Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIF116695. Gary B. Tranbarger, Judge.
Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
RAMIREZ, P. J.
Defendant and appellant Randall Ray Stuart appeals from a new sentence imposed after we remanded his case for resentencing for a second time.
FACTUAL AND PROCEDURAL BACKGROUND
This is the third appeal in this case. We summarized the facts of the case in more detail in the original appeal. The essential facts are that defendant used a handgun to rob a restaurant in April 2004. During the robbery, defendant pointed the handgun at the host, customers, a food server, and the manager of the restaurant. One of the customers was a retired police officer who was carrying a revolver in his fanny pack. Fearing for his life, the officer pulled out his service revolver, shot defendant, and kept the revolver pointed at him until police arrived. As a result of the gunshot wound, defendant was treated and then released from the hospital.
Defendant pled guilty to two counts of second degree robbery (Pen. Code, § 211), as well as personal use of a firearm during the commission of the robberies (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8)) (counts 1 & 2); two separate counts of assault with a firearm (§ 245, subd. (a)(2)), plus personal use of a firearm during the commission of these offenses (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)) (counts 3 & 4); two counts of false imprisonment through violence (§ 236) (counts 5 & 6, as amended); and being a felon in possession of a firearm (§ 12021, subd. (a)(1)) (count 7). He also admitted two prior serious felony convictions within the meaning of section 667, subdivision (a), as well as two prior strike convictions for robbery within the meaning of sections 667, subdivisions (c) and (e)(2)(A), and 1170.12, subdivision (c)(2)(A).
All further statutory references are to the Penal Code.
The People filed the first appeal, and we agreed with the People that the trial court abused its discretion when it dismissed a prior strike conviction based on a factor extrinsic to the “Three Strikes” law. We therefore remanded the case for resentencing. (People v. Stuart (Jan. 24, 2007, E039265) [nonpub. opn.] pp. 2-3, 7-8.)
Defendant filed the second appeal after the court on remand imposed a sentence of 150 years to life plus 27 years. We reversed the sentence in part and remanded for the limited purpose of allowing the sentencing court to exercise its discretion pursuant to sections 1170.12, subdivision (a)(6) and (7), and 667, subdivision (c)(6) and (7), to determine whether to impose concurrent or consecutive sentences on all counts based on the criteria and limitations set forth in rule 4.425 of the California Rules of Court. (People v. Stuart (July 30, 2008, E043761) [nonpub. opn.] p. 6.)
On November 17, 2008, the sentencing court resentenced defendant as follows: On count 1, robbery, the court imposed 25 years to life plus 10 years pursuant to section 12022.53, subdivision (b), for the use of a gun during the offense. On counts 2 through 6, the court imposed concurrent 25-year-to-life terms plus 10 years each for the use of a gun pursuant to section 12022.53, subdivision (b). For the offense of felon in possession, count 7, the court imposed a consecutive 25 year to life term. Based on defendant’s two prior serious felonies within the meaning of section 667, subdivision (a), the court also imposed two additional five-year terms. Thus, defendant’s total sentence is 50 years to life plus 20 years.
The court’s minutes of November 17, 2008 show the total sentence as “70 years to life.” However, the determinate terms (i.e., the 10-year gun enhancement imposed on count 1 pursuant to § 12022.53, subd. (b), and the two five-year terms imposed based on the two prior serious felonies within § 667, subd. (a)) should be shown separately from the two indeterminate life terms. (See § 669.) As a result, we will direct the superior court to correct the minutes.
DISCUSSION
On January 5, 2009, defendant filed a notice of appeal “based on the sentence or other matters occurring after the plea.” We appointed counsel to represent defendant on appeal. Appointed counsel has filed a brief under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth the facts and procedural history, raising no specific issues, and requesting this court to conduct an independent review of the record. On June 18, 2009, we offered defendant an opportunity to file a personal supplemental brief, which he failed to do. We have now concluded our independent review of the record and find no arguable issues.
DISPOSITION
The superior court clerk is directed to correct the minutes of November 17,
2008, to show the total sentence as 50 years to life plus 10 years rather than “70 years to life.” The judgment and sentence are affirmed in all other respects.
We concur: KING, J., MILLER, J.