Opinion
F086947
06-11-2024
THE PEOPLE, Plaintiff and Respondent, v. TOBIEN PHILICE DURHAM, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 2067240, Nancy A. Leo, Judge.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Tobien Philice Durham contends on appeal that the judgment must be reversed and remanded because the trial court abused its discretion when it denied his motion to strike his prior serious felony enhancement and great bodily injury enhancement at resentencing. The People disagree. We affirm.
PROCEDURAL SUMMARY
Underlying Offenses
On July 10, 2018, the Stanislaus County District Attorney filed a first amended complaint charging defendant with three counts of murder (Pen. Code, § 187, subd. (a); counts I-III); three counts of vehicular manslaughter (§ 191.5, subd. (a); counts IV-VI); driving under the influence of an alcoholic beverage resulting in injury (Veh. Code, § 23153, subd. (a); count VII); leaving the scene of an accident with injury (Veh. Code, § 20001, subd. (a); count VIII); and driving on a license suspended or revoked for driving under the influence (Veh. Code, § 14601.2, subd. (a); count IX). It was further alleged as to counts IV through VI that defendant inflicted great bodily injury (§ 1192.7, subd. (c)(8)) and left the scene of the accident (Veh. Code, § 20001, subd. (a)). It was further alleged as to count VII that defendant inflicted great bodily injury (§ 12022.7, subd. (b)). It was further alleged as to count VIII that the accident resulted in death or serious injury to another (Veh. Code, § 20001, subd. (b)(2)). It was further alleged as to counts I through VII that defendant had a prior serious felony (§ 667, subd. (a)). It was further alleged as to counts I through VIII that defendant had a prior strike conviction (§ 667, subd. (d)), and three prior prison terms (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise noted.
On July 10, 2018, pursuant to a plea agreement, defendant entered a plea of no contest to counts IV, V, and VII. The trial court dismissed counts I, II, III, VI, VIII, and IX. As to count IV, defendant also admitted he inflicted great bodily injury (§ 1192.7, subd. (c)(8)) and left the scene of an accident (Veh. Code, § 20001, subd. (c)). As to count V, he also admitted he inflicted great bodily injury (§ 1192.7, subd. (c)(8)). As to count V, the court struck the Vehicle Code section 20001, subdivision (c) enhancement. As to count VII, defendant also admitted he inflicted great bodily injury (§ 12022.7, subd. (b)). Defendant also admitted three section 667.5, subdivision (b) prison priors, the strike prior pursuant to section 667, subdivision (d), and the prior serious felony pursuant to section 667, subdivision (a). The court struck two of the three section 667.5, subdivision (b) prison priors.
On August 10, 2018, the trial court sentenced defendant to a total term of 30 years, as follows: on count IV, 12 years (the mid-term), doubled pursuant to the prior strike, plus five years for leaving the scene of an accident enhancement (Veh. Code, § 20001, subd. (c)); on count V, four years (one-third the mid-term), doubled pursuant to the prior strike; on count VII, one year four months (one-third the mid-term), doubled pursuant to the prior strike, plus five years for the prior serious felony (§ 667, subd. (a)), plus one year for the prison prior (§ 667.5, subd. (b)), plus one year eight months (one-third the mid-term) for the great bodily injury enhancement (§ 12022.7). Defendant was given credit for 1,437 days of presentence custody and the court ordered various fines and fees.
On July 7, 2020, defendant filed a petition for resentencing. The trial court treated the petition as a writ of habeas corpus, which it denied on July 29, 2020.
2023 Resentencing
In July 2022, the Department of Corrections and Rehabilitation (CDCR) recommended defendant's return for resentencing pursuant to Senate Bill No. 136 (20192020 Reg. Sess.) (Stats. 2019, ch. 590, § 1) (Senate Bill 136) because he may have a sentence enhancement imposed pursuant to former section 667.5, subdivision (b) that was not imposed for a prior conviction of a sexually violent offense as defined in Welfare and Institutions Code section 6600.
On January 11, 2023, defendant filed a motion for resentencing pursuant to section 1172.75, requesting additional reductions to the sentence according to recent legislation, requesting the trial court strike the prior strike and the prior serious felony enhancement. The motion did not mention the great bodily injury enhancement (§ 12022.7). On March 28, 2023, defendant filed a supplemental resentencing motion with letters from defendant and his family.
On September 15, 2023, the trial court struck the one-year prison prior enhancement (§ 667.5, subd. (b)) but denied defendant's motion to strike the prior serious felony enhancement (§ 667.5, subd. (a)) and the prior strike. The rest of defendant's sentence remained the same. Defendant's new term of imprisonment was 29 years.
