P. v. Pickett
Filed 5/20/08 P. v. Pickett CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS PICKETT, Defendant and Appellant. | B198564 (Los Angeles County Super. Ct. No. BA309079) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Morris Jones, Judge. Affirmed in part, reversed in part and remanded for resentencing.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
An information filed on October 10, 2006 alleged that defendant and appellant Douglas Pickett committed the crime of possessing cocaine base for sale (Health & Saf. Code, 11351.5) and of carrying a dirk or dagger (Pen. Code, 12020, subd. (a)(4)). The information also alleged that defendant had suffered eight prior convictions within the meaning of Penal Code section 667.5, subdivision (b). On March 21, 2007, a jury found Pickett guilty of the lesser offense of possession of a controlled substance (Health & Saf. Code, 11350, subd. (a)) and of carrying a dirk or dagger. The trial court sentenced Pickett on April 6. Pickett waived his right to a jury trial on his eight prior convictions alleged under Penal Code section 667.5, subdivision (b), and admitted that he suffered them. The court then sentenced Pickett to the midterm of two years on the possession count plus eight months for carrying a dirk or dagger. The court imposed two 1-year terms under Penal Code section 667.5, subdivision (b), and stayed sentence on the remaining six enhancements.
Pickett now contends, and the People concede, that the trial court erred in staying sentence on the remaining Penal Code section 667.5, subdivision (b), enhancements. A court may either impose the enhancement or strike it under Penal Code section 1385; it may not be stayed. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) Remand is appropriate to permit the court to exercise its discretion to impose or to strike the enhancements.
DISPOSITION
The matter is reversed and remanded solely to allow the trial court to exercise its discretion to impose or to strike the Penal Code section 667.5, subdivision (b), enhancements. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KLEIN, P. J. CROSKEY, J.
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