Filed 1/14/15 P. v. Hays CA2/7
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                          SECOND APPELLATE DISTRICT

                                                       DIVISION SEVEN


THE PEOPLE,                                                                   B253027

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. YA077539)
          v.

MARCUS DESHONNE HAYS,

          Defendant and Appellant.




                     APPEAL from a judgment of the Superior Court of Los Angeles County,
Alan B. Honeycutt, Judge. Affirmed as modified.


                     Allison H. Ting, under appointment by the Court of Appeal, for Defendant
and Appellant.


                     Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee and
Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.


                                    ___________________________________
       We review for a second time this appeal arising from Marcus Deshonne Hays’s
convictions on two counts of robbery and two counts of kidnapping with a special finding
he had personally used a firearm to commit the offenses. (People v. Hays (Apr. 18, 2013,
B236411) [nonpub. opn]) (Hays I). Hays contends the trial court erred in failing to strike
a Penal Code section 667.5, subdivision (b) 1 enhancement at his sentencing hearing on
remand. We affirm the judgment as modified.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1. Original Trial Court Proceedings
       On January 15, 2012, Hays and a confederate entered a check cashing store in
Inglewood and took money, money orders and checks from the two proprietors at
gunpoint. (Hays I, at p. 2 fn. 1.) In addition to charging Hays with two counts of robbery
and two counts of kidnapping, in an information filed March 15, 2011, the People alleged
Hays had suffered three prior serious felony convictions—one each for armed robbery,
kidnapping and aggravated assault—all with a conviction date of July 28, 1998 in Fulton
County, Georgia, and had served a prison term for those offenses as described in section
667.5, subdivision (b). (Id. at pp. 2-3.)
       At the bifurcated hearing following Hays’s conviction, the People introduced
properly authenticated documents establishing Hays had, in fact, pleaded guilty to those
offenses in 1998 and had been sentenced to concurrent terms of 20 years for each, 10
years of which were served in the Georgia state penitentiary.2 No other information
concerning the facts underlying the guilty pleas was proffered; a police report relating to
the incident, which contained inadmissible hearsay, was presented to the court solely for
its consideration in sentencing. (Hays I, at p. 3.)
       At the conclusion of the hearing, the trial court (the Honorable James R. Brandlin)
found the Georgia convictions for armed robbery and aggravated assault to be true and


1
       Statutory references are to the Penal Code.
2
      Hays did not dispute, and the trial court expressly found, the convictions described
were his.

                                              2
qualified as prior serious felonies under the three strikes law and section 667, subdivision
(a)(1). (Hays I, at p. 3.) The trial court also determined the Georgia kidnapping
conviction had not been proved to be a serious felony beyond a reasonable doubt; it was
uncertain whether the felony to which Hays had pleaded was actually false imprisonment.
(Id. at p. 3, fn. 5.) The court then found the section 667.5, subdivision (b) allegation true
beyond a reasonable doubt without specifying which of the felony offenses was the basis
for that finding. (Hays I, at p. 3.)
       Hays was sentenced as a third strike offender to an aggregate state prison term of
69 years four months to life, calculated as 25 years to life for robbery (count 1), plus five
years for the prior serious felony enhancement, plus 10 years for the firearm-use
enhancement, plus one year for the prior prison term enhancement; and a consecutive
term of 25 years to life for robbery (count 3), plus three years four months for the
firearm-use enhancement.3 The court stayed sentence on the two kidnapping convictions
(counts 2 and 4) pursuant to section 654. (Hays I, at p. 3.)
       2. Hays I
       Hays appealed. In an unpublished opinion filed April 18, 2013, we concluded
Hays’s 1968 Georgia armed robbery conviction did not qualify as a serious felony within
the meaning of the three strikes law and section 667, subdivision (a)(1), reversed the true
findings as to those allegations, and vacated Hays’s sentence. (Hays I, at pp. 4-7.) We
remanded the matter to permit the People at a new trial to present admissible evidence
establishing the Georgia armed robbery conviction is a serious felony within the meaning
of the three strikes law and section 667, subdivision (a)(1). (Id. at pp. 8-9.) We directed
the trial court if only the Georgia aggravated assault conviction were found to be a
serious felony, Hays should be resentenced as a second strike offender with one five-year
serious felony enhancement under section 667, subdivision (a)(1). (Id. at p. 9, fn. 7.) If
the People on remand prove the Georgia armed robbery conviction was also a serious

3
       Judge Brandlin did not state which conviction(s) he was using as the basis for
either of the section 667, subdivision (a)(1) or section 667.5, subdivision (b)
enhancements.
                                              3
felony, Hays should be resentenced as a third strike offender and each 25-year-to-life
term imposed should be enhanced by a five-year serious felony enhancement under
section 667, subdivision (a)(1). (People v. Williams (2004) 34 Cal.4th 397, 405 [“under
the Three Strikes law, section 667, subd. (a) enhancements are to be applied individually
to each count of a third strike sentence”]; accord, People v. Misa (2006) 140 Cal.App.4th
837, 846.) (Ibid.)
       3. Proceedings on Remand in the Trial Court
       At the hearing on remand, the People were unable to present evidence that Hays’s
Georgia armed robbery conviction qualified as a serious felony. The trial court (the
Honorable Alan B. Honeycutt) elected to adopt all of Judge Brandlin’s findings and
sentenced Hays as a second strike offender to an aggregate state prison term of 38 years
eight months, consisting of 16 years (the eight-year upper term doubled under the three
strikes law) for kidnapping (count 2), plus five years for the prior serious felony
enhancement, plus 10 years for the firearm-use enhancement, plus one year for the prior
prison term enhancement; and a consecutive term of three years four months (one-third
the five-year middle term doubled under the three strikes law) for kidnapping (count 4),
plus three years four months for the firearm-use enhancement.4 The court stayed sentence
on the two robbery convictions (counts 1 and 3) pursuant to section 654. This appeal
followed.
                                      DISCUSSION
       The People concede in resentencing Hays on remand, the trial court violated the
dual-use prohibition against imposing separate prior conviction and prior prison term
enhancements for the same prior offense. (People v. Jones (1993) 5 Cal.4th 1142, 1150
[trial court erred in imposing separate enhancements pursuant to §§ 667, subd. (a), and
667.5, subd. (b), based on same conviction; only greatest enhancement applies].) With
respect to the three Georgia felony convictions alleged against Hays, the People failed to

4
       Judge Honeycutt did not state which conviction(s) he was using for either the
section 667, subdivision (a)(1) or section 667.5, subdivision (b) enhancements.

                                              4
present evidence at the hearing on remand that the armed robbery and kidnapping/false
imprisonment convictions qualified as serious felony convictions under California law.
Accordingly, the only remaining Georgia felony conviction, for aggravated assault, could
not support both a section 667, subdivision (a) five-year enhancement and a section
667.5, subdivision (b) one-year enhancement. The one-year prior prison term
enhancement must therefore be stricken. (People v. Jones, supra, 5 Cal.4th at p. 1150.)
                                     DISPOSITION
       The judgment is modified to strike the one-year prior prison enhancement imposed
under section 667.5, subdivision (b). As modified, the judgment is affirmed. The
superior court is directed to prepare a corrected abstract of judgment and to forward it to
the Department of Corrections and Rehabilitation.




                                                                       WOODS, J.


We concur:




       PERLUSS, P. J.




       ZELON, J.




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