Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County.No. F07905129, W. Kent Hamlin, Judge.
Marcia Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Charles A. French and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Kane, J., and Poochigian, J.
A jury convicted appellant, Nicholas Jose Ybarra, of two counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664; counts 1, 2), two counts of assault with a firearm (§ 245, subd. (a)(2); counts 3, 4), and single counts of shooting at an inhabited dwelling (§ 246; count 5) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 6). The jury also found true allegations of the following: in committing counts 1, 2, and 5, appellant personally and intentionally discharged a firearm, within the meaning of section 12022.53, subdivision (c); in committing count 5, he personally and intentionally discharged a firearm thereby causing great bodily injury, within the meaning of section 12022.53, subdivision (d); in committing counts 3 and 4, he personally used a firearm, within the meaning of section 12022.5, subdivision (a); and he committed counts 1 through 5 for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)). In a separate proceeding, appellant admitted allegations that he had suffered a prior conviction of robbery that qualified as both a serious felony conviction under section 667, subdivision (a), and as a “strike, ” and that he had served a prison term for a prior felony conviction of the offense commonly known as petty theft with a prior, in violation of section 666 (§ 667.5, subd. (b)).
Except as otherwise indicated, all statutory references are to the Penal Code.
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
The court struck the strike allegation and imposed the following sentence: on count 5, an indeterminate term of 45 years to life, consisting of 15 years to life on the substantive offense, 25 years to life on the section 12022.53, subdivision (d), enhancement, and five years on the prior serious felony enhancement; and on count 1, a determinate 42-year term, consisting of seven years on the substantive offense, 20 years on the section 12022.53, subdivision (a), enhancement, 10 years on the gang enhancement, and five years on the prior serious felony enhancement. The court imposed a concurrent 42-year term on count 2, calculated in the same manner as the count 1 term, and on each of counts 3 and 4, the court imposed a term of 28 years, calculated as follows: three years on the substantive offense, 10 years on the gang enhancement, 10 years on the firearm-use enhancement, and five years on the prior serious felony conviction. The court stayed execution of sentence on the count 3 and 4 offenses and accompanying enhancements pursuant to section 654. On count 6, the court imposed a concurrent two-year term. The court did not impose sentence on the prior prison term enhancement (§ 667.5, subd. (b)).
As indicated above, the court imposed five-year prior serious felony conviction enhancements in connection with each of counts 1 through 5. On appeal, appellant’s sole contention is that the court erred in imposing those enhancements in connection with counts 2, 3, and 4. The People concede the point. We will strike the challenged enhancements. In addition, we will vacate the remainder of the sentence and remand for resentencing, with directions to the trial court to either impose or strike the prior prison term enhancement.
This court previously informed the parties that it had tentatively determined the trial court, in failing to impose sentence on, or strike, the prior prison term enhancement, had imposed an unauthorized sentence, and invited briefing on the issue pursuant to Government Code section 68081. Neither party submitted additional briefing.
DISCUSSION
Prior Serious Felony Enhancement
In People v. Tassell (1984) 36 Cal.3d 77 (Tassell), overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401, our Supreme Court held that enhancements that relate to the nature of the offender, such as those for prior convictions, should be added only once to increase the aggregate term of multiple determinate sentences. (Tassell, supra, 36 Cal.3d at pp. 89-92.) As the court explained, section 1170.1, subdivision (a), “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.)
In People v. Williams (2004) 34 Cal.4th 397, 401-402, the California Supreme Court held this limitation did not apply to multiple indeterminate sentences imposed under the three strikes law, and that a prior serious felony enhancement should be added to each indeterminate sentence. Our high court reasoned as follows: Tassell’s restriction was derived from the language of the determinate sentencing statute (§ 1170.1) and not on the language or legislative history of the prior conviction enhancement statute; section 1170.1 was applicable to determinate sentences only; the three strikes scheme requires that enhancements be added as separate determinate terms; and adding the enhancement for each new offense was consistent with the logic of the three strikes law which separately increases the sentence imposed for each new felony conviction. (People v. Williams, supra, 34 Cal.4th at pp. 402-405.)
In People v. Misa (2006) 140 Cal.App.4th 837, 844-847 (Misa), Division One of the Court of Appeal, Fourth Appellate District, applied the Williams rationale to require imposition of a prior serious felony enhancement on both an indeterminate term and a determinate term for a defendant who was subject to the three strikes law because he had suffered one strike. The indeterminate term in Misa was based on the statutory penalty for torture. (Misa, supra, 140 Cal.App.4th at p. 846.) The Court of Appeal concluded that “a similar analysis” to that employed in Williams applied to a defendant with one strike who was not subject to an indeterminate sentence under the three strikes law, but rather, subject to an indeterminate sentence because of his torture conviction. (Id. at pp. 846-847.) The appellate court held that “[a]lthough [the defendant] was a second strike defendant rather than a third striker, he is nonetheless a recidivist and... is thus subject to a prior conviction enhancement under section 667, subdivision (a) on the torture count even though he also received a similar enhancement relating to the assault count.” (Id. at p. 847.)
Based on Tassell, Williams, and Misa, we conclude, and the parties agree, as follows: The court correctly imposed five-year prior serious felony enhancements as to both count 5, for which appellant received an indeterminate sentence, and count 1, for which he received a determinate sentence. However, such enhancements may not be imposed on multiple determinate terms, and the court also imposed determinate terms on counts 2, 3, and 4. Therefore, the prior serious felony enhancements imposed as to counts 2, 3, and 4 constitute an unauthorized sentence, and must be stricken.
Prior Serious Felony Enhancement
Where a prior prison term enhancement allegation has been admitted or found true, a trial court must either impose the enhancement or strike it pursuant to section 1385. (People v. Langston (2004) 33 Cal.4th 1237, 1241 [prior prison term enhancement is “mandatory unless stricken”]; People v. Campbell (1999) 76 Cal.App.4th 305, 311 [“the court must either impose the prior prison enhancements or strike them”].) “The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal. [Citations.]” (People v. Bradley (1998) 64 Cal.App.4th 386, 391.)
Section 1385, subdivision (a), provides: “The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes.” Section 1385, subdivision (c)(1), provides: “If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).” “[T]he power of a trial court to dismiss an action under... section 1385 includes the power to strike an enhancement.” (People v. Herrera (1998) 67 Cal.App.4th 987, 991.)
We must reverse the unauthorized sentence and remand for resentencing. (People v. Bradley, supra, 64 Cal.App.4th at p. 400.) On remand, the trial court must either strike appellant’s prior prison term enhancement pursuant to section 1385 or impose that enhancement.
DISPOSITION
The five-year Penal Code section 667, subdivision (a), prior serious felony enhancement terms imposed in connection with each of counts 2, 3, and 4 are stricken. The sentence, as so modified, is vacated, and the matter is remanded to the trial court for resentencing. On remand, the trial court is directed to either impose the prior prison term enhancement or strike it pursuant to Penal Code section 1385. In all other respects, the judgment is affirmed.