P. v. Atkins

Filed 10/16/08 P. v. Atkins CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Sherrill A. Ellsworth, Judge. Affirmed as modified.

Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

I

FACTUAL AND PROCEDURAL BACKGROUND

On December 16, 2006, following an argument with his temporary roommate,^[1]defendant, without permission, took his roommates car and failed to return it to her. Two days later, defendant called the roommate and told her that he had run the car into a ditch. The vehicle was recovered about four days after defendant took it. The car had been totaled and stripped.

On June 26, 2007, an information was filed charging defendant with one count of vehicle theft with a prior conviction. (Veh. Code, 10851; Pen. Code, 666.5, subd. (a).) The information also alleged that defendant had suffered two prior prison enhancements. (Pen. Code, 667.5, subd. (b).)

On September 4, 2007, defendant, represented by counsel, pled guilty to the charge and admitted the enhancement allegations; in return, he was promised a stipulated prison term of two years in state prison. On October 19, 2007, defendant sought to withdraw his plea based on disagreements in calculating custody credits. A conflicts panel attorney was thereafter appointed. On November 30, 2007, defendant withdrew his motion to withdraw his guilty plea.

On December 6, 2007, defendant was sentenced in accordance with the negotiated plea agreement with credit of a total of 284 days for time served.

II

DISCUSSION

Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief, which he has not done.

We have now concluded our independent review of the record and find no arguable issues. However, we do find a sentencing error, which we will correct by modification.

The trial court erred in staying rather than striking the prior prison term enhancements. (People v. Calhoun (1983) 141 Cal.App.3d 117, 125-126.) Although a court has the power to strike a prior prison term enhancement under Penal Code section 1385 (People v. Brady (1998) 64 Cal.App.4th 386, 391, fn. 2; Calhoun, at pp. 124-125), a court does not have the power under Penal Code section 1385 to stay a prior prison term enhancement (Calhoun, at pp. 124-125). Thus, the staying of the prior prison term enhancements was an unauthorized sentence. (See People v. Irvin (1991) 230 Cal.App.3d 180, 192-193; People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1588-1589.)

Accordingly, we will order the prior prison term enhancements stricken rather than stayed.

III

DISPOSITION

The prior prison term enhancements are stricken rather than stayed, and the trial court is ordered to prepare and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P.J.

MILLER

J.

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^[1] The factual background is taken from the preliminary hearing transcript.