NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
MATTHEW COBBS,
Defendant and Appellant.
|
F073842
(Super. Ct. No. 15CR00701)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Matthew Cobbs contends on appeal that his sentence is unauthorized. The People concede and we agree. Accordingly, we vacate the sentence and remand for resentencing. In all other respects, we affirm.
PROCEDURAL SUMMARY
On April 7, 2016, defendant pled no contest to two counts of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b);[1] counts 3 & 4) and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 5). He admitted personally using a firearm (§ 12022.5, subd. (a)) as to counts 3 and 4, and having served a prior prison term (§ 667.5, subd. (b)). Under the terms of the plea bargain, the remaining counts would be dismissed and defendant would be sentenced to a minimum of 12 years and a maximum of 15 years.
On May 6, 2016, the trial court sentenced defendant to 15 years in prison, as follows: six years (the midterm) on count 3 plus a four-year midterm firearm enhancement; two years (one-third of the midterm) on count 4 plus a three-year low-term firearm enhancement; three years (the upper term) on count 5, to be served concurrently; and a one-year prior prison term enhancement, to be served concurrently.
Defendant filed a notice of appeal, challenging the validity of the plea. The trial court granted a certificate of probable cause on the ground that defense counsel had guaranteed defendant would receive a 12-year sentence in return for his plea.
DISCUSSION
The parties correctly agree that the trial court’s sentence is unauthorized in two regards: the full-term firearm use enhancement on count 4 and the concurrent prior prison term enhancement.[2]
Section 1170.1, subdivision (a), which addresses aggregate sentencing of determinate terms, provides that “when any person is convicted of two or more felonies, … the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.”
I. Conduct Enhancement—Firearm Use
In general, enhancements are of two types: (1) conduct enhancements—or what section 1170.1 refers to as “specific enhancements”[3]—and (2) status enhancements. A conduct enhancement is based on the defendant’s conduct in committing the charged offense, such as his personal use of a weapon or his infliction of great bodily harm. (People v. Williams (2004) 34 Cal.4th 397, 402 (Williams).) A conduct enhancement specifically attaches to the term of imprisonment imposed for the underlying offense. The enhancement is added to and becomes part of that term. (Ibid. [conduct enhancements “enhance the several counts”].) When the enhancement is added to a principal term, the trial court must impose the full enhancement term. When the enhancement is added to a subordinate term, the trial court must impose one-third of the enhancement term. (§ 1170.1, subd. (a).)
When only one term is provided for an enhancement, the trial court must impose that full term when the enhancement is added to a principal term, and it must impose one-third of that full term when the enhancement is added to a subordinate term. However, when a triad of terms is provided for an enhancement, the trial court has the discretion to choose a term for the enhancement. Once the court chooses a term from the triad, it must impose that full term when the enhancement is added to a principal term, and it must impose one-third of that chosen term (which need not be the midterm) when the enhancement is added to a subordinate term. (Former § 1170.1, subd. (d) [“If an enhancement is punishable by one of three terms, the court shall, in its discretion, impose the term that best serves the interest of justice, and state the reasons for its sentence choice on the record at the time of sentencing.”]; People v. Hill (2004) 119 Cal.App.4th 85, 91 [“Where only one term may be imposed for the enhancement, the trial court must impose one-third of that term in calculating the sentence for a subordinate enhancement. [Citation.] But, when one of three terms is available, the trial court may choose the appropriate term in calculating the sentence enhancement, which includes not only the upper term but also the lower term, if warranted.”].)
Here, the trial court added a full three-year firearm use enhancement term (§ 12022.5, subd. (a)) to the subordinate (one-third) term on count 4. This enhancement term was error. The court was permitted to choose from the triad of 3, 4, or 10 years, and then impose one-third of that selected term. A full enhancement term was unauthorized because the term to which it was added was a subordinate term.
II. Status Enhancement—Prior Prison Term
Status enhancements go to the nature or status of the defendant in general, such as his criminal history of prior convictions and prior prison terms. A status enhancement is not specifically attached to a certain offense, but is instead added one time only to the total aggregate sentence for determinate terms, regardless of the number of counts. (Williams, supra, 34 Cal.4th at p. 402 [status enhancements “ ‘have nothing to do with particular counts but, since they are related to the offender, are added only once as a step in arriving at the aggregate sentence’ ”].) A status enhancement is not subject to the one-third term limitation of section 1170.1, subdivision (a), and must be imposed at full term. (§ 1170.1, subd. (a).)
A prior prison term enhancement must be imposed as a consecutive one-year term for each prior prison term served for any felony. (§ 667.5, subd. (b) [“where the new offense is any felony for which a prison sentence … is imposed … in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term … for any felony”], italics added; People v. Savedra (1993) 15 Cal.App.4th 738, 746-747 [concurrent term on § 667.5, subd. (b) enhancement was error].) Once a prior prison term allegation is found true, the trial court must either impose a consecutive one-year enhancement term pursuant to section 667.5, subdivision (b), or exercise its discretion to strike the allegation pursuant to section 1385. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) If the trial court exercises its discretion to strike the allegation, it must provide a statement of reasons for doing so. (§ 1385, subd. (a); People v. Jordan (2003) 108 Cal.App.4th 349, 368.)
In this case, the trial court’s imposition of a concurrent one-year prior prison term enhancement was error. On remand, the trial court shall either strike the prior prison term allegation pursuant to section 1385, subdivision (a), and state its reasons for doing so, or impose the enhancement term consecutively as required by section 667.5, subdivision (b).
DISPOSITION
The sentence is vacated and the matter remanded for the trial court to resentence the entire matter, in its discretion, and in a manner not inconsistent with this opinion. The sentence shall not be longer than 15 years. After resentencing, the trial court shall prepare a new abstract of judgment and forward certified copies to the appropriate entities. In all other respects, the judgment is affirmed.
* Before Gomes, Acting P.J., Detjen, J. and Franson, J.
[1] All statutory references are to the Penal Code unless otherwise noted.
[2] This issue may be addressed for the first time on appeal. (People v. Scott (1994)
9 Cal.4th 331, 354 [unauthorized sentence may be corrected at any time]; People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311 [“fashioning 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”].)
[3] Section 1170.11 provides: “As used in Section 1170.1, the term ‘specific enhancement’ means an enhancement that relates to the circumstances of the crime. It includes, but is not limited to, the enhancements provided in Sections 186.10, 186.11, 186.22, 186.26, 186.33, 192.5, 273.4, 289.5, 290. 4, 290.45, 290.46, 347, and 368, subdivisions (a) and (b) of Section 422.75, paragraphs (2), (3), (4), and (5) of subdivision (a) of Section 451.1, paragraphs (2), (3), and (4) of subdivision (a) of Section 452.1, subdivision (g) of Section 550, Sections 593a, 600, 667.8, 667.85, 667.9, 667.10, 667.15, 667.16, 667.17, 674, 675, 12021.5, 12022, 12022.2, 12022.3, 12022.4, 12022.5, 12022.53, 12022.55, 12022.6, 12022.7, 12022.75, 12022.8, 12022.85, 12022.9, 12022.95, 27590, 30600, and 30615 of this code, and in Sections 1522.01 and 11353.1, subdivision (b) of Section 11353.4, Sections 11353.6, 11356.5, 11370.4, 11379.7, 11379.8, 11379.9, 11380.1, 11380.7, 25189.5, and 25189.7 of the Health and Safety Code, and in Sections 20001 and 23558 of the Vehicle Code, and in Sections 10980 and 14107 of the Welfare and Institutions Code.” (Italics added.)
