Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. BF119528A Louis P. Etcheverry, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
A jury convicted Timothy Edward Spellman of eight felonies including second degree robbery (Pen. Code, § 212.5, subd. (c); counts 1-4), exhibiting a firearm or deadly weapon with intent to resist arrest (§ 417.8; count 5), attempted carjacking (§ 664/215, subd. (a); count 6), possession of a firearm by a convicted felon (§ 12021, subd. (a)(1); count 7), and obstructing or resisting an executive officer (§ 69; count 8), and acquitted him of one count of second degree robbery (§ 212.5, subd. (c); count 9). Respecting count 1, the jury found true a personal use of a firearm enhancement under section 12022.53, subdivision (b), and an arming enhancement under section 12022, subdivision (a)(1). In a bifurcated proceeding, the court found that defendant had six prior strike convictions (§ 667, subds. (c)-(j); 1170, subd. (a)-(e)), six prior serious felony convictions (§ 667, subd. (a)), and two prior prison terms (§ 667.5, subd. (b)). The court denied defendant’s section 1385 motion to dismiss his prior strike convictions, and sentenced defendant to a total indeterminate term of 151 years to life, plus a determinate term of 76 years. On appeal, defendant contends: (1) his trial counsel was ineffective for failing to object to improper opinion testimony; (2) the court erred in instructing the jury on identification testimony under Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 315 (CALCRIM); and (3) there is insufficient evidence to establish his 1989 federal conviction qualified as a strike or serious felony conviction under California law. The People concede defendant’s third contention. We accept the People’s concession and reverse the trial court’s true findings with respect to the prior conviction allegations based on defendant’s 1989 federal conviction, and remand the matter for further proceedings consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed.
Further statutory references are to the Penal Code unless otherwise specified.
FACTS
On May 15, 2007, around 1:21 p.m., defendant approached the cashier at an Auto Zone store on Brundage Lane in Bakersfield. The Auto Zone was located near an AM/PM store. Defendant gave the cashier a quart of oil. After the cashier rang him up, defendant handed the cashier a dollar. The cashier told defendant it was not enough and opened the register to give defendant change. Defendant lifted his shirt and the cashier saw a gun in his waistband. With his hand on the trigger, defendant told the cashier to put the money in the bag. The cashier gave defendant the money in the cash register, which totaled around $300 or $400. Defendant left the store. A few weeks later, the cashier identified defendant in a six-person photographic lineup. He also identified defendant at trial and in a surveillance video of the incident.
On May 27, 2007, around 10:30 p.m., defendant approached the cashier of an AM/PM store on White Lane and Wible Road near the freeway. Defendant requested a Black and Mild cigar. After the cashier showed him the cigar, he gave her some money. When the cashier opened the cash register drawer, defendant put his hand under his shirt, motioning like he had a gun, and told her to leave the drawer open. Defendant grabbed some money out of the drawer before she was able to close it. One of the cashier’s coworkers tried to grab defendant’s arm, but he pushed her into the sunglasses case. Defendant then ran out the door. The cashier and coworker later identified defendant in a six-person photographic lineup. They both identified defendant in court and the cashier also identified defendant in a surveillance video of the incident.
On May 28, 2007, shortly after noon, defendant approached the cashier of an AM/PM store on Mount Vernon Avenue and Columbus Street near the freeway. Defendant had a paper towel over his mouth and said, “Stay calm. I won’t hurt you. Give me your money.” The cashier saw what looked like the outline of a gun under defendant’s sweatshirt. She opened her cash register and gave defendant the money. She was unsure how much he took, but her register was $240 short that day. A few weeks later, the cashier identified defendant in a six-person photographic lineup. She also identified him at trial.
Around the time of the incident, two emergency medical technicians, James Bradbury and Kerry James Ferguson, were sitting in their ambulance on the west side of the AM/PM parking lot. When they first arrived, Bradbury noticed a black Honda in the parking lot. The car had damage to the driver’s side. A short time later, Bradbury saw a man, he identified in court as defendant, get into the black Honda and pull out of the parking lot. A few minutes later, a woman came out of the AM/PM and said they had just been robbed and asked if he noticed a black gentleman who had just left.
