P. v. Espinoza
A jury convicted defendant of attempted murder (count 1Pen. Code, 664, 187, subd. (a))[1]and assault with a deadly weapon (count 2 245, subd. (a)(1)). Additionally, the jury found true allegations that defendant had personally used a deadly weapon in his commission of the count 1 offense ( 12022, subd. (b)(1)) and had inflicted great bodily injury in his commission of both offenses ( 12022.7, subd. (a)). Thereafter, defendant admitted that he had suffered a prior conviction for burglary on October 6, 2004, which was alleged as a strike prior, prior serious felony, and the underlying basis for a prior prison term enhancement. ( 667, subds. (a), (c) & (e)(1), 667.5, subd. (b).) The court imposed an indeterminate sentence of 14 years to life plus a determinate sentence of 10 years consisting of the following: the seven-year-to-life midterm on count 1, doubled pursuant to the strike prior; a consecutive three-year term for the great bodily injury enhancement; a consecutive one-year term for the deadly weapon enhancement; a consecutive five-year term for the prior serious felony; and a consecutive one-year term for the prior prison term. As to count 2, the court sentenced defendant to the midterm of three years, doubled pursuant to the strike prior, and a consecutive three-year term for the great bodily injury enhancement; however, the court stayed imposition of sentence on count 2 and its enhancement pursuant to the dictates of section 654. On appeal, defendant contends the court erred in imposing sentence on the prior prison term enhancement because his sentence had already been enhanced for the same conviction from which that prison term was derived. The People concede the issue. Court agree and, therefore, remand the matter to the trial court with directions to strike the one-year enhancement imposed for defendants prior prison term. In all other respects, the judgment is affirmed.
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