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People v. Mitchell7/10/2000
As modified August 8, 2000. This modification does not effect a change in judgment. The Petitions for rehearing are denied.
THE PEOPLE,
PLAINTIFF AND RESPONDENT,
V.
WILLIE R. MITCHELL,
DEFENDANT AND APPELLANT.
(Los Angeles County Super. Ct. Nos. PA028481; PA027359)
Linn Davis, under appointment by the Court of Appeal, for defendant and appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General and Russell A. Lehman, Deputy Attorney General, for plaintiff and respondent.
The opinion of the court was delivered by: Neal, J.
CERTIFIED FOR PUBLICATION
APPEAL from a judgment of the Los Angeles Superior Court, L. Jeffrey Wiatt, Judge. Modified; affirmed as modified.
In this criminal appeal, a stay is imposed on one of two life sentences imposed for the same criminal conduct. The People's request for correction of the abstract of judgment is refused, as no appeal lies from an erroneous abstract.
An information charged that appellant Willie Ross Mitchell in February 1997 committed the crime of felony drunk driving (Veh. Code, § 23152, subd. (a)), and also on the same occasion committed the separate felony of driving with blood alcohol over .08 percent (Veh. Code, § 23152, subd. (b)). A second information charged him with felony drunk driving in June 1997. Each information alleged that appellant had suffered three prior drunk driving convictions within the past five years, exposing him to punishment of at least 180 days in jail and revocation of his driver's license. The informations further alleged that appellant had been convicted in 1983 of arson of an inhabited structure (Pen. Code, § 451, subd. (a)) and arson of a structure (Veh. Code, § 451, subd. (c)), convictions which were "violent felonies" and hence sentence-enhancing "strikes" under the Three Strikes law.
The informations were consolidated for trial, and the jury convicted appellant of all three crimes charged. Thereafter the court found true the allegations concerning his prior drunk driving and arson convictions.
A probation report prepared prior to sentencing revealed that appellant, age 46 at the time, had a 27 year criminal history. This included (in addition to the three prior drunk driving misdemeanors): convictions in 1983 on two counts of arson, for which appellant was sentenced to state prison; a 1993 felony perjury conviction resulting in a prison sentence; and misdemeanor convictions for disturbing the peace, unemployment insurance fraud, resisting an officer, and corporal injury to spouse. Appellant served four separate jail sentences in addition to his prison terms. The probation report indicated that the two 1983 arson convictions arose from a single incident in which appellant set a garage afire, and the fire then spread to and burned an adjacent home (arson of uninhabited and inhabited structures are separate crimes [Pen. Code, § 451]).
Appellant moved to dismiss one of the two prior arson conviction findings and asked the trial court to sentence him more leniently as a "second strike" offender. Appellant's counsel urged that the court in the earlier arson case had stayed punishment on the second arson count. The trial court recited on the record at the sentencing hearing that it had reviewed the file from the arson case, that appellant had intentionally ignited a garage, that the fire had spread to a neighboring home, and that
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