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In re Bradley

California Court of Appeals, Fourth District, Second Division
Mar 24, 2010
No. E049710 (Cal. Ct. App. Mar. 24, 2010)

Opinion

NOT TO BE PUBLISHED

ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Helios (Joe) Hernandez, Judge, Super.Ct.No. RIF128566.

Dennis L. Cava, under appointment by the Court of Appeal, for Petitioner.

Edmund G. Brown, Jr., Attorney General, and Elizabeth A. Hartwig, Deputy Attorney General, for Respondent.


OPINION

McKINSTER, J.

INTRODUCTION

In this matter, we have reviewed the petition, the supporting documents, and have invited the Attorney General to address the petition on behalf of the People. The Attorney General agrees that the trial court erroneously imposed an enhancement term under Penal Code section 12022, subdivision (d), instead of subdivision (a) of that statute. The Attorney General also implicitly agrees that trial counsel rendered ineffective assistance in failing to note and object to the error, as subdivision (d)—which is factually inapplicable to petitioner—carries a triad of one-, two-, or three-year terms, while subdivision (a) requires a flat one-year enhancement term.

DISCUSSION

As petitioner’s sentence includes three subordinate consecutive enhancements calculated at one-third the midterm, or eight months each, instead of one-third of one year, or four months each, the possible prejudice is clear. (As the trial court selected the “low” term under subdivision (d), one year, for the base term, which is the same as the only option under subdivision (a), the error caused no harm in that respect.)

Accordingly, and with the People’s consent, the petition for writ of habeas corpus is granted in part, and the matter is remanded to the trial court for resentencing with reference to the correct subdivision.

We decline petitioner’s suggestion that we merely reduce his term by the three “excessive” four months with respect to each of the consecutive enhancements. His plea was “open” for no agreed term, and the trial court is entitled, upon remand, to consider all sentencing elements in determining a just sentence.

DISPOSITION

To the extent indicated above, the petition for writ of habeas corpus is granted in part and the matter is remanded to the superior court for resentencing. In all other respects, the petition is denied.

We concur: RAMIREZ, P. J., MILLER, J.


Summaries of

In re Bradley

California Court of Appeals, Fourth District, Second Division
Mar 24, 2010
No. E049710 (Cal. Ct. App. Mar. 24, 2010)
Case details for

In re Bradley

Case Details

Full title:In re CHRISTOPHER BRADLEY on Habeas Corpus.

Court:California Court of Appeals, Fourth District, Second Division

Date published: Mar 24, 2010

Citations

No. E049710 (Cal. Ct. App. Mar. 24, 2010)

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