Opinion
F079051
12-13-2019
THE PEOPLE, Plaintiff and Respondent, v. JOSE GARCIA, Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. F18902878)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Michael G. Idiart, Judge. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Meehan, J. and Snauffer, J.
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Defendant Jose Garcia contends on appeal his prior prison term enhancement should have been stricken rather than stayed. The People concede and we agree. Accordingly, we vacate the sentence and remand.
BACKGROUND
The underlying facts of the case are irrelevant to the issue on appeal.
On January 29, 2019, defendant pled no contest to driving the wrong direction while evading a peace officer (Veh. Code, § 2800.4; count 1) and admitted having served a prior prison term (Pen. Code, § 667.5, subd. (b)), in exchange for an indicated 16-month "lid" and dismissal of defendant's remaining counts.
All statutory references are to the Penal Code unless otherwise noted. --------
On March 26, 2019, the trial court sentenced defendant to 16 months in prison on count 1. The court also imposed, and then stayed, a one-year term for the prior prison term enhancement.
On March 27, 2019, defendant filed a notice of appeal.
DISCUSSION
When a trial court finds a prior prison term allegation to be true, the trial court must either impose the additional one-year term or strike the enhancement. (People v. Langston (2004) 33 Cal.4th 1237, 1241 [prior prison term enhancement is "mandatory unless stricken"]; People v. Campbell (1999) 76 Cal.App.4th 305, 311 ["the court must either impose the prior prison enhancements or strike them"].)
Here, the parties agree the trial court should have stricken, rather than stayed, the prior prison term enhancement. On remand, the trial court must either impose or strike the prior prison term enhancement in compliance with sections 667.5, subdivision (b) and 1385, subdivision (a).
DISPOSITION
The sentence is vacated and the matter remanded for resentencing. The trial court is directed to either impose or strike the prior prison term enhancement (§ 667.5, subd. (b)). In all other respects, the judgment is affirmed.