Filed 5/5/15 P. v. McKinney CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065937
Plaintiff and Respondent,
v. (Super. Ct. No. SCD247679)
ROY GEORGE MCKINNEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Leo
Valentine, Jr., Judge. Affirmed as modified with directions.
Appellate Defenders, Inc. and Neil Auwarter, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Laura
Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
Roy George McKinney entered guilty pleas to three counts of attempted robbery
(counts 1-3; Pen. Code,1 §§ 664 & 211) and four counts of false imprisonment by
violence, menace, fraud or deceit (counts 4-7; §§ 236 & 237, subd. (a)). McKinney also
admitted three strike priors (§ 667, subds. (b)-(i)) and one serious felony prior conviction
(§ 667, subd. (a)(1)).
The court sentenced McKinney to an indeterminate term of 25 years to life,
consecutive to a 19-year determinate term. The sentence was composed of 25 years to
life for count 1; 25 years to life for counts 2 and 3, to run concurrently with count 1; a
consecutive total of four years for the false imprisonment counts; plus three consecutive
five-year enhancements for the serious felony prior conviction.
McKinney appeals, challenging only a portion of his sentence. He contends the
trial court erred in imposing consecutive five-year enhancements on counts 1 through 3
when the court had imposed concurrent terms for counts 2 and 3. He argues the five-year
enhancement added to counts 2 and 3 must be sentenced concurrently along with the
counts to which the enhancements are appended. The People correctly concede the
enhancements for counts 2 and 3 must be served concurrently along with the counts.
Thus the sentence must be modified to reduce the term for the serious felony prior from
1 All further statutory references are to the Penal Code unless otherwise specified.
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15 years to five years. We agree with the parties that the sentence imposed was
improperly calculated. We will direct the court to modify the sentence accordingly.2
DISCUSSION
When a person is sentenced to an indeterminate term under the Three Strikes law
and a serious felony prior enhancement has been proved, the trial court must add that
enhancement to each indeterminate term. (People v. Williams (2004) 34 Cal.4th 397,
400-401, 404.) However, where a trial court uses its discretion to sentence indeterminate
terms concurrently, the accompanying serious felony prior enhancements must also be
applied to those counts. The enhancement attaches to the specific count and thus if the
count is sentenced concurrently with other indeterminate terms, the serious felony prior
enhancement is necessarily part of the concurrent sentence. (Robert L. v. Superior Court
(2003) 30 Cal.4th 894, 898-899.) Thus, if the underlying count runs concurrently with
other counts, its attached enhancements cannot run consecutively apart from their
underlying charge.
Imposing the enhancements consecutively where their underlying counts are
imposed concurrently is an unauthorized sentence which can be corrected even though
there was no objection made in the trial court. (People v. Robertson (2012) 208
Cal.App.4th 965, 995.)
2 The facts of the underlying offenses are not relevant to any issue presented by this
appeal. Accordingly we will omit the traditional statement of facts.
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DISPOSITION
The trial court is directed to modify the sentence in this case to show that the
serious felony enhancements as to counts 2 and 3 must be served concurrently along with
those counts. Thus the total sentence must be modified to reduce the 15-year term for the
serious felony prior enhancement to a total of five years. The trial court is directed to
amend the abstract of judgment accordingly and to forward an amended abstract to the
Department of Corrections and Rehabilitation. In all other respects the judgment is
affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
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