Filed 6/4/13 P. v. Davis CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064698
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF235804)
                   v.

DAMIEN LEE DAVIS,                                                                        OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Darryl B.
Ferguson, Judge.
         Gregory Chappel, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Barton Bowers, Deputy Attorneys General for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Cornell, Acting P.J., Kane, J. and Franson, J.
       A jury convicted appellant, Damien Lee Davis, of assault with a deadly weapon
(Pen. Code, § 245, subd. (a)(1)),1 and found true allegations that in committing that
offense, appellant personally used a deadly weapon (§ 12022, subd. (b)(1)) and
personally inflicted great bodily injury (§ 12022.7, subd. (a)). In a separate proceeding,
the court found true a prior prison term enhancement allegation (§ 667.5, subd. (b)) and
allegations that appellant had suffered six prior felony convictions, each of which
qualified as a “strike”2 and as a prior serious felony conviction within the meaning of
section 667, subdivision (a) (section 667(a)). The court imposed a prison term of 47
years to life.
       Appellant argues (1) the evidence was insufficient to establish the truth of two of
the strike allegations and two of the section 667(a) prior serious felony enhancement
allegations, and (2) the court erred in calculating appellant‟s sentence under section
1170.12, subdivision (c)(2)(iii). The People concede these points. We reverse true
findings on two of the strike allegations, vacate the sentence, and remand for
resentencing.
                                       DISCUSSION
Sufficiency of the Evidence – Strikes
       A strike is a prior conviction of any of the felonies designated as “serious” under
section 1192.7, subdivision (c) or “violent” under section 667.5, subdivision (c). (§§ 667,
subd. (d)(1), 1170.12, subd. (b)(1).) Assault with a firearm, in violation of section 245,
subdivision (a)(2) (section 245(a)(2)) is a serious felony (§ 1192.7, subd. (c)(31)), and
thus a prior conviction of that offense qualifies as a strike.


1      All statutory references are to the Penal Code.
2      We use the term “strike” as a synonym for “prior felony conviction” within the
meaning of the “three strikes” law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony
conviction or juvenile adjudication that subjects a defendant to the increased punishment
specified in the three strikes law.


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       Here, the court found true strike allegations that appellant suffered six prior
convictions of assault with a firearm in Tulare County Superior Court case No. VF-
39282-A (case No. 39282-A). However, as the parties agree, the record demonstrates
that two of these purported strikes were actually convictions of non-strike offenses.
       Documentary evidence submitted by the prosecutor to prove the strike allegations
included the abstract of judgment in case No. 39282-A, which indicates appellant
suffered convictions of violating 245(a)(2) in counts 2, 3, 4, 5, 6 and 10. However, the
prosecutor also submitted the following documentary evidence from case No. 39282-A:
the minute order of the judgment proceeding, which shows appellant was convicted, in
counts 5 and 6 respectively, of “Violation of ... section 496 - Receiving stolen property”
and “Violation of ... section 12020(a) ... - Short-barreled shotgun or rifle activity”; the
felony complaint, which shows that “receiving stolen property, in violation of ... section
496[1]” (sic) and “short barreled shotgun or rifle activity, in violation of ... section
12020(a))” (unnecessary capitalization omitted) charged in counts 5 and 6, respectively;
and a Department of Corrections record, which contains handwritten notations
identifying the count 5 offense as a violation of “496(a) RSP” and the count 6 offense as
“12010(A) Mfg/Sale/Poss.”
       In addition, the abstract shows that eight-month subordinate terms were imposed
on each of counts 5 and 6. Unless otherwise provided by law, the determinate sentencing
statute provides the subordinate term shall be one-third the middle term of imprisonment
for the conviction. (§ 1170.1, subd. (a).) In 1999, the midterm for violations of former
sections 496, subdivision (a) and 12020, subdivision (a) was two years, and thus a
subordinate term for each those offenses would have been eight months. (Former §§ 496,
subd. (a), 12020, subd. (a), 18.) The midterm for assault with a firearm, on the other
hand, was and is three years, and therefore one-third of the midterm would be one year,
not eight months. (§ 245(a).)




