree and modify the judgment. As modified,
the judgment is affirmed.


                                    I. Statement of Facts2
                            A. Counts 1 to 3 (§ 211), Counts 8 & 9 (§ 422),
                               Counts 11 to 13 (§§ 236, 237)
       At approximately 6:15 p.m. on October 25, 2009, defendant entered a Radio Shack
store in San Jose and told Jesse Griego, an employee, that he had a gun in his waistband
and motioned toward his waist. Defendant then escorted Griego to the store counter
where there were two other employees, Paola Arango and Airica Musa. Defendant took
$40, a driver’s license, and credit cards from Griego’s wallet. Defendant told Arango, “I
am not playing games. I have a gun! Give me all the cash and everything in your
pockets and your wallet.” After taking approximately $700 from the cash register,
defendant accused Griego of lying about whether there was no additional cash and
threatened to shoot him. Defendant then took the three employees to the rear of the store
before he fled the scene.


                                    B. Count 4 (§ 211)
       At about 8:30 p.m. on October 28, 2009, defendant entered a Radio Shack store in
Mountain View. While speaking to Andrew Cermak, an employee, defendant pulled
back his jacket and displayed what appeared to be a semiautomatic pistol in his
waistband. Defendant told Cermak to distract the only other store employee by giving


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       The statement of facts is taken from the probation officer’s report.
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him a task, take the cash from the registers, give it to him, and go to the rear of the store.
Defendant also threatened to shoot Cermak if he did not do what he was told. Cermak
complied and gave defendant approximately $500 from the cash register. Defendant also
took Cermak’s wallet and a remote-controlled toy jeep before he left.


                       C. Counts 5 & 6 (§ 211), Count 10 (§ 422),
                            and Counts 14 & 15 (§§ 236, 237)
       At about 9:15 p.m. on November 4, 2009, defendant entered a Toys “R” Us store
in San Jose. After asking Michael Kelly, an employee, about video game systems,
defendant said, “Don’t do anything stupid. I don’t want to kill you.” Defendant also
pulled back his jacket to display a bulge in his waistband. Kelly, who believed defendant
was armed with a gun, gave him the money from the cash register. Defendant then
escorted Kelly to another cash register where there were two other employees, including
Jimmy Bateh. Defendant asked for the large bills under the register tray and then said,
“Hurry up or I will shoot your ass.” After the money was handed to defendant, he told
the victims to walk to the rear of the store. Defendant left with $1,918.


                                 D. Count 7 (§§ 664, 211)
       At about 8:30 p.m. on December 2, 2009, defendant entered a GameStop store in
San Jose and asked Steve Sanchez, an employee, to come over to him. As Sanchez
approached, defendant said, “You see this gun,” while grabbing his waistband. Sanchez
saw an object under defendant’s shirt and believed it was a gun. After defendant told
Sanchez to get some Sony PlayStations, Sanchez went into a storage room, closed the
door, and told another employee to call the police. Sanchez then left the storage room
with two PlayStations, but defendant had already left.




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                                         II. Discussion
                A. Serious Felony Enhancements as to Counts 1 through 6
       Defendant contends, and the Attorney General concedes, that the trial court
imposed an unauthorized sentence when it ordered him to serve two five-year terms for
prior serious felony convictions under section 667, subdivision (a), because these two
convictions were not charged and tried separately.
       Counts 1 through 6 of the first amended information charged defendant with
second degree robbery and count 7 charged defendant with attempted robbery. As to
each of these seven counts, the first amended information also alleged three prior serious
felony enhancements under section 667, subdivision (a). One prior felony conviction
arose from Alameda County Superior Court docket No. H30714A, and the other two
prior felony convictions arose from Alameda County Superior Court docket No. 121262.
When defendant admitted the prior felony convictions, the trial court indicated that they
were docket Nos. H30714A, 121262, and 1612623. The trial court imposed four
consecutive terms of 25 years to life plus 15 years for three prior serious felony
convictions for counts 1, 4, 5, and 7. The trial court imposed concurrent terms of 25
years to life plus 15 years for counts 2, 3, and 6.
       Section 667, subdivision (a)(1) provides: “In compliance with subdivision (b) of
Section 1385, any person convicted of a serious felony who previously has been
convicted of a serious felony in this state or of any offense committed in another
jurisdiction which includes all of the elements of any serious felony, shall receive, in
addition to the sentence imposed by the court for the present offense, a five-year
enhancement for each such prior conviction on charges brought and tried separately. The
terms of the present offense and each enhancement shall run consecutively.” (Italics
added.) People v. Harris (1989) 49 Cal.3d 131 interpreted the phrase “ ‘on charges
brought and tried separately’ ” in section 667 as requiring that “the underlying