Ferguson testified that he was doing paperwork when he glanced up and saw an African-American male get into a black, mid-sized sedan. After getting into the car, the man sat for about ten seconds, put on his seatbelt, looked around, and then drove past the ambulance. When asked if he saw that person in court, Ferguson testified that defendant looked “familiar” to him, but he was not comfortable making a stronger identification.
On June 12, 2007, around 1:20 p.m., defendant approached the cashier of an Arco AM/PM store on Ming Avenue near the freeway. Defendant was wearing a Lakers cap, jeans, and a flannel shirt. After buying sunflower seeds, defendant told the cashier not to close the register, which she had already done, and asked for money.
Defendant pulled a gun from his waistband and showed it to the cashier. The gun was black, metallic, shiny, and “semiautomatic-looking[.]” The cashier became scared. Defendant told her not to be nervous and put the gun back in his pants. The cashier opened the register and defendant told her to give him all the money. The cashier gave him all the money in the register, which totaled around $300. Defendant told the cashier not to leave that spot and walked out the store.
After defendant left, the cashier ran to tell her boss they had been robbed. The police were called and came to take a statement from the cashier. Afterwards, the cashier was driven to the place where a suspect had been detained and she identified defendant.
The same day, around 1:30 p.m., Carla Henry was driving her white SUV on La France Drive. Henry, who had a day care business, was driving eight children ranging from ages two to eight. While she was stopped at a stop sign, her SUV was struck in the side by another vehicle. The children started screaming and Henry got out to see what happened.
Henry saw a man, she identified in court as defendant, come around the corner. Defendant put his hand on her shoulder, pushed her to the side, and tried to get into the driver’s seat of her SUV. When defendant grabbed the steering wheel, Henry grabbed his shirt and tried to pull him out. Eventually, defendant got out of the driver’s seat. Henry then saw some white cars pulling up. Defendant took off running to the east. People got out of the white cars and started running after defendant.
Shortly after the accident, police officers took Henry to a nearby residence. They wanted her to identify a suspect. They brought him out far enough to where she could see him and she identified defendant.
Henry’s sister, Joy Shrilyn Hill, was following Henry when she saw Henry’s SUV get struck by a small black car and saw the driver, who she identified in court as defendant, struggle with her sister as he tried to get into the SUV. When defendant finally took off running, Hill heard gunshots. It looked like defendant was holding a gun. Later, officers took her to a residence, where she saw defendant in handcuffs, sitting at the curb. Remaining in the car, she identified defendant.
Around 1:30 p.m., three plainclothes detectives assigned to the financial crimes division of the Bakersfield Police Department were driving in an unmarked police vehicle when they heard a call go out regarding the robbery at the AM/PM on Ming Avenue and Wible Road. Detective William Hughes was driving, Detective Brian West was sitting in the front passenger seat, and Detective Robert Allen was sitting in the back passenger seat.
After hearing a description of the robbery suspect’s vehicle, the detectives decided to drive down Chester Avenue to Bell Terrace Way to try to locate the vehicle. Detective Allen spotted a vehicle matching the description―a black, four-door Honda with driver’s side damage―driving in the opposite direction. Detective Hughes made a U-turn and started following the vehicle.
Defendant, who was driving the Honda, tried to make a left turn onto La France Drive from South Chester Avenue. He was traveling too fast to make the turn and collided with a white SUV stopped at the intersection. When defendant got out of his car, Detective Hughes noticed he was carrying a semiautomatic firearm in his left hand.
Looking in the detectives’ direction, defendant seemed “startled” and began to run around the white SUV. After struggling with the female driver, defendant ran back around the SUV towards the detectives. Defendant transitioned his firearm from his left hand to his right hand and pointed it in their direction. Detective Hughes, who had gotten out of the police car, pointed his firearm at defendant. Neither fired at this time.
