In doing so, the trial court exceeded its authority. ( People v. Ruiz (1992) 3 Cal.App.4th 1251, 1255 [ 5 Cal.Rptr.2d 122]; People v. Harvey (1991) 233 Cal.App.3d 1206 [ 285 Cal.Rptr. 158]; see also People v. Pieters (1991) 52 Cal.3d 894 [ 276 Cal.Rptr. 918, 802 P.2d 420]; People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1588 [ 266 Cal.Rptr. 710]; cf. People v. Vergara (1991) 230 Cal.App.3d 1564 [ 282 Cal.Rptr. 90].) The sentences, not authorized by statute, were unlawful.
When an enhancement cannot be imposed, it is error to impose and stay the enhancement; it must be stricken. (See, e.g., People v. Haykel (2002) 96 Cal.App.4th 146, 151 [enhancement either imposed or stricken, not stayed]; People v. Jones (1992) 8 Cal.App.4th 756, 758; People v. Ruiz (1992) 3 Cal.App.4th 1251, 1256; see also People v. Jordan (1984) 155 Cal.App.3d 769, 787 [striking armed enhancements as to one crime but not others].) Here, the section 12022.5, subdivision (a) enhancements could not be imposed and stayed because use of a firearm is an element of section 246.
When an enhancement cannot be imposed, it is error to impose and stay the enhancement; it must be stricken. (See, e.g., People v. Haykel (2002) 96 Cal.App.4th 146, 151 [enhancement either imposed or stricken, not stayed]; People v. Jones (1992) 8 Cal.App.4th 756, 758; People v. Ruiz (1992) 3 Cal.App.4th 1251, 1256; see also Peoplev. Jordan (1984) 155 Cal.App.3d 769, 787 [striking armed enhancements as to one crime but not others].
When an enhancement cannot be imposed, it is error to stay the enhancement or simply not impose it; it must be stricken. (See, e.g., People v. Haykel (2002) 96 Cal.App.4th 146, 151 [enhancement either imposed or stricken, not stayed]; People v. Jones (1992) 8 Cal.App.4th 756, 758; People v. Ruiz (1992) 3 Cal.App.4th 1251, 1256; see also In re Pritchett (1994) 26 Cal.App.4th 1754, 1758 [instructing superior court to strike firearm-use enhancement that could not properly be imposed]; People v. Jordan (1984) 155 Cal.App.3d 769, 787 [striking armed enhancements as to one crime but not others].) Here, the section 12022.5, subdivision (a) enhancement could not be imposed because use of a firearm is an element of section 246.
Section 11370.4 gives the court discretion to either impose the full enhancement or to strike the enhancement in its entirety. (People v. Ruiz (1992) 3 Cal.App.4th 1251, 1254-1256; People v. Harvey (1991) 233 Cal.App.3d 1206, 1229-1231.) On a silent record, we presume that a trial court was aware of its discretion to strike the enhancement and chose not to do so. (Evid. Code, § 664; see People v. Burnett (2004) 116 Cal.App.4th 257, 261.)
(f)-(g); People v. Ahmed (2011) 53 Cal.4th 156, 168.) But the trial court failed to either impose or strike the section 12022, subdivision (b)(1) personal knife use enhancement on count 1. (See People v. Jones (2007) 157 Cal.App.4th 1373, 1380-1383 [trial court retains authority to strike section 12022, subdivision (b) enhancement]; see, e.g., People v. Meloney (2003) 30 Cal.4th 1145, 1154; People v. Wilson (2002) 95 Cal.App.4th 198, 200; People v. Ruiz (1992) 3 Cal.App.4th 1251, 1255.) The failure to impose or strike the enhancement is a legally unauthorized sentence subject to correction for the first time on appeal.
" (Id. at pp. 1229-1230.) We reached the same conclusion in People v. Ruiz (1992) 3 Cal.App.4th 1251. Based on the statutory language, we held: "it is manifestly clear that the court has the power pursuant to subdivision (e) to strike the additional term enhancements of subdivisions (a)(1) through (a)(4) of section 11370.4. It is equally clear, however, that the court does not have the power to substitute one of the term enhancements for another, e.g., the five-year additional term under subdivision (a)(2) for the fifteen-year additional term under subdivision (a)(4)."
) A number of courts have addressed the question of the trial court’s discretion under Health and Safety Code section 11370.4 by stating that the court only has the discretion to impose or strike the enhancement, and if the court chooses to strike the enhancement it must state its reasons as required by subdivision (e) of Health and Safety Code section 11370.4. (People v. Ruiz (1992) 3 Cal.App.4th 1251; People v. Vergara (1991) 230 Cal.App.3d 1564; People v. Cattaneo (1990) 217 Cal.App.3d 1577 [order staying enhancement illegal].) Our statutory interpretation comports with this view of the trial court’s discretion.
To the contrary, when an enhancement cannot be imposed, it is error to stay the enhancement; it must be stricken. (See, e.g., People v. Haykel (2002) 96 Cal.App.4th 146, 151 [enhancement either imposed or stricken, not stayed]; People v. Jones (1992) 8 Cal.App.4th 756, 758; People v. Ruiz (1992) 3 Cal.App.4th 1251, 1256; see also In re Pritchett (1994) 26 Cal.App.4th 1754, 1758 [instructing superior court to strike firearm-use enhancement that could not properly be imposed]; People v. Jordan (1984) 155 Cal.App.3d 769, 787 [striking armed enhancements as to one crime but not others].) Here, the Penal Code section 12022.5, subdivision (a) enhancement could not be imposed because use of a firearm is an element of Penal Code section 246.
When an enhancement cannot be imposed, it is error to stay the enhancement; it must be stricken. (People v. Jones (1992) 8 Cal.App.4th 756, 758; People v. Ruiz (1992) 3 Cal.App.4th 1251, 1256.) Therefore, the trial court erred in imposing and then staying the section 12022.5 enhancement attached to count 1.