Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct.No. SWF15356, Michael S. Hider, Judge. (Retired judge of the Merced Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions.
Cynthia M. Sorman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Stacy Tyler, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
I. FACTS AND PROCEDURAL HISTORY
The People charged defendant by information with possession of methamphetamine for sale (count 1 -- Health & Saf. Code, § 11378), with a special allegation that he had incurred a previous drug conviction (Health & Saf. Code, § 11370.2, subd. (c)), possession of heroin (count 2 -- Health & Saf. Code, § 11350, subd. (a)), and possession of a hypodermic needle (count 3 -- Bus. & Prof. Code, § 4140). The People additionally alleged defendant had suffered three prior prison terms (Pen. Code, § 667.5, subd. (b)) and a prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e), 1170.12(c)(1)). Defendant pled guilty “to the sheet,” i.e., to all counts and allegations as alleged in the information. In return, the court sentenced him to an aggregate prison term of five years eight months and stayed imposition of sentence on the three prior prison term enhancements. On appeal, defendant contends the court erred in staying, rather than striking, the three prior prison term enhancements. The People concede the matter. We agree and, therefore, order the three prior prison term enhancements stricken. In all other respects, the judgment is affirmed.
II. DISCUSSION
An enhancement may be imposed or stricken, but may not be stayed unless the statute provides otherwise. (People v. Haykel (2002) 96 Cal.App.4th 146, 151.) Staying imposition of a Penal Code section 667.5, subdivision (b) prior prison term enhancement is an unauthorized sentence and is subject to correction by the appellate court. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521.)
Here, it is clear that the trial court intended to strike the three prior prison term enhancements. The court indicated a sentence of five years eight months should defendant plead guilty to all counts and allegations. This consisted of the low term of 16 months on count 1, doubled to 32 months pursuant to the prior strike allegation, plus three years for the prior drug conviction. The sentences on the remaining two counts were to be served concurrently to count 1. Defendant so pled. Thus, imposition of sentence as the court indicated, necessitated the striking of the three prior prison term enhancements. Otherwise defendant’s sentence would be three years longer than indicated. Moreover, the court stated on the record sufficient mitigating factors for striking the enhancements. (People v. Williams (1980) 103 Cal.App.3d 507, 518.) Therefore, the superior court clerk is directed to modify the minute order of July 25, 2006, and the abstract of judgment to reflect the striking of the three prior prison term enhancements.
III. DISPOSITION
The trial court is directed to modify the minute order of July 25, 2006, and the abstract of judgment to reflect the striking of the three prior prison term enhancements. In all other respects, the judgment is affirmed.
We concur: Gaut Acting P.J., Miller, J.