People v. Montes CA2/4 ( 2023 )

Filed 7/7/23 P. v. Montes CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B318207
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA358831
v.
ERICK MONTES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Renee F. Korn, Judge. Reversed and
remanded with directions, affirmed in all other respects.
Ava R. Stralla, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Peggy Z. Huang, Deputy
Attorneys General, for Plaintiff and Respondent.
Appellant Erick Montes appeals after a resentencing
hearing. He first contends that the trial court failed to exercise
its discretion under Senate Bill No. 567 (2021-2022 Reg. Sess.)
(SB 567) when resentencing him on count 2, for assault with a
semiautomatic firearm. However, appellant failed to object or
seek clarification below, rendering this issue forfeited on appeal.
Even if we were to reach the merits of appellant’s argument, we
would conclude that the record shows the court exercised its
discretion.
Appellant also contends, and respondent Attorney General
agrees, that the trial court erred by staying rather than striking
or dismissing several gang and firearm enhancements. We agree
this was error that resulted in an unauthorized sentence and
thus is not forfeited on appeal. The trial court may stay an
enhancement only when doing so is required by statute; it may
not do so in the furtherance of justice or for other discretionary
reasons. We accordingly remand with directions for the trial
court to strike or dismiss rather than stay the Penal Code1
section 186.22, 12022.5, and 667, subdivision (a) enhancements
or punishments therefor. The matter is otherwise affirmed.
FACTUAL BACKGROUND
This brief overview of the facts is based on those recited in
the opinion in appellant’s direct appeal by a different panel of
this court, People v. Montes ((May 21, 2015, B254824) [nonpub.
opn.].
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
Around midnight on April 26, 2009, E.T.2 picked up his
teenage daughter, B.T., and two of her friends from their high
school prom. After dropping off the second of B.T.’s friends
around 1:15 a.m., E.T. needed to make a left turn to exit the
friend’s residential neighborhood, which happened to be in
Rascals gang territory. E.T. saw a white BMW coming toward
him and decided to let the car pass before turning.
Instead of passing E.T.’s car, the BMW stopped alongside
it, with the BMW driver’s open window directly across from E.T.’s
open window. The driver, whom E.T. later identified as
appellant, began yelling obscenities at E.T. Frightened, E.T.
drove forward to pass the car and complete the left turn. He and
B.T. then heard gunshots. Their car was riddled with
approximately 13 bullets, and 21 nine-millimeter casings were
later recovered from the scene. Ballistics analysis revealed that
the casings came from two different semiautomatic firearms,
though appellant was the only person E.T. and B.T. saw in the
BMW. One of the bullets struck E.T. in the left leg, causing
permanent damage and partial paralysis. B.T. was not physically
injured.
At trial, evidence established that appellant was a member
of the Toonerville gang, which was a rival of the Rascals. An
expert opined that a hypothetical shooting mirroring the facts of
the case would have been committed to further the gang and
promote gang activity.
2 We refer to the victims using initials to protect their
privacy. (See Cal. Rules of Court, rule 8.90(b)(4).)
3
PROCEDURAL HISTORY
I. Charges
The People filed a four count-information against appellant
on December 23, 2009. Count 1 charged appellant with the
attempted willful, deliberate and premeditated murder of E.T. (§§
664, 187, subd. (a); count 1.) Count 2 charged appellant with
assaulting B.T. with a semiautomatic firearm (§ 245, subd. (b)),
and included an allegation that appellant personally used a
semiautomatic firearm (§ 12022.5, subd. (a)). Count 3 charged
appellant with shooting at an occupied motor vehicle (§ 246), and
count 4 charged him with unlawful possession of a firearm by a
felon with two prior convictions (former § 12021, subd. (a)(1)).
The information alleged that all four counts were
committed for the benefit of, at the direction of, and in
association with a criminal street gang with the specific intent to
promote, further, and assist in criminal conduct by gang
members (§ 186.22, subd. (b)(1)(C) [counts 1-3], § 186.22, subd.
(b)(1)(A) [count 4]), and counts 1, 2, and 3 were subject to
sentencing under section 186.22, subdivision (b)(4). The
information further alleged as to counts 1 and 3 that a principal
personally and intentionally discharged a firearm, proximately
causing great bodily injury to E.T. (§ 12022.53, subds. (b)-(e)),
and that appellant personally inflicted great bodily injury upon
E.T. (§ 12022.7, subd. (a)). The information additionally alleged
that appellant suffered a prior strike conviction (§§ 1170.12,
subds. (a)-(d), 667, subds. (b)-(i)), a prior serious felony conviction
(§ 667, subd. (a)(1)), and one-year prison prior (§ 667.5, subd. (b)).
