Filed 3/17/16 P. v. Mitchell 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069782
         Plaintiff and Respondent,
                                                                            (Super. Ct. Nos. MCR045659,
                   v.                                                               MCR047117)

PATSY RUTH MITCHELL,
                                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Madera County. Ernest J.
LiCalsi, Judge.
         Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Kenneth N. Sokoler and Sean M. McCoy, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Kane, Acting P.J., Poochigian, J. and Franson, J.
        Patsy Ruth Mitchell was convicted of various crimes as the result of an incident
that began when a police officer informed her there was a warrant for her arrest. Mitchell
decided she wanted to be arrested at her home, so she left the scene. In the process, she
struck the police officer with her vehicle, and then led him on a high speed chase through
town that ended up at her house. At the house, she initially refused to exit the vehicle,
and displayed a small knife to the officers. The convictions included assault with a
deadly weapon against a police officer. (Pen. Code, § 245, subd. (c).)1 The trial court
also found true the allegation that Mitchell had suffered a prior conviction that
constituted a strike pursuant to the provisions of section 667, subdivisions (b)–(i).
        Mitchell argues in her opening brief the trial court erred when it refused to dismiss
her prior strike conviction pursuant to the provisions of section 1385 and People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We requested additional
briefing on the issue of whether the trial court erred in imposing a section 667,
subdivision (a) serious felony enhancement, which was only alleged on a count that was
stayed pursuant to section 654. We reject the first argument, but conclude the trial court
erred when it failed to stay the serious felony enhancement. Accordingly, we will
remand the matter to the trial court for resentencing.
                         FACTUAL AND PROCEDURAL SUMMARY
        The complaint was filed on February 4, 2013. On November 8, 2013, the trial
court suspended criminal proceedings and ordered Mitchell examined to determine if she
was competent to stand trial pursuant to the provisions of section 1368. After
psychological examinations, the trial court determined Mitchell was competent and
reinstituted criminal proceedings. Thereafter, the trial court granted the prosecution’s
motion to consolidate two criminal filings against Mitchell, and the parties waived the
right to a jury trial.

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


                                                2.
       The operative pleading at trial was the second amended information, which
charged Mitchell with (1) assault with a deadly weapon (an automobile) upon a peace
officer during the performance of his duties (§ 245, subd. (c)), (2) assault with a deadly
weapon (an automobile) (§ 245, subd. (a)(1)), (3) exhibition of a deadly weapon to avoid
arrest (§ 417.8), (4) driving with willful and wanton disregard for the safety of persons or
property of others while evading a police officer (Veh. Code, § 2800.2), and (5) two
counts of misdemeanor resisting arrest (§ 148, subd. (a)(1)). The four felony counts also
alleged that Mitchell had suffered a prior conviction that constituted a strike within the
meaning of section 667, subdivisions (b)–(i). The assault with a deadly weapon count
(count 2) alleged Mitchell suffered a prior serious felony conviction within the meaning
of section 667, subdivision (a)(1) (hereafter the five-year serious felony enhancement).
       The first incident on which testimony was received occurred on September 21,
2012, and resulted in one count of misdemeanor resisting arrest. Madera Police Officer
Jocelyn Beck noticed Mitchell driving at night with only her parking lights turned on.
Beck initiated a traffic stop. Upon stopping her vehicle, Mitchell exited the vehicle and
walked aggressively towards Beck, ignoring several orders to return to her vehicle. Beck
eventually was able to convince Mitchell to move to the sidewalk. Beck described
Mitchell as aggressive and argumentative during the entire episode. Beck decided to
search Mitchell for officer safety. Mitchell began to struggle and attempted to run to her
vehicle. Two officers were required to restrain her.2
       The second incident occurred on August 29, 2013. Madera Police Officer William
Spears responded to a commercial area of the city where he saw a woman standing next
to a vehicle that was parked near the entrance to a self-storage business. Spears stopped
his patrol vehicle, approached the woman, and inquired why she was in the area. The


2      Madera Police Officer Steven Boehm, who was partnered with Beck but in a separate
vehicle, testified in a manner consistent with Beck in all material respects.


