Filed 6/10/14 P. v. Ware CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066171
         Plaintiff and Respondent,
                                                                               (Super. Ct. No. AF49104)
                   v.

HELAND STERLING WARE,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Merced County. Brian L.
McCabe, Judge.
         Deborah Prucha and Carol Foster, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, and Harry J. Colombo, Deputy
Attorney General, for Plaintiff and Respondent.


                                                        -ooOoo-




*        Before Gomes, Acting P.J., Poochigian, J. and Franson, J.
                                      INTRODUCTION
          On May 26, 2009, appellant, Heland Sterling Ware, was sentenced in case No.
AF49104 for grand theft of firearms (Pen. Code, § 487, subd. (d)(2), count 1),1 being a
felon in possession of a firearm (§ 12021, subd. (a)(1), count 2), having a prior serious
felony conviction within the meaning of the three strikes law (§§ 667, subd. (a) &
1170.12, subd. (c)), a prior serious felony conviction enhancement (§ 667, subd. (a)), and
two prior prison term enhancements (§ 667.5, subd. (b)). The court struck the prior
serious felony conviction strike and sentenced appellant to a total prison term of 12 years
8 months. The court stayed execution of its sentence and placed appellant on probation
upon various terms and conditions.2
          On December 30, 2009, a petition was filed alleging that appellant violated the
terms of his probation by failing to complete the drug rehabilitation program, failing to
report to his probation officer, and failing to inform his probation officer of his change of
address. Appellant admitted violating his probation on October 28, 2010. On November
19, 2010, the trial court lifted the stay of execution on appellant’s sentence, sentenced
appellant to a prison term of 12 years 8 months, and awarded 644 days of presentence
credit.
          On April 12, 2012, appellant filed a motion with the trial court to correct the
abstract of judgment to award him more custody credits because recent amendments to


1         All statutory references are to the Penal Code.
2      The court sentenced appellant to the upper term of three years on count 1, plus
consecutive terms of five years for the prior serious felony enhancement and to two
consecutive terms of one year for each prior prison term enhancement. The court
sentenced appellant to a consecutive term of one-third the midterm on count 2, or eight
months, plus consecutive terms of one year again for each of the prior prison term
enhancements. The prior prison term enhancements alleged in count 2 are identical to the
prior prison term enhancements alleged in count 1.


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section 4019 applied to him. On September 19, 2012, the trial court filed a written ruling
denying appellant’s motion to correct the abstract of judgment. The trial court had
deferred ruling on appellant’s motion until the Supreme Court’s decision in People v.
Lara (2012) 54 Cal.4th 896 (Lara) was issued. Appellant filed a timely notice of appeal
from the trial court’s ruling on his motion.
       Appellate counsel filed a brief seeking independent review of the case by this
court pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). On this court’s own
motion, we augmented the record to include the clerk’s transcript of the second day of
appellant’s trial. The transcript indicates that appellant was tried and convicted by the
trial court without a jury. There was no plea bargain in appellant’s case.
       This court then issued a briefing letter to the parties to address the issue of whether
the trial court’s sentence was unauthorized because the two one-year prior prison term
enhancements were applied to each count. In effect, appellant was sentenced to those
status enhancements twice. The parties replied with letter briefs. The parties concur with
this court that the status enhancements were applied twice to appellant’s sentence and
that this was error.3
       After reviewing the minute order from trial, it is clear that appellant was convicted
after a court trial and there was no plea bargain in his case. It is also clear that the trial
court sentenced appellant twice for each prior prison term enhancement, effectively
sentencing him to four years for those enhancements rather than two years. Prior prison
term enhancements are status enhancements that are only applied once to a determinate

3      When an issue is found, a case that began on appeal with independent review no
longer remains within the ambit of Wende. (People v. Woodard (1986) 184 Cal.App.3d
944, 947.) We find no error in the trial court’s reliance on Lara to deny appellant
additional custody credits. We agree with the trial court’s finding that appellant’s prior
serious felony conviction, though stricken pursuant to section 1385 during the sentencing
hearing, disqualified appellant from receiving more generous custody credits.


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prison term such as the one in the instant action. (People v. Tassell (1984) 36 Cal.3d 77,
99 [overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 398-401];
People v. Edwards (2011) 195 Cal.App.4th 1051; 1057.)
       Although this is an appeal from a postsentence order concerning custody credits,
and time for direct appeal from the original judgment passed in 2009, an unauthorized
sentence can be corrected at any time. (People v. Scott (1994) 9 Cal.4th 331, 354; People
v. Ramirez (2008) 159 Cal.App.4th 1412, 1424-1425; In re Birdwell (1996) 50
Cal.App.4th 926, 930-931.) The trial court, therefore, erred in applying the two prior
prison term enhancements to count 1 and to count 2. We will, therefore, remand for the
trial court to amend the abstract of judgment.
                                     DISPOSITION
       The trial court’s application of the two prior prison term enhancements to count 2
is reversed. The case is remanded for the trial court to prepare an amended abstract of
judgment reflecting this change and showing a reduction of appellant’s total prison term
from 12 years 8 months to 10 years 8 months. The trial court is directed to forward the
amended abstract of judgment to the appropriate authorities. The judgment is otherwise
affirmed.




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