People v. Douglas CA3

Filed 7/29/14 P. v. Douglas CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Glenn) ----

THE PEOPLE, C074154

Plaintiff and Appellant, (Super. Ct. No. 12NCR09557)

v.

CALVIN WAYNE DOUGLAS, JR.,

Defendant and Respondent.

This is a People’s appeal after the trial court sentenced defendant Calvin Wayne Douglas, Jr., to state prison for an aggravated term of four years for inflicting corporal injury on a cohabitant and imposed but stayed all but one consecutive one-year term for defendant’s prior prison term enhancements. (Pen. Code,1 § 667.5, subd. (b), hereafter section 667.5(b).)

1 Undesignated statutory references are to the Penal Code.

1

The People contend the trial court imposed an unauthorized sentence when it stayed five of the consecutive one-year prison terms. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) The People ask that we remand to the trial court with instructions to hold a new sentencing hearing and either impose or strike the prior prison term enhancements. Defendant concedes the error, but argues the record reflects the trial court would have stricken the five enhancements if the correct terminology had been used and on that basis, asks us to strike the enhancements. We remand for the limited purpose of resentencing on the prior prison term enhancements, allowing the trial court to exercise its discretion to impose or strike the enhancements. BACKGROUND Defendant was charged with inflicting corporal injury on a cohabitant, first degree burglary, and kidnapping. The information further alleged nine separate prior prison term allegations. In a section of the information entitled “punishments,” the information indicated defendant was subject to “an additional and consecutive term of one year” for the prior prison term allegations. A jury found defendant guilty of inflicting corporal injury and not guilty of residential burglary. On defendant’s motion, the court granted a motion for acquittal on the kidnapping charge. The trial court found seven of the nine alleged prior prison term allegations true.2 The probation report recommended a sentence that included one additional consecutive one-year term for each prior prison term enhancement found to be true. At sentencing, the parties argued about whether the court should sentence on all six prior prison term allegations. The People argued each should be a separate one-year