P. v. Diego
A jury convicted Roberto J. Diego of assault with a deadly weapon (Pen. Code,[1] § 245, subd. (a)(1)) and found that Diego inflicted great bodily injury within the meaning of section 12022.7, subdivision (a) and did so to promote, further and assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1).
The trial court found the alleged prison prior (§ 667.5, subd. (b)) to be not true but found true allegations that Diego had suffered a serious felony prior conviction (§ 667, subd. (a)(1)) and a strike prior (§ 667, subds. (b)-(i)).
At the time of sentencing the trial court struck the "strike" prior and the gang enhancement. The court then denied probation and selected the lower term of two years for the offense. The court then imposed three years consecutively for the great bodily injury enhancement and five years consecutively for the serious felony prior conviction for a determinate term of 10 years in prison.
Diego appeals challenging only the sentence imposed for the offense. He argues the case must be remanded for resentencing because the trial court did not understand it had discretion to strike the great bodily injury enhancement. We find the argument wholly without merit and affirm.
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