Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 07-6740, 07-3054
NICHOLSON, J.
On June 5, 2007, an officer stopped defendant Mark Edward Bennett who was riding his bicycle at night without a light. Defendant was arrested on outstanding warrants. A search of defendant’s bag revealed 1.025 grams of methamphetamine. In case No. 07-3054, defendant entered a no contest plea to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) in exchange for dismissal of the remaining counts and allegations and no state prison at the outset. The court suspended imposition of sentence and granted probation under Proposition 36 (Pen. Code, § 1210.1).
On November 9, 2007, defendant admitted that he violated probation in that he had failed to complete the drug treatment program. The court reinstated defendant on Proposition 36 probation.
On December 6, 2007, defendant and Christy Pacini were caught by officers who had responded to a call of a burglary in progress at the Spreckels Sugar Factory. Pacini had a piece of copper wire and defendant had a screwdriver set and socket. In the bushes where defendant had been hiding, officers found four file folders from the factory. Officers found a factory window open, a trash can full of copper wire, and a box full of copper tubing and wire. A transformer in the basement of the factory had been vandalized and the wires removed. A search of the car belonging to defendant or Pacini revealed toolboxes with tools and a pressure valve which had been removed from the water heater. Probation in case No. 07-3054 was revoked. In case No. 07-6740, defendant entered a negotiated plea of no contest to second degree burglary (Pen. Code, § 459) and admitted two prior prison term allegations (Pen. Code, § 667.5, subd. (b)) in exchange for dismissal of the remaining counts and no state prison at the outset. Defendant agreed that if he failed to appear for judgment and sentencing that he could be sentenced without regard to the terms of the plea agreement. On March 26, 2008, defendant failed to appear for sentencing.
On April 30, 2008, defendant was in custody and was served with bench warrants in case Nos. 07-3054 and 07-6740. On May 9, 2008, defendant admitted violating probation in case No. 07-3054 by failing to obey all laws. On June 4, 2008, the court sentenced defendant to state prison for an aggregate term of four years, that is, in case No. 07-6740, the midterm of two years for the burglary offense and a consecutive one-year term for one of the prior prison terms, and, in case No. 07-3054, a consecutive one-third the midterm or one year for transportation of methamphetamine.
Defendant appeals. His request for a certificate of probable cause (Pen. Code, § 1237.5) was denied.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. However, we find an error in sentencing (about which we requested supplemental briefing): In case No. 07-6740, when defendant entered his plea, he admitted two, not one, prior prison terms and the court sentenced only on one. Both defendant and the Attorney General agree: The court erred in failing to impose or strike the other prior prison term; remand is required; and double jeopardy bars a greater sentence on remand. We conclude that the court erred and remand is required. We do not agree that double jeopardy bars a greater sentence on remand.
In case No. 07-6740, the charging document as filed alleged only one prior prison term with respect to defendant under enhancement “a.” Enhancement “b” related to codefendant Pacini. The complaint, specifically enhancement “b,” was amended orally at the entry of plea hearing to provide instead: “enhancement for prison prior convicted on 3/17/1991.” The plea form reflects: “2 667.5(b) prison term prior 1 yr. enhance[ment] (a) & (b) - amend[ed].” At the entry of plea hearing, defense counsel explained further.
“[DEFENSE COUNSEL]: Your Honor, there are two past prison priors, and they are listed in the enhancement portion of the form. They are enhancements a and then there would be an amended b for a prior prison term, one-year enhancements each, and Mr.
“THE COURT: Wait a second. Then b
“[DEFENSE COUNSEL]: [Defendant] would admit those.
“THE COURT: Case Enhancement b would be amended not to allege a
“[DEFENSE COUNSEL]: A second prison prior.
“THE COURT: Is that correct?
“[PROSECUTOR]: That is correct, your Honor.
“THE COURT: What would be the dates of that prison prior?
“[PROSECUTOR]: I’m sorry, your Honor. I need just a moment. [¶] It would be January 18th of 2002.
“[DEFENSE COUNSEL]: That’s fine.
“[PROSECUTOR]: No. I’m sorry. That’s incorrect. That’s the one that’s alleged.
“[DEFENSE COUNSEL]: Oh, that’s true.
“[PROSECUTOR]: It would be 3-17 of ’91 out of Yolo County.
“THE COURT: 1991?
“[PROSECUTOR]: Yes.
“THE COURT: All right. And do you admit that you suffered two prison priors, one from a conviction January 18th 2002 and the other from March 17th, 1991?
“THE DEFENDANT: Yes, sir.”
At sentencing on June 4, 2008, and as reflected on the abstract of judgment, the court imposed one year for only one prior prison term. Neither the court nor the parties discussed the second prior prison term allegation that defendant had admitted. And the probation report incorrectly reflects that defendant admitted only one prior prison term allegation. The court simply was not reminded of and did not recall the additional prior prison term.