Defendant turned around and ran in an easterly direction on La France Drive. Detective Hughes began chasing defendant and the other detectives followed. Detective Hughes shouted several times, “Stop, police.” He then fired his gun twice at defendant, before seeing defendant turn onto El Sereno Drive.
Defendant was apprehended at a residence on El Sereno Drive, after the owner called 911 and reported seeing someone in her backyard. Officer Eric Littlefield spotted defendant lying under some bushes in the backyard. He motioned to Officer Aaron Stringer to come over. Defendant put up his hands and was taken into custody without incident, after the two officers helped pull him out from the bushes. After pulling defendant out, Officer Littlefield and Officer Stringer saw that defendant had been lying on top of a bundle of currency.
Officer Dennis West also assisted lab technicians in collecting evidence from the backyard. A loaded, nine-millimeter semiautomatic Ruger handgun was found in bushes in the backyard. Clothing was also found, including a pair of gray pants with a right white tennis shoe attached to the pants. Another tennis shoe was found nearby.
Detective Freddie Calvillo inspected defendant’s car at the scene of the collision. Detective Calvillo saw candy and sunflower seeds on the passenger side and saw currency on both sides of the front floorboard. He also saw several articles of clothing, including a Lakers cap on the front passenger seat. A more extensive search of the car the next day uncovered a wallet containing defendant’s social security card, a Cingular phone bill addressed to defendant, and a book of checks with defendant’s name.
Detective Patrick G. Hayes interviewed defendant on June 12, 2007. Defendant admitted he had been involved in the collision with the white SUV. At first, he claimed he was driving fast because he heard gunshots. Later in the interview, however, he admitted he had been lying and stated he did not hear any gunshots at that time. He heard gunshots later and claimed this is why he fled from the police.
Defendant initially denied making contact with the SUV driver but later admitted he did make contact with her, claiming he only went to check on the children’s welfare. He could not recall whether he sat in the driver’s seat of her vehicle. Defendant also admitted hiding from police but denied possession of the gun that was found in the backyard where he had been found hiding. Defendant confirmed he removed some of his clothing in the backyard but did not explain why.
DISCUSSION
I. Ineffective Assistance of Counsel Claim
Defendant contends his trial counsel was prejudicially ineffective for failing to object to improper opinion testimony by Detective Hughes. We disagree.
A. Background
Detective Hughes testified that he was driving with Detective Allen and Detective West when he “overheard the radio broadcast of an armed robbery which had just occurred to the Arco AM/PM convenience store. I believe the location was Ming at Wible.” The prosecutor asked, “What did you do?” Defendant Hughes testified: “I recalled that there had been other similar robberies involving a subject of similar description, and I turned southbound on Chester Avenue after activating my response lights on my vehicle, the red light and the siren, and I drove southbound on Chester Avenue towards the intersection of Belle Terrace, Brundage Lane.” The prosecutor asked why he chose to respond. Detective Hughes testified: “Because I knew that this was a serial robbery situation involving the same subject, or so I believed. [¶] I had been following the robberies that had occurred, and I want to say there was at least more than three or four that had happened within the past two-month period.” (Italics added.)
B. Analysis
“To demonstrate ineffective assistance of counsel, a defendant must show that counsel’s action was, objectively considered, both deficient under prevailing professional norms and prejudicial. [Citation.] To establish prejudice, a defendant must show a reasonable probability that, but for counsel’s failings, the result of the proceeding would have been more favorable to the defendant. [Citation.]” (People v. Hinton (2006) 37 Cal.4th 839, 876, citing Strickland v. Washington (1984) 466 U.S. 668, 687.)
Defendant contends that when Detective Hughes testified “I knew that this was a serial robbery situation involving the same subject, or so I believed[,]” defense counsel should have objected on the ground that it was improper opinion evidence. Defendant relies on cases (e.g., People v. Torres (1995) 33 Cal.App.4th 37, 46-47) holding that a witness cannot express an opinion concerning the guilt or innocence of the defendant who is on trial. These cases are inapposite.
