P. v. Hart

Filed 8/29/07 P. v. Hart 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. J. Michael Gunn, Judge. Affirmed with directions.

Kathleen Wood Novoa, 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, and Marvin E. Mizell and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.

Facts and procedural history

On October 14, 2003, defendant Gregory Hart -- fresh out of state prison -- robbed a clothing store at knifepoint. On January 30, 2006, he entered into a direct plea agreement with the trial court for a prison term of 10 years instead of the possible 19 to which he was exposed. In the course of a lengthy discussion among the parties about the best way to reach the 10-year sentence, the court decided that in the interests of avoiding problems with prison officials and this court, it would strike, rather than stay, the three prison priors. Its cleaner. []  . . .  []  . . . If its stricken, its stricken. Defendant then pled guilty to armed robbery, admitted to having suffered a prior strike within the meaning of the three strikes law, and admitted having the three prison priors (Pen. Code, 211, 12022.12, subd. (b)(1), 667, 1170.12, subds. (a)-(d), 667.5.)^[1]

On September 8, 2006, the court sentenced defendant to the agreed-upon 10 years: the mitigated term of two years for the robbery, doubled because of defendants prior strike, plus five years for the second strike, plus one year for the use of a weapon. ( 211, 1171.2, subd. (c)(1), 667, subd. (e)(1), 667 subd. (a)(1), 12022, subd. (b)(1).) However, defendants prison-priors were stayed rather than stricken as had been discussed during the plea negotiations on October 14.

Discussion

Defendants sole contention on appeal is that his prison priors should have been stricken, not merely stayed. Respondent concedes the point and suggests we modify the abstract of judgment to reflect this correction. We agree.

Enhancements for allegations found true pursuant to section 667.5, subdivision (b) must be either imposed or stricken; they may not be stayed. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) Here, the trial court negotiated the plea with defendant and clearly stated its intention to strike rather than stay his prison priors, and in fulfillment of his part of the plea agreement, defendant admitted them. Later, the court stayed rather than struck the priors. However, the abstract of judgment as it appears in the record does not reflect the enhancements in question at all, either as stayed or stricken. We will therefore remand the matter for the necessary corrections.

Disposition

The matter is remanded to the trial court with instructions that it order the preparation of a corrected and amended abstract of judgment reflecting the three, stricken, prison-prior enhancements. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

GAUT

J.

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