Opinion
D071937
05-03-2018
THE PEOPLE, Plaintiff and Respondent, v. NEHEMIAH L. McINTOSH, Defendant and Appellant.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS289732) APPEAL from a judgment of the Superior Court of San Diego County, Dwayne K. Moring, Judge. Affirmed and remanded with directions. Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Nehemiah L. McIntosh appeals a judgment of conviction after a jury found him guilty of one count of residential burglary and one count of receiving stolen property. (Pen. Code, §§ 459, 496, subd. (a).) McIntosh admitted a prior conviction for robbery. (§ 211.) The trial court sentenced McIntosh to eight years for the burglary conviction, and stayed a sentence of four years for receiving stolen property. Based on the prior robbery conviction, the court imposed both a five-year serious felony prior enhancement (§ 667, subd. (a)(1)) and a one-year prior prison term enhancement (§ 667.5, subd. (b)). The court stayed the one-year enhancement. On appeal, McIntosh contends the court should have stricken, rather than stayed, the one-year enhancement. The People concede the issue. We agree and remand the matter with directions to strike the one-year prior prison term enhancement and will order the abstract of judgment amended accordingly. We affirm the judgment in all other respects.
Unless otherwise indicated, all further statutory references are to the Penal Code.
II
DISCUSSION
We have omitted a recitation of the facts underlying McIntosh's conviction because they are not relevant to the issues on appeal. --------
Trial courts must impose a five-year enhancement for prior serious felony convictions. (§§ 667, subd. (a)(1), 1385, subd. (b).) Trial courts must also impose one- year enhancements for prior separate prison terms. (§ 667.5, subd. (b).) The trial court may strike a prior prison term enhancement in the interest of justice. (§ 1385, subd. (c); People v. Garcia (2008) 167 Cal.App.4th 1550, 1561.) "[W]hen multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." (People v. Jones (1993) 5 Cal.4th 1142, 1150.)
Here, based upon the same underlying prior conviction, the trial court imposed both a five-year enhancement under section 667 and a one-year enhancement under section 667.5. Although the trial court stayed the one-year enhancement, it had no discretion to do so. The one-year enhancement should have been stricken. (People v. Jones, supra, 5 Cal.4th at pp. 1150-1152; see People v. Jordan (2003) 108 Cal.App.4th 349, 368 ["Prior prison term enhancements may be imposed or stricken but not stayed"].)
III
DISPOSITION
The matter is remanded with directions to strike the one-year prior prison term enhancement imposed under section 667.5, subdivision (b). The clerk of the superior court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
MCCONNELL, P. J. WE CONCUR: NARES, J. O'ROURKE, J.