On September 28, 2023, defendant filed a notice of appeal.
FACTUAL SUMMARY
While driving under the influence, defendant rear-ended another car stopped at an intersection at high speed. All three occupants of the other car were killed. Defendant resolved the case by plea. The prosecutor provided the following factual basis for the plea.
"[O]n the afternoon of July 15, 2016, [defendant] was drinking alcohol at a home in Stockton, California. He left the home driving a [sedan]. Shortly before 11:58 p.m. on July 15, 2016, while he was driving the vehicle eastbound on Kiernan Ave[nue] in Stanislaus County he was approaching the inter[sect]ion of Kiernan Ave[nue] and Tully Road.
"He failed to stop his vehicle in [a] timely fashion, driving [at] an unsafe speed, [in] violation of ... Vehicle Code [section] 22350. He committed this offense with gross negligence.
"As a result, [defendant's sedan] rear ended [an SUV] stopped at the intersection of Kiernan Ave[nue] and Tully Road. It was driven by [B.H.]. It was also occupied by [A.J.]. [¶] And [M.J.].
"As a result of the collision, both the [SUV] and the [sedan] caught fire. At the time of the collision on July 15, 2016, [defendant] had been driving his vehicle while under the influence of alcohol.
"[B.M.], who was seated in the driver's seat of the [SUV], died of acute smoke and soot inhalation after sustaining major head injuries as a result of the collision. [¶] ... [¶]
"[A.J.], who was seated in the front passenger's seat of the [SUV], died of acute soot and smoke inhalation after sustaining major head injuries in the collision. [¶] . • [¶]
"[M.J.], who was seated in the rear bench of the [SUV], died of acute soot and smoke inhalation as a result of the collision. [¶] ••• [¶]
"Immediately after the collision, the defendant fled the scene on foot to [a gas station] in Riverbank.
"He called Kristie [S.] • to pick him up in her vehicle.
"As he left the scene, he did not notify 911 or law enforcement that he had been in a vehicle collision. He did not render assistance to [B.M.], [A.J.], or [M.J.], who were in need of aid because of the collision for which [defendant] was at fault.
"Prior to the incident, [defendant had been] arrested on July 21, 2001, for a violation of Vehicle Code [section] 23152[, subdivision] (a), for which he suffered a conviction on August 29, 2001, in Alameda County, [c]ase [No.] 99509. He was arrested on April 24, 2002, for a violation of Vehicle Code [section] 23152[, subdivision] (a). As a result of his arrest, he was convicted of Vehicle Code [section] 23152[, subdivision] (a) on May 23, 2002, in Alameda County[, case No.] 103129.
"Finally, [defendant] had been arrested on November 11, 2009, for driving under the influence. As a result of his arrest, he was convicted of violating • Vehicle Code [section] 23152[, subdivision] (b) on January 25, 2010, in San Joaquin County[, case No.] ST053087(a).
"Because of [defendant's] multiple prior DUI convictions and court-ordered DUI classes, he was aware driving under the influence is dangerous, [and] can and did result in the death of other persons.
"Additionally, [defendant] was convicted on December [7,] 1993 of a violation of [section] 246, shooting at [an] inhabited dwelling in Santa Clara County[, case No.] 167925, a serious and [violent] strike offense pursuant to [sections] 667[, subdivision] (d), and 667[, subdivision] (a).
"In addition, on June 17, 2010, [defendant] was convicted of a felony violation of Vehicle Code [section] 2800.2, evading a peace officer, Santa Clara County[, case No.] E1007532. And was sentenced to a term in [s]tate prison, and did not remain free of custody for at least five years, pursuant to [section] 667.5[, subdivision] (b)."
DISCUSSION
Defendant contends the trial court abused its discretion when it declined to dismiss either the prior serious felony enhancement (§ 667, subd. (a)) and/or the great bodily injury enhancement (§ 12022.7). The People disagree. We agree with the People.
Defendant's appeal does not argue the trial court erred when it declined to strike his prior strike.
A. Background
On January 11, 2023, defendant filed a motion for resentencing pursuant to section 1172.75 requesting the trial court strike his prior prison term enhancement (§ 667.5, subd. (b)), prior strike terms, and/or the prior serious felony enhancement (§ 667, subd. (a)). Defendant's motion for resentencing did not request the court strike the great bodily injury enhancement (§ 12022.7). His motion included several exhibits, including "certificates of completion, milestones, rehabilitative case plan," a letter he wrote describing his remorse, and letters of support from family and friends.
