People v. Lee CA3

Filed 11/10/21 P. v. Lee CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C091520

Plaintiff and Respondent, (Super. Ct. No. STK-CR- FECOD-2019-0007198) v.

MISTER LEE,

Defendant and Appellant.

Defendant Mister Lee pleaded no contest to pimping (Pen. Code, § 266h, subd. (a))1 and being a felon in possession of a firearm (§ 29800, subd. (a)(1)). Defendant also admitted an enhancement for having been convicted of a felony for the benefit of a street gang (§ 186.22, subd. (b)(1)(A)). In sentencing, the trial court imposed and stayed the

1 Further undesignated statutory references are to the Penal Code.

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gang enhancement. Defendant appeals on the basis that such action was improper because the law required the trial court to either impose or strike the gang enhancement. Defendant argues we should strike the enhancement in accordance with the terms of the plea. The People agree the enhancement must be imposed or stricken but contend we must remand this matter to the trial court to exercise its discretion to impose or strike the gang enhancement. We conclude the trial court did exercise its discretion. Accordingly, we shall strike the punishment for the gang enhancement. BACKGROUND The underlying facts of defendant’s crimes are not relevant to this appeal. Defendant pleaded no contest to pimping and being a felon in possession of a firearm. Defendant also admitted the gang enhancement. During discussion of the terms of the plea, the trial court repeatedly reassured defendant he would only be sentenced to a total of four years four months.2 Specifically: “You’re agreeing to four years four months. You will not get anything more than four years four months.” With regard to the gang enhancement, the trial court stated: “[I]f you enter this plea today when we come back for sentencing I’m going to impose a term on the gang enhancement and I’m gonna strike it, which means that you don’t serve that term.” Further, when defendant asked whether the enhancement would cause him to have something “hanging over [his] head” the trial court responded: “No, what it does is this: I’m going to impose a certain time, it’s two, three or four years, and then I’m gonna strike the punishment.” The trial court sentenced defendant to the upper term of three years on the charge of being a felon in possession of a firearm. Defendant received one year and four months