P. v. Meza
Filed 6/25/13 P. v. Meza 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
JOSEPH STEVEN MEZA,
Defendant
and Appellant.
E055895
(Super.Ct.No.
SWF10002327)
OPINION
APPEAL
from the Superior Court
of
County. Mark E.
Johnson, Judge. Affirmed with
directions.
Allen
G. Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and
Warren Williams, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
Joseph Steven Meza appeals as error the trial court’s order to stay, rather
than strike, two prison-prior sentence enhancements. (Pen. Code § 667.5, subd. (b).)
be stricken. Defendant also points out
two clerical errors in the abstract of judgment. Again, the People agree that the clerical
errors should be corrected. We will
order the necessary modifications to the judgment and the abstract.
and procedural history
On
October 13, 2011, a jury
found defendant guilty of one count of lewd conduct with a person under the age
of 14. (§ 288, subd. (a).) In a separate proceeding on the same date,
defendant admitted seven prison-prior allegations. (§ 667.5, subd. (b).)
On March 2, 2012,
the court sentenced defendant to a total of 21 years in state prison,
calculated as follows: for the current conviction the upper term of eight
years, doubled because of a strike prior, plus one consecutive year for each of
the seven prison priors, less two of the prison-prior enhancements (numbers two
and five) stayed pursuant to section 654.
The two enhancements were stayed on advice of the People, who told the
court that defendant’s first and second prior convictions had resulted in just
one commitment because the sentence on one of them had been stayed pursuant to
section 654. The same was true as to his
fourth and fifth prison priors.
Defense counsel
did not object to any part of defendant’s sentence.
Defendant
first argues that two of the seven one-year sentence enhancements the court
imposed should have been stricken rather than stayed. Defendant is correct.
Section
667.5 Enhancement Corrections:
Subdivision
(b) of section 667.5 provides that “[W]here 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 [served] . . . for any felony[.]†The limit inherent in this provision is
reiterated in subdivision (e): “The additional penalties provided for prior
prison terms shall not be imposed for any felony for which the defendant did
not serve a prior separate term
in state prison . . . .â€
(Italics added.) The enhancements
authorized under section 667.5 are based on prison terms imposed and completed,
“alone or in combination with concurrent or consecutive sentences for other
crimes[.]†(§ 667.5, subd. (g).) “Courts have consistently recognized that
this statutory language means that only one enhancement is proper where
concurrent sentences have been imposed in two or more prior felony cases.†(People
v. Jones (1998) 63 Cal.App.4th, 744, 747, and cases cited therein; see also
People v. Riel (2000) 22 Cal.4th
1153, 1203.)
Here,
because defendant’s first and second, and fourth and fifth, prior convictions
resulted in concurrent sentences, the duplicate prison-prior enhancements for
his present offense must be stricken rather than stayed. (Jones,
supra, 63 Cal.App.4th at p.
750.) Although the matter could be
remanded to the trial court for re-sentencing, this court also has the power to
modify the judgment to correct a sentencing error. (§ 1260; People
v. Alford (2010) 180 Cal.App.4th 1463, 1473.) In the interest of judicial economy, we will
do so.
Clerical
Corrections to the Abstract of Judgment:
Defendant
also points out that the abstract of judgment contains two clerical errors,
both of which must be corrected to reflect the trial court’s oral
pronouncement. Again, he is correct.
In pronouncing
sentence the court said, “So the court . . . does choose
the upper term of eight years on Count 2.
Now, that’s doubled by operation of the strike to 16 years.†The minute order indicates that the court
imposed “the UPPER term of 16 years.â€
However, the abstract of judgment fails to note, in section 1, whether
the sentence represents the “L, M, [or] U†[low, middle, or upper] term. In addition, box
4 on the abstract should be checked to indicate whether
defendant was sentenced “pursuant to PC667(b)-(i) or PC1170.12 (two-strikes).â€
As with the
sentence enhancements, this court has inherent power to correct clerical
errors. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
The
judgment is modified to strike, rather than stay, the second and fifth section
667.5 subdivision (b) enhancements. The
clerk of the Superior Court is directed to correct the abstract of judgment as
follows: To reflect the modification
identified above by omitting the second and fifth enhancements listed in
section 3 and to indicate in section 1 that defendant was sentenced to the upper
[“Uâ€] term and to check box 4 and the appropriate sub-box to indicate that
defendant was sentenced pursuant to “PC667(b)-(i).†The clerk is further directed to forward a
certified copy of the corrected abstract of judgment to the
affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P.
J.
MILLER
J.
name="_ftn1" title=""> [1] All further statutory citations are to the
Penal Code.