On March 28, 2023, defendant supplemented the motion with additional letters of support, family photographs, and letters he had written. In the motion, defendant wrote, "Upon my release, I plan to obtain my driver's license as soon as possible."
The prosecution filed an opposition, arguing that aside from striking the one-year prison prior enhancement, defendant's sentence must not be further reduced based on his criminal history and the facts of the underlying offenses. The prosecution conceded defendant had "not committed any rules violations" while in prison serving his sentence. However, the prosecution noted defendant's criminal history included multiple convictions for driving under the influence and reoffending while on probation and parole. It stated that on August 5, 1993, defendant was placed on probation for a conviction for possession of cocaine base for sale, but while on probation, defendant committed a misdemeanor hit and run offense less than one month later. Defendant was convicted in December 1993 of shooting at an inhabited dwelling and placed on probation for three years but violated probation in that case as well. The prosecution also noted defendant was convicted in 1998 of "evading a peace officer causing injury" and sentenced to state prison but while released on parole, defendant violated the terms of parole and was returned to prison. It further noted defendant was convicted three separate times of driving under the influence, once in 2001, once in 2002, and once in 2010, and committed the current offenses only six years after the 2010 conviction. Last, the prosecution noted defendant was convicted in 2010 of "felony evading, hit and run, obstructing a peace officer, and driving with a suspended license."
On April 4, 2023, the trial court issued a minute order stating, "Pursuant to [Senate Bill No. 483,] the CDCR has provided the Court with information that indicates [d]efendant is an individual who has served [his] base term and any other enhancements and is currently serving a sentence based on the enhancement," and scheduled a resentencing hearing.
On September 15, 2023, the trial court held the resentencing hearing. The court stated it read the parties' briefs and reviewed the "number of attachments that were included for [defendant] highlighting his success thus far at CDCR."
Defense counsel stated the parties agreed to strike defendant's one-year prison prior enhancement but requested the trial court also strike his strike prior and his five-year prior serious felony enhancement. Defense counsel argued that defendant had "taken responsibility for the actions that he undertook underlying this crime," that he had addressed his substance abuse issues and was "only a month away from being a facilitator of the Responsibility Driven program," that he had an "extensive network of support," and that he was "extremely remorseful."
Defense counsel described the "Responsibility Driven" program as a program "which has addressed [defendant's] substance issues."
The prosecution agreed that the trial court was required to strike defendant's one-year prison prior enhancement but opposed any further reduction to defendant's sentence. She argued the court must find extraordinary circumstances for a career criminal to fall outside the spirit of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that even with recent changes to the Three Strikes law, there is no presumption that a defendant is entitled to dismissal of enhancements where there is a concern of likelihood of serious danger to others. She argued that as to the section 667, subdivision (a) prior serious felony enhancement, the court was required to consider the nature of the offense and the offender. She stated that the current offenses occurred only six years after defendant's previous driving under the influence conviction in 2010, and the only reason he had not yet reoffended was because he had been incarcerated since the incident. She argued that while defendant was in substance abuse programming while incarcerated, defendant's criminal history supported him remaining in prison.
The trial court then listened to statements by family members of the victims.
The trial court resentenced defendant to a total term of 29 years, striking his one-year prison prior enhancement (§ 667.5, subd. (b)). However, the court denied defendant's motion to strike his prior strike or his five-year serious prior felony enhancement (§ 667, subd. (a)). It determined that "imposing a lesser sentence would endanger public safety," noting it considered defendant's performance in prison, the "horrific" nature of the underlying crimes, and defendant's "horrific criminal history" in reaching its conclusion. The court stated, "I appreciate the fact that [defendant] is doing well in prison.... [H]owever, this was a horrific crime. [Defendant] has a horrific criminal history, and frankly, it was a negotiated disposition that probably wasn't even anywhere near enough time relative to the horrific crime that took place.
"So as indicated in the People's response, the Court will find by clear and convincing evidence that imposing a lesser sentence would endanger public safety. And as to the strike priors that are alleged, the Court will find that [defendant] does fall within the spirit of the Three Strikes [l]aw, and that there [are] no extraordinary circumstances that exist or support dismissing or striking the strike priors. And as to the [section] 667[, subdivision] (a) [prior serious felony enhancement,] which was referred to as a nickel prior, the Court will find that dismissing or striking that is not in the furtherance of justice.
"So pursuant to the [section] 667.5[, subdivision] (b) prior [prison term enhancement] that adds on one year, that has to be stricken, so it will be stricken.
