IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama)
January 11, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
TERRY LEE GRAYSON, DEFENDANT AND RESPONDENT.
(Super. Ct. No. NCR78403)
The opinion of the court was delivered by: Hull ,j.
P. v. Grayson
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 section 11377, subdivision (a). The court stated it selected the mid-term based on defendant's numerous convictions. (RT 31) The court proceeded to determine defendant's custody credits and then imposed various fines and fees.
The prosecutor reminded the court that defendant had also admitted four prison priors under section 667.5(b). The court looked at the transcript of defendant's plea and determined defendant had indeed admitted the four prior prison terms. Defense counsel asked "that the Court consider staying the four years and the prison priors pending successful completion of parole." The prosecutor asked the court to impose the terms. Without further discussion or comment, the court sentenced defendant to an additional four years in state prison consecutive to the mid-term of two years, but consistent with the request of defendant, stayed the additional four years conditioned on the successful completion of parole.
"Section 667.5(b) provides for an enhancement of the prison term for a new offense of one year for each 'prior separate prison term served for any felony,' with an exception not applicable here . . . . Once the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken. [Citations.]" (People v. Langston, supra, 33 Cal.4th at p. 1241.) "If a trial judge exercises the power to strike pursuant to [Penal Code] section 1385, subdivision (a), the reasons for the exercise of discretion must be set forth in writing in the minutes." (People v. Bradley (1998) 64 Cal.App.4th 386, 391; accord People v. Jordan (2003) 108 Cal.App.4th 349, 368-369.)
The failure to impose or strike an enhancement under section 667.5(b) results in a legally unauthorized sentence subject to correction on appeal. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1562; People v. Bradley, supra, 64 Cal.App.4th at p. 391.)
In this case, the trial court imposed the prior prison term enhancements, but in accordance with defendant's request, stayed them conditioned on defendant's successful completion of parole. Defendant concedes this was error, but argues the appropriate remedy is for us to strike the enhancements and remand the matter to the trial court for a statement of reasons. We disagree with defendant's proposed remedy.
Contrary to defendant's claim on appeal, it is not clear the court would have struck the enhancements if defendant had correctly requested the court to strike rather than stay them. The entire consideration of sentencing on defendant's enhancements covers less than a page in the reporter's transcript and nothing in it suggests the trial court was disposed to strike the enhancements. In fact, the record reflects the trial court's concern over defendant's repeated inability to conform his conduct to the law reflected by his numerous prior offenses, parole violations, and new probation violation. The trial court conditioned its stay of defendant's prior prison term enhancements on defendant successfully completing parole. On this record, it appears the appropriate remedy is to reverse the enhancement portion of defendant's sentence and remand for the trial court to exercise its discretion whether to impose or strike the enhancements (People v. Solorzano (2007) 153 Cal.App.4th 1026, 1041), and if the latter, to state its reasons. (Pen. Code, § 1385, subd. (a).)
The portion of defendant's sentence relating to his admission of four prior prison term enhancements pursuant to Penal Code section 667.5, subdivision (b) is reversed. The matter is remanded to the trial court with directions that it exercise its discretion whether to impose or strike such enhancements in compliance with Penal Code section 1385, subdivision (a). (People v. Langston, supra, 33 Cal.4th at p. 1241.) In all other respects, the judgment is affirmed.
BLEASE, Acting P. J. ROBIE ,J.
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