Contrary to defendant’s assertion, we discern in Detective Hughes’s testimony no opinion concerning defendant’s guilt. In context, Detective Hughes was explaining why he and the two other detectives responded to a police broadcast they overheard regarding the robbery on June 12, 2007. Having followed reports of similar robberies occurring within a two-month period, Detective Hughes surmised this robbery was part of a series of robberies and decided to investigate. His remark that he believed this was a serial robbery situation involving the same suspect was admissible to explain his subsequent conduct and did not constitute improper opinion testimony on defendant’s guilt.
But even if defense counsel was deficient for not objecting to this testimony, defendant was not thereby prejudiced. In his argument, defendant does not contend that Detective Hughes expressed a belief that defendant was the same subject involved in the series of robberies; rather, in defendant’s words, Detective Hughes improperly expressed the opinion “the same subject was a serial robber[.]” Even without Detective Hughes’s testimony, however, the record is replete with evidence indicating the same person committed the very similar robberies in this case. Thus, Detective Hughes’s testimony added little to the evidence already before the jury concerning the serial nature of the crimes. On the facts of this case, it is not reasonably probable defendant would have received a more favorable result but for his counsel’s failure to object to the detective’s testimony.
II. CALCRIM No. 315
Next, defendant contends that because no physical lineups occurred in this case (only infield showups and photographic lineups), the court erred in reading that portion of CALCRIM No. 315 that directs the jury to consider whether “the witness was able to identify the defendant in a photographic or physical lineup” as one of the factors in assessing the reliability of identification testimony. (Italics added.)
The jury was instructed pursuant to CALCRIM No. 315: “You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating identification testimony, consider the following questions: [¶] Did the witness know or have contact with the defendant before the event? [¶] How well could the witness see the perpetrator? [¶] What were the circumstances affecting the witness’s ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation …? [¶] How closely was the witness paying attention? [¶] Was the witness under stress when he or she made the observation? [¶] Did the witness give a description and how does that description compare to the defendant? [¶] How much time passed between the event and the time when the witness identified the defendant? [¶] Was the witness asked to pick the perpetrator out of a group? [¶] Did the witness ever fail to identify the defendant? [¶] Did the witness ever change his or her mind about the identification? [¶] How certain was the witness when he or she made an identification? [¶] Are the witness and the defendant of different races? [¶] Was the witness able to identify the defendant in a photographic or physical lineup? [¶] Was there any other circumstances affecting the witness’s ability to make an accurate identification? [¶] The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty.”
At the outset, this issue has been forfeited on appeal since there was no objection to the court’s reading of CALCRIM No. 315. (People v. Farnam (2002) 28 Cal.4th 107, 165; People v. Mitchell (2008) 164 Cal.App.4th 442, 465; § 1259.) In any event, the claim is without merit.
The California Supreme Court approved CALJIC No. 2.92, the predecessor to CALCRIM No. 315. (People v. Wright (1988) 45 Cal.3d 1126, 1144 (Wright).) “CALJIC No. 2.92 or a comparable instruction should be given when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence.” (Wright, supra, 45 Cal.3d at p. 1144.) The Supreme Court explained “that the listing of factors to be considered by the jury will sufficiently bring to the jury’s attention the appropriate factors, and that an explanation of the effects of those factors is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate. The instruction should list the applicable factors in a neutral and nonargumentative instruction, thus effectively informing the jury without improperly invading the domain of either jury or expert witness. It should list only factors applicable to the evidence at trial, and should refrain from being unduly long or argumentative.” (Id. at p. 1143, fn. omitted.)
Here, the court’s instruction on identification testimony pursuant to CALCRIM No. 315, properly listed the factor of the witness’s ability to identify the defendant in a photographic or physical lineup. The factor was applicable because a number of witnesses identified defendant in a six-person photographic lineup. The court was not required to delete the “physical lineup” language because the instruction’s use of the conjunction “or” effectively told the jury there might be evidence of one but not the other type of lineup. Moreover, as the People point out, the jurors were duly instructed:
“Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” (CALCRIM No. 200.)
Jurors are presumed able to correlate, follow, and understand the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) We therefore agree with the People that, in combination, the instructions adequately informed jurors they should disregard the “physical lineup” language in CALCRIM No. 315, if they determined it was inapplicable to the facts of the case.
