Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF143478 J. Thompson Hanks, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
OPINION
RICHLI J.
This is a second appeal by defendant Thomas Joseph Blake. Defendant was originally convicted of assault by means likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)), and the special allegation that defendant personally caused great bodily injury (§ 12022.7, subd. (a)) for punching a fellow inmate at the California Rehabilitation Center in Norco, breaking the inmate’s jaw, was found true. Defendant was also found by the jury to have suffered one prior serious and violent felony offense (§§ 667, subds. (a), (c), and (e)(1), 1170.12, subd. (c)(1)) and having served one prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to a total of 16 years in state prison. The trial court stayed the sentence on the section 667.5, subdivision (b) prior prison term enhancement. (People v. Blake (March 10, 2010, E047973 [nonpub. opn.] (Blake I).)
All further statutory references are to the Penal Code unless otherwise indicated.
In his first appeal, defendant claimed the prosecutor committed Doyle v. Ohio (1976) 426 U.S. 610 [96 S.Ct. 2240, 49 L.Ed.2d 91] error by improperly impeaching him with his post-Miranda silence in violation of his Fifth Amendment right to remain silent and that the trial court erred by staying rather than striking the section 667.5, subdivision (b) prior conviction enhancement. We rejected defendant’s Doyle error argument but remanded the case in order for the trial court to either impose or strike the prior conviction enhancement under section 667.5, subdivision (b) under the authority of People v. Langston (2004) 33 Cal.4th 1237, 1241, as it was improperly stayed.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
On remand, the trial court struck the section 667.5, subdivision (b) prior prison term enhancement. Defendant appeals from the judgment. We affirm.
I
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (1996) 40 Cal.4th 106, we independently reviewed the record for potential error. We have now completed our independent review of the record and find no arguable issues.
Our review of the record revealed that, in striking the prior prison term enhancement under section 667.5, subdivision (b), the trial court relied on the People’s statement that it was the same prior for which the trial court had already imposed a sentence under section 667, subdivision (a). However, defendant suffered two separate prior convictions and could have been sentenced on both. Since the People invited the error by advising the trial court that both priors were the same, defendant obviously has not raised this as an issue, and it is clear from the record that on remand the trial court would strike the prior prison term, we find it does not present an arguable issue.
II
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P.J., MILLER J.