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THE PEOPLE, Plaintiff and Appellant, v. WILBERT LEE STREET, Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
OPINION
Wilbert Lee Street shot Isidro Curiel. A jury found him guilty of attempted willful, deliberate, and premeditated murder. The court found true the allegations of two serious felony priors and the allegation of personal and intentional discharge of a firearm proximately causing great bodily injury. The court imposed, inter alia, a three strikes law term of 25 years to life on the attempted willful, deliberate, and premeditated murder. On appeal, the district attorney argues, Street agrees, and we concur that the mandatory three strikes law term on the attempted willful, deliberate, and premeditated murder is 42 years to life.1 We affirm the judgment as modified.
BACKGROUND
On February 27, 2009, a second amended information charged Street with committing attempted willful, deliberate, and premeditated murder (count 1; §§ 187, subd. (a), 664, subd. (a)) and felon in possession of a firearm (count 2; § 12021, subd. (a)(1)) on June 2, 2008. In count 1, the information alleged, inter alia, personal use of a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)), personal and intentional discharge of a firearm (§ 12022.53, subd. (c)), personal and intentional discharge of a firearm proximately causing great bodily injury (§ 12022.53, subd. (d)), and personal infliction of great bodily injury (§ 12022.7, subd. (a)). In both counts, the information alleged, inter alia, two Nevada priors - a 1981 attempted murder and a 1968 rape - as serious felony priors (§ 667, subd. (a)(1)) and as serious and violent felonies (§§ 667.5, subds.(c)(3), (c)(12), (f), 1170.12, subd. (b)(2), 1192.7, subds. (c)(3), (c)(9)) within the scope of the three strikes law (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)).
On May 26, 2009, the court bifurcated the allegations of the priors. On June 1, 2009, a jury found Street guilty as charged and found the firearm and great bodily injury allegations true. On June 3, 2009, the court found the bifurcated allegations of the priors true.
On October 30, 2009, the court imposed an aggregate 60-to-life sentence - an indeterminate term of 25 years to life for personal and intentional discharge of a firearm proximately causing great bodily injury consecutive to an indeterminate term of 25 years to life for attempted willful, deliberate, and premeditated murder consecutive to a determinate term of 5 years on one serious felony prior consecutive to a determinate term of 5 years on the other serious felony prior. The court stayed sentence on the felon in possession of a firearm and on all other allegations.2
DISCUSSION
The district attorney argues, Street agrees, and we concur that the mandatory three strikes law term on the attempted willful, deliberate, and premeditated murder is 42 years to life and that the aggregate sentence is 77 years to life. (§§ 187, subd. (a), 664, subd. (a), 667, subd. (e)(2)(A)(iii), 3046, subd. (a)(1), 1170.12, subd. (c)(2)(A)(iii), 12022.53, subd. (d); see, e.g., People v. Williams (2004) 34 Cal.4th 397, 403-404; People v. Acosta (2002) 29 Cal.4th 105, 114-118; People v. Jefferson (1999) 21 Cal.4th 86, 89-90, 92-99; People v. Dotson (1997) 16 Cal.4th 547, 550-553, 557-560; People v. Anderson (1995) 35 Cal.App.4th 587, 592-600.) We so modify the judgment.3
DISPOSITION
The judgment is modified to show (1) an aggregate 77-to-life sentence - an indeterminate term of 25 years to life for personal and intentional discharge of a firearm proximately causing great bodily injury consecutive to an indeterminate term of 42 years to life on the attempted willful, deliberate, and premeditated murder consecutive to a determinate term of 5 years on one serious felony prior consecutive to a determinate term of 5 years on the other serious felony prior - and (2) imposition of sentence on the felon in possession of a firearm and all other allegations, a section 654 stay of execution of sentence on the felon in possession of a firearm, and a section 12022.53, subdivision (f) stay of execution on all other allegations. The matter is remanded with directions to the court to issue an appropriately amended abstract of judgment and to send a certified copy to the Department of Corrections and Rehabilitation.4 Street has no right to be present at those proceedings. (See People v. Price (1991) 1 Cal.4th 324, 407-408.) As modified, the judgment is affirmed.
FOOTNOTES
FN1. Penal Code section 1238, subdivision (a)(10) authorizes the district attorney's appeal. (People v. Trujillo (2006) 40 Cal.4th 165, 171-174.) Later statutory references are to the Penal Code unless otherwise noted.. FN1. Penal Code section 1238, subdivision (a)(10) authorizes the district attorney's appeal. (People v. Trujillo (2006) 40 Cal.4th 165, 171-174.) Later statutory references are to the Penal Code unless otherwise noted.
FN2. The reporter's transcript shows the following: “I find the 12022.53(c) pursuant to Penal Code Section 654. In the future, I'll refer to it as 654. I find 12022.53(b) is also 654, and find 12022.5(a) is also 654. I also find that 12022.7 is 654. I also find as to Count 2 the 12022 - the 12021(a)(1) is also pursuant to 654.” The correct procedure is, first, to “impose sentence” and, second, to “stay execution as necessary.” (People v. Alford (2010) 180 Cal.App.4th 1463, 1472.) Additionally, section 654 is the correct authority for staying the felon in possession of a firearm, but section 12022.53, subdivision (f) is the correct authority for staying all other allegations. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1130.). FN2. The reporter's transcript shows the following: “I find the 12022.53(c) pursuant to Penal Code Section 654. In the future, I'll refer to it as 654. I find 12022.53(b) is also 654, and find 12022.5(a) is also 654. I also find that 12022.7 is 654. I also find as to Count 2 the 12022 - the 12021(a)(1) is also pursuant to 654.” The correct procedure is, first, to “impose sentence” and, second, to “stay execution as necessary.” (People v. Alford (2010) 180 Cal.App.4th 1463, 1472.) Additionally, section 654 is the correct authority for staying the felon in possession of a firearm, but section 12022.53, subdivision (f) is the correct authority for staying all other allegations. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1130.)
FN3. On our own motion, we take judicial notice of the record in People v. Street (F058909), an appeal by Street from his judgment of conviction in the matter before us. (Evid.Code, §§ 452, subd. (d)(1), 459, subd. (a).). FN3. On our own motion, we take judicial notice of the record in People v. Street (F058909), an appeal by Street from his judgment of conviction in the matter before us. (Evid.Code, §§ 452, subd. (d)(1), 459, subd. (a).)
FN4. For judicial efficiency, the abstract of judgment should be modified concurrently with the modification of the abstract of judgment ordered in People v. Street (F058909).. FN4. For judicial efficiency, the abstract of judgment should be modified concurrently with the modification of the abstract of judgment ordered in People v. Street (F058909).
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Docket No: F059165
Decided: November 10, 2010
Court: Court of Appeal, Fifth District, California.
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