PEOPLE v. ROSBURY

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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Edward ROSBURY et al., Defendants and Appellants.

No. B089732.

Decided: March 07, 1996

Marilyn Drath, San Rafael, and Valerie G. Wass, under appointment by the Court of Appeal, S. Pasadena, for Defendants and Appellants. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Sharon Wooden Richard, Sanjay T. Kumar, and Richard B. Cullather, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendants, Terral McMillan and Edward Rosbury, appeal their convictions for attempted robbery after a jury trial.  (Pen.Code §§ 211/664.) 1  Mr. McMillan was sentenced to the middle term of four years which was doubled pursuant to section 667, subdivision (e)(1) plus five years pursuant to section 667, subdivision (a)(1).   He was also sentenced to the middle term of three years for a prior robbery conviction in case No. BA075927 for which defendant was on probation when sentenced in the present case to run concurrent with the nine year term for the attempted robbery conviction.   He was given credit of 481 days in custody including 127 days of conduct credit in the present case.   Mr. Rosbury was sentenced to state prison for three years and ordered to pay a restitution fine of $200 pursuant to Government Code section 13967, subdivision (a).   He was given credit for 147 days in custody including 49 days of conduct credit.   In the published portion of this opinion, we address the issue of the concurrent sentence given to Mr. McMillan.   We modify the judgment to order the two sentences as to Mr. McMillan to run consecutively.

II.*

DiscussionA.–E.**

The Attorney General argues that the nine year sentence in the present case should have run consecutively to the three year term for robbery imposed in case No. BA075927.   In the present case, defendant stands convicted of attempted robbery and a five year enhancement pursuant to section 667, subdivision (a)(1) has been imposed for a total term of nine years.   The foregoing term is calculated by doubling the two year attempted robbery midterm (§ 213, subd. (b)3 )pursuant to section 667, subdivision (e)(1) 4 for a total of four years and adding the five year prior serious conviction enhancement pursuant to section 667, subdivision (a)(1).5  The prior serious felony conviction was for robbery.   Defendant, who used 15 aliases, 3 birth dates, and 2 social security numbers and whose Hoover Crips gang moniker was “Monster,” was arrested pursuant to a felony warrant in the prior case.   He was later convicted of robbery and placed on probation on August 4, 1993, in case No. BA075927.   At the time of the present attempted robbery, defendant had been convicted of two felonies and five misdemeanors.   He did not support any of the three children he fathered.   The robbery in the present case occurred on March 13, 1994.   When sentenced on November 22, 1994, in the present case, defendant also received a three year concurrent term for his probation violation for the robbery in case No. BA075927.   In other words, the probation violation sentence ran currently with defendant's new case which is the subject of the present appeal.

 The trial court had a duty to impose consecutive sentences in the new case and the probation violation matter.   It is well established that a legally unauthorized sentence can be corrected at any time including on direct appeal upon request of the prosecution even though the issue was never raised in the trial court and the result is that the defendant serves a longer prison term.  (People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040;  People v. Welch (1993) 5 Cal.4th 228, 235, 19 Cal.Rptr.2d 520, 851 P.2d 802;  People v. Karaman (1992) 4 Cal.4th 335, 345–346, fn. 11, 349, fn. 15, 14 Cal.Rptr.2d 801, 842 P.2d 100;  In re Ricky H. (1981) 30 Cal.3d 176, 190–191, 178 Cal.Rptr. 324, 636 P.2d 13;  People v. Davis (1981) 29 Cal.3d 814, 827, fn. 5, 176 Cal.Rptr. 521, 633 P.2d 186;  People v. Serrato, 9 Cal.3d 753, 763–765, 109 Cal.Rptr. 65, 512 P.2d 289;  In re Sandel (1966) 64 Cal.2d 412, 414–418, 50 Cal.Rptr. 462, 412 P.2d 806.)   Section 667 subdivision (c) provides in pertinent part:  “(c) Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following:  [¶] ․ (7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.”   Defendant, who falls within the habitual offender provisions of section 667, subdivision (e), stands convicted of two serious felonies, robberies, and is presently subject to concurrent sentences.   This is a legally unauthorized sentence because defendant must be sentenced consecutively pursuant to section 667, subdivision (c)(7).   When consecutive sentencing is mandated, a concurrent sentence is a legally unauthorized disposition.  (In re Sandel, supra, 64 Cal.2d at pp. 414–418, 50 Cal.Rptr. 462, 412 P.2d 806.)   Hence, the judgment must be modified to order that the sentences in case Nos. YA019169 and BA075927 are to run consecutively.

IV. DISPOSITION

The abstract of judgment for Mr. McMillan is ordered amended to show 126 days of conduct credit.   Mr. Rosbury's abstract of judgment is ordered amended to show 48 days of conduct credit.   Mr. McMillan's sentence in this case is ordered to run consecutive to the term imposed in case No. BA075927.   The trial court is to direct the issuance of a corrected abstract of judgment which reflects the sentence in case No. BA075927 as a subordinate term.   In all other respects, the judgments are affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise indicated.

FOOTNOTE.   See footnote *, ante.

3.   Section 213 provides in its entirety:  “(a) Robbery is punishable as follows:  [¶]  (1) Robbery of the first degree is punishable as follows:  [¶]  (A) If the defendant, voluntarily acting in concert with two or more other persons, commits the robbery within an inhabited dwelling house, a vessel as defined in Section 21 of the Harbors and Navigation Code, which is inhabited and designed for habitation, an inhabited floating home as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, a trailer coach as defined in the Vehicle Code, which is inhabited, or the inhabited portion of any other building, by imprisonment in the state prison for three, six, or nine years.  [¶]  (B) In all cases other than that specified in subparagraph (A), by imprisonment in the state prison for three, four, or six years.  [¶]  (2) Robbery of the second degree is punishable by imprisonment in the state prison for two, three, or five years.  [¶]  (b) Notwithstanding Section 664, attempted robbery in violation of paragraph (2) of subdivision (a) is punishable by imprisonment in the state prison.”

4.   Section 667, subdivision (e)(1) states in pertinent part:  “For the purposes of subdivisions (b) through (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction:  [¶]  (1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.”

5.   Section 667, subdivision (a)(1) states:  “(a)(1) 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.”

TURNER, Presiding Justice.

GRIGNON and GODOY PEREZ, JJ., concur.

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