People v. Moody

Defendant Eric Howard Moody appeals, contending his sentence on count one was unlawful.

Defendant, who was a “Second Strike” defendant, was convicted by plea of a variety of offenses and was sentenced to a total of 44 years and eight months in state prison for crimes committed in June and July, 2000.

In count one, defendant was convicted of attempted second degree robbery (Pen. Code, §§ 211, 213, subd. (b), 664; further statutory references are to the Penal Code) and admitted he personally used a firearm in the commission of the offense within the meaning of section 12022.53, subdivision (b).

At sentencing, count one was made a consecutive, subordinate term. For the attempted robbery, the trial court imposed a consecutive term of one-third the midterm of two years (or eight months), doubled to one year and four months because defendant had a prior “strike.” (§ 667, subds. (b)-(i).) The trial court also imposed a 10-year term for the enhancement pursuant to section 12022.53, subdivision (b).

Defendant contends the sentence imposed on count one was unlawful in two respects.

Defendant first argues that since second degree robbery is punishable by imprisonment for two,…