Opinion
NOT TO BE PUBLISHED
Superior Court County No. KA086939 of Los Angeles Daniel J. Buckley, Judge.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
COFFEE, J.
Arthur Arberry appeals from the judgment entered following his guilty plea to possession of a controlled substance, methamphetamine (Health & Safe Code, § 11377, subd. (a)) and admission of a prior felony strike conviction (Pen Code, §§ 1170.12, subd. (a) – (d) & 667, subd. (b) – (i)). The plea agreement specified a maximum possible term of 10 years in state prison. At the time he entered his plea, appellant admitted that he had three other prior felony convictions. (§ 667.5, subd. (b).) The district attorney informed him that he would be sentenced in accordance with the plea agreement if found ineligible for Proposition 36 probation.
All further statutory references are to the Penal Code.
The probation department subsequently determined that appellant was ineligible for probation and he moved to withdraw his plea. His motion was denied, and the trial court imposed the low term of 16 months, doubled as a second strike, for a total sentence of 32 months in state prison. The court stayed one 667.5, subdivision (b) enhancement and struck the remaining three.
Appellant's offense arose from a traffic stop on April 20, 2009, in Glendora. A police officer searched appellant's car and recovered a suitcase behind the driver's seat that contained a tan sack. Inside the sack were two hypodermic syringes and a clear plastic baggie with.02 grams of methamphetamine. A paper bindle containing.09 grams of methamphetamine was found in the driver's side window area. Following the preliminary hearing, appellant entered into the plea agreement.
We appointed counsel to represent appellant in this appeal. After reviewing the record, counsel filed an opening brief raising no issues and requesting this court to independently examine the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
On December 8, 2009, we advised appellant that he had 30 days in which to submit a written brief or letter stating any contentions or arguments he wished us to consider. We have received no response from him.
We have examined the entire record and are satisfied that appellant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
We note, however, a sentencing error requiring correction. While the trial court has discretion to impose or strike a prior prison term enhancement, it may not stay the enhancement term. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1561; People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521.) It is clear that the trial court did not intend to impose the additional one-year term. The abstract of judgment should be amended accordingly.
DISPOSITION
We direct the trial court to modify the abstract of judgment to strike the term of the section 667.5, subdivision (b) enhancement. A copy of the amended abstract of judgment is to be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.