II. Conviction and Sentence
Appellant proceeded to jury trial in July 2011. The court
declared a mistrial after the jury reported a deadlock of 11–1 in
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favor of guilt. The People elected to retry appellant, and a second
trial commenced in July 2012. The jury rejected appellant’s alibi
defense and found him guilty as charged. It also found all the
enhancement allegations true, including the allegation that
appellant personally used a firearm during the commission of the
assault charged in count 2. Appellant waived his right to jury
trial on the prior convictions and subsequently admitted them.
After the second trial, appellant began representing himself
and filed a motion for new trial. The trial court, Judge Anne
Egerton, heard and denied the motion on February 10, 2014 and
sentenced appellant the same day. The court sentenced
appellant to seven years to life on count 1, doubled to 14 years to
life due to the strike. The court also imposed a consecutive
sentence of 25 years to life for the section 12022.53, subdivision
(d) enhancement, and imposed and stayed sentences on the other
enhancements on count 1. It also imposed five years for the prior
serious felony conviction, bringing appellant’s total sentence on
count 1 to five years plus 39 years to life. On count 2, the court
selected the upper term of nine years “because of the victim’s
vulnerability and because Mr. Montes was on federal parole,
essentially, at the time of the crime.” The court doubled the
sentence to 18 years due to the strike, and ordered it to run
consecutively to the sentence on count 1. The court imposed a
consecutive midterm sentence of four years for the section
12022.5 personal use enhancement, and additional consecutive
terms of five years for the gang enhancement and prior serious
felony convictions, bringing appellant’s total sentence on count 2
to 32 years. The court imposed and stayed midterm sentences on
counts 3 and 4 and their related enhancements.
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A different panel of this court affirmed appellant’s
convictions on direct appeal. (People v. Montes (May 21, 2015,
B254824) [nonpub. opn.].) Appellant did not challenge his
sentence at that time.
III. Resentencing
A. Request for Recall and Resentencing
By letter dated August 10, 2018 and filed August 24, 2018,
the Department of Corrections and Rehabilitation (CDCR)
requested recall of appellant’s sentence pursuant to former
section 1170, subdivision (d) (subsequently renumbered to section
1170.03 and currently codified at section 1172.1). CDCR notified
the court that People v. Le (2015) 61 Cal.4th 416 (Le) “held that a
trial court is precluded from imposing both an enhancement for
personal use of a firearm under Section 12022.5 (a)(1) and a
serious felony gang enhancement under Section 186.22(b)(1)(B)
when the offense qualifies as a serious felony solely because it
involved firearm use.” CDCR noted that both enhancements
were applied to appellant’s sentence on count 2. It recommended
that the court recall appellant’s sentence and resentence him.
B. Notice of Hearing and Written Filings
On August 8, 2019, the trial court, Judge Renee Korn,3 filed
a notice of resentencing hearing. The court indicated that it had
reviewed the available records and tentatively determined that
the section 12022.5 enhancement on count 2 “should be stayed.”
The court set the matter for a hearing to give the parties an
opportunity to be heard. It also added that the law regarding
five-year prison prior enhancements under section 667,
3Judge Egerton, who presided over appellant’s trial and
sentenced him in 2014, was appointed to the Court of Appeal in
2017.
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subdivision (a) had changed effective January 1, 2019, and
invited the parties to present argument on that issue as well.
On December 20, 2019, appellant, through appointed
counsel, filed a resentencing memorandum. He asserted that
changes in the law afforded the trial court discretion to strike
both his five-year prison prior enhancements and the firearm
enhancements, and requested that the court exercise its
discretion in favor of striking the enhancements. Appellant
asked the court to “consider the progress he has made towards
rehabilitation,” and provided the court with numerous laudatory
chronos and certificates of achievement he earned during his
incarceration, as well as academic transcripts and a letter of
recommendation from his political science professor.
