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People v. Hunter6/23/2004
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Philip Andrew Hunter appeals from a judgment entered after he pleaded guilty to one count of kidnapping. (Pen. Code, § 207, subd. (a).) He contends the trial court sentenced him incorrectly. We agree in part, and will modify the judgment accordingly.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 12, 2002, near 7:30 a.m., 14-year-old Melissa R. was walking to school when she passed appellant who was standing near the open trunk of his car. Appellant asked Melissa for a hug and a kiss. When Melissa said no, appellant grabbed her, forced her into his trunk, and closed it.
Melissa yelled for help, but appellant told her to "shut up." As appellant drove away, Melissa started clawing at the inside of the trunk. By "pulling on wires and pushing on stuff" Melissa was able to open it. Peering out, she could see appellant had driven about two miles. Melissa waited for her chance to escape. After about 30 minutes, appellant slowed for a stop sign. When he did, Melissa opened the trunk and rolled out while the car was still moving. A driver who was following picked Melissa up and took her to safety. The driver also gave appellant's license plate number to the police.
Using the license plate, the police were able to locate appellant's car in Pleasanton. When appellant arrived to get into the car, the officers arrested him.
Based on these facts, an information was filed charging appellant with one count of kidnapping. (§ 207, subd. (a).) As is relevant here, the information also alleged appellant had suffered four prior strikes within the meaning of the three strikes law, (§ 1170.12, subd. (c)(2)(A)) and had four prior serious felony convictions (§ 667, subd. (a)(1).)
Appellant pleaded guilty to the kidnapping charge and to three of the four prior conviction allegations. The court found the fourth allegation to be true after a trial conducted in February 2003.
Subsequently, the court sentenced appellant to 25 years to life on the kidnapping charge plus an additional five years for each of the four prior serious felony convictions for a total sentence of 45 years to life.
II. DISCUSSION
A. Prior Serious Felony Convictions
Appellant contends the trial court could not validly sentence him on all four of the prior serious felony convictions because two of them were based on convictions that were not "brought and tried separately." The People concede the error and we agree.
Section 667, subdivision (a)(1) states that any person who is convicted of a serious felony, who has previously been convicted of a serious felony shall receive "a five-year enhancement for each such prior conviction on charges brought and tried separately."
Here, the information alleged appellant had been convicted of first degree residential burglary on four prior occasions: on March 11, 1994, on November 18, 1993, on March 23, 1990, and on January 15, 1986.
However, the evidence submitted to the court showed that the November 18, 1993 and March 11, 1994 convictions were based on a plea bargain. One term of that plea bargain was that both convictions would "be treated as one case separately brought and tried for purposes of Penal Code section 667." As appellant contends, and the People concede, appellant is entitled to the b
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