People v. Espinosa CA2/5

I. INTRODUCTION

Defendant Custodio Espinosa appeals from a judgment following a limited remand in which the trial court declined to exercise its discretion to strike a firearm enhancement but did exercise its discretion to strike a prior serious felony enhancement. Defendant contends that the court erred by failing to sentence him on count 2 and to award him the correct amount of presentence credits. He also contends that his trial counsel provided ineffective assistance by failing to apprise the court that defendant had previously been sentenced on count 2 to six months in county jail. We will modify the sentence for defendant to receive the correct presentence credits. We otherwise affirm.

II. BACKGROUND

A. Criminal Conviction and Initial Sentence

On October 25, 2016, a jury convicted defendant of second degree robbery (count 1; Pen. Code,1 §§ 211, 212.5, subd. (c)), a felony, and carrying a switchblade knife on his person (count 2; § 21510, subd. (b)), a misdemeanor. The jury also found true the allegation that defendant personally used a handgun during the robbery (§ 12022.53, subd. (b)). The trial court found true the allegation that defendant had a prior serious…