The People filed a resentencing memorandum on January
7, 2020. They conceded the applicability of Le, supra, 61 Cal.4th
416 and requested that the court strike the five-year sentence
imposed under section 186.22, subdivision (b)(1)(B) and replace it
with the high term of four years under section 186.22, subdivision
(b)(1)(A). The People also acknowledged that the court had the
discretion to strike the five-year priors and firearm
enhancements, though they made no express argument regarding
the court’s exercise of that discretion. Instead, they requested
that the court continue the matter so they could present the court
with a more complete picture of appellant’s conduct while in
custody.
Two days later, on January 9, 2020, appellant filed a letter
to the court dated December 23, 2019. In the letter, appellant
stated he was “taking accountability for my actions and my
participation in this crime,” and admitted to driving the vehicle
from which two other members of his gang shot at E.T. and B.T.
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Appellant relayed various traumas he endured as a child and
young adult, including the loss of two cousins to gang violence,
the stillbirth of his son, and the death of his grandmother.
Appellant stated that he formerly “wanted everyone to feel my
pain,” but recently began “taking an active role in my
transformation” by participating in rehabilitative groups and
services in prison. He stated that he was taking classes to earn
an associate’s degree and was doing well in his employment.
Appellant asked the court to “take a look at the work I’ve been
doing to better myself and take it into consideration when you
resentence me.”
The matter was continued several times, initially at the
request of the parties but also due to the Covid-19 pandemic and
the appointment of new counsel for appellant.
On January 19, 2021, appellant in propria persona filed a
motion to dismiss all the enhancement allegations pursuant to
Los Angeles County District Attorney George Gascón’s Special
Directives 20-08 and 20-14.
C. Resentencing Hearing
After several more continuances, but no additional filings,
the court held the resentencing hearing on January 31, 2022.
By this point, several additional changes to the sentencing law
had taken effect, including SB 567, which amended section 1170,
subdivision (b)(2) to provide that where an offense has a
sentencing triad, “The court may impose a sentence exceeding the
middle term only when there are circumstances in aggravation of
the crime that justify the imposition of a term of imprisonment
exceeding the middle term, and the facts underlying those
circumstances have been stipulated to by the defendant, or have
been found true beyond a reasonable doubt at trial by the jury or
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by the judge in a court trial.” (§ 1170, subd. (b)(2).) The parties
did not brief or seek permission to brief for the trial court this or
any other change in the sentencing law that took effect after their
resentencing memoranda were filed in late 2019 and early 2020.
At the outset of the lengthy hearing, the court commented
that although the need for resentencing arose “because the law
changed in the case of People v. Le,” “once you open that door, all
principles of sentencing come in.” The court continued, “this is
not a discussion by this court of using my discretion to lower the
sentence that Judge Egerton provided. There will be a lowering
of the sentence because the law, case law and actual law, has
changed. I have discretion in places that Judge Egerton did not,
but we’re going to focus on that rather than on what she imposed
at the time. That was her discretion. That’s still discretionary.
The court is going to follow her lead. She heard the trial, and I
think that is an important concept.” The court reiterated, “as far
as what Judge Egerton said that was in her discretion, that’s still
in her discretion. We’re not going to focus on that. Just as kind of
rules for everybody to understand, this is really taking care of
what has changed in the law since the time of her sentence to Mr.
Montes back in 2014.”
Following these remarks, the court expressly asked
appellant’s counsel if there was “anything that has been said here
in court that you dispute, as far as how we’re going to conduct
resentencing.” Counsel indicated that he thought it was
unnecessary for the victims to make statements at the
resentencing, because their previous statements were available to
the court. He also stated, “I think the only thing that can be
added post-sentencing is Mr. Montes’s conduct while in custody.
That’s the only variable that I think has changed.” Counsel did
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not mention any of the numerous legislative changes to the
sentencing law that had been made since 2014, including SB 567.
He also did not make any comments after the court again stated,
“Where I believe Judge Egerton made findings that are still in
play, as far as midterm, low term, high term, and those things
have gone unchanged, the court is going to make that finding.
