P. v. Davis

Filed 3/15/06 P. v. Davis CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Dan Bradley Davis appeals the sentence imposed following his guilty plea to two counts of felony petty theft with prior theft convictions. (Pen. Code, §§ 484, subd. (a) & 666.)[1] We reverse and remand for trial of the prior prison term allegation. (§ 667.5, subd. (b).)

FACTS AND PROCEDURAL HISTORY

In Case No. 2003021602, the prosecutor charged Davis with petty theft with prior theft convictions. He also alleged that pursuant to section 667.5, subdivision (b), Davis served two prior prison terms. In Case No. 2004007004, the prosecutor charged Davis with a second act of petty theft with prior theft convictions. He also alleged that Davis committed the second crime while released from custody on his own recognizance. (§ 12022.1, subd. (b).)

On October 29, 2004, Davis pleaded guilty in each case to petty theft with prior theft convictions. He admitted suffering four specific theft convictions and the section 12022.1 allegation. He did not admit the prior prison term allegation within section 667.5, subdivision (b), nor was he asked to admit the allegation.

On January 6, 2005, the trial court sentenced Davis to a prison term of three years, including one year pursuant to section 667.5, subdivision (b). It selected the low term of imprisonment and struck the section 12022.1 allegation. During sentencing, Davis's attorney stated that "it was the intention" of the parties that Davis admit the prior prison term allegation. He stated that he believed that Davis admitted the allegation during the plea colloquy.

Davis appeals and challenges the imposition of sentence for the section 667.5, subdivision (b), allegation.

DISCUSSION

Davis argues that his sentence is illegal because the prior prison term allegation was neither "admitted or found true." (§ 667.5, subd. (d) & 1170.1, subd. (e); People v. Lopez (1985) 163 Cal.App.3d 946, 951 [defendant must admit or the People must otherwise prove a section 667.5, subd. (b) allegation].) The Attorney General correctly concedes. (People v. Lopez, supra, 163 Cal.App.3d 946, 951.)

Upon remand, the People may choose to retry the section 667.5, subdivision (b), allegation. (People v. Barragan (2004) 32 Cal.4th 236, 258-259.)

We reverse and remand for further proceedings.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Roland N. Purnell, Judge

Bruce A. Clark, Judge

Barry B. Klopfer, Judge

Superior Court County of Ventura

______________________________

California Appellate Project, Jonathan B. Steiner, Executive Director, and Richard B. Lennon, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Lauren E. Dana, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code.