Filed 3/28/17 P. v. Phillips CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

MACKEY TROY PHILLIPS,

Defendant and Appellant.
H042441
(Santa Clara County
Super. Ct. No. C1475050)

Following his conviction by a jury of second-degree burglary of a vehicle (Pen. Code §§ 459, 460, subd. (b)), defendant Mackey Phillips was sentenced to six years in prison. On appeal, he asserts ineffective assistance of counsel, prosecutorial misconduct, abuse of discretion for the trial court’s denial of his Marsden motion and sentencing error.
Respondent concedes that the court erred in sentencing defendant, and in imposing a restitution fine pursuant to section 1202.45. Following this concession, defendant withdrew all of his remaining claims in his appeal.


DISCUSSION
Defendant asserts two remaining arguments in his appeal. He argues that his sentence should be reduced by one year, and that his restitution fine imposed pursuant to section 1202.45 should be stricken. Respondent concedes these arguments.
Following the jury verdict for the vehicle burglary charge, the trial court found that defendant had served five prior prison terms pursuant to section 667.5, subdivision (b). The trial court stayed two of the prison prior enhancements, and instead, used those convictions as a basis to impose the aggravated term of three years for defendant’s burglary conviction. The court imposed an additional three years for the remaining prior prison terms, for a total of six years.
Defendant argues that his sentence should be reduced by one year, because he did not serve a prison term in one of his five cases, Santa Clara County case No. 199941. Respondent concedes that the Santa Clara County prison prior should be stricken and defendant’s sentence be reduced by one year, because defendant was sentenced in that case to serve eight months in prison “concurrent to any sentence.” As such, the conviction does not qualify as a prior prison term within the meaning of section 667.5, subdivision (b). We accept respondent’s concession and will strike the prison prior at issue.
In addition to the prison prior issue in this case, defendant argues that the court erred in imposing and suspending a $280 restitution fine pursuant to section 1202.45. Respondent concedes that the court erred in imposing the fine, because the court ordered that there would be no supervision upon defendant’s release. Section 1202.45 fines are only authorized when a defendant is subject to supervision pursuant to section 3451 or section 1170, subdivision (h)(5)(B). We accept respondent’s concession, and will strike the fine.


DISPOSITION
The judgment is modified to reflect that defendant’s prison prior from Santa Clara County case No. 199941 is stricken, and defendant’s sentence is reduced by one year. In addition, the $280 fine imposed pursuant to section 1202.45 is stricken. As modified, the judgment is affirmed.



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RUSHING, P.J.






WE CONCUR:






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PREMO, J.






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ELIA, J.