Opinion
E034111.
11-4-2003
THE PEOPLE, Plaintiff and Appellant, v. KENNETH MARSHALL LANCASTER, Defendant and Respondent.
Grover Trask, District Attorney, and Elise J. Farrell, Deputy District Attorney, for Plaintiff and Appellant. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Respondent.
The People challenge the sentence imposed following defendants guilty pleas entered after the trial court indicated it would impose a seven-year prison term.
FACTUAL AND PROCEDURAL BACKGROUND
On March 14, 2003, defendant handed two undercover officers a piece of plastic containing methamphetamine in exchange for $20 from each of them. About a month later, on April 22, 2003, defendant dropped two bindles of methamphetamine when officers arrested him.
In case No. RIF109672, a felony complaint charged defendant with two counts of selling methamphetamine (Health & Saf. Code, § 11379, subd. (a)) on March 14, 2003, and alleged that he had served four prior prison terms (Pen. Code, § 667.5, subd. (b)) and had sustained a prior serious felony conviction (§ 667, subds. (c) & (e)(1), § 1170.12, subd. (c)(1)).
All statutory references are to the Penal Code unless otherwise indicated.
In case No. RIF 109633, a felony complaint charged defendant with one count of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)) on April 22, 2003, and alleged that he had served three prior prison terms (§ 667.5, subd. (b)) and had sustained a prior serious felony conviction (§ 667, subds. (c) & (e)(1), § 1170.12, subd. (c)(1)).
Over the prosecutors objection, the trial court indicated it would impose a seven-year prison term in the two cases and defendant pled guilty to the charges and admitted the allegations. In imposing the indicated seven-year prison term, the court stayed execution of sentence on findings that defendant had sustained prior convictions. The People appeal, contending the trial court unlawfully stayed execution of sentence on three prior conviction findings.
DISCUSSION
When the parties appeared for the sentencing hearing, the prosecutor who had been handling the cases was on vacation and defendant refused to waive time. The court noted the cases involved a "plea to the Court on two matters" with an indicated seven-year sentence total for both cases. The prosecutor objected to the seven-year sentence and argued defendant was "a very sophisticated, prison-hardened, drug dealer." Defense counsel submitted.
Imposing the indicated seven-year sentence, the court stated: "Case ending 672 as the base term. In that matter, probation is denied. Thats pursuant to indicated sentence. [¶] . . . [¶] The mid term on the 11379, Count I, is three years, and pursuant to 667(c) and (e), it is doubled to six years. [¶] And the Count II, the mid term is three, and pursuant to 667(c) and (e) is doubled to six years. Both run concurrently. [¶] Then the first prior under 667.5, one year consecutively. The remaining three priors under 667.5, one year each. That one year stayed on those remaining three, pending satisfactory completion of his custody commitment on Counts I and II to become permanently stayed thereafter. His total custody commitment is seven years."
Imposing sentence on defendants second case, the trial court stated: "Then as to case ending 633, as to Count I, he is sentenced to the mid term. . . . [¶] . . . [¶] . . . Sentenced to the mid term of two years, and pursuant to 667(c) and (e), that is doubled to four years. [¶] And for his — for his three priors under 667.5, he is sentenced to one year each consecutive to Count I, and consecutive to each other, for a total custody commitment of seven years. This credit — this custody will run concurrently with his custody in case ending 672."
As the People argue, a sentencing court has no authority to "stay" a one-year prior prison term enhancement. "The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal. [Citations.] No doubt, section 667.5, subdivision (b) enhancements are subject to the exercise of the trial courts discretion to strike pursuant to section 1385, subdivision (a). [Citations.] If a trial judge exercises the power to strike pursuant to section 1385, subdivision (a), the reasons for the exercise of discretion must be set forth in writing in the minutes. [Citations.]" (People v. Bradley (1998) 64 Cal.App.4th 386, 391.) Accordingly, this matter will be remanded to permit the trial court to impose or strike the three prior prison term enhancement findings in compliance with California law, without prejudice to defendants bringing a motion to withdraw his guilty pleas and admissions. (See People v. Allan (1996) 49 Cal.App.4th 1507, 1520.)
While we have grave concerns about the propriety of dismissing the three prior prison term enhancement findings under these circumstances, we do not address the issue at this time.
DISPOSITION
The matter is remanded to the trial court for the limited purpose of an exercise of discretion with regard to the three one-year enhancements (§ 667.5, subd. (b)), without prejudice to defendants bringing a motion to withdraw his guilty pleas and admissions.
We concur: WARD, J. and KING, J.