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The People v. Michael David Watson

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


May 3, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL DAVID WATSON, DEFENDANT AND APPELLANT.

Super. Ct. No. 06F05374

The opinion of the court was delivered by: Hoch, J.

P. v. Watson

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Michael David Watson, a prison inmate at the time of these offenses, of holding a correctional officer hostage, and possessing a sharp instrument. The trial court found true allegations that defendant had five prior strike convictions.

Defendant's contentions on appeal involve sentencing issues. His first contention involves the enhancements imposed on one of his two sentences. For holding a correctional officer hostage (count one), defendant was sentenced to a 25-year-to-life term, plus a one-year weapon enhancement and two five-year enhancements for his two prior convictions for armed robbery, serious felonies within the meaning of Penal Code section 667, subdivision (a)(1).*fn1 On count two, defendant was convicted of being an inmate in possession of a sharp instrument, a violation of section 4502, subdivision (a); for that crime, defendant was sentenced to a second, consecutive, 25-year-to-life term, plus two consecutive five-year enhancements for his prior serious felony convictions (§ 667, subd. (a)(1)), and two one-year enhancements for having served prior prison terms. Defendant contends, and the People concede, that the trial court erred in imposing the five-year prior serious felony enhancements on count two.

We agree. Section 667, subdivision (a)(1), enhancements may not be imposed on count two. These enhancements "apply only when the defendant's current offense is a 'serious felony' within the meaning of section 1192.7, subdivision (c) . . . ." (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529; see also People v. Thomas (1999) 21 Cal.4th 1122, 1129; People v. Dotson (1997) 16 Cal.4th 547, 555 ["Under section 667(a), however, the current felony offense must be 'serious' within the meaning of section 1192.7, subdivision (c), for the five-year enhancement to apply"]; § 667, subd. (a)(4).) Being an inmate in possession of a sharp instrument (§ 4502, subd. (a)) is not a "serious felony" within the meaning of section 1192.7, subdivision (c). We strike the two five-year prior serious felony enhancements imposed under section 667, subdivision (a)(1), as to count two.

Defendant's second contention involves the amount of imposed fees. The People concede the error. We agree with the parties that the trial court erred when it imposed a court security fee in the amount of $900 (§ 1465.8), and a $900 court facilities fee (Gov. Code, § 70373, subd. (a)(1).)

When defendant was sentenced, section 1465.8, subdivision (a)(1), provided that "a fee of thirty ($30) shall be imposed on every conviction for a criminal offense . . . ." (§ 1465.8, subd. (a)(1); Stats 2009 ch. 342 § 5.) Defendant had two such convictions, requiring a total fee of $60.

Government Code section 70370, subdivision (a)(1), calls for a fee of $30 per felony conviction. (Gov. Code, § 70373, subd. (a)(1); People v. Castillo (2010) 182 Cal.App.4th 1410, 1412-1414.) Defendant had two such convictions in this case, requiring a total fee of $60.

DISPOSITION

The judgment is modified to strike the two five-year enhancement terms imposed on count two, reduce to $60 the court security fee, and reduce to $60 the court facilities fee. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation, an amended abstract of judgment: (1) striking the two five-year enhancement terms under section 667, subdivision (a)(1), imposed on count two; (2) reducing to $60 the court security fee imposed pursuant to section 1465.8; and (3) reducing to $60 the court facilities fee imposed pursuant to Government Code, section 70373, subdivision (a)(1). In all other respects, the judgment is affirmed.

We concur: RAYE, P.J. HULL , J.


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