"[Defendant]'s sentence will be reduced by one year, so the total time will be 29 years."
B. Law
Prior Prison Term Enhancement (§ 667, subd. (b))
Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years.
Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b) to allow for the imposition of one-year prior prison term enhancements only for specified sexually violent offenses. (Stats. 2019, ch. 590, § 1; People v. Jennings (2019) 42 Cal.App.5th 664, 681.) Enhancements based on prior prison terms served for other offenses became legally invalid. (Jennings, at p. 682.) The amendment was to be applied retroactively to all cases not yet final on January 1, 2020. (Id. at pp. 681-682.)
Resentencing Pursuant to Section 1172.75
Effective January 1, 2022, Senate Bill No. 483 (2021-2022 Reg. Sess.) (Senate Bill 483) sought to make the changes implemented by Senate Bill 136 retroactive. (Stats. 2021, ch. 728, § 1 ["it is the intent of the Legislature to retroactively apply ... Senate Bill 136 of the 2019-2020 Regular Session to all persons currently serving a term of incarceration in jail or prison for these repealed sentence enhancements"].) It added former section 1171.1, now renumbered as section 1172.75. Section 1172.75 provides, "[a]ny sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense . is legally invalid." (§ 1172.75, subd. (a).)
Former section 1171.1 was renumbered as section 1172.75 (Stats. 2021, ch. 728, § 3; Stats. 2022, ch. 58, § 12.)
Senate Bill 483 also provides a process for recall of sentences involving a now invalid section 667.5, subdivision (b) prior prison term enhancement and resentencing of affected defendants. (§ 1172.75, subd. (c)-(d).) In resentencing a defendant, section 1172.75, subdivision (d) provides in pertinent part:
"(1) Resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.
"(2) The court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.
"(3) The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant's risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice." (§ 1172.75, subd. (d)(1)-(3).)
"By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly 'invalid' enhancements." (People v. Monroe (2022) 85 Cal.App.5th 393, 402.)
Trial Court's Discretion to Strike Enhancements (§ 1385, subd. (c))
At the time of defendant's original sentencing, the trial court was prohibited from striking the prior serious felony enhancement under section 667, subdivision (a). (People v. Cepeda (2021) 70 Cal.App.5th 456, 461; People v. Reneaux (2020) 50 Cal.App.5th 852, 875.)
However, effective January 1, 2019, Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) removed this prohibition. (Stats. 2018, ch. 1013, §§ 1-2.) It amended section 1385 "to remove language 'that prohibited a trial court from striking a serious felony enhancement [under section 667, subdivision (a)] in furtherance of justice' under that statute." (People v. Fox (2023) 90 Cal.App.5th 826, 832.) "Thus, while imposition of a five-year term for a prior-serious-felony enhancement was originally mandatory, Senate Bill [1393] gave trial courts the discretion to dismiss such enhancements." (Ibid.)
"In addition to the foregoing, Senate Bill No. 81 [(2021-2022 Reg. Sess.) (Senate Bill 81)] and Assembly Bill No. 200 (2021-2022 Reg. Sess.) (Assembly Bill [200]) respectively added, and later amended, section 1385, subdivision (c), which now provides in relevant part as follows:
" '(c)(1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
" '(2) In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. "Endanger public safety" means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others. [¶] ... [¶]
" '(B) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.
" '(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.'" (People v. Cota (2023) 97 Cal.App.5th 318, 334-335, citing § 1385, subd. (c)(1), (2) (original italics omitted; italics added); see People v. Lipscomb (2022) 87 Cal.App.5th 9, 16; see also People v. Mendoza (2023) 88 Cal.App.5th 287, 295, fn. 3 (Mendoza).)
Standard of Review
A trial court's decision not to strike a sentence enhancement under section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 371; Mendoza, supra, 88 Cal.App.5th at p. 298.) The abuse of discretion standard is highly deferential. (Mendoza, at p. 298.) When,"' "as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'" '" (Ibid.)
C. Analysis
Here, the record shows the trial court did not abuse its discretion when it struck only defendant's prior prison term enhancement (§ 667.5, subd. (b)) at resentencing, and reimposed the remainder of his original sentence, including the prior serious felony enhancement (§ 667, subd. (a)) and great bodily injury enhancement (§ 12022.7), stating that "imposing a lesser sentence would endanger public safety" and that "dismissing or striking [the section 667, subdivision (a) serious prior felony enhancement] is not in the furtherance of justice."