                                             3.
woman had a pair of pliers in her hand, but turned them over to Spears upon request. The
woman said she was in the area to visit a friend, and pointed to the vehicle in which
Mitchell sat. Spears approached Mitchell, who was sitting in the back seat of her vehicle.
Mitchell told Spears she was there to provide security for the self-storage business
because a lot of break-ins were occurring in the area.
       When Spears checked Mitchell’s identification, he learned there was a
misdemeanor arrest warrant outstanding. Spears attempted to explain to Mitchell she
could not remain in the area and he would have to write her a ticket for the warrant.
Mitchell became argumentative, and shut and locked all of the vehicle doors. Spears
attempted to convince Mitchell to open the doors, but she refused. Mitchell next climbed
into the front seat of the vehicle, ignoring Spears’s attempts to convince her to exit the
vehicle. Spears returned to his patrol vehicle to retrieve his baton so he could break one
of the vehicle windows. Mitchell started the vehicle. Spears told Mitchell to turn off the
engine and exit the vehicle. Mitchell drove the vehicle at Spears, hit his right leg, and
knocked him onto the hood of the vehicle. Mitchell then drove towards the front of
Spears’s patrol vehicle while he was on the hood of her vehicle. Spears was able to get
off of the hood of Mitchell’s vehicle and wound up between his vehicle, a brick wall, and
Mitchell’s vehicle. Mitchell began driving towards Spears again. Spears was trapped, so
he pulled his gun and screamed at Mitchell that if she did not stop the vehicle he would
shoot her. Mitchell finally stopped the vehicle and began doing something with her cell
phone. Spears went to the driver’s door of Mitchell’s vehicle and attempted to break the
window with the butt of his service weapon. Mitchell drove away and Spears followed.
       Mitchell drove at high speeds and through red stop lights. Other officers joined
the chase. Mitchell eventually stopped in the driveway of a home and began honking her
horn. She refused to exit the vehicle despite numerous orders to do so by Spears. A
window was broken to gain access to the interior of the vehicle. Sergeant Williams then
reached into the vehicle to unlock the door. Mitchell grabbed his arm and displayed a

                                             4.
knife. Spears pointed his firearm at Mitchell and ordered her to drop the knife. Mitchell
complied. Mitchell eventually opened her door and was pulled from the vehicle by
officers. She struggled and did not obey commands. The officers put her on the ground
and were able to place her in handcuffs.3
       Spears sustained only minor injuries as a result of being struck by Mitchell’s
vehicle. He recovered a small knife from Mitchell’s vehicle.
       Mitchell testified in her defense. She admitted the confrontation with Spears, but
claimed she initially did not realize he was a police officer. When she realized he was an
officer, she ignored his commands and drove away because she wanted to go home. She
knew she was going to be arrested and wanted to make sure her property was not stolen.
She denied hitting Spears with her vehicle, denied driving at an excessive rate of speed,
and denied displaying a knife.
       The trial court found Mitchell guilty as charged and found the enhancements true.
It sentenced her to the midterm of four years for the assault on a police officer count,
stayed the sentence on the assault count, and sentenced her to a consecutive term of one-
third the midterm for the displaying a knife count (one year), and for the evading the
police count (eight months). The sentence on each count was doubled pursuant to section
667, subdivision (e)(1). The trial court sentenced Mitchell to time served on the
misdemeanor counts. Finally, the trial court imposed the five-year serious felony
enhancement pursuant to section 667, subdivision (a).
                                       DISCUSSION
       Mitchell argues the trial court abused its discretion when it refused to exercise its
discretion and strike the allegation that she had suffered a prior conviction that




3      Madera Police Officers Randal Williams and Maricela Noriega Munoz, who assisted with
the apprehension of Mitchell, both testified in a similar manner.


                                             5.
constituted a strike. The principles governing the trial court’s exercise of discretion are
well established.
       Section 1385 permits the trial court to dismiss an action in furtherance of justice
on its own motion. The Supreme Court held in Romero that this section permitted the
trial court to dismiss a prior conviction that constituted a strike within the meaning of
section 667, subdivