P. v. Garcia

Filed 7/31/06 P. v. Garcia CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Joseph Kalashian, Judge.

Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant, Manuel Garcia, pled no contest to carjacking (Pen. Code, § 215, subd. (a)) and admitted a serious felony enhancement (Pen. Code, § 667, subd. (a)(1)), two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)), and allegations that he had a prior conviction within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)). On August 3, 2005, the court sentenced appellant to an aggregate 15-year term consisting of the midterm of 5 years, doubled to 10 years because of Garcia's prior strike conviction, and a 5-year serious felony enhancement.

Garcia's appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Garcia has not responded to this court's invitation to submit additional briefing. However, our review of the record discloses that, although Garcia admitted two prior prison term enhancements which were to be stayed pursuant to Garcia's plea bargain, the court did not address the prior prison term enhancements during Garcia's sentencing hearing. Moreover, although the court may strike prior prison term enhancements, it does not have the authority to stay them. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521.) In view of this and Garcia's plea bargain, which provided that he would not serve any additional time based on these enhancements, we will strike Garcia's two prior prison term enhancements.

Further, following independent review of the record, we find that with the exception of the issue discussed above, no reasonably arguable factual or legal issues exist.

DISPOSITION

The judgment is modified to strike the two prior prison term enhancements admitted by Garcia. The abstract of judgment needs no correction because it does not list the two prior prison term enhancements. As modified, the judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Dawson, J., and Kane, J.