The court will specifically actually let the parties argue as to
whether [section] 1385 as it was changed in January applies to
this case. I don’t believe it’s retroactive. I’m certainly going to
hear from the parties as to that.”4
After this exchange, the court heard unsworn statements
from E.T. and B.T. about the April 26, 2009 shooting and the
continuing effects it had on their lives. It then heard sworn
testimony from Sergeant Luis Vaca, a correctional officer at
appellant’s prison, about the dangers of cell phones in prisons
and three occasions on which a contraband cell phone was found
in appellant’s cell. Vaca also testified about data downloaded
from one of the recovered cell phones, which showed that
appellant exchanged text messages with a known gang member
and possessed a credit card and a Facebook account while
incarcerated. The Facebook account included postings such as,
4 Effective January 1, 2022, Senate Bill No. 81 (2021-2022
Reg. Sess.) (SB 81) amended section 1385 to require the trial
court to dismiss sentencing enhancements “if it is in the
furtherance of justice to do so” and would not endanger public
safety. (See § 1385, subd. (c).) SB 81 also added to section 1385 a
list of mitigating circumstances for the court to consider when
exercising its discretion to dismiss enhancements. (See § 1385,
subd. (c).) Under the statute, the changes effected by SB 81
“apply to all sentencings occurring after January 1, 2022.”
(§ 1385, subd. (c)(7).)
10
“FUCK THESE CROOKED ASS COURTS!!!!” and gang-related
postings, such as a photo of a “choo train.” The court admitted
into evidence a report containing some of the postings. The
parties also stipulated that appellant denied the shooting during
trial and stated that he “probably [would] not” admit to it even if
he committed it.
Prior to hearing argument, the court noted that the parties
agreed appellant was entitled to a five-year reduction in his
sentence on count 2. The court then stated that its tentative was
to re-impose the 25-years-to-life section 12022.53, subdivision (d)
enhancement on count 1, because “[t]he jury found him to be the
shooter.” On count 2, the court said it was inclined to “use my
discretion to not sentence him” on the section 12022.5
enhancement. The parties’ subsequent arguments focused
almost exclusively on appellant’s behavior in prison and whether
it warranted reduction of his sentence.
Appellant’s counsel argued that the court should depart
from its tentative and strike the section 12022.53 enhancement
on count 1. He asserted that appellant would still be serving a
sentence of 25 years to life without the enhancement, “so it
wouldn’t be giving him a get-out-of-jail-free card.” Instead,
striking the enhancement “would just give him a carrot . . . to
continue on the path he’s been going.” During the People’s
response, the prosecutor asked the court, “Given the ground rules
that the court said, you’re not going to go back and change Judge
Egerton’s sentencing, high term/low term. You’re not doing that.”
The court responded, “I’m not.” The People then argued that they
did not think the court “can really do anything on count 2,”
particularly the section 12022.5 enhancement.
11
The court disagreed. It stated, “once the resentencing is
open, the court can consider everything. For example, I can
consider his behavior in state prison. It is something the court
can consider.” The court later reiterated this point multiple
times.
The prosecutor contended that the court should not strike
the five-year priors because appellant’s illicit behavior in prison
and the timing of his laudatory chronos suggested his
rehabilitative efforts were not genuine. The court asked
appellant’s counsel if he wanted to be heard. Counsel argued
that all change must begin sometime and the laudatory chronos
were consistent with appellant’s “classes and courses and
whatnot.” Counsel then stated, “That’s it. Submitted.”
The court then stated that it wanted to “talk about the
changes to the law that became effective in 2022, so if there is an
appellate decision regarding this sentencing here in court today,
that the appellate court knows that I did review those changes to
the law and considered them here in court for his sentencing.” It
continued, “I want to make it clear that this is the court’s
decision, that I am using what has changed in the law since the
time he was sentenced, and I am going to consider the letter he
wrote, I’m going to consider the classes he’s taken, I am going to
consider what has been presented. I’m also going to consider
what’s not been presented, the fact that certainly we don’t have
any information as to his behavior in CDCR for the entirety of
the time period. In fact, we really have nothing as of 2020. [¶] I
note, I am considering the fact that he had a cell phone on not
one, but three occasions. The court does find that to be a
violation, and a serious violation of the policies within state
prison. [¶] Additionally, the court notes that Penal Code section
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1385 has been changed considerably, but I note it’s not
retroactive. It is the first time, in all of the changes of the law
that have been coming forth since August 2017, that the . . .
Legislature has actually used the word[ ] ‘retroactive.’”
The court did not identify SB 567 or section 1170 by name
or number, but it continued: “The court notes that that section
allows the court to – or provides that the People would have to
present factors in aggravation to a jury to get the high term.
That was not the law at the time his trials were done, and it’s
only been the law since January 1st of this year. The court is not
going to apply it based upon that. The court is going to make its
determinations really, in big part, on what Judge Egerton made
her findings to.”
