Filed 9/11/13 P. v. Barnes CA4/2

                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    FOURTH APPELLATE DISTRICT

                                                  DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                                       E057544

v.                                                                      (Super.Ct.Nos. FVI1000094 &
                                                                        FVI1201131)
JAMES BETRON BARNES,
                                                                        OPINION
        Defendant and Appellant.



        APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer,

Judge. Affirmed as modified.

        Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and

Appellant.

        No appearance for Plaintiff and Respondent.




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       In case No. FVI1201131, a jury found defendant and appellant James Betron Barnes1

guilty of misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)), the lesser

included offense of felony resisting an executive officer (Pen. Code, § 69). The trial court

thereafter found defendant violated his probation in case No. FVI1000094. In case No.

FVI1201131, defendant was sentenced to one year in county jail and given credit of 376

days for time served. In case No. FVI1000094, defendant’s probation was revoked and he

was sentenced to a total term of eight years in state prison with credit for time served.

Defendant appeals from both cases. For the reasons explained post, we modify the sentence

in case No. FVI1000094. In all other respects, we affirm the judgment.

                                               I

                    FACTUAL AND PROCEDURAL BACKGROUND

       In February 2010, defendant pled guilty to transportation of a controlled substance.

(Health & Saf. Code, § 11352, subd. (a).) He also admitted that he had suffered one prior

strike conviction (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and three prior

prison terms (Pen. Code, § 667.5, subd. (b)). In return, the remaining allegation was

dismissed, and defendant was placed on Proposition 36 probation pursuant to Penal Code

section 1210.1, on various terms and conditions, for a period of three years.

       In May 2012, defendant was arrested for resisting arrest and being under the

influence. The specifics of that case are as follows: On May 4, 2012, San Bernardino

County Sheriff’s Deputy Brendan Mahoney was on routine patrol in the City of Victorville

       1 Defendant testified that his proper name is James Bu-tron Barnes, Sr. However,
the majority of pleadings and the abstract of judgment refer to him as James Betron Barnes


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when he was dispatched to an area on B Street. Upon arrival, he encountered someone

yelling, “‘That’s the guy. That’s him right there,’” while pointing at a man identified as

defendant, hiding behind a vehicle. Deputy Mahoney told defendant to step away from the

vehicle and put his hands in the air. Defendant complied, and the deputy saw that defendant

was bleeding from his nose and had a swollen left eye.

        Defendant began walking toward the deputy, and the deputy ordered defendant to

turn around and place his hands on the back of his head. Defendant turned and began to

walk away. Deputy Mahoney ordered defendant to stay where he was and place his hands

on his head. Defendant, however, continued to walk away. Deputy Mahoney ordered

defendant to get down on his knees. Defendant fell or collapsed forward onto his stomach

with his arms under his chest, and continued to refuse to comply with the deputy’s directives

to take his hands out from underneath him.

        Deputy Mahoney eventually placed his right knee on defendant’s lower back and

attempted to pull defendant’s arm out from underneath him. A struggled ensued, and the

deputy called for back-up. When another deputy arrived, defendant was still resisting.

Following several knee strikes to defendant’s rib cage and upper back areas by the deputies,

defendant stopped resisting and was handcuffed. Medical assistance was called to the

scene; however, defendant was combative toward the medical technicians and tried to kick

them.

        On August 22, 2012, an information was filed charging defendant with felony

resisting an executive officer (Pen. Code, § 69, count 1) and misdemeanor under the




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influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a), count 2).2 The

information further alleged that defendant had suffered five prior prison terms. (Pen. Code,

§ 667.5, subd. (b).) A petition to revoke defendant’s probation in case No. FVI1000094 was

also filed.

       On October 12, 2012, following a jury trial, defendant was convicted of the lesser

included offense of misdemeanor resisting arrest in violation of Penal Code section 148,

subdivision (a). Subsequently, the trial court found defendant violated the terms of his

probation in case No. FVI1000094 based on the jury’s verdict.

       The sentencing hearing was held on November 9, 2012. In case No. FVI1201131,

defendant was sentenced to 365 days in county jail with credit for time served in the amount

of 376 days. In case No. FVI1000094, the court denied probation and sentenced defendant

to a total term of eight years in state prison with credit for time served as follows: the

midterm of four years for the transportation of a controlled substance offense (Health & Saf.

Code, § 11352, subd. (a)), doubled to eight years due to the prior strike. The court also

imposed one year terms for each of the three prior prison term enhancements, but stayed

sentence on those terms.

                                                 II

                                        DISCUSSION

       Defendant appealed from both cases and, upon his request, this court appointed

counsel to represent him. Counsel has filed a brief under the authority of People v. Wende


       2   The People later dismissed count 2.


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(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement

of the case, a summary of the facts and potential arguable issues, and requesting this court to

undertake a review of the entire record.

       We offered defendant an opportunity to file a personal supplemental brief, which he

has not done.

       We have now concluded our independent review of the record and find no arguable

issues. However, we do find a sentencing error, which we will correct by modification.

       The trial court erred in staying rather than striking the prior prison term

enhancements. (People v. Langston (2004) 33 Cal.4th 1237, 1241 [“Once the prior prison

term is found true within the meaning of [Pen. Code, § 667.5, sub. (b)], the trial court may

not stay the one-year enhancement, which is mandatory unless stricken.”]; accord, People v.

Campbell (1999) 76 Cal.App.4th 305, 311; People v. White Eagle (1996) 48 Cal.App.4th

1511, 1521; People v. Savedra (1993) 15 Cal.App.4th 738, 746-747; People v. Calhoun

(1983) 141 Cal.App.3d 117, 125-126.) Although a court has the power to strike a prior

prison term enhancement under Penal Code section 1385 (People v. Bradley (1998) 64

Cal.App.4th 386, 391, fn. 2; Calhoun, at pp. 124-125), a court does not have the power

under Penal Code section 1385 to stay a prior prison term enhancement (Calhoun, at pp.

124-125). Thus, the staying of the prior prison term enhancements was an unauthorized

sentence. (See People v. Irvin (1991) 230 Cal.App.3d 180, 192-193; People v. Cattaneo

(1990) 217 Cal.App.3d 1577, 1588-1589.) An unauthorized sentence discovered by an

appellate court is subject to correction. (People v. White Eagle, supra, 48 Cal.App.4th at

p. 1521.)


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       The trial court’s comments at the sentencing hearing clearly indicated its intent to

sentence defendant to a total term of eight years on the probation violation case, and simply

erred in “staying” rather than “striking” the three prior prison term enhancements.

Accordingly, we will order the prior prison term enhancements stricken rather than stayed.

                                              III

                                       DISPOSITION

       The judgment is modified to strike the three prior prison term enhancements relating

to case No. FVI1000094. The trial court is directed to amend the November 9, 2012, minute

order of the sentencing hearing and abstract of judgment accordingly and forward a certified

copy of the amended abstract to the Department of Corrections and Rehabilitation. In all

other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                  RAMIREZ
                                                                                          P. J.


We concur:


McKINSTER
                          J.


RICHLI
                          J.




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