THE PEOPLE v. CARLOS CUMPLIDO (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Carlos Cumplido appeals from a judgment entered after a jury convicted him of 10 counts of second degree robbery (Penal Code section 211),¹ one count of attempted robbery (§§ 211, 664), seven counts of felon in possession of a firearm (§ 12021, subd. (a)(1)) and one count of assault with a deadly weapon (§ 245, subd. (a)(1)).   The jury found all firearm allegations alleged in the indictment in connection with these 19 counts to be true.   Cumplido committed these crimes on seven dates between March 3 and April 13, 2001, at fast food restaurants in various cities in Los Angeles County.²  The trial court sentenced Cumplido to a total term of 59 years in prison.

Cumplido's sole contention on appeal is that the trial court erred in imposing a firearm enhancement under section 12022.53, subdivision (b), on count 17 for attempted robbery.   The People concede the error.

The indictment alleged that in the commission of the attempted robbery charged in count 17, a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1).   The jury found the allegation to be true.   Count 17 did not include a firearm enhancement allegation under section 12022.53, subdivision (b), and the jury did not make a finding on such an allegation.   When the trial court sentenced Cumplido on count 17, however, it imposed an enhancement under section 12022.53, subdivision (b).  The court sentenced Cumplido to one third of two years for the attempted robbery (eight months), plus one third of the 10-year enhancement under section 12022.53, subdivision (b) (three years, four months), for a total term of four years on count 17.³  The court also imposed but stayed the enhancement under section 12022, subdivision (a)(1).⁴

Section 1170.1 requires that “[a]ll enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.” (§ 1170.1, subd. (e).)  The trial court erred in imposing the enhancement under section 12022.53, subdivision (b), on count 17 because it was not alleged in the indictment or found true by the jury.

We remand the matter for resentencing on count 17.   As set forth above, the trial court stayed the sentence on the enhancement under section 12022, subdivision (a)(1).   The court should have the opportunity to decide whether it would make that same sentencing choice, given that it cannot impose the enhancement under section 12022.53, subdivision (b).⁵

DISPOSITION

The sentence is vacated and the cause remanded for resentencing on count 17 for attempted robbery.   In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code..  FN1. All further statutory references are to the Penal Code.

FN2. The indictment was filed in 2002.   Cumplido was tried in 2009..  FN2. The indictment was filed in 2002.   Cumplido was tried in 2009.

FN3. One third of the one year term under section 12022, subdivision (a)(1)-the enhancement which was alleged in the indictment and found true by the jury-is four months..  FN3. One third of the one year term under section 12022, subdivision (a)(1)-the enhancement which was alleged in the indictment and found true by the jury-is four months.

FN4. The People state that the abstract of judgment is incorrect to the extent that it reflects that the trial court imposed but stayed the enhancement under section 12022, subdivision (a)(1), on count 17.   The People point out that the court did not refer to this enhancement when it pronounced sentence on count 17.   Earlier in the sentencing hearing, however, the trial court stated that it was “imposing, but staying the one year for the principal armed allegation [under section 12022, subdivision (a)(1) ] on all of these counts pursuant to [section] 654.”.  FN4. The People state that the abstract of judgment is incorrect to the extent that it reflects that the trial court imposed but stayed the enhancement under section 12022, subdivision (a)(1), on count 17.   The People point out that the court did not refer to this enhancement when it pronounced sentence on count 17.   Earlier in the sentencing hearing, however, the trial court stated that it was “imposing, but staying the one year for the principal armed allegation [under section 12022, subdivision (a)(1) ] on all of these counts pursuant to [section] 654.”

FN5. In his opening brief, Cumplido also asserted that the trial court miscalculated the actual time he had served.   He represented that he had asked the trial court to correct his presentence credits.   He stated that, if the trial court denied his request, he would ask this court for permission to submit supplemental briefing.   Cumplido has not sought such permission or otherwise requested that this court address the issue of his presentence credits..  FN5. In his opening brief, Cumplido also asserted that the trial court miscalculated the actual time he had served.   He represented that he had asked the trial court to correct his presentence credits.   He stated that, if the trial court denied his request, he would ask this court for permission to submit supplemental briefing.   Cumplido has not sought such permission or otherwise requested that this court address the issue of his presentence credits.

MALLANO, P. J. ROTHSCHILD, J.