Filed 5/27/14 P. v. Landroche CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                     COURT OF APEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063825

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN304310)

TRAYTON LANDROCHE,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Harry M.

Elias, Judge. Affirmed.



         John L. Staley, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         A jury convicted defendant and appellant Trayton Landroche of one count of false

imprisonment; the trial court found true allegations Landroche had served two prior
prison terms within the meaning of Penal Code section 667.5,1 subdivision (b) and had

been convicted of a strike within the meaning of the three strikes law, section 667,

subdivisions (b) through (i). The trial court denied Landroche's motion to dismiss the

strike and sentenced Landroche to the upper term of three years on the false

imprisonment conviction, which was doubled to six years because of the strike. In

addition, the trial court sentenced Landroche to two separate consecutive one-year terms

for the prior prison enhancements, for a total term of eight years.

       Landroche's false imprisonment conviction grew out of a February 27, 2012,

domestic violence incident in which Landroche forced his way into his pregnant

girlfriend's home, choked her and restrained her.

                                       DISCUSSION

       Appointed appellate counsel has filed a brief summarizing the proceedings below.

Counsel presents no argument for reversal but asks this court to review the record for

error as mandated by People v. Wende (1979) 25 Cal.3d 436. Counsel suggests, as issues

for our review, whether the trial court erred in failing to dismiss Landroche's strike and

whether the verdict should be set aside for juror misconduct.

       We granted Landroche permission to file a brief on his own behalf, and he did so.

In his brief, Landroche asserts the trial court erred in denying his motion to dismiss the

strike. In particular, he argues that use of his prior conviction as a strike, which doubled

his term, and imposing a consecutive one-year term for the prior prison term, which grew


1      All further statutory references are to the Penal Code unless otherwise indicated.
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out of the strike, constituted unlawful dual use of the strike. (See People v. McFearson

(2008) 168 Cal.App.4th 388, 394-395.) We of course recognize that the dual use

provisions of section 1170, subdivision (b), prevent a trial court from relying on a prior

conviction that included a prison term to impose both an upper term and a prison term

enhancement under section 667.5, subdivision (b). (See McFearson, at pp. 394-395.)

However, the enhanced sentencing regimen required under the three strikes law is distinct

from the enhancements set forth under section 667.5 and is not subject to the dual use

limitations of section 1170, subdivision (b). (People v. Garcia (2001) 25 Cal.4th 744,

757.)

        Landroche also argues that one of the jurors spoke to the juror's girlfriend about

his case during the course of the trial and that this misconduct requires a new trial. In the

trial court, Landroche's trial counsel stated that he had investigated the conduct of the

juror and his girlfriend and determined that no prejudicial misconduct had occurred.

Thus, there is nothing on the record on appeal that supports Landroche's claim of juror

misconduct.

        Finally, Landroche challenges the trial court's imposition of a $1,920 restitution

fine under section 1202.4, subdivision (b). Imposition of the fine was mandatory.

(§ 1202.4, subd. (b).) Calculating the amount of the fine as the product of the eight years

of imprisonment imposed by the trial court multiplied by $240 was expressly authorized

by section 1202.4, subdivision (b)(2). The trial court properly deferred the separate

restitution required under section 296 until documentation of the victim's losses was


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presented to the trial court by the probation department.

       Our review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 has

disclosed no reasonably arguable appellate issues.

       We find Landroche was adequately represented both at trial and on appeal.

                                      DISPOSITION

       The judgment is affirmed.


                                                                   BENKE, Acting P. J.

WE CONCUR:


McDONALD, J.


O'ROURKE, J.




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