P. v. Garcia CA4/2
Pursuant to a plea to the court, defendant and appellant, Fernando Garcia, pled guilty to felony vandalism (count 1; Pen. Code, § 594, subd. (b)(1)) and unlawfully challenging a person to fight in public, a misdemeanor (count 2; § 415, cl. (1)). Defendant additionally admitted he personally used a dangerous weapon in his commission of the count 1 offense (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)), suffered two prior prison terms (§ 667.5, subd. (b)), and suffered a prior strike conviction (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)). The court sentenced defendant to an aggregate term of imprisonment of nine years.
On appeal, defendant contends the court erroneously believed it lacked discretion to strike the personal use of a weapon enhancement. Thus, defendant maintains the judgment must be reversed and remanded for resentencing. We reverse the judgment and remand the matter for resentencing.
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