Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 10F0001036
HULL, J.In this appeal, defendant contends that the trial court erred in staying, rather than striking, two one-year prior prison term enhancements. (Pen. Code, § 667.5, subd. (b); unspecified section references that follow are to the Penal Code.) The People concede the error and we agree that the judgment must be modified.
Facts and Proceedings
Defendant drove a friend’s truck on several occasions without permission. Defendant entered a plea of no contest to two counts of unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)) and also admitted two strike allegations (Pen. Code, § 1170.12) and six prior prison term allegations (Pen. Code, § 667.5, subd. (b)).
The trial court dismissed one of the strikes pursuant to section 1385, subdivision (a) and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530, stayed two of the prior prison terms, and sentenced defendant to an aggregate prison term of eight years. This appeal followed.
Discussion
Defendant contends, and the People concede, that the court erred in staying, rather than striking, two prior prison terms allegations relating to 1984 burglary convictions. We agree.
“Once the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken. [Citations.]” (People v. Langston (2004) 33 Cal.4th 1237, 1241.)
The information alleged defendant had served six prior prison terms for drug and property offenses. The record unequivocally demonstrates that the court intended to sentence defendant for only four of these prior prison terms.
In striking one of defendant’s serious felony priors for burglary in 1984, the court noted that “defendant’s prior criminal history, while it is lengthy, ... his most serious offenses occurred a significant, some significant, time ago in 1984. The latter time, or a portion of his criminal history, the offenses seem to appear to be decreasing in severity. There does not appear to be any presence of violence. It does appear[] that the defendant suffers from drug addiction, which could account for some of his criminal history.”
The court continued in the same vein in imposing sentence: “With respect to the two offenses that occurred in this case, and as stated previously with respect to analyzing the Romero motion and analyzing the [Vehicle Code section] 10851 compared to other 10851’s, this seems to be on the low end or minimal conduct on the part of the defendant. [¶] This is a vehicle that, it is my understanding, that the defendant at times had permission to utilize, but had utilized the vehicle on a number of occasions without the consent of the individuals[] who owned the vehicle.
“So the court does find the defendant is not eligible for probation, based on the allegation that he has suffered a serious felony conviction pursuant to 1170.12. Based on the defendant’s admission to that 1170.12 prior, it is ordered that probation is denied and that the defendant... be committed to state prison for a period [of] 8 years. The court will impose the mitigated term of 16 months on Count 1, one-third the mid-term on Count 2 for an additional eight months, for a total of two years. The court will then double that pursuant to 1170[.]12. For a total of four years. The Court will impose six, 667.5(b) priors and stay two of those priors, stay the two priors that relate to the 459 first in 1984 in which the defendant suffered the 1170.12 prior, for a total of eight years in state prison.”
In response to a question from the prosecutor, the court reiterated that it was imposing sentence on four of the allegations charged under section 667.5, subdivision (b) and staying the “final two 667.5(b)s... [¶]... because the court is imposing an 1170.12.”
As the People correctly concede, the court’s comments clearly indicated its intent to sentence on only four of the six prior prison terms, and simply erred in “staying” rather than “striking” these two enhancements. We therefore modify the judgment to strike these enhancements.
Disposition
The judgment is modified to strike the two prior prison term enhancements relating to defendant’s 1984 burglaries. (§ 667.5, subd. (b).) The trial court is directed to amend the abstract of judgment accordingly and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RAYE, P. J., HOCH, J.