Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD209809, Frank A. Brown, Judge.
McCONNELL, P. J.
Miles Courtney Weaver entered a negotiated guilty plea to selling cocaine (Health & Saf. Code, § 11370.2, subd. (a)). Weaver admitted he had a prior serious/violent felony conviction (Pen. Code, § 667, subd. (b)-(i)), had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b), and had two prior drug convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a). The trial court sentenced Weaver to the upper term of five years on the sales count, dismissed the strike conviction and the prior prison term, and stayed three-year enhancements for each of the prior drug convictions. The court awarded Weaver a total of 61 days of credit—41 actual days plus 20 days pursuant to Penal Code section 4019.
Weaver appeals, contending the court erred by staying rather than striking the two prior drug conviction enhancements, and in the interest of judicial economy this court should strike them. Weaver also contends that he is entitled to 85 additional presentence credits.
FACTS
On October 18, 2007, San Diego police officers were conducting a buy/bust operation near the 1600 block of Market Street. Codefendant Alfonso Foster sat down on a bus bench next to Officer Michael Day, who was working undercover. When Day told Foster that his drug deal had fallen through, Foster asked Day how much he wanted to buy. Day responded that he wanted $100 worth. Foster borrowed Day's cell phone and, after he finished the conversation, told Day he would be able to obtain $100 worth of rock cocaine from a friend.
Day and Foster walked to the Workman Hotel on J Street. Day gave $110 in prerecorded bills to Foster who then walked up to a chain-link fence in the hotel's parking lot. Weaver was on the other side of the fence. Foster kneeled down and set $100 on the ground, keeping $10 for himself. Weaver picked up the money and counted it before dropping a clear plastic baggie on the ground. Inside the baggie were several pieces of an off-white substance, which tested positive for cocaine base. When police arrested Weaver, he had $100 worth of the prerecorded bills.
DISCUSSION
Weaver contends the two prior drug conviction enhancements must be stricken, not stayed, and, as a matter of judicial economy, we should strike the enhancements rather than remand the case to the trial court to exercise its discretion under Penal Code section 1385. The Attorney General correctly concedes that a trial court must either impose or strike such an enhancement; the court cannot impose the enhancement and then stay its execution. (People v. McCray (2006) 144 Cal.App.4th 258, 267-268.)
The Attorney General contends the proper remedy is to remand the matter back to the trial court to allow it to exercise its discretion as to the enhancements. Indeed, that was the course followed in McCray. (People v. McCray, supra, 144 Cal.App.4th at pp. 267-268.) Although the record indicates that the trial court was uncertain whether it had the authority to strike the prior drug conviction enhancements, the better course is to remand the case to the trial court so it can exercise its discretion to strike or impose the enhancements.
Weaver also contends that he is entitled to an additional 85 days of presentence custody credits. The Attorney General concedes this point. (People v. Bruner (1995) 9 Cal.4th 1178, 1191.)
DISPOSITION
The case is remanded to the trial court so that it may exercise its discretion to strike the Health and Safety Code section 11370.2, subdivision (a) enhancements pursuant to Penal Code section 1385 or impose them. If the court strikes the prior drug conviction enhancement, it shall set forth its reasons in an order entered upon the minutes. (People v. Bonnetta (2009) 46 Cal.4th, 143.) The trial court shall amend the abstract of judgment accordingly. Also on remand, the court shall amend the abstract of judgment to reflect an additional 85 days of presentence custody credit. The court shall forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
WE CONCUR: NARES, J., McDONALD, J.