(Super. Ct. No. 11F00244)
The opinion of the court was delivered by: Mauro , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Russell Zeke Armitage on multiple counts of oral copulation, sexual intercourse and sodomy with a child 10 years old or younger, and found that he served five prior prison terms. The trial court sentenced defendant to two terms of 15 years to life in prison, four terms of 25 years to life in prison, and one additional year in prison for each of the five prior prison term enhancements.
Defendant now contends (1) the trial court violated his rights to due process and a fair trial when it allowed the prosecutor to tell the jury during voir dire that "[t]his is not a three strikes case"; and (2) there is insufficient evidence to support one of the prior prison term enhancements.
We conclude (1) the trial court did not deny defendant due process or a fair trial, because the prosecutor's statement was accurate and served to clarify the circumstances of the case; and (2) we agree with defendant and the Attorney General that one of the prior prison term enhancements must be stricken, because defendant did not serve five prior separate prison terms.
We will modify the judgment to strike one of the five prior prison term enhancements and affirm the judgment as modified.
We limit our background discussion to the facts relevant to the issues on appeal.
Prior to trial, defendant withdrew his motion to bifurcate trial on the prior prison term enhancements; he believed the jury would hear such evidence anyway because he intended to testify.
The next day, the prosecutor expressed concern that because the jury would now be considering the prior prison terms, they might assume the case involved the three strikes law. The prosecutor wanted to negate any biases the jurors might harbor regarding the three strikes law. Accordingly, the prosecutor asked that the prospective jurors be told during voir dire that this is not a three strikes case.
Defense counsel opposed making such a statement to the jury, asserting it was not appropriate for the jury to consider penalty or punishment. Defense counsel asserted that if the People wanted to inform potential jurors that this is not a three strikes case, the only reason for that was to ...