Without further comment from the parties, the court
provided another tentative. On count 1, it stated it planned to
impose “the high term,”5 doubled for the strike, and was “taking
out the 186.22, but the court is sentencing him under 12022.53
(d).” The court explained that “Judge Egerton chose the correct
application of 12022.53, and it is this court’s determination that
that indeed remains the correct firearms use that should be
reflected against the defendant in this case.”
Regarding count 2, the court stated that there was “a
significant number of firing on that car [sic]. However, on the
12022.5, I have discretion, and I’m going to use that discretion to
not impose the 12022.5 on count 2, because I believe it’s
subsumed in the 12022.53 [on count 1]. I think the 25-to-life on
5 Appellant correctly notes that there is no sentencing
triad for attempted willful and premeditated murder; the
prescribed sentence is life in prison with the possibility of parole
after seven years. (See §§ 664, subd. (a), 3046, subd. (a)(1).)
13
that count really does in many ways include the firing on [B.T.]
as well. So he will have a reduction in his sentence from the four
years on the 12022.5 . . . .” The court further stated that it
planned to double appellant’s base sentences under the Three
Strikes law, but “[b]ecause of the strike prior, the court is not
going to impose the 667(a) priors. . . . I believe the remaining
sentence in this case is still significant, still protects the
community, but reflects our 2022 values, which are the values I
have to abide by at this juncture.”
Before formally pronouncing sentence, the court asked the
parties if they wanted to say anything further. Both parties
declined the opportunity.
On count 1, the court imposed the required term of seven
years to life, doubled to 14 years to life due to appellant’s prior
strike. The court imposed an additional consecutive 25 years to
life pursuant to section 12022.53, subdivision (d), but stated it
was “staying the 12022.53 (b), the 12022.53 (c) in this case.” The
court also stayed the “667(a) prior,” and “the 12022.7, as it was
stayed at the time of his sentencing, and which is also within the
new sentencing guidelines, that the defendant is only to be
sentenced to one enhancement, that enhancement being
12022.53, along with the strike finding.”
The court continued: “As to count 2, violation of Penal
Code section 245 (b), assault with a semiautomatic weapon, on
that count the court notes that I am imposing, as did Judge
Egerton, the high term of nine years, doubled pursuant to 667(b)
through (i) and 1170.12(a) through (e). I am using my discretion
here as well, and if discretion changes on this, I’m using my
discretion here now to find that that is appropriate. And that’s
for 18 years in state prison. [¶] The court notes that, again, the
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186.22 as to count 1 and count 2 is stayed.” The prosecutor
interjected to ask for clarification, and the court reiterated that it
was staying the section 186.22 enhancement on count 2. It
continued, “The court is also staying the 12022.5 as to count 2,
and the 667(a) – if I misspoke and said 677(a) [sic] on count 1, it’s
667(a) on both, and it’s stayed on count 1 and count 2.” It
clarified that appellant’s overall sentence was 39 years to life on
count 1, and 18 years on count 2. This was a reduction of 19
years from appellant’s original sentence.
On count 3, the court imposed and stayed the midterm, and
on count 4 it imposed the midterm of two years concurrently.
The prosecutor asked if the court was going to incorporate Judge
Egerton’s findings and sentence selections on the stayed counts,
“with the exception of what the court has specifically changed?”
The court responded, “Correct, and indicating where I’ve stayed
portions of the sentence.” Appellant’s counsel made no comment.
The court directly asked appellant if he had any questions, and
he said no.
Appellant timely appealed.
DISCUSSION
I. Exercise of Discretion
Appellant contends that the trial court “failed to exercise
its discretion as to imposing sentence on count two under SB
567’s amendment to section 1170, subdivision (b) at the January
31, 2022 resentencing hearing.” He argues that “even though the
court said it was using its discretion to impose the nine-year
upper term . . ., it appears the court stayed with the trial court’s
sentence on count two because SB 567’s amendment to section
1170, subdivision (b) was not in effect in 2014.” He asserts that
the court should have “provided further explanation as to why it
15
was or was not exercising its discretion pursuant to the new laws
as of 2022.”
