P. v. Barnes
Filed 9/11/13 P. v. Barnes 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JAMES BETRON BARNES,
Defendant
and Appellant.
E057544
(Super.Ct.Nos.
FVI1000094 &
FVI1201131)
OPINION
APPEAL
from the Superior Court
of
Bernardino County. John
P. Vander Feer, Judge. Affirmed as
modified.
Susan
L. Ferguson, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
In
case No. FVI1201131, a jury found defendant and appellant James Betron Barnes
148, subd. (a)), the lesser included offense of felony resisting an
executive officer (Pen. Code, § 69). The
trial court thereafter found defendant violated his probation in case No.
FVI1000094. In case No. FVI1201131,
defendant was sentenced to one year in county jail and given credit of 376 days
for time served. In case No. FVI1000094,
defendant’s probation was revoked and he was sentenced to a total term of eight
years in state prison with credit for time served. Defendant appeals from both cases. For the reasons explained
FVI1000094. In all other respects, we
affirm the judgment.
I
FACTUAL AND PROCEDURAL
BACKGROUND
In
February 2010, defendant pled guilty to transportation
of a controlled substance. (Health
& Saf. Code, § 11352, subd. (a).) He
also admitted that he had suffered one prior strike conviction (Pen. Code, §§
1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and three prior prison terms
(Pen. Code, § 667.5, subd. (b)). In
return, the remaining allegation was dismissed, and defendant was placed on
Proposition 36 probation pursuant to Penal Code section 1210.1, on various
terms and conditions, for a period of three years.
In
May 2012, defendant was arrested for resisting arrest and being under the
influence. The specifics of that case
are as follows: On May 4, 2012, San
Bernardino County Sheriff’s Deputy Brendan Mahoney was on routine patrol in the
City of Victorville when he was dispatched to an area on B Street. Upon arrival, he encountered someone yelling,
“‘That’s the guy. That’s him right there,’â€
while pointing at a man identified as defendant, hiding behind a vehicle. Deputy Mahoney told defendant to step away
from the vehicle and put his hands in the air.
Defendant complied, and the deputy saw that defendant was bleeding from
his nose and had a swollen left eye.
Defendant began walking
toward the deputy, and the deputy ordered defendant to turn around and place
his hands on the back of his head.
Defendant turned and began to walk away.
Deputy Mahoney ordered defendant to stay where he was and place his
hands on his head. Defendant, however,
continued to walk away. Deputy Mahoney
ordered defendant to get down on his knees.
Defendant fell or collapsed forward onto his stomach with his arms under
his chest, and continued to refuse to comply with the deputy’s directives to
take his hands out from underneath him.
Deputy Mahoney eventually
placed his right knee on defendant’s lower back and attempted to pull
defendant’s arm out from underneath him.
A struggled ensued, and the deputy called for back-up. When another deputy arrived, defendant was
still resisting. Following several knee
strikes to defendant’s rib cage and upper back areas by the deputies, defendant
stopped resisting and was handcuffed.
Medical assistance was called to the scene; however, defendant was
combative toward the medical technicians and tried to kick them.
On August 22, 2012, an
information was filed charging defendant with felony resisting an executive
officer (Pen. Code, § 69, count 1) and misdemeanor under the influence of a
controlled substance (Health & Saf. Code, § 11550, subd. (a), count 2).
defendant had suffered five prior prison terms.
(Pen. Code, § 667.5, subd. (b).)
A petition to revoke defendant’s probation in case No. FVI1000094
was also filed.
On October 12, 2012,
following a jury trial, defendant was convicted of the lesser included offense
of misdemeanor resisting arrest in violation of Penal Code section 148,
subdivision (a). Subsequently, the trial
court found defendant violated the terms of his probation in case
No. FVI1000094 based on the jury’s verdict.
The sentencing hearing was
held on November 9, 2012. In case
No. FVI1201131, defendant was sentenced to 365 days in county jail with
credit for time served in the amount of 376 days. In case No. FVI1000094, the court denied
probation and sentenced defendant to a total term of eight years in state
prison with credit for time served as follows:
the midterm of four years for the transportation of a controlled
substance offense (Health & Saf. Code, § 11352, subd. (a)), doubled to
eight years due to the prior strike. The
court also imposed one year terms for each of the three prior prison term
enhancements, but stayed sentence on those terms.
II
DISCUSSION
Defendant
appealed from both cases and, upon his request, this court appointed counsel to
represent him. Counsel has filed a brief
under the authority of
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. Langston (2004) 33 Cal.4th 1237, 1241 [“Once the prior prison term is
found true within the meaning of [Pen. Code, § 667.5, sub. (b)], the trial
court may not stay the one-year enhancement, which is mandatory unless
stricken.â€]; accord, People v. Campbell
(1999) 76 Cal.App.4th 305, 311; People v.
White Eagle (1996) 48 Cal.App.4th 1511, 1521; People v. Savedra (1993) 15 Cal.App.4th 738, 746-747;
117, 125-126.) Although a court has the
power to strike a prior prison term enhancement under Penal Code section 1385 (
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.) An unauthorized sentence discovered by an
appellate court is subject to correction.
(People v. White Eagle,
The trial court’s comments
at the sentencing hearing clearly indicated its intent to sentence defendant to
a total term of eight years on the probation violation case, and simply erred
in “staying†rather than “striking†the three prior prison term
enhancements. Accordingly, we will order
the prior prison term enhancements stricken rather than stayed.
III
DISPOSITION
The judgment is modified to
strike the three prior prison term enhancements relating to case No.
FVI1000094. The trial court is directed
to amend the November 9, 2012, minute order of the sentencing hearing and abstract
of judgment accordingly and forward a certified copy of the amended abstract to
the Department of Corrections and
Rehabilitation. In all other
respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
RICHLI
J.
name="_ftn1" title=""> [1] Defendant testified that his proper name is
James Bu-tron Barnes, Sr. However, the
majority of pleadings and the abstract of judgment refer to him as James Betron
Barnes
name="_ftn2" title=""> [2] The People later dismissed count 2.
