Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, . Ct. No. KA058035, Robert M. Martinez, Judge.
William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Kenneth J. Kao, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
FACTUAL AND PROCEDURAL HISTORY
Appellant, Juan V. Barrientos, was held to answer at a preliminary hearing on November 21, 2002, to a one-count information alleging that on October 14, 2001, appellant violated Penal Code section 187, subdivision (a) by murdering Freddie Vellanoweth with malice aforethought. It was also alleged that appellant personally and intentionally discharged a firearm which proximately caused great bodily injury (Pen. Code § 12022.53, subd. (d)); that appellant personally and intentionally discharged a firearm (Pen. Code § 12022.53, subd. (c)); and that appellant personally used a firearm (Pen. Code § 12022.53, subd. (b)).
All further undesignated statutory references are to the Penal Code.
The incident which gave rise to the charges against appellant arose from a shooting which occurred during a house party at which rival gang members were present. Appellant was alleged to have shot the decedent twice in the chest with a .25 caliber handgun. Further specifics regarding the incident are not necessary to this opinion, which relates to an alleged sentencing error.
A defense Marsden motion was made and denied on January 23, 2003. (People v. Marsden (1970) 2 Cal.3d 118.) A subsequent Marsden motion was made and denied on March 13, 2003. The trial began and a jury was selected on March 17, 2003. On March 26, 2003, the jury announced they were unable to reach a unanimous verdict and the trial judge declared a mistrial.
On August 4, 2003, pursuant to a negotiated plea, a prosecution motion was granted to amend the information to add count 2, a violation of section 192, subdivision (a), voluntary manslaughter, and to add a sentence enhancement for great bodily injuries pursuant to section 12022.7, subdivision (a). Appellant entered a plea of no contest to count 2 and was found guilty. Appellant admitted the section 12022.7 sentence enhancement for great bodily injury. Sentence was imposed immediately and appellant was sentenced to the negotiated middle term of six years in state prison and a consecutive three years for the section 12022.7 great bodily injury sentence enhancement. Execution of sentence was suspended and appellant was placed on five years of formal probation on various terms and conditions including a condition that appellant spend 365 days in county jail.
On April 27, 2004, the prosecution filed a motion to revoke appellant’s probation in lieu of a new prosecution for robbery. On June 21, 2004, appellant’s probation was revoked and reinstated on the same terms and conditions except that appellant was ordered to serve one year in the county jail.
On November 3, 2004, a Pomona police officer assigned to the Adult Gang Unit, informed the court that during a probation home compliance check, appellant’s mother became extremely agitated and refused to open the door to her home, where appellant resided, for ten minutes before appellant came to the door, and admitted the officers. On November 5, 2004, appellant was continued on probation subject to the same terms and conditions.
On October 31, 2005, the prosecution again moved to have appellant’s probation revoked in lieu of filing a new prosecution. Appellant had been arrested on September 2, 2005, by the California Highway Patrol for driving under the influence of stimulants and marijuana. Subsequently, on November 3, 2005, appellant’s probation was revoked pending a hearing on the violation.
At a probation revocation hearing on November 9, 2005, the court ordered a supplemental probation report. On November 29, 2005, the supplemental probation report was filed and showed that appellant had a new arrest for driving under the influence; an attached lab test showed that a sample of appellant’s blood collected on July 5, 2005, tested positive for marijuana and methamphetamine.
The prosecution filed a supplement to its request for violation of appellant’s probation on December 1, 2005, showing that on November 29, 2005, appellant had been arrested for violation of section 422, criminal threats, and for violation of Health and Safety Code section 11550, subdivision (a), being under the influence of a narcotic. A Phoenix Arms .22 rifle and a handgun were recovered by the police in connection with that arrest.
A probation hearing was conducted on February 4, 2006. After the hearing, appellant’s probation was ordered to remain revoked. The stay of execution was lifted on the previously imposed negotiated sentence, and appellant was sentenced to the state prison for the middle term of six years for the voluntary manslaughter conviction, plus three years for the section 12022.7, subdivision (a) great bodily injury sentence enhancement, for an aggregate period of incarceration in state prison of nine years. Appellant was given sentence credits for 473 days actual time and 16 days good time/work time.
A timely notice of appeal was filed on March 17, 2006.
DISCUSSION
Appellant contends that a great bodily injury sentence enhancement cannot be applied to a voluntary manslaughter conviction. Specifically, section 12022.7, subdivision (g) states: “This section shall not apply to murder or manslaughter or a violation of Section 451 or 452.” Respondent agrees noting that the enhancement “was not properly imposed,” and that even when imposing a sentence pursuant to a plea bargain, “‘the court may not give effect to an enhancement unauthorized by law.’ (People v. Harvey (1980) 112 Cal.App.3d 132, 139; [Citation].)”
We agree with the parties and will vacate the great bodily injury enhancement and remand the case to the trial court for resentencing. We do not feel it necessary to further direct the trial court regarding the parameters of the resentencing decision, except to note that a re-sentence resulting in an aggregate sentence of nine years in state prison would be appropriate. Respondent suggests that the remand would “allow the court the opportunity to approve or reject the plea agreement as modified, as required by Penal Code section 1192.5” In this case, we conclude that provided appellant would be willing to make the admissions necessary to appropriately impose a nine-year state prison sentence, the trial court does not have the authority to reject that modified plea agreement. (People v. Collins (1978) 21 Cal.3d 208, 360, People v. Cunningham (1996) 49 Cal.App.4th 1044.)
DISPOSITION
The great bodily injury enhancement imposed per section 12022.7, subdivision (a) is stricken. The case remanded to the trial court for resentencing and further proceedings consistent with this opinion.
We concur: RUBIN, J., FLIER, J.