Filed 8/3/16 P. v. McRae CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                   DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                            D068666

         Plaintiff and Respondent,

         v.                                                            (Super. Ct. No. SCD261763)

KEVIN McRAE, JR.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Louis R. Hanoian, Judge. Affirmed in part; reversed in part and remanded with

directions.

         Cindy Brines, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney

General, Eric A. Swenson, Lynne G. McGinnis and Kristen A. Hernandez, Deputy

Attorneys General, for Plaintiff and Respondent.
                                             I.

              INTRODCUTION AND PROCEDURAL BACKGROUND

       A jury found Kevin McRae, Jr. guilty of assault by means of force likely to

produce great bodily injury (Pen. Code,1 § 245, subd. (a)(4)) (count 1), and battery with

serious bodily injury (§ 243, subd. (d)) (count 2). The jury also found that McRae

personally inflicted great bodily injury on the victim within the meaning of section

12022.7, subdivision (a) (count 1) and section 1192.7, subdivision (c)(18) (counts 1 &

2). McRae admitted having suffered a prior strike conviction (§§ 667, subds. (b)-(i),

668, 1170.12) and a prior serious felony conviction (§§ 667, subd. (a)(1), 668, 1192.7,

subd. (c)), both arising from case No. SCN181880 (SCN181880), and four prison prior

convictions (§§ 667.5, subd. (b), 668), one of which arose from SCN181880.

       The trial court sentenced McRae to a determinate term of 3 years on count 1, plus

5 years for the serious felony prior and 3 years for the great bodily injury enhancement,

for a total term of 11 years in prison. The court stayed execution of sentence on count 2

pursuant to section 654. The trial court struck McRae's prior strike conviction in the

interests of justice pursuant to section 1385. In addition, the court stayed the prison

prior that arose from the same case as the serious felony prior (SCN181880) pursuant to

People v. Jones (1993) 5 Cal.4th 1142 (Jones).2




1     Unless otherwise specified, all subsequent statutory references are to the Penal
Code.
2     The court also struck the punishment on the three remaining prison priors.
                                             2
       On appeal, McRae contends that the trial court erred, under Jones, supra,

5 Cal.4th at page 1153, in staying, rather than striking the prison prior that arose from

the same case as the serious felony prior (SCN181880). The People concede the error,

and request that we order the relevant prison prior enhancement stricken. We agree

with the People's concession. Accordingly, we remand the matter to the trial court with

directions to strike the prison prior enhancement and prepare a corrected abstract of

judgment.

                                            II.

                                     DISCUSSION3

               The trial court erred in failing to strike the one-year prison
                     prior enhancement that arose from SCN181880

       McRae contends that the trial court erred in failing to strike the one-year prison

prior enhancement (§ 667.5, subd. (b)) that arose from SCN181880. He contends that

the enhancement must be stricken because it arose from the same offense that formed

the basis of the trial court's imposition of a serious felony enhancement (§§ 667, subd.

(a)(1), 668, 1192.7, subd. (c)). The People agree.

       In Jones, supra, 5 Cal.4th at page 1153, the California Supreme Court held that a

defendant cannot incur sentence enhancements under both sections 667 (serious felony)

and 667.5 (prison prior) based on a single prior conviction. The Jones court concluded

that where a five-year serious felony enhancement under section 667, subdivision (a)



3       We omit any discussion of the facts underlying McRae's convictions since those
facts are not relevant to the claim asserted on appeal.
                                             3
and a one-year prison prior under section 667.5, subdivision (b) are imposed for the

same prior conviction (see Jones, at pp. 1145-1146), the proper remedy is to remand the

matter to "the trial court with directions to strike the one-year enhancement of

defendant's sentence . . . under subdivision (b) of section 667.5." (Id. at p. 1153, italics

added.)

       At sentencing, the trial court imposed a five-year serious felony enhancement

(§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) based on McRae's conviction in

SCN181880. The court then stated, "[S]ince a prison prior . . . serves as the basis for

the serious felony prior . . . the first prison prior[4] is stayed pursuant to [Jones] . . . ."

(Italics added.)

       We agree that, under Jones, the trial court erred in staying, rather than striking,

the one-year prison prior enhancement (§ 667.5, subd. (b)) that arose from SCN181880.




4      The information listed the prison prior that arose from SCN181880 as the "First
Prison Prior." (Capitalization altered.)
                                                4
                                            III.

                                      DISPOSITION

       The judgment is reversed with respect to the prison prior enhancement (§ 667.5,

subd. (b)) premised on SCN181880. In all other respects, the judgment is affirmed.

The matter is remanded to the trial court with directions to strike the prison prior

enhancement (§ 667.5, subd. (b)) premised on SCN181880 and to prepare a corrected

abstract of judgment and forward the corrected abstract to the Department of

Corrections and Rehabilitation.



                                                                    AARON, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.




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