Defendant concedes that dismissal of an enhancement pursuant to section 1385, subdivision (c)(2) is not mandatory. However, he argues that "proof of the presence of one or more of the circumstances [listed in section 1385, subdivision (c)(2)] weighs heavily in favor of dismissing the enhancement, unless the [trial court] finds that dismissal of the enhancement would endanger public safety." He argues the mitigating circumstances proven here were that the imposition of the prior serious felony enhancement increased his total sentence to over 20 years in state prison and that there were two enhancements imposed, one for infliction of great bodily injury (§ 12022.7) and one for the five-year serious prior felony (§ 667, subd. (a)), "one of which should be stricken [pursuant to section 1385, subdivision (c)(2)]." Accordingly, he contends that because of the many mitigating factors set forth by defendant, in addition to his strong family support, his willingness to accept responsibility for his actions and improve himself within the prison system, the passage of time, and defendant's concerted efforts to deal with his previous issues, the court's conclusion that striking the five-year serious felony prior would result in danger to public safety is not supported by the record.
However, the trial court's finding that striking the enhancements would endanger public safety despite the existence of mitigating circumstances under section 1385, subdivision (c)(2), including multiple enhancements, and that the enhancements would result in a sentence over 20 years, and despite evidence presented by defendant that he had family support and attempted to improve himself in prison, was not beyond the bounds of reason. (People v. Ortiz (2023) 87 Cal.App.5th 1087, 1094-1095, review granted Apr. 12, 2023, S278894; Mendoza, supra, 88 Cal.App.5th at p. 297; People v. Walker (2022) 86 Cal.App.5th 386, 399-400, review granted Mar. 22, 2023, S278309.)
There is currently a split in authority regarding the application of section 1385, subdivision (c). (See People v. Walker, supra, 86 Cal.App.5th at p. 391 [holding that the term "great weight" and existence of mitigating circumstances creates a rebuttable presumption in favor of dismissal unless the court finds dismissal would endanger public safety]; but see People v. Ortiz, supra, 87 Cal.App.5th 1087, 1093 [holding that the existence of a statutory mitigating circumstance does not compel the court to dismiss the enhancement even if it does not explicitly find that a dismissal would endanger public safety].)
Regardless of the split in authority, the record here supports the trial court's explicit finding that striking the enhancements would result in danger to the public, outweighing the mitigating circumstances.
The trial court considered the length of defendant's original sentence of 30 years, and that there were multiple enhancements, both mitigating factors under section 1385, subdivision (c)(2). It also considered evidence presented by defendant reflecting changed circumstances since the original sentencing, pursuant to section 1172.75, subdivision (d)(3), noting it considered the numerous supporting documents defendant attached to his resentencing motion and stating it appreciated defendant was "doing well" in prison.
However, in finding these factors were outweighed by the danger defendant poses to public safety, the trial court stated it considered defendant's long "horrific" criminal history, including numerous convictions for driving under the influence before he committed the current offenses, in which he also drove under the influence at high speed straight into another car, killing all three occupants only six years after his previous driving under the influence offense, as well as numerous probation and parole violations. It also considered defendant's statement in his resentencing motion that he planned to obtain his driver's license "as soon as possible" upon release from prison, which the prosecution noted at the resentencing hearing would endanger the public. Further, defendant stated he planned to "check into an outpatient [Alcoholics Anonymous] program that [was open on] evenings and weekends ... [f]or at least 18 months," which the prosecution argued at the motion hearing would be insufficient for treatment of his lifelong substance abuse issues, especially in light of his extensive history of driving under the influence convictions and violations of probation and parole. The prosecution also noted defendant had not been able to reoffend since the underlying offenses because he had been incarcerated since they occurred. Further, pursuant to section 1172.75, subdivision (d)(1), the court properly considered the length of defendant's original sentence of 30 years for his "horrific" offenses and that defendant had only served approximately five years of that sentence at the time of resentencing.
Based on the record, the trial court's finding that striking the enhancements would endanger public safety, despite the existence of mitigating circumstances under section 1385, subdivision (c)(2) and evidence presented by defendant of changed circumstances, was not beyond the bounds of reason. Accordingly, we conclude the court did not abuse its discretion by striking only the section 667.5, subdivision (b) prior prison term enhancement, and reimposing the remainder of the same sentence, including the section 667, subdivision (a) prior serious felony enhancement and the great bodily injury enhancement (§ 12022.7).
DISPOSITION
We affirm.
[*] Before Franson, Acting P. J., Meehan, J. and Snauffer, J.