Error and/or relief
The trial court erred when it imposed but stayed the enhancement for a prior serious felony (sec. 667(a)) that was not alleged, and when it imposed but stayed an enhancement for prior felony arson convictions (sec. 451.1(a)(1)). We can modify the judgment without a remand. We also strike fines from the abstract of judgment that the trial court had imposed but stayed because the defendant had no ability to pay.
First Holding:
A sentence is unauthorized when it includes punishment for a prior serious felony enhancement (sec. 667(a)) that was not alleged. A claim that a sentence is unauthorized may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court.
Authority:
PEN 1170.1(e)
People v. Anderson (2020) 9 Cal.5th 946, 953
People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6
People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17
Second Holding:
It is improper to stay the punishment for an enhancement, as opposed to striking it.
Authority:
People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17
People v. Lopez (2004) 119 Cal.App.4th 355, 364
Third Holding:
Because the court clearly indicated it would not impose these enhancements, remand is not required.
Authority:
People v. Salazar (2023) 15 Cal.5th 416, 431
Fourth Holding:
The oral pronouncement of a sentence controls over the abstract of judgment, and the trial court struck the fines and fees because of the defendant’s inability to pay. The abstract of judgment must be amended to conform to the oral judgment.
Authority:
People v. Hamed (2013) 221 Cal.App.4th 928, 937–938