People v. Guevara-Mendez CA2/6

Filed 9/23/24 P. v. Guevara-Mendez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B332803 (Super. Ct. No. 2022009806) Plaintiff and Respondent, (Ventura County)

v.

LENAY GUEVARA-MENDEZ,

Defendant and Appellant.

Lenay Guevara-Mendez appeals from the judgment after the trial court terminated probation and sentenced her to six years in county jail. Guevara-Mendez contends the trial court made two sentencing errors. We agree, and remand. FACTUAL AND PROCEDURAL HISTORY In exchange for a maximum possible sentence of 10 years four months, Guevara-Mendez pleaded guilty to selling, transporting, or offering to sell fentanyl (Health & Saf. Code, § 11352, subd. (a); count 1) and to possessing fentanyl for sale (Health & Saf. Code, § 11351; count 2). She also admitted that she was personally armed with a firearm (Pen. Code, § 12022,

subd. (c)) when she committed count 2. The trial court suspended imposition of sentence and ordered Guevara-Mendez to serve two years of formal probation. As conditions of probation, the court suspended Guevara-Mendez’s driver’s license for one year and ordered her not to possess any controlled substances, marijuana, or dangerous weapons. The trial court subsequently terminated probation after finding that Guevara-Mendez drove without a valid license and possessed methamphetamine, marijuana, and four pocketknives. The People requested that the court impose consecutive middle-term sentences on counts 1 and 2 plus a consecutive term on the firearm enhancement. The court instead sentenced Guevara-Mendez to six years in county jail: the low term of three years on count 1, a concurrent three years (the middle term) on count 2, and a consecutive three years (the low term) on the firearm enhancement. With respect to the enhancement, the court said it had “no choice” but to impose it and run it consecutively to the sentence imposed on count 1. DISCUSSION Guevara-Mendez contends, and the Attorney General concedes, the trial court: (1) imposed an unauthorized sentence when it ordered the firearm enhancement to count 2 to run consecutive to the sentence imposed on count 1, and (2) erred when it failed to exercise its discretion to strike or impose the enhancement. We agree with both contentions. “Enhancements are . . . additional terms of imprisonment added to the base term. Enhancements are of two types: those [that] specifically attach to the term of imprisonment imposed for an underlying offense[,] and those [that] add generally to the aggregate term of imprisonment.” (People v. Mustafaa (1994) 22