Opinion
F049233
12-11-2006
THE PEOPLE, Plaintiff and Respondent, v. JOSE JAIME PRIETO, Defendant and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, for Plaintiff and Respondent.
OPINION
THE COURT
Before Vartabedian, Acting P.J., Harris, J., and Cornell, J.
A jury convicted appellant, Jose Jaime Prieto, of assault with a firearm (count 1/Pen. Code, § 245, subd. (a)(2)) and possession of a firearm by a felon (count 2/§ 12021, subd. (a)(1)) and found true allegations that he personally used a gun in committing the assault offense (§ 12022.5, subd. (a)(1)). In a separate proceeding, Prieto admitted two prior prison term enhancements (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code.
On October 12, 2005, the court sentenced Prieto to an aggregate term of seven years. On appeal, Prieto contends: 1) his abstract of judgment contains certain clerical errors; and 2) he was denied the effective assistance of counsel at sentencing. Respondent contends the court imposed an unauthorized sentence. We will find merit to Prietos first contention and to respondents contention and remand the matter to the trial court for further proceedings. We will also find that Prietos second contention is moot in light of our decision to remand. In all other respects, we will affirm.
FACTS
On February 8, 2005, Gabriela Barajas was walking home with a friend in Earlimart when Prieto, Gabrielas ex-boyfriend, drove up to them, exited his Jeep holding a gun, and swore at Gabriela. Prieto appeared to be very drunk and asked Gabriela to get in his car as he gestured with the gun from side to side. However, Gabriela walked away. Meanwhile, Jose Salmaron exited a pickup parked in front of Gabrielas house and exchanged words with Prieto. Prieto then pointed the gun at Salmaron and made some derogatory comments about Gabriela before getting back in his Jeep and driving away.
The following day Prieto was stopped by sheriffs deputies. As he exited his vehicle Prieto threw away a .40-caliber gun. Five bullets were found in Prietos pocket.
Sentencing
On October 12, 2005, prior to sentencing Prieto the following colloquy occurred:
"THE COURT: As to Count 1 the defendant is committed to state prison for the midterm of three years. And I might add I would not impose the 12022.5(a)(1) [enhancement], but I dont think I have a choice. It says " `shall. " But I dont think under the facts of this case it is warranted.
"MR RUMERY [DEFENSE COUNSEL]: I think the court has the authority under section 1385, if thats the Courts position to strike it.
"THE COURT: I dont think I can strike a 12022.5 [enhancement]. If I can, I[ll] make the record clear for an appellate court to review that." (Italics added.)
The court then sentenced appellant to an aggregate seven-year term as follows: the midterm of three years on his assault conviction in count 1, a consecutive four-year arming enhancement, and a concurrent aggregate term of four years on his felon in possession of a firearm conviction in count 2 consisting of the midterm of two years on the substantive offense and two consecutive one-year prior prison term enhancements.
Although assault with a firearm is punishable as a misdemeanor or a felony (§§ 245, subd. (a)(2)/17), defense counsel did not move the court to reduce this conviction to a misdemeanor.
DISCUSSION
The Clerical Errors
Prieto and respondent agree that Prietos abstract of judgment contains the following clerical errors: 1) it indicates that Prieto was convicted of violating section 245, subdivision (a)(1) whereas he was actually convicted of violating section 245, subdivision (a)(2); 2) his abstract indicates that an enhancement pursuant to section 12022, subdivision (a)(1) was found true whereas the court found true an enhancement pursuant to section 12022.5, subdivision (a)(1); and 3) although only two prior-prison term enhancements were found true by the court, the abstract indicates that the court found three prior prison term enhancements true. We agree with the parties and will direct the trial court to correct these errors.
The Unauthorized Sentence
Prieto contends the instant matter should be remanded for the court to decide whether to impose, stay, or strike the prior prison term enhancements with respect to count 1. Respondent contends that the court only had jurisdiction to impose or strike these enhancements and that instead of attaching them to count two, it should have imposed them once as the final step in calculating Prietos aggregate term. We agree with respondent.
Preliminarily we note that the court does not have the authority to stay prior prison term enhancements and must either impose them or strike them. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 711.)
Moreover, section 1170.1, subdivision (a) provides:
"Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." (Emphasis added.)
In People v. Tassell (1984) 36 Cal.3d 77, the Supreme Court stated:
"Section 1170.1 refers to two kinds of enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense. Enhancements for prior convictions — authorized by sections 667.5, 667.6 and 12022.1 — are of the first sort. The second kind of enhancements — those which arise from the circumstances of the crime — are typified by sections 12022.5 and 12022.7: was a firearm used or was great bodily injury inflicted? Enhancements of the second kind enhance the several counts; those of the first kind, by contrast, have nothing to do with particular counts but, since they are related to the offender, are added only once as a step in arriving at the aggregate sentence.
"Section 1170.1, subdivision (a) starts out by stating the basic rule that when a person is convicted of two or more felonies, the total sentence consists of (1) the principal term, (2) the subordinate term, and (3) any enhancements for prior convictions. In so doing, it makes it very clear that enhancements for prior convictions do not attach to particular counts but instead are added just once as the final step in computing the total sentence." (Id. at p. 90, fn. omitted.)
Applying these principles to this case we find that the court erred by purporting to attach Prietos two prior prison term enhancements to his conviction in count 2. As noted above, these enhancements are for prior convictions and do not attach to a particular count. Instead, the court should have either stricken them, after stating reasons for doing so on the record, or imposed them as the final step of calculating Prietos aggregate sentence. In view of this, we will remand this matter to the trial court for further proceedings.
The Ineffective Assistance of Counsel Claim
Prieto contends he was denied the effective assistance of counsel by defense counsels failure to move the court to reduce his assault conviction to a misdemeanor pursuant to section 17. He further contends that he was prejudiced by defense counsels failure to do so as the courts express desire to strike the arming enhancement in count 1 made it reasonably probable it would have imposed a shorter term if defense counsel had moved to reduce his assault offense to a misdemeanor. We find that this contention is moot in light of our decision to remand this matter to the trial court for further proceedings which will allow Prieto to get the relief he seeks, i.e. the opportunity to move the court to reduce his assault offense to a misdemeanor.
DISPOSITION
Prietos sentence is vacated and the matter is remanded to the trial court for the limited purpose of allowing the court to decide whether to impose or strike Prietos two prior prison term enhancements and to allow Prieto the opportunity to make a motion to reduce his assault conviction to a misdemeanor. After addressing these issues, the court shall resentence Prieto in accord with the principles expressed herein, issue an abstract of judgment that correctly memorializes Prietos convictions and sentence, and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.