People v. Lavoie

240 Cal. Rptr. 3d 825, 29 Cal. App. 5th 875
CourtCalifornia Court of Appeal, 5th District
DecidedDecember 3, 2018
DocketE068328
StatusPublished
Cited by3 cases

This text of 240 Cal. Rptr. 3d 825 (People v. Lavoie) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Lavoie, 240 Cal. Rptr. 3d 825, 29 Cal. App. 5th 875 (Cal. Ct. App. 2018).

Opinion

RAMIREZ, P. J.

*827*877Defendant accosted a stranger in a parked car, forced him to turn over his car keys at gunpoint, and told him, "This ain't your car no more." He also took the victim's cell phone. When defendant was arrested, he was in possession of a handgun with a 15-round-capacity magazine.

After a jury trial, defendant was found guilty on three counts: (1) second degree robbery ( Pen. Code, §§ 211, 212.5, subd. (c) ), with a personal firearm use enhancement ( Pen. Code, § 12022.53, subd. (b) ); (2) unlawful possession of a firearm ( Pen. Code, § 29800, subd. (a)(1) ); and (3) receiving a large-capacity magazine ( Pen. Code, §§ 16740, 32310, subd. (a) ).

In a bifurcated proceeding, after waiving a jury trial, defendant admitted two "strike" priors ( Pen. Code, §§ 667, subds. (b) - (i), 1170.12 ), two prior serious felony enhancements ( Pen. Code, § 667, subd. (a) ), and two prior prison term enhancements ( Pen. Code, § 667.5, subd. (b) ).

As a result, defendant was sentenced to a total of 71 years 4 months to life.

*878Defendant does not challenge his conviction of the substantive offenses. All of his appellate contentions relate to the enhancements and the strikes.1 Most significantly, he contends that the trial court erred by allowing the prosecution to amend the prior conviction allegations after the jury had already been discharged. As will be seen, we agree as to one of the strikes; otherwise, we disagree. Accordingly, we will strike that one strike and remand for resentencing.

I

STATEMENT OF FACTS

A. The Allegations of the Information .

The information alleged the following prior convictions:

1. As prior prison term enhancements:
a. On February 25, 2010, in Riverside County, for assault with a deadly weapon. ( Pen. Code, § 245, subd. (a)(1).)
b. On March 5, 2010, in Riverside County, for assault with a deadly weapon in prison. ( Pen. Code, § 4501, subd. (a).)
2. As prior serious felony conviction enhancements:
a. On February 25, 2010, in Riverside County, for assault with a deadly weapon.
b. On March 5, 2010, in Riverside County, for assault with a deadly weapon in prison.
3. As strike priors:
a. On April 26, 2007, in Riverside County, for assault with a deadly weapon.
b. On February 25, 2010, in Riverside County, for assault with a deadly weapon.

*828*879Note that the conviction that was alleged first as a prison prior and a prior serious felony was alleged second as a strike. Also, the conviction that was alleged second as a prison prior and as a prior serious felony was not alleged as a strike at all; the first strike was a completely different conviction.

B. Defendant's Waiver of a Jury Trial .

The trial on the priors was bifurcated. After the jury retired to deliberate, defendant waived a jury trial on the priors. In taking defendant's waiver, the trial court stated:

"THE COURT: ... [¶] ... [T]here are two prison priors alleged in the information and two strike priors. They are one and the same. You know that. But they are alleged in a different fashion. You understand that; right?

"THE DEFENDANT: Yes."

As noted, however, this was not correct.

Later that day, the jury returned its verdict of guilt and was discharged.

C. The Trial Court's Advisements .

On the date set for a court trial on the priors, defense counsel indicated that defendant was willing to admit them. The trial court advised defendant:

"THE COURT: ... [Y]ou are charged with two priors. One way is a prison prior pursuant to 667.5(b). The other way is a serious felony, 667(a). And the third way is strike priors. So there are three ways the priors are alleged.

"Understood?

"THE DEFENDANT: Yes, sir.

"THE COURT: The 667.5(b) priors add an additional year if convicted of those. The serious felonies add five, and the strike prior adds a life term.

The trial court went on:

*880"THE COURT: All right. You have a right to have me decide whether or not these priors are true, and whether or not you committed these priors.

"Do you wish to waive or give up that right?

"THE DEFENDANT: Yes.

"THE COURT: ... [Y]ou have a right to cross-examine any and all witnesses the People put up to prove that these priors exist, and that they are your priors.

"You wish to waive or give up that right; is that right?

"THE DEFENDANT: That is correct.

"THE COURT: You have a right to show that these priors don't exist or they're not your priors.

"You wish to waive or give up that right; is that correct?

"THE COURT: And, lastly, you have a right to testify at that trial in any defenses that they aren't your priors or they don't exist.

"You wish to waive or give up that right; is that correct, sir?

D. The Amendment of the Information and Defendant's Admissions .

Next, the trial court started to ask defendant to admit the prison priors. Defendant volunteered, however, and both counsel confirmed, that the date March 5, 2010 was erroneous and should have been July 24, 2013. The trial court therefore ordered:

"THE COURT: As to the second-prior offense, as to the second-serious prior offense, as [to] the second strike, on People's motion, I shall, by interlineation, strike 'March 5, 2010,' and substitute in that place 'July 24th, 2013,' as to all three."

*829This was a mistake. It was the first strike that needed to be amended, not the second strike.

The trial court resumed asking defendant to admit the prison priors. This time, however, defendant volunteered, and the prosecutor confirmed, that the *881place of the July 24, 2013 conviction was also erroneous and should be San Diego County. The trial court ordered:

"THE COURT: ... I'm going to amend the second-prior offense, as to the second-serious prior offense, and second strike to allege that the convictions were had in the County of San Diego, state of California."

This was another mistake. Once again, it should have amended the first strike, not the second strike.

The trial court resumed asking defendant to admit the prison priors, which he did. Next, it asked him to admit the prior serious felonies, which he also did.

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Cite This Page — Counsel Stack

Bluebook (online)
240 Cal. Rptr. 3d 825, 29 Cal. App. 5th 875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-lavoie-calctapp5d-2018.