Filed 7/11/17 P. v. Fallucci CA5










NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

AMBER MARIE FALLUCCI,

Defendant and Appellant.


F072641

(Super. Ct. No. F14901363)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, Judge.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Appointed counsel for defendant Amber Marie Fallucci asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of her right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed and we received no communication from defendant. Having reviewed the record, we remand for the trial court to exercise its discretion to strike or impose a prior prison term enhancement. In all other respects, we affirm.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On February 8, 2014, Maceo Garcia and his girlfriend stopped by his house to check the mail. Garcia had temporarily moved out of the house while he was remodeling it. He saw a car parked outside his house, and then he saw a man coming out of his house carrying a laundry basket. The man got into the car and drove away. Garcia took down the license plate number and attempted to follow the car.
Garcia came back to his house and could see it had been broken into. He saw defendant come out of the front door holding two bags. Garcia asked her what she was doing. She dropped the bags and started walking quickly from the house. Garcia tried to keep her from leaving while his girlfriend called 911.
Defendant swung a crowbar at Garcia and told him, “Don’t touch me. I’m going—I’ll kill you.” Garcia wrestled defendant to the ground and took the weapon away from her.
Defendant’s bags and pockets contained items belonging to Garcia. The house’s security door had been popped out and a kitchen window had been broken. The house had been ransacked and valuable items had been prepared for removal.
On July 17, 2015, a jury convicted defendant of first degree burglary (Pen. Code, §§ 459, 460) and assault with a deadly or dangerous weapon (§ 245, subd. (a)(1)). Defendant admitted having suffered two prior serious felony convictions within the meaning of both section 667, subdivision (a)(1) and the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and having served two prior prison terms (§ 667.5, subd. (b)).
On September 17, 2015, defendant raised a Marsden motion for substitute appointed counsel. After a hearing, the trial court denied the motion.
On September 25, 2015, the trial court declined to strike a prior felony conviction, but agreed to strike a prior prison term. The court sentenced defendant to 25 years to life on the burglary conviction (count 1), plus five years for the prior serious felony enhancement (§ 667, subd. (a)(1)). On the assault conviction (count 2), the court imposed a concurrent term of 25 years to life, plus a stayed five-year term for the prior serious felony enhancement. The court ordered defendant to pay a $9,300 restitution fine (§ 1202.4), a $9,300 suspended mandatory supervision revocation fine (§ 1202.45), an $80 court security fee (§ 1465.8), a $60 criminal conviction assessment (Gov. Code, § 70373), and $5,620 in victim restitution (§ 1202.4, subd. (f)).
From what we can discern from our review of the record, the trial court struck only one of the two prior prison term enhancements (§ 667.5, subd. (b)) and failed to impose the remaining one. “Once the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken.” (People v. Langston (2004) 33 Cal.4th 1237, 1241; see People v. Garcia (2008) 167 Cal.App.4th 1550, 1561 [“[t]he enhancement language in section 667.5 is mandatory unless the additional term is stricken”]; People v. Campbell (1999) 76 Cal.App.4th 305, 311 [“assuming the prison priors are proven, the court must either impose the prior prison enhancements or strike them”].) Although the record suggests the court chose to strike one but not the other prior prison term enhancement, we will remand for the court to exercise its discretion to either strike or impose the remaining enhancement. (See People v. Chavez (2012) 205 Cal.App.4th 1274, 1276 [remanding “to allow the court to exercise its discretion either to strike or to impose the enhancements” under 667.5, subdivision (b), because those “enhancements must be either imposed or stricken”]; People v. Bradley (1998) 64 Cal.App.4th 386, 391-392 [trial court’s failure to impose or strike prior prison term enhancement required remand].)
DISPOSITION
The matter is remanded for the trial court to exercise its discretion to strike or impose the remaining prior prison term enhancement (Pen. Code, § 667.5, subd. (b)). In all other respects, the judgment is affirmed.