California Court of Appeal, Second District, Sixth Division
Superior Court County of San Luis Obispo, Jacquelyn
H. Duffy, Judge, (Super. Ct. No. F458833)
[Copyrighted Material Omitted]
Mark R. Feeser, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Seth P. McCutcheon, Deputy Attorney General, for Plaintiff and Respondent.
In this first impression case, we decline the People's request for remand to relitigate the truth of a prior conviction allegation. Appellant is lawfully sentenced to prison for a term of 39 years to life and, even if the People can prove the prior on retrial, no increase in sentence will result. We will not allow remand for an idle act.
Tommy Sherrell Ledbetter appeals from the judgment entered after his no contest plea to assault with a deadly weapon. (Pen.Code, § 245, subd. (a)(1).)  He admitted personally inflicting great bodily injury upon the victim. (§ 12022.7, subd. (a).) The trial court found true allegations of three prior serious or violent felony convictions within the meaning of California's " Three Strikes" law. (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d).) The " strikes" are a 1989 Tennessee conviction for robbery, a 1989 Tennessee conviction for aggravated assault, and a 2001 Oklahoma conviction for assault and battery with a dangerous weapon. The court also found true allegations of three prior serious felony convictions (§ 667, subd. (a)) and two prior prison terms. (§ 667.5, subd. (b).) Appellant was sentenced to prison for 39 years to life: 25 years to life for assault with a deadly weapon as a third striker, plus 3 years for the great bodily injury enhancement, plus 10 years for two prior serious felony convictions (the Tennessee robbery conviction and the Oklahoma conviction), plus one year for one prior prison term. The court stayed punishment on the 1989 serious felony Tennessee conviction for aggravated assault.
Appellant contends that the evidence is insufficient to prove that the two prior Tennessee convictions are serious or violent felony convictions within the meaning [166 Cal.Rptr.3d 451] of the Three Strikes law and section 667, subdivision (a). He does not challenge the validity of the true finding on the Oklahoma conviction. As to the Tennessee robbery conviction, we conclude that the evidence is sufficient. As to the Tennessee aggravated assault conviction, we accept the People's concession that the evidence is insufficient. We vacate the true finding on the Tennessee aggravated assault conviction and affirm in all other respects. As indicated, the vacating of this true finding does not affect appellant's 39-year-to-life prison sentence. We deny the People's request that
the matter be remanded for the purpose of retrying the strike allegation as to the Tennessee ...