Filed 8/18/16 P. v. Herrera CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B266568

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA129730)
         v.

JAVIER ERNESTO HERRERA,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County,
John A. Torribio, Judge. Affirmed as modified.
         John J. Uribe, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Plaintiff and Respondent.
        The District Attorney in Los Angeles charged defendant Javier Ernesto Herrera
(defendant) with three counts of second degree robbery in violation of Penal Code section
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211. The District Attorney also charged defendant with several sentencing
enhancements, including among others, enhancements alleging defendant personally used
a deadly weapon (a knife) in one of the robberies and that defendant had served a prior
prison term as described in section 667.5(b). Defendant’s attorney on appeal filed an
opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We correct
two sentencing errors but otherwise affirm the judgment.


                                   I. BACKGROUND
        The count 1 robbery charge arose out of the December 20, 2012, robbery of
Alexander Perez while he was travelling on the MTA Blue Line at about 1:00 a.m. The
jury was unable to reach a verdict on this charge, and it was ultimately dismissed.
        The count 2 charge, captured on video by security cameras, concerned the January
13, 2013, robbery of Jorge Baltazar. Baltazar testified that the encounter occurred about
4:00 a.m., when defendant approached him on a bicycle and started talking with him. As
shown by the video, defendant hit Baltazar, knocked him to the ground, and kicked him.
Defendant took Baltazar’s wallet, $280, and his cell phone.
        The count 3 charge concerned the January 27, 2013, robbery of Jose Reyes Diaz.
Diaz testified that defendant rode up to him on a bicycle and offered him a ride at about
4:00 a.m. Diaz took the ride, and at some point defendant stopped the bicycle and
demanded money from Diaz. Diaz gave defendant his money, but defendant demanded
more. Defendant reached toward his ankle, and Diaz later told sheriff’s deputies that
defendant pulled a 5-inch knife from his sock. (At trial, Diaz testified he did not
remember actually seeing a knife.) Diaz did not have more money, so he gave his cell
phone to defendant instead.



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        Undesignated statutory references that follow are to the Penal Code.

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       The jury found defendant guilty of the robberies charged in count 2 and count 3.
The jury also found true an allegation that defendant inflicted great bodily injury on
Baltazar. The jury did not reach a verdict on the allegation that defendant personally used
a knife in the commission of the count 3 robbery of Diaz.
       The trial court sentenced defendant to a total of 59 years to life in state prison. On
count 2, the court sentenced defendant to 25 years to life in state prison for the robbery
conviction pursuant to the Three Strikes law, plus a three-year enhancement term under
section 12022.7(a) for inflicting great bodily injury, plus a five year enhancement term
under section 667(a) for a prior serious felony conviction. The court stated it would
impose but stay a one-year term for “the 667.5(b) prior.” As to the count 3 robbery, the
trial court imposed a consecutive 25 years to life term, plus one year for the 12022(b)(1)
deadly/dangerous weapon allegation (use of the knife) in connection with that count. The
court imposed the requisite fines, fees, and assessments, and gave defendant a total of
1001 days of sentencing credit, consisting of 871 days of actual custody and 130 days of
conduct credit.


                                     II. DISCUSSION
       We appointed counsel to represent defendant on appeal. After examining the
record, counsel filed an opening brief raising no issues but asking us to independently
review the record. On February 24, 2016, we informed defendant of his right to
personally submit any contentions or issues he wished us to consider. Defendant
submitted no contentions or issues in response.
       We have examined the record and discovered two sentencing errors. The trial
court imposed a one-year term for the deadly weapon allegation even though the record
shows the jury did not find that allegation true. The court also incorrectly stayed a one-
year term for the section 667.5 prior prison term allegation. Both enhancements must be
stricken.




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       A.      Deadly Weapon Allegation
       The jury returned its verdicts on February 5, 2015, but the court did not sentence
defendant until August 26, 2015. By that time, the parties and the court apparently
believed the jury had found true the allegation that defendant used a deadly or dangerous
weapon, a knife, in the commission of the count 3 robbery. They were mistaken. The
jury had been unable to reach agreement on that allegation.
       During deliberations on February 4 the jury sent a note to the court asking “what
should we do if we cannot agree on the second paragraph to the third count regarding use
of a deadly weapon?” The court replied, “If you cannot agree on the special allegation
but agree on a verdict leave the allegations unmarked and sign the form.” The jury
signed the “guilty” verdict form for count 3. The second paragraph of that form states,
“We further find that in the commission of the above offense, the said defendant
personally used a deadly and dangerous weapon, to wit: a knife, within the meaning of
Penal Code section 12022(b)(1) to be _______. (Insert “TRUE” or “NOT TRUE”).”
The jury left the space blank.
       The clerk read the verdict form aloud as follows: “We, the jury in the above-
entitled action, find the defendant, Javier Ernesto Herrera, guilty of the crime of second
degree robbery upon Jose Reyes Diaz, in violation of section 211 of the Penal Code of
California, a felony, as charged in Count III of the information. [¶] The allegation is not
signed. [¶] This 5th day of February, 2015. [¶] Juror number 1, foreperson.” The
minute order states the verdict as follows: “We, the jury in the above-entitled action, find
the defendant, Javier Ernesto Herrera, guilty of the crime of second degree robbery, upon
Jose Reyes Diaz, in violation of section 211 of the Penal Code of California, a felony, as
charged in Count 3 of the information. This 5th day of February, 2015. [¶] Juror no. 1,
foreperson.”
       Because the jury did not find the section 12022(b)(1), deadly weapon allegation
true, the one-year enhancement term imposed for that allegation must be stricken.




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       B.     Prior Prison Term Enhancement
       The information alleged defendant had suffered a prior conviction for violating
Vehicle Code section 10851(a) and had served a prison term for that conviction within
the meaning of section 667.5(b). Defendant admitted he had suffered the conviction.
The trial court imposed and stayed a one-year term for this enhancement. The Vehicle
Code conviction was not the basis of any other enhancement term, and thus the trial
court’s decision to refrain from imposing the enhancement must be viewed as a
discretionary choice. As such, it should have been stricken, not stayed. (See People v.
Brewer (2014) 225 Cal.App.4th 98, 104.)


                                      DISPOSITION
       The one-year enhancement term imposed pursuant to section 12022(b) is ordered
stricken. The section 667.5(b) term the trial court imposed but stayed is also ordered
stricken. Defendant’s corrected total term of imprisonment is now 58 years to life. The
clerk of the superior court shall prepare an amended abstract of judgment reflecting these
changes and deliver a copy to the Department of Corrections and Rehabilitation. The
judgment of conviction is affirmed in all other respects.
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                        BAKER, J.


We concur:



              TURNER, P.J.                                     RAPHAEL, J.




        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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