Error and/or relief
We modify the sentence by vacating the trial court’s stay of punishment for the firearm enhancement and instead strike the punishment.
First Holding:
After taking the defendant’s admission to the firearm enhancement, the trial court did not impose additional punishment for it. Instead, the trial court incorrectly imposed and stayed the low term of three years for the firearm enhancement. Generally, a court has no discretion to stay an enhancement.
The court must either impose or strike the enhancement. Under section 1385(b)(1), the court may also strike the punishment, instead of the enhancement itself. The trial court’s stay of the enhancement resulted in an unauthorized sentence.
Authority:
PEN 1385(b)(1)
People v. Haykel (2002) 96 Cal.App.4th 146, 151
People v. Lopez (2004) 119 Cal.App.4th 355, 364-365
People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1122–1123
People v. Bradley (1998) 64 Cal.App.4th 386, 391
Second Holding:
A resentencing hearing is unnecessary because the correction does not require resolving a factual dispute or exercising discretion. The trial court did not intend to dismiss the firearm enhancement because an admission to it was required by the plea agreement. Nor did the trial court intend to impose additional punishment for the firearm enhancement.
The record clearly supports the court’s intention to strike the punishment for the enhancement had it known a stay was not possible. We accordingly modify the sentence by vacating the trial court’s order that imposed and stayed the three-year term for the firearm enhancement as to count 1. We further modify the sentence to comply with the terms of the plea agreement by striking the punishment for the firearm enhancement pursuant to section 1385(b)(1).
Authority:
PEN 1260
People v. Vieira (2005) 35 Cal.4th 264, 294
People v. Alford (2010) 180 Cal.App.4th 1463, 1473