Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA081639, Kelvin D. Filer, Judge.
Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, P. J.
FACTS, PROCEDURAL HISTORY & CONTENTION
On October 4, 2005, David Vasquez hit, kicked, and stomped on Patricia Roberts for 10 minutes near Figueroa Street and 92nd Street. In January 2006, the People filed an information charging Vasquez with aggravated mayhem (count 1), and assault by means likely to produce great bodily injury (GBI), with an allegation that he personally inflicted GBI (count 2). In August 2006, a jury convicted Vasquez of count 2 (assault), and found the infliction of GBI allegation true, but deadlocked on count 1 (mayhem). The trial court declared a mistrial. In January 2007, the People reprosecuted the mayhem count to a second jury, which found Vasquez guilty. Vasquez thereafter admitted that he been convicted of a prior strike, a prior serious felony, and a prior felony with a prison term. Last year, we reversed Vasquez’s mayhem conviction on the ground that Vasquez’s trial counsel at his second trial had been ineffective for not pursuing a defense based on evidence showing Vasquez was intoxicated when he attacked Roberts. (People v. Vasquez (Jan. 21, 2009, B201293) [nonpub. opn.].)
On remand, the prosecutor stated that the People would agree to dismiss count 1 (mayhem), subject to a proposed sentence of 17 years on count 2 (aggravated assault) as follows: an upper term of four years, doubled to eight years for Vasquez’s prior strike, plus a consecutive term of five years for his prior serious felony, plus a three year consecutive term for the infliction of GBI finding, plus a consecutive term of one year for his prior felony with a prison term. Vasquez’s counsel submitted that it was the trial court’s decision to determine Vasquez’s sentence. The prosecutor indicated that, in the event the trial court did not find the proposed 17-year sentence appropriate, the People would request that the matter be put “back on the trial calendar.” The prosecutor further advised that Roberts had stated the basis “for her not wanting to come forward [was] that she was satisfied with the 17 years state prison sentence.” After a further short discussion with the lawyers, the trial court sentenced Vasquez to an aggregate 17 years in state prison in accord with the proposed sentencing formula proposed by the People.
On appeal, Vasquez argues, the People concede, and we agree that the one-year term imposed for his prior felony with a prison term (see Pen. Code, § 667.5, subd. (b)), should not have been imposed in addition to the five-year term imposed for his prior serious felony (see Pen. Code, § 667, subd. (a)), because both terms were based on the same prior conviction. (See People v. Jones (1993) 5 Cal.4th 1142, 1150.) In short, the one-year term should be stricken. (Id. at p. 1153.)
DISPOSITION
Vasquez’s sentence is ordered modified by striking the one-year term imposed for his prior felony with a prison term (Pen. Code, § 667.5, subd. (b)). The trial court is directed to prepare a corrected abstract of judgment and shall forward copies to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: FLIER, J. GRIMES, J.