Opinion
F075469
02-02-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ZAZUETA, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CR-04140)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. Frank Dougherty, Judge. (Retired Judge of the Merced County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Poochigian, J. and Smith, J.
-ooOoo-
Appointed counsel for defendant Anthony Zazueta asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant did not respond. We remand for the trial court to either impose or strike a prior prison term enhancement. In all other respects, we affirm.
We provide the following brief description of the factual and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On June 20, 2016, officers pursued defendant, a convicted felon, as he fled on a bicycle and then on foot. As they approached him, he reached for a loaded gun in his waistband and dropped it on the ground.
On January 3, 2017, the Merced County District Attorney charged defendant with being a felon carrying a loaded firearm in public (Pen. Code, § 25850, subd. (c)(1); count 1), being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 2), and resisting arrest (§ 148, subd. (a)(1), a misdemeanor; count 3). The information also alleged defendant had suffered two prior strike felony convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served two prior prison terms (§ 667.5, subd. (b)).
All statutory references are to the Penal Code.
On January 25, 2017, the trial court heard and denied defendant's Marsden motion for substitute counsel.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden). --------
On April 6, 2017, a jury found defendant guilty as charged. The trial court found the special allegations true.
The trial court sentenced defendant to three years in prison on count 1, doubled pursuant to the Three Strikes law, plus a one-year term for a prior prison term enhancement; three years on count 2, doubled pursuant to the Three Strikes law, stayed pursuant to section 654; and one year in jail on count 3. The court imposed various fines and fees and granted credits.
We believe the trial court found true two prior prison term allegations, and thus was required to either impose the second enhancement or strike it with a statement of reasons under section 1385. (People v. Langston (2004) 33 Cal.4th 1237, 1241 ["Once the prior prison term is found true within the meaning of section 667.5[, subdivision] (b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken."].) We will remand the matter for the trial court to either impose or strike the second one-year prior prison term enhancement.
Having reviewed the entire record, we find no other arguable issues on appeal.
DISPOSITION
The matter is remanded for the trial court to either impose or strike the second prior prison term enhancement (Pen. Code, § 667.5, subd. (b)). In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended minute order and abstract of judgment and forward certified copies to the appropriate authorities.