Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF116376. James M. Stuart, Judge.
Alister McAlister, 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, Assistant Attorney General, Wanda Hill Rouzan and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Levy, J. and Dawson, J.
After obtaining a search warrant, police searched appellant’s home and found four pounds of marijuana, $1,835 in cash, two scales, Ziploc bags, some methamphetamine, and a loaded .380-caliber semi-automatic firearm. A jury found appellant guilty of possession of marijuana for sale (Health & Saf. Code, § 11359; count 1) while armed with a firearm (Pen. Code, § 12022, subd. (a)(1)), possession of a controlled substance while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a); count 2), and possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1); count 3). The jury found him not guilty of possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1); count 4).
All subsequent section references are to the Health and Safety Code unless otherwise stated.
The court sentenced appellant as follows: two years on count 2 (§ 11370.1, subd. (a)), a concurrent term of 16 months on count 1 (§ 11359) enhanced by one year pursuant to Penal Code section 12022, subdivision (a)(1), and 16 months on count 3 (Pen. Code, § 12021, subd. (a)(1)), with the count 3 sentence stayed pursuant to Penal Code section 654. According to the abstract of judgment, appellant’s total sentence was three years. This was composed of the two years on the count 2 conviction plus the one-year Penal Code section 12022, subdivision (a)(1) enhancement imposed on the count 1 conviction.
APPELLANT’S CONTENTION
Appellant contends that the one-year count 1 Penal Code section 12022, subdivision (a)(1) enhancement could not lawfully be ordered to be served consecutively when the count 1 sentence itself (16 months on the § 11359 conviction) was ordered to be served concurrently. Respondent concedes the error.
APPELLANT MUST BE RESENTENCED
In People v. Mustafaa (1994) 22 Cal.App.4th 1305, the court stated: “Mustafaa asserts the trial court erred in imposing consecutive terms for the gun-use enhancements in counts I and V, while imposing concurrent terms for the robbery convictions in the same counts. He is correct . [¶] … The court … determined to impose the terms for these robbery convictions concurrently, but to impose the terms for the corresponding personal gun-use enhancements attached to these counts consecutively. This was error. [¶] … [¶] The procedure for sentencing a person convicted of two or more felonies does not contemplate imposing an enhancement separately from the underlying crime.… [¶] … [¶] … The personal gun-use enhancements to which he admitted were not separate crimes and cannot stand alone. Each one is dependent upon and necessarily attached to its underlying felony. In separating the felony and its attendant enhancement by imposing a concurrent term for the felony conviction and a consecutive term for the enhancement the court fashioned Mustafaa’s sentence in an unauthorized manner under the sentencing procedure. We must therefore remand for resentencing. [¶] … [F]ashioning a sentence in a manner which is unauthorized by law exceeds the jurisdiction of the court and may be the subject of later review even though no objection was made in the trial court. [Citation.]” (People v. Mustafaa, supra, 22 Cal.App.4th at pp. 1309-1311.) See also People v. Smith (1985) 163 Cal.App.3d 908, 913-914: “We conclude that [Pen. Code] section 12022, subdivision (a), does not set forth a separate offense but rather constitutes additional punishment for an offense for which a person is convicted and to which it applies. [¶] … [O]ne cannot be punished for the enhancement separately from the underlying offense.”
We observe that in this case the court imposed a more lenient sentence than the three years and 8 months recommended in the probation officer’s report. The report recommended a middle term of three years on count 2 (punishable by two, three or four years), plus a consecutive eight months on count 1 (one third of the middle term of two years). The court stated: “[W]hat I come down to in my initial analysis is to take Count 2, give him the low term of two years, and on Count 1 give him the low term of 16 months concurrent plus a year under 12022, and on Count 3 give him the low term of 16 months, stay it under 654, and it comes out to three years. That’s what I was thinking.” The court then did exactly that. We note that it appears the court could have imposed a lawful 3-year sentence by imposing the middle term of three years on count 2 and then imposing a concurrent sentence (not exceeding 3 years) on count 1.
DISPOSITION
The matter is remanded for resentencing. In all other respects the judgment is affirmed.