P. v. Meza CA4/2

Opinion

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E055895

v. (Super.Ct.No. SWF10002327)

JOSEPH STEVEN MEZA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside 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.

1 INTRODUCTION

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).)1 The People agree that two enhancements must 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.

FACTS 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.

1 All further statutory citations are to the Penal Code.

2 DISCUSSION

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 . . . .” (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.

3 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.”

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).”

As with the sentence enhancements, this court has inherent power to correct

clerical errors. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

DISPOSITION

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 [“U”] term and to check box 4 and

the appropriate sub-box to indicate that defendant was sentenced pursuant to “PC667(b)-

4 (i).” The clerk is further directed to forward a certified copy of the corrected abstract of

judgment to the Department of Corrections and Rehabilitation. In all other respects, the

judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON J.

We concur:

RAMIREZ P. J.

MILLER J.