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proceedings must have been formally distinct, from filing to adjudication of guilt.” (Id.
at p. 136.)
       Here, since two of the prior serious felonies arose from a single docket number in
Alameda County Superior Court, they were not “formally distinct.” (Harris, supra, 49
Cal.3d at p. 136.) Accordingly, defendant was subject to two five-year enhancements,
not three.
       Relying on Harris, supra, 49 Cal.3d at p. 137, the Attorney General argues that
the matter must be remanded to the trial court for resentencing. While it is true that
Harris remanded the matter to the trial court, it did not engage in any analysis regarding
the proper remedy. (Ibid.) As defendant points out, cases are not authority for
propositions that were not considered. (People v. Partida (2005) 37 Cal.4th 428, 438,
fn. 4.) “When sentencing error does not require additional evidence, further fact finding,
or further exercise of discretion, the appellate court may modify the judgment
appropriately and affirm it as modified. [Citations.]” (People v. Haskin (1992) 4
Cal.App.4th 1434, 1441 (Haskin).) Given that the sentencing errors in the present case
do not require further fact finding or the further exercise of discretion by the trial court,
we will modify the judgment. Thus, the judgment is modified to strike one five-year
enhancement pursuant to section 667, subdivision (a).


               B. Serious Felony Enhancements as to Counts 8 through 10
       Defendant also contends, and the Attorney General concedes, that the imposition
of serious felony enhancements as to counts 8 through 10 was an unauthorized sentence
and must be reversed. He contends that since he was neither charged with nor did he
admit any enhancement allegations as to these counts, his due process rights were
violated.
       Counts 8 through 10 charged defendant with criminal threats. The first amended
information did not allege any prior serious felony enhancements as to these counts, and
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defendant did not admit any enhancement allegations as to these counts. However, the
trial court imposed a sentence of 25 years to life consecutive to a determinate term of 15
years as to each of these counts, which were then stayed pursuant to section 654.
       “Due process requires that an accused be advised of the specific charges against
him so he may adequately prepare his defense and not be taken by surprise by evidence
offered at trial. [Citations.] This means that except for lesser included offenses, an
accused cannot be convicted of an offense of which he has not been charged, regardless
of whether there was evidence at his trial to show he committed the offense.
[Citation.] . . . The same rules apply to enhancement allegations. [Citation.]” (Haskin,
supra, 4 Cal.App.4th at p. 1438.)
       Here, imposition of the determinate terms as to counts 8 through 10, which were
neither charged, proved, nor admitted, constitutes an unauthorized sentence.
Accordingly, the sentence of 25 years to life consecutive to a determinate term of 15
years as to these counts must be reduced to 25 years to life, and stayed pursuant to
section 654. For the reasons previously discussed, we reject the Attorney General’s
argument that the case must be remanded for resentencing.


           C. Correction of Abstract of Judgment as to Counts 11 through 15
       Defendant next contends, and the People concede, that the abstract of judgment
must be corrected to reflect the oral pronouncement of judgment on counts 11 through
15.
       The first amended information did not allege serious felony enhancements (§ 667,
subd. (a)) as to counts 11 through 15, defendant did not admit any such allegations, and
the trial court did not impose additional punishment for them. However, the clerk’s
minutes and the abstract of judgment indicate that the trial court imposed additional
punishment of 15 years as to counts 11 through 15 for three serious felony convictions
pursuant to section 667, subdivision (a), which were then stayed pursuant to section 654.
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      “Where there is a discrepancy between the oral pronouncement of judgment and
the minute order or the abstract of judgment, the oral pronouncement controls.
[Citations.]” (People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3.) Thus, here, the
serious felony enhancements pursuant to section 667, subdivision (a) as to counts 11
through 15 must be stricken. As previously discussed, we reject the Attorney General’s
argument that the case must be remanded to the trial court.


                                     III.   Disposition
      The trial court is directed to modify the judgment as follows: (1) counts 1 through
7 are modified to show an indeterminate term of 25 years to life consecutive to a
determinate term of 10 years for each count; and (2) counts 8 through 15 are modified to
show a term of 25 years to life with no attendant serious felony enhancements and stayed
pursuant to section 654. As so modified, the judgment is affirmed. The trial




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court shall also amend the abstract of judgment and forward a certified copy to the
Department of Corrections and Rehabilitation.




                                         _______________________________
                                         Mihara, J.



WE CONCUR:




______________________________
Bamattre-Manoukian, Acting P. J.




______________________________
Grover, J.




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