PEOPLE v. GREENE

No. C082711.

THE PEOPLE, Plaintiff and Respondent, v. DANIEL RAY GREENE, Defendant and Appellant.

Court of Appeals of California, Third District, Shasta.


NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

NICHOLSON, Acting P. J.

At around midnight on September 16, 2015, Redding Police Officer Nolan Guiducci was patrolling in the Win-River Casino parking lot when he saw a blue 1994 Honda Accord. Officer Guiducci ran the license plate number on his computer and learned the car was reported stolen. After waiting in the parking lot for about two hours, he saw the Honda drive away. Officer Guiducci and another officer in a different patrol car pursued the Honda and conducted a vehicle stop. Defendant Daniel Raye Greene was the driver. No keys were found in the Honda, and the owner reported that there were no keys in the car when it was taken.

A jury convicted defendant of unlawfully driving or taking a vehicle. (Veh. Code, § 10851.) The trial court sustained allegations of a prior vehicle theft conviction and five prior prison terms. (Pen. Code, §§ 667.5, subd. (b), 666.5.)1 The court sentenced defendant to a five-year split term consisting of two years six months in county jail and two years six months of supervised release, imposed various fines and fees, and awarded two days of custody credit.

Defendant appeals.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting us to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.

There is an error in sentencing resulting in an unauthorized sentence. At sentencing, the trial court imposed a five-year term consisting of an upper term of four years for the vehicle theft and a consecutive one-year term for one of the prison priors, while staying punishment on the remaining four prison priors.

A trial court does not have authority to stay sentence on a prison prior. "Once the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken. [Citations.]" (People v. Langston (2004) 33 Cal.4th 1237, 1241.) If the trial court exercises its discretion to strike the allegation, it must provide a statement of reasons for doing so. (§ 1385, subd. (a); People v. Jordan (2003) 108 Cal.App.4th 349, 368.)

The trial court gave reasons for imposing its sentence, noting that defendant was intelligent and capable, having obtained an automotive A.A. degree, but had not remained crime free. It also found defendant had a methamphetamine addiction and wanted to make sure "that some efforts were made to give him a hand in beating that." It therefore intended to impose a four-year upper term for the crime, split between two years in jail and two years of supervised release and to impose one additional year, split between jail and supervised release, based on one of the prison priors, resulting in a split term of five years in all.

In light of the court's stated reasons for the sentence, it would be a waste of judicial resources to remand for resentencing on the prison priors. We therefore modify the judgment to strike the four stayed prison priors, leaving the court's five-year, split term intact.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is modified to strike the four prior prison term enhancements (§ 667.5, subd. (b)) that were stayed by the trial court. In all other respects, the judgment is affirmed.

BUTZ, J. and HOCH, J., concurs.

FootNotes


1. Undesignated statutory references are to the Penal Code.

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