Opinion
C085303
10-16-2018
THE PEOPLE, Plaintiff and Respondent, v. BENTON ARKANSAS, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17FE004441)
A jury found defendant Benton Arkansas, Jr., guilty of second degree burglary (Pen. Code, § 459), and the trial court subsequently found that defendant had served four prior prison terms (§ 667.5, subd. (b)).
Undesignated statutory references are to the Penal Code. --------
The parties agree that the trial court erred in staying one of the four enhancements rather than striking it. We agree with the parties. We shall modify the judgment to strike the enhancement and affirm as modified.
DISCUSSION
Due to the limited nature of the claim on appeal, we need not recite the facts of defendant's crimes in any detail. It suffices to say that, at defendant's sentencing, the trial court imposed an aggregate term of six years in county jail, which included the three-year upper term for the burglary and three one-year consecutive prior prison term enhancements. The court stayed one of the four prior prison term enhancements after finding that the prior prison term at issue had been served concurrently with another term. The parties agree that this was error, and we agree with the parties.
Under section 667.5, a one-year sentence enhancement may be imposed only for felonies for which a defendant served a separate term of incarceration. (§ 667.5, subds. (b), (e).) Prior convictions served concurrently constitute one separate term, allowing only one enhancement to be imposed. (People v. Cardenas (1987) 192 Cal.App.3d 51, 56.) Thus, where two prior prison terms ran concurrently, the trial court must strike the enhancement as to one of those terms. (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. McCray (2006) 144 Cal.App.4th 258, 267 [staying such an enhancement exceeds trial court's discretion].)
A stayed sentence on an enhancement under such circumstances is legally unauthorized, and we may correct it on appeal by modifying the judgment (§ 1260) and directing the trial court to amend the abstract of judgment accordingly. (People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198; People v. Vizcarra (2015) 236 Cal.App.4th 422, 432-433.) We shall do so.
DISPOSITION
The judgment is modified to strike the stayed enhancement. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and send a certified copy to the appropriate authorities.
/s/_________
Duarte, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Butz, J.