In any event, defendant has failed to demonstrate prejudice. Defendant cites specifically to the prosecutor’s questioning of Detective Allen, in which the prosecutor and detective referred to the identification procedure used to identify defendant at the residence where he was apprehended as an “infield lineup.” Defendant suggests, based on the use of the term lineup in place of the more accurate showup, the jury likely confused the showup procedure in this case with the “physical lineup” referenced in CALCRIM No. 315. Defendant concludes: “The single-person showups that were inherently suggestive were sanitized [by CALCRIM No. 315] as physical lineups which added consistency, legitimacy, and enhancing impact to all the eyewitness identifications”
Defendant’s prejudice argument fails for several reasons. First, defendant overlooks the fact that after using the term “infield lineup” when questioning Detective Allen and Detective Hughes, the prosecutor switched to using the term “infield showup” when questioning Detective West, Officer Littlefield, Officer Stringer, and Officer West. Thus, the jury only heard the first two police witnesses use the term “infield lineup.” The last four police witnesses the jury heard used the term “infield showup.” Detective Hughes also used the term “infield show-up” several times in his testimony, which is perhaps what prompted the prosecutor to change his terminology when questioning subsequent police witnesses. Moreover, regardless of the term the prosecutor used, the witnesses gave accurate and consistent descriptions of the showup procedure, including the standard warning given to witnesses. And, as the People point out, neither the prosecutor nor defense counsel specifically discussed the infield showups in closing argument. In light of these circumstances, it is unlikely the instruction confused the jury in the manner defendant suggests.
Second, defendant’s prejudice argument assumes that infield showups are inherently suggestive. But California case law holds to the contrary. (People v. Floyd (1970) 1 Cal.3d 694, 714 [“The ‘single person showup’ is not inherently unfair”], overruled on other grounds in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36; People v. Ochoa (1998) 19 Cal.4th 353, 413.)
Third, contrary to defendant’s suggestion, CALCRIM No. 315 does not sanitize the identification factors it lists. In keeping with the Supreme Court’s admonition, the instruction in this case did not take a position on the factors listed but left the explanation of their effects to counsel. (Wright, supra, 45 Cal.3d at pp. 1141-1142.) During closing argument, defendant’s trial counsel discussed the eyewitness identifications and pointed out inconsistencies and circumstances suggesting they were unreliable. She pointed out that the video surveillance footage was grainy and invited the jurors to take the time to look at the videos of each incident and notice that “you can’t clearly make out the suspect’s face.” She also specifically referred to CALCRIM No. 315, and suggested that a number of factors weighed in defendant’s favor, arguing:
“And some of these factors are how well could these witnesses see; was the witness under stress when he or she made these observations; are the witness and the defendant of different races.
“These are some of the factors that you should -- that you should consider in weighing the evidence.
“Now, in each of these … different incidents we have a store clerk who is under stress, in a stressful situation, where this person is not going to be perceiving things as accurately as a person not under stress would.
“Now, you can tell because -- I mean, you can tell that they have been under the stress that -- because some of the descriptions that they provided to the officers are different from what you saw in the videos. [¶] … [¶]
“It’s also my hope that you will take another look at the photo lineups in this case.
“If you look at the photo lineups, there are six different men depicted, and what you’ll see is that [defendant] is the only individual who is of a smaller frame or who is thinner than the rest of the individuals.
“He is also one of only two individuals who is lighter complected.
“So, obviously, if you’re looking for a thinner, lighter complected individual, you’re going to be more prone to pick his person -- his picture out.”
As counsel’s argument demonstrates, CALCRIM No 315 does not sanitize or legitimize the factors listed. The listing is done in a neutral manner; a number of the factors could cut both ways, benefiting a defendant in a particular case, while enhancing the prosecution’s argument in another. (See People v. Sanchez (1990) 221 Cal.App.3d 74, 77.)
