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The People v. Terry Lee Grayson

January 11, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TERRY LEE GRAYSON, DEFENDANT AND RESPONDENT.



(Super. Ct. No. NCR78403)

The opinion of the court was delivered by: Hull ,j.

P. v. Grayson

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This is a People's appeal after the trial court sentenced defendant to state prison for a middle term of two years for possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and imposed but stayed four consecutive one-year terms for defendant's admission of four prior prison term enhancements. (Pen. Code, § 667.5, subd. (b), hereafter section 667.5(b).)

The People contend the trial court imposed an unauthorized sentence when it stayed the four consecutive one-year prison terms. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) The People ask that we remand with instructions to the trial court to hold a new sentencing hearing and to either impose or strike the prior prison term enhancements. Defendant concedes the error, but argues the record reflects the trial court would have stricken the four enhancements if the correct terminology had been used and on that basis, asks us to strike the enhancements and remand only for the trial court to state the reasons for striking the enhancements. We disagree with defendant's proposed remedy. We remand for the limited purpose of resentencing on the prior prison term enhancements, allowing the trial court to exercise its discretion to impose or strike the enhancements.

FACTS AND PROCEEDINGS

Since defendant was convicted by a guilty plea, the facts of his crimes are taken from the limited summary in defendant's probation report.

During a search of defendant, an officer located a white piece of plastic containing methamphetamine with a gross weight of 0.2 grams. A methamphetamine smoking pipe was found in defendant's waistband.

A complaint was filed charging defendant with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), felony transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)), misdemeanor destruction of evidence (Pen. Code, § 135), and misdemeanor possession of drug paraphernalia. (Health & Saf. Code, § 11364, subd. (a).) The complaint also alleged defendant had suffered four prior prison terms within the meaning of section 667.5(b).

Pursuant to a plea bargain, defendant entered a guilty plea to possession of methamphetamine and admitted the four prior prison term enhancement allegations. He was granted Proposition 36 probation. (Pen. Code, § 1210.1, subd. (a).)

Two months later a petition to revoke probation was filed alleging defendant had driven a vehicle on a suspended license, possessed a methamphetamine smoking pipe, and had been terminated from the Proposition 36 treatment program for failing the attendance policy. Following an evidentiary hearing, the trial court sustained the allegations in the petition.

At judgment and sentencing, defendant argued for reinstatement of Proposition 36 probation or the granting of drug court probation because his Proposition 36 probation violation was "basically a traffic violation," his conviction was based on an "extremely small amount of methamphetamine" possessed by defendant, and he needed residential treatment to address his long-term addiction problem. The trial court found defendant was not a good candidate for probation, noting defendant's lengthy criminal history, his numerous parole violations, and his new probation violation. The record reflects defendant had six prior felony convictions, numerous misdemeanor convictions, and five violations of parole. The trial court denied probation and sentenced defendant to the middle term of two years in prison for his possession of methamphetamine in violation of Health and Safety Code ...


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