Appellant did not raise any of these objections in the trial
court, even after the trial court made remarks regarding SB 567
and invited counsel to comment on those remarks and its
tentative ruling. Appellant could have, but did not, request
clarification, make any legal argument, or otherwise object to the
sentence on count 2. His failure to do so forfeited the appellate
challenge here. (See People v. Anderson (2023) 88 Cal.App.5th
233, 241-242, review granted Apr. 19, 2023, S278786 [finding
forfeiture where appellant failed to raise SB 567]; People v. Brach
(2002) 94 Cal.App.4th 571, 577, quoting People v. Scott (1994) 9
Cal.4th 331, 354 [“Claims of error relating to sentences ‘which,
though otherwise permitted by law, were imposed in a
procedurally or factually flawed manner’ are waived on appeal if
not first raised in the trial court.”].)
Even if the argument were preserved, the record indicates
that the court recognized and exercised its discretion when
imposing sentence on count 2. The court expressly stated that it
had reviewed the recent changes to the sentencing law and
“considered them here in court for his sentencing.” It also
remarked several times throughout the hearing that the jury
found appellant was the shooter, which is a circumstance in
aggravation that may be used to impose an upper-term sentence.
(See Cal. Rules of Court, Rule 4.21(a).) The court stated that
although it imposed the same high term sentence Judge Egerton
originally imposed, “I am using my discretion here as well, and if
discretion changes on this, I’m using my discretion here now to
find that that is appropriate.” Appellant suggests the court was
“not completely aware it had discretion to apply SB 567’s
16
amendment to section 1170, subdivision (b) to count two,” but
these comments indicate the opposite.6 To the extent there was
any confusion in light of other comments the court made,
appellant had an obligation to seek clarification or otherwise
bring the issue to the court’s attention.
II. Stay of Enhancements
Appellant also contends the court erred by staying rather
than striking enhancements under sections 186.22, 667,
subdivision (a), and 12202.5.7 Respondent largely agrees, as do
we.
Section 1385 authorizes the trial court to “strike or dismiss
an enhancement” or “the additional punishment for that
enhancement in the furtherance of justice.” (§ 1385, subd. (b)(1).)
“The trial court has no authority to stay an enhancement, rather
than strike it—not, at least, when the only basis for doing either
is its own discretionary sense of justice.” (People v. Lopez (2004)
119 Cal.App.4th 355, 364; see also People v. Bay (2019) 40
Cal.App.5th 126, 139.) “Rather, the only authority for staying an
enhancement is California Rules of Court, rule 4.447, which
applies when ‘an enhancement that otherwise would have to be
either imposed or stricken is barred by an overriding statutory
prohibition. In that situation—and that situation only—the trial
court can and should stay the enhancement.’” (People v. Bay,
6 Appellant contends only that the court failed to exercise
its discretion. We offer no opinion on whether the court exercised
its discretion appropriately.
7 In his opening brief, appellant also contends the court
erred by staying the section 12022.7 enhancement on count 1. In
his reply brief, however, he agrees with respondent that this
enhancement properly was stayed. (See People v. Vega (2013)
214 Cal.App.4th 1387, 1395-1396.)
17
supra, 40 Cal.App.5th at p. 139, quoting People v. Lopez, supra,
119 Cal.App.4th at p. 365.)
Here, the court indicated that it was using its discretion to
“stay” the section 667, subdivision (a) five-year prior
enhancements on counts 1 and 2 and the section 186.22 and
12022.5 enhancements on count 2, giving appellant a resultant
sentence reduction of 19 years. The court had the discretion to
reduce appellant’s sentence, but not by staying the
enhancements. Instead, it was required to either strike the
enhancements or the punishments therefor. We remand with
directions for the court to either strike these enhancements or the
punishments for these enhancements.
Respondent also asserts that there is some ambiguity as to
whether the court intended to stay the section 186.22
enhancement on count 1. We disagree. The court stated that it
was staying the section 186.22 enhancement on both counts 1
and 2, and these stays are reflected in the minute order and
abstract of judgment. Respondent notes that the court also said,
“I’ll stay it as to count 2,” and “that will make it clear,” but those
comments do not implicate or change its earlier comments
regarding count 1. Accordingly, the court shall also either strike
this enhancement or the punishment therefor on remand.
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DISPOSITION
The matter is reversed in part and remanded with
directions for the trial court to strike or dismiss the
enhancements under sections 186.22, 12022.5, and 667,
subdivision (a), or the punishments therefor. The superior court
clerk is to deliver copies of the amended abstracts of judgment to
the Department of Corrections and Rehabilitation. The matter is
otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, ACTING, P.J.
ZUKIN, J.

Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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