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NOT TO BE PUBLISHED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.