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       Neither receiving stolen property nor short-barreled short gun activity is listed as a
serious or violent felony. (§§ 667.5, subd. (c), 1192.7, subd. (c).) We recognize offenses
not otherwise listed as serious or violent felonies may nonetheless qualify as such based
on the circumstances surrounding the commission of the offense. For example, serious
felonies include any felony in which the defendant personally used a dangerous or deadly
weapon. (§ 1192.7, subd. (c)(23).) Here, however, as appellant contends and the People
concede, there is no evidence in the record that such circumstances apply to the count 5
and count 6 offenses in case No. 39282-A.
       “When a defendant challenges the sufficiency of the evidence to uphold a finding
that his prior convictions qualified as strikes, the test on appeal is whether a reasonable
trier of fact could have found that the prosecution sustained its burden. We review the
record in the light most favorable to the trial court‟s findings.” (People v. Towers (2007)
150 Cal.App.4th 1273, 1277.) Here, as demonstrated above and as the parties agree, the
evidence was insufficient to establish two of the prior convictions found to be strikes
were in fact strikes.
Calculation of Sentence Under Section 1170.12, subdivision (c)(2)(iii)

              “Under the three strikes law, a trial court must sentence a defendant
       with two or more ... strikes to an indeterminate term of life imprisonment.
       These defendants „become eligible for parole on a date calculated by
       reference to a “minimum term.”‟ [Citation.] This minimum term of the
       indeterminate sentence is the „greater‟ of three options. ([§ 1170.12,]
       [s]ubd. (c)(2)(A)(i)-(iii).) Under the first option (option (i)), the
       defendant‟s minimum indeterminate term is calculated by tripling „the term
       otherwise provided as punishment‟ for the current conviction. ([§
       1170.12,] [s]ubd. (c)(2)(A)(i).) ... [¶] Option (ii) is 25 years. ([§ 1170.12,
       s]ubd. (c)(2)(A)(ii).) While the terms under options (i) and (iii) will vary
       from case to case, option (ii) essentially acts as a default to ensure that the
       defendant‟s indeterminate term will always be a minimum of 25 years.…
       [¶] Under option (iii), the defendant‟s minimum indeterminate term is
       calculated, as relevant in this case, by adding applicable enhancements to
       the term selected for the current conviction. [§ 1170.12,] [s]ubd.
       (c)(2)(A)(iii).)” (People v. Dotson (1997) 16 Cal.4th 547, 552-553, fn.
       omitted.)


                                              4
       The parties agree on the following, as do we: The trial court calculated appellant‟s
minimum indeterminate term under option (iii). That calculation included five years for
each of the six section 667(a) prior serious felony enhancements.3 However, “section
667(a)(1) provides that a defendant who is convicted of a serious felony, as defined in
section 1192.7, shall receive a five-year sentence enhancement for each previous
conviction for a serious felony „on charges brought and tried separately.‟ ... „[T]he
requirement in section 667 that the predicate charges must have been “brought and tried
separately” demands that the underlying proceedings must have been formally distinct,
from filing to adjudication of guilt.‟” (People v. Wiley (1995) 9 Cal.4th 580, 585.) Here,
appellant‟s prior serious felony enhancements did not arise out of “„formally distinct‟”
(ibid.) proceedings. Rather, as indicated above, all six prior serious felony enhancements
were based on a single case. Thus, any calculation under option (iii) could include only
five years for a single section 667(a) enhancement, not 30 years for six such
enhancements. Given this factor, calculation of the minimum indeterminate term under
option (iii) would necessarily yield a term of less than 25 years. Moreover, application of
option (i) would also a yield a term of less than 25 years. Therefore, the correct
minimum indeterminate term here is 25 years, under option (ii). The court erred in
calculating appellant‟s minimum indeterminate term under option (iii).4

3      It appears the court adopted the calculation of the minimum indeterminate term of
39 years set forth in the report of the probation officer as follows: four years on the
substantive offense, three years on the great bodily injury enhancement, one year on the
weapon use enhancement, five years on each of the six prior serious felony enhancements
and one year on the prior prison term enhancement. To this term, the court added eight
years, consisting of, the court stated, “three years pursuant to 12022.7, plus an additional
five years pursuant to 667(a)(1) .…”
4       Appellant argues the calculation of the minimum determinate term under option
(iii) was incorrect for three additional reasons. He contends that term erroneously
included the following: (1) three years for the great bodily injury enhancement and one
year for the weapon enhancement, in violation of the section 654 proscription against
multiple punishments for the same act; (2) five years for each of the two prior serious
felony enhancements that, as discussed earlier, were not supported by the evidence; and

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                                      DISPOSITION
       The true findings on two of the six strike allegations are reversed, the sentence is
vacated and the judgment is otherwise affirmed. The matter is remanded to the trial court
for resentencing.




(3) a one-year prior prison term enhancement (§ 667.5, subd. (b)) based on a prior felony
conviction upon which one of the 667(a) enhancements was based. Because we have
determined that use of option (iii) was incorrect for the reasons discussed above, we need
not address these claims.


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