Finally, in addition to the infield identifications, there was strong corroborating evidence linking defendant to the crimes on June 12, 2007, including the items found in his car and in the backyard where he was apprehended, and defendant’s police statement admitting he struck the white SUV and then hid from police.
For these reasons, CALCRIM No. 315’s reference to the witness’s ability to identify the defendant in a physical lineup was not a significant factor in defendant’s conviction, and it is not reasonably probable that defendant would have received a more favorable verdict if his trial counsel had objected and the instruction had been modified to omit that consideration. Consequently, this claim of instructional error must fail. For the same reasons, we reject defendant’s suggestion his right to effective assistance was violated.
III. Sentencing Issues
In 1989, defendant was convicted of federal bank robbery. He contends there was insufficient evidence that the crime qualified as a prior strike and prior serious felony conviction. As the People properly concede, on the record, defendant is correct.
In support of his contention, defendant relies on People v. Jones (1999) 75 Cal.App.4th 616 (Jones). In Jones, the prosecution tried to prove the defendant suffered a prior strike conviction based on his federal bank robbery conviction (18 U.S.C., 2113(a)). The record, however, did not “‘reliably reflect[] the facts of the offense for which the defendant was convicted.’” (Jones, supra, 75 Cal.App.4th at p. 634.) The evidence consisted only of a fingerprint card listing the crime as “‘Bank Robbery,’” plus a judgment stating the defendant pled guilty “‘to the lesser included offense of violation of … Sections [sic] 2113(a) [the Indictment herein charging a violation of Title 18, United States Code, Sections 2113(a) and 2113(d)].’” (Id. at p. 633.) The fingerprint card referred only to the statute as a whole. Moreover, the charges “apparently contained in the indictment” (id. at p. 634) did not establish the nature of the defendant’s conduct because he pled guilty only to a lesser included offense, not to the charges as stated in the indictment. (Ibid.) Therefore, the defendant had to be adjudged guilty of the least offense possible under the statute, which was equivalent to second degree burglary under California law. The finding that his prior conviction was a strike could not be sustained. (Id. at pp. 633-635.)
18 United States Code section 2113(a) provides: “Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or [¶] Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny-- [¶] Shall be fined under this title or imprisoned not more than twenty years, or both.”
The evidence in this case is similarly deficient. The two certified documents pertaining to defendant’s 1989 conviction, entitled “PUBLIC INFORMATION INMATE DATA,” fail to disclose the nature of defendant’s conduct and simply refer to “18 USC 2113 (A) - Bank Robbery.” Because “[t]he evidence presented by the People did not suffice to disclose the facts of the prior offense actually committed, … the trial court should have presumed that the prior conviction was for the least offense punishable under the federal law, which did not constitute a serious felony strike.” (Jones, supra, 75 Cal.App.4th at p. 635.)
As the People point out, the appropriate remedy for this error is to remand the matter to the trial court for a further court trial on the prior conviction allegations based on defendant’s 1989 federal robbery conviction and for resentencing (People v. Monge (1997) 16 Cal.4th 826, 837-839 [failure of proof on prior conviction allegation does not constitute acquittal for double jeopardy purposes in noncapital case], affirmed in Monge v. California (1998) 524 U.S. 721, 728-729, 734; see also People v. Scott (2000) 85 Cal.App.4th 905, 921-922 [doctrine of collateral estoppel does not bar retrial on prior conviction allegation].) In the event the allegations are not proved or the People elect not to retry the matter, defendant may bring another motion under section 1385. We express no opinion concerning the trial court’s exercise of discretion thereunder. In the event the People prove the allegations, no resentencing is necessary. Defendant is not entitled to a second hearing pursuant to section 1385.
DISPOSITION
The trial court’s true findings as to the prior conviction allegations (§§ 667, subds. (a), (c)-(j); 1170, subd. (a)-(e)), which are based on defendant’s 1989 federal bank robbery conviction, are reversed. The matter is remanded to the trial court for retrial of these allegations and for resentencing in the event the allegations are not retried or, if retried, are not proved. In all other respects, the judgment is affirmed.
WE CONCUR: LEVY, Acting P.J.CORNELL, J.