When a trial court finds a prior prison term allegation (Pen. Code, § 667.5, subd. (b)) to be true, the trial court must either impose the additional one-year term or strike the allegation. (People v. Irvin (1991) 230 Cal.App.3d 180, 190 (Irvin).) “The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal.” (People v. Bradley (1998) 64 Cal.App.4th 386, 391.) We are unable to correct the unauthorized sentence because the record does not reflect how the court intended to exercise its discretion. Limited remand is required.
We reject the claim that double jeopardy bars a greater sentence than the four-year aggregate sentence imposed. Defendant and the Attorney General both rely upon cases that present peculiar fact situations and do not involve a trial court’s failure to impose or strike a prior prison term. (People v. Torres (2008) 163 Cal.App.4th 1420 (Torres); People v. Mustafaa (1994) 22 Cal.App.4th 1305 (Mustafaa).)
In Torres, a jury convicted the defendant of attempting to dissuade a witness and criminal threats and found a gang enhancement true with respect to both counts. (Torres, supra, 163 Cal.App.4th at pp. 1421, 1424.) With the gang enhancement, the sentence for the dissuading offense increased from a triad of 16 months, two years, or three years, to seven years to life. The gang enhancement added five years to the same triad for the criminal threats offense. (Id. at p. 1424.) Although the offenses were serious, the defendant lacked a prior record and the court did not want to impose the seven years to life sentence. Without objection, the court imposed the upper term of seven years for criminal threats (an unlawful term) and stayed the midterm for the dissuading offense. Neither party appealed. (Id. at pp. 1424-1427.) When the Department of Corrections notified the court that it had imposed an unlawful sentence, the court resentenced the defendant to seven years to life. (Id. at pp. 1427-1428.) On appeal, the appellate court reversed, finding Mustafaa “nearly on point,” and concluding that the aggregate sentence originally imposed was not unlawful but was just arrived at unlawfully and that double jeopardy barred a greater sentence. (Id. at pp. 1432-1433.)
In Mustafaa, the defendant entered a plea of guilty, inter alia, to three counts of robbery and admitted personal use of a firearm in connection with each. (Mustafaa, supra, 22 Cal.App.4th at p. 1309.) In imposing an aggregate sentence of 17 years four months for the robbery counts and other counts, the trial court sentenced defendant to eight years for one robbery and its accompanying gun-use enhancement, concurrent terms for two other robberies, and, erroneously, consecutive terms for the two gun-use enhancements attached to the two robberies which were run concurrent. (Ibid.) Mustafaa remanded for resentencing. Without citation to authority or analysis, Mustafaa directed that the new term could not be greater than the term originally imposed, finding that the rule against double jeopardy applied “because the court imposed a legal aggregate sentence, only fashioning it in an unauthorized manner.” (Id. at pp. 1311-1312.)
Whatever the merit of Torres and Mustafaa, both cases are distinguishable on their facts. Further, the aggregate sentence originally imposed here was not authorized. Moreover, even Mustafaa recognized that the general rule of double jeopardy prohibiting a greater sentence on remand following an appeal was subject to the exception for an unauthorized sentence: “‘Such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.’ Examples of unauthorized sentences include... the failure to strike or impose an enhancement [citations].” (Mustafaa, supra, 22 Cal.App.4th at p. 1311, citing Irvin, supra, 230 Cal.App.3d at pp. 192-193.) That’s what we have here, a failure to strike or impose an enhancement resulting in an unauthorized sentence.
Defendant claims that at sentencing, “[t]he parties agreed that [defendant] would be sentenced to four years in state prison on both cases.” (Italics added.) The Attorney General claims that the trial court should resentence to no more than four years and that “doing so is equitable because although the probation report recommended a greater sentence and defense counsel acknowledged that a greater sentence could be imposed, the prosecutor agreed a four-year aggregate term would suffice and the court imposed the four-year aggregate term knowing it could have imposed more.” (Italics added.)
The probation report recommended the upper term of three years for the burglary offense, one year for the prior prison term (overlooking the other prior prison term), and a consecutive one year for the transportation offense. At sentencing on June 4, 2008, the prosecutor, responding to defense counsel’s request for leniency, agreed that defendant “could be” sentenced to a four-year sentence on both cases, commenting that defendant had “clearly shown he’s not amenable to probation nor deserving of a program.” In making their recommendations and comments, the probation officer, the prosecutor, defense counsel, and the trial court, all overlooked the other prior prison term allegation that defendant had admitted. There is no agreement barring the trial court from imposing the other prior prison term enhancement if it so chooses. Upon remand, without our expressing or implying a view as to whether or not to strike, if the court strikes the overlooked prior prison term (Pen. Code, § 667.5, subd. (b)), it must state its reasons for doing so. (Pen. Code, § 1385.)
DISPOSITION
The matter is remanded to the trial court for the limited purpose of allowing the trial court to either impose or strike the overlooked prior prison term. In all other respects, the judgment is affirmed.
We concur: SCOTLAND, P. J. SIMS, J.