People v. Lampkin CA3 ( 2013 )

Filed 12/11/13 P. v. Lampkin 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yolo)
----
THE PEOPLE, C073189
Plaintiff and Respondent, (Super. Ct. No. CRF12575,
CRF115670, CRM111436)
v.
JARED RAY LAMPKIN,
Defendant and Appellant.
Defendant Jared Ray Lampkin pled no contest to spousal abuse and attempted
dissuading a witness and admitted he had served a prior prison term. The trial court
sentenced defendant to a term of eight years eight months. The sentence included a one-
year term for the prior prison term enhancement, which the trial court stayed. Defendant
appeals the judgment, contending the prior prison term enhancement should have been
stricken, not stayed. The People properly concede. We will modify the judgment
accordingly.
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BACKGROUND1
The issue in this case involved a one-year prior prison term enhancement which
the court stayed in the first of two cases. The defendant pled to the second case and
admitted a violation of probation in the first case. In sentencing defendant to a stipulated
term of eight years eight months on both cases, the enhancement in the first case was
stayed.
In January 2012, an information in case No. CRF115670 (the first case) charged
defendant with possession of methamphetamine and possession of narcotics
paraphernalia. The information also alleged defendant had previously served two
separate prior prison terms. Defendant pled no contest to the possession of
methamphetamine charge and admitted one prior prison term enhancement. In exchange
for his plea, the trial court granted defendant three years of probation.
In April 2012, an information in case No. CRF120575 (the second case) charged
defendant with false imprisonment by force or violence, inflicting corporal injury on a
cohabitant, making a criminal threat, two counts of attempted dissuading a witness,
subornation of perjury, misdemeanor child endangerment, resisting an officer, and being
under the influence of a controlled substance. The information further alleged defendant
had previously been convicted of spousal abuse and had previously served a prior prison
term. In addition, as a result of these charges, the prosecutor filed a violation of
probation petition.
The subornation of perjury charge was dismissed pursuant to Penal Code2
section 995. In the second case, defendant pled no contest to spousal abuse and one
count of attempted dissuading a witness. In addition, he admitted the prior prison term
1 The substantive facts underlying the convictions are not relevant to the sole
sentencing issue raised on appeal and are therefore not recounted here.
2 Undesignated statutory references are to the Penal Code.
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enhancement. The parties agreed to a stipulated term of eight years eight months. The
remaining counts were dismissed. Defendant admitted he had violated the terms and
conditions of his probation in the first case.
The trial court sentenced defendant in both cases in accordance with the plea to an
aggregate term of eight years eight months, calculated as follows: five years on the
spousal abuse conviction, plus one year consecutive for the prior prison term
enhancement; a consecutive term of two years for dissuading a witness, plus a
consecutive eight months (one-third the midterm) on the possession charge; and the court
imposed a one-year term for the prior prison term enhancement, stayed under section
667.5, subdivision (e).
DISCUSSION
Defendant contends the trial court erred in staying the one-year prior prison term
enhancement in the first case. The People concede the error. We agree and accept the
concession.
A trial court may not stay a one-year enhancement under section 667.5,
subdivision (b). (People v. McCray (2006) 144 Cal. App. 4th 258, 267.) Unless a statute
provides otherwise, once a prior prison term enhancement is found true, it is mandatory,
unless stricken. Striking or imposing the enhancement is the extent of the trial court’s
discretion. (People v. Langston (2004) 33 Cal. 4th 1237, 1241; People v. Haykel (2002)
96 Cal. App. 4th 146, 151; People v. Eberhardt (1986) 186 Cal. App. 3d 1112, 1122–1124.)
Failing “to impose or strike an enhancement is a legally unauthorized sentence subject to
correction for the first time on appeal.” (People v. Bradley (1998) 64 Cal. App. 4th 386,
391.) Accordingly, we will modify the judgment to strike the stayed enhancement.
DISPOSITION
The judgment is modified to strike the one-year prior prison term enhancement
(§ 667.5, subd. (b)), which was ordered stayed in case No. CRF115670, the first case.
The trial court shall prepare an amended abstract of judgment and forward it to the
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Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.
ROBIE , Acting P. J.
We concur:
BUTZ , J.
HOCH , J.
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