Filed 3/19/13 P. v. Rodriguez CA2/5
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,                                                          B242576

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. KA095069)
         v.

FRANCISCO JAVIER RODRIGUEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Tia
Fisher, Judge. Remanded with directions.
         California Appellate Project, Jonathan B. Steiner, Executive Director, and Richard
B. Lennon, Staff Attorney, under appointments by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and
Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
                                      ____________________________
       Pursuant to a case settlement offered by the prosecution, defendant and appellant
Francisco Javier Rodriguez entered a plea of no contest to a charge of making a criminal
threat, in violation of Penal Code section 4221 and admitted the offense was committed
for the benefit of a street gang within the meaning of section 182.22, subdivision
(b)(1)(B). Defendant‟s motion to withdraw his plea was denied. Defendant was
sentenced to the low term of 16 months in state prison for the criminal threat charge.
Pursuant to the case settlement agreement, the trial court “stayed” the section 186.22
enhancement.
       We appointed counsel to represent defendant on appeal. Appointed counsel filed a
brief raising no issues but asked this court to independently review the appellate record
for arguable contentions under People v. Wende (1979) 25 Cal.4th 436. Defendant was
advised of his right to file a supplemental brief. No brief has been received from
defendant. Our independent review of the record revealed that the trial court imposed a
sentence not authorized by law by staying the section 186.22 gang enhancement.


                                         FACTS


       According to the preliminary hearing transcript, on July 30, 2011, Albert Sanchez
was in a restaurant to pick up an order of pizza. Defendant was part of a group of eight to
ten who gave Sanchez “a couple [of] good stare downs.” Defendant approached Sanchez
three times, aggressively telling Sanchez this was his neighborhood and mentioning his
gang. Sanchez feared that a fight was going to occur and was concerned for his safety
and the safety of his three children. Police were called due to the threat of violence. A
detective testified defendant is a gang member and expressed the opinion that the offense
of making a criminal threat was for the purpose of benefiting a criminal street gang.




1      All statutory references are to the Penal Code unless otherwise stated.


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                                       DISCUSSION


       Our independent review of the record revealed that the offer from the district
attorney to defendant, which included a “stay” of the gang enhancement, resulted in an
unauthorized sentence.
       Section 186.22, subdivision (b)(1)(B) provides that any person who is convicted of
a serious felony (§ 1192.7) “committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members, shall, upon conviction of that felony, in
addition and consecutive to the punishment prescribed for the felony or attempted felony
of which he or she has been convicted, be punished . . . by an additional term of five
years.” Section 422 is a serious felony. (§ 1192.7, subd. (c)(38).)
       The gang enhancement “shall” be imposed unless stricken by the trial court, in
which case the court must make an oral statement that is entered in the minutes of the
court reflecting “that the interests of justice would best be served by that disposition.”
(§ 186.22, subd. (g).) Here, the court read the relevant portions of the statute into the
record and stated it would impose the judgment as offered by the district attorney, but if
defendant were to merely plead open to the charges to the court, “it would be pretty darn
unlikely” that the court would exercise its “very limited discretion” to strike the gang
enhancement because defendant had recently suffered a misdemeanor conviction on a
“gun charge.” Defendant then entered his guilty plea and admission, which was accepted
by the court. The court imposed the low term 16-month sentence and stayed the gang
enhancement.
       We requested the parties to brief whether the sentence imposed was unauthorized,
and if so, what remedy applies. Defendant and the Attorney General agree the trial court
imposed an unauthorized sentence.
       Section 186.22, subdivision (g) does not provide the trial court with authority to
stay the gang enhancement. The enhancement must either be imposed or stricken.




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       “„The failure to impose or strike an enhancement is a legally unauthorized
sentence subject to correction‟ (People v. Bradley (1998) 64 Cal.App.4th 386, 391), even
if the correction results in a harsher punishment (People v. Serrato (1973) 9 Cal.3d 753,
764, disapproved on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583,
fn. 1; In re Ricky H. (1981) 30 Cal.3d 176, 191; People v. Solórzano (2007) 153
Cal.App.4th 1026, 1040–1041).” (In re Renfrow (2008) 164 Cal.App.4th 1251, 1254-
1255.) “Since defendant pleaded guilty with the understanding” the gang enhancement
would be stayed, “he must be given the opportunity to withdraw his guilty plea, if he
chooses to do so.” (People v. Ramirez (2005) 33 Cal.App.4th 559, 574-575; People v.
Davis (1997) 57 Cal.App.4th 1404, 1406, fn. 4 [“The People concede Davis is entitled to
withdraw his guilty plea if this court finds his sentence was unauthorized by law.”];
People v. Baries (1989) 209 Cal.App.3d 313, 319.)
       Defendant agrees this is the appropriate disposition of this appeal. Our
independent review of the record reveals no other arguable appellate contentions.


                                     DISPOSITION


       The cause is remanded to the trial court, with directions to either impose or strike
the enhancement under section 186.22, subdivision (b)(1)(B). If the court imposes the
enhancement, defendant shall be given the opportunity to withdraw his plea of no contest,
if he so chooses. If the enhancement is stricken in compliance with section 186.22,
subdivision (g), the judgment shall otherwise stand.




              KRIEGLER, J.


We concur:


              TURNER, P. J.                                     MOSK, J.


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