Fear Not Law Articles: P. v. Mann

P. v. Mann

Filed 8/14/07 P. v. Mann CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

RICHARD E. MANN, SR.,

Defendant and Appellant.

E040915

(Super.Ct.No. SWF15356)

O P I N I O N

APPEAL from the Superior Court of Riverside County. Michael S. Hider, Judge. (Retired judge of the Merced Super. Ct., assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed with directions.

Cynthia M. Sorman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Stacy Tyler, Deputy Attorney General, for Plaintiff and Respondent.

I. FACTS AND PROCEDURAL HISTORY

The People charged defendant by information with possession of methamphetamine for sale (count 1 â€‘â€‘ Health & Saf. Code, 11378), with a special allegation that he had incurred a previous drug conviction (Health & Saf. Code, 11370.2, subd. (c)), possession of heroin (count 2 â€‘â€‘ Health & Saf. Code, 11350, subd. (a)), and possession of a hypodermic needle (count 3 â€‘â€‘ Bus. & Prof. Code, 4140). The People additionally alleged defendant had suffered three prior prison terms (Pen. Code, 667.5, subd. (b)) and a prior strike conviction (Pen. Code, 667, subds. (c) & (e), 1170.12(c)(1)). Defendant pled guilty to the sheet, i.e., to all counts and allegations as alleged in the information. In return, the court sentenced him to an aggregate prison term of five years eight months and stayed imposition of sentence on the three prior prison term enhancements. On appeal, defendant contends the court erred in staying, rather than striking, the three prior prison term enhancements. The People concede the matter. We agree and, therefore, order the three prior prison term enhancements stricken. In all other respects, the judgment is affirmed.

II. DISCUSSION

An enhancement may be imposed or stricken, but may not be stayed unless the statute provides otherwise. (People v. Haykel (2002) 96 Cal.App.4th 146, 151.) Staying

imposition of a Penal Code section 667.5, subdivision (b) prior prison term enhancement is an unauthorized sentence and is subject to correction by the appellate court. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521.)

Here, it is clear that the trial court intended to strike the three prior prison term enhancements. The court indicated a sentence of five years eight months should defendant plead guilty to all counts and allegations. This consisted of the low term of 16 months on count 1, doubled to 32 months pursuant to the prior strike allegation, plus three years for the prior drug conviction. The sentences on the remaining two counts were to be served concurrently to count 1. Defendant so pled. Thus, imposition of sentence as the court indicated, necessitated the striking of the three prior prison term enhancements. Otherwise defendants sentence would be three years longer than indicated. Moreover, the court stated on the record sufficient mitigating factors for striking the enhancements. (People v. Williams (1980) 103 Cal.App.3d 507, 518.) Therefore, the superior court clerk is directed to modify the minute order of July 25, 2006, and the abstract of judgment to reflect the striking of the three prior prison term enhancements.

III. DISPOSITION

The trial court is directed to modify the minute order of July 25, 2006, and the abstract of judgment to reflect the striking of the three prior prison term enhancements. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

We concur:

/s/ Gaut

Acting P.J.

/s/ Miller

Publication Courtesy of San Diego County Legal Resource Directory.

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Description	The People charged defendant by information with possession of methamphetamine for sale (count 1 Health & Saf. Code, 11378), with a special allegation that he had incurred a previous drug conviction (Health & Saf. Code, 11370.2, subd. (c)), possession of heroin (count 2 Health & Saf. Code, 11350, subd. (a)), and possession of a hypodermic needle (count 3 Bus. & Prof. Code, 4140). The People additionally alleged defendant had suffered three prior prison terms (Pen. Code, 667.5, subd. (b)) and a prior strike conviction (Pen. Code, 667, subds. (c) & (e), 1170.12(c)(1)). Defendant pled guilty to the sheet, i.e., to all counts and allegations as alleged in the information. In return, the court sentenced him to an aggregate prison term of five years eight months and stayed imposition of sentence on the three prior prison term enhancements. On appeal, defendant contends the court erred in staying, rather than striking, the three prior prison term enhancements. The People concede the matter. Court agree and, therefore, order the three prior prison term enhancements stricken. In all other respects, the judgment is affirmed.
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