Opinion
F079405
04-02-2020
THE PEOPLE, Plaintiff and Respondent, v. OSCAR LOPEZ FLORES, Defendant and Appellant.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. CR-18-00364, 1474083, 1491980)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A. McFadden, Judge. Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Smith, J. and Snauffer, J.
-ooOoo-
BACKGROUND
On December 5, 2013, after Oscar Lopez Flores (defendant) had consumed methamphetamine and marijuana, he struck a pedestrian with a motor vehicle. Methamphetamine and a marijuana pipe were found in defendant's possession.
In an information for case No. 1474083 filed on December 22, 2014, defendant was charged with driving under the influence and causing bodily injury to another person (Veh. Code, § 23153, subd. (a) [count I]), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a) [count II]), and possession of drug paraphernalia (id., former § 11364.1, subd. (a) [count III]). As to count I, it was alleged he personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)); was previously convicted of robbery, a qualifying "strike" offense (§ 667, subd. (d)) and serious felony (§ 667, subd. (a)); and served a prior separate prison term (§ 667.5, subd. (b)).
Subsequent statutory citations refer to the Penal Code unless otherwise indicated. --------
On September 11, 2015, defendant was a passenger in a motor vehicle searched by law enforcement. A firearm was discovered underneath defendant's seat and methamphetamine was found on his person.
In a complaint for case No. 1491980 filed on September 17, 2015, defendant was charged with possession of a firearm by a convicted felon (§ 29800, subd. (a)(1) [count I]) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a) [count IV]). As to count I, it was alleged he committed the offense while he was on bail in connection with case No. 1474083 (§ 12022.1); was previously convicted of robbery, a qualifying "strike" offense (§ 667, subd. (d)); and served a prior separate prison term (§ 667.5, subd. (b)).
On September 21, 2017, defendant and the prosecution negotiated a plea agreement. With respect to case No. 1474083, defendant pled nolo contendere to count I and admitted the truth of the special allegations. If defendant appeared at the sentencing hearing with no new violations or arrests, the prosecution would strike the prior serious felony enhancement, inter alia. With respect to case No. 1491980, defendant pled nolo contendere to count I and admitted he committed the crime while he was on bail and was previously convicted of a qualifying "strike" offense.
On February 26, 2018, defendant did not appear in court.
In an information for case No. CR-18-000364 filed on March 5, 2019, defendant was charged with willful failure to appear while on bail (§ 1320.5). It was further alleged he committed this offense while he was on bail in connection with case Nos. 1491980 and 1474083 (§ 12022.1); was previously convicted of robbery, a qualifying "strike" offense (§ 667, subd. (d)); and served a prior separate prison term (§ 667.5, subd. (b)). On May 30, 2019, defendant pled nolo contendere and admitted he committed the crime while he was on bail in connection with case Nos. 1491980 and 1474083 and was previously convicted of a qualifying "strike" offense. He waived referral to the probation department for a presentence report and agreed to be sentenced immediately.
In case No. 1474083, the court imposed a 15-year sentence: a doubled middle term of four years on count I, designated as the "principal term," plus six years for the great bodily injury enhancement and five years for the prior serious felony enhancement. The court struck the prior prison term enhancement. In case No. 1491980, the court imposed a consecutive 16-month term. In case No. CR-18-000364, it imposed a consecutive 16-month term plus four years for the two out-on-bail enhancements. Defendant received an aggregate sentence of 21 years eight months.
DISCUSSION
"If a defendant has one prior serious or violent felony conviction as defined in [section 667,] subdivision (d) that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction." (§ 667, subd. (e)(1).) "Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." (§ 12022.7, subd. (a).) Enhancements "are added after the determination of the base term and are not doubled." (People v. Sok (2010) 181 Cal.App.4th 88, 93; accord, People v. Hardy (1999) 73 Cal.App.4th 1429, 1433.)
Here, in case No. 1474083, the court mistakenly doubled the great bodily injury enhancement. Instead of six years, it should have imposed three years. We conclude—and the parties agree—this error must be corrected. (See People v. Scott (1994) 9 Cal.4th 331, 354 ["[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is 'clear and correctable' independent of any factual issues presented by the record at sentencing."].)
DISPOSITION
The judgment is modified to reduce the great bodily injury enhancement in case No. 1474083 from six years to three years. The trial court is directed to amend the abstract of judgment accordingly and to transmit certified copies thereof to the appropriate authorities. In all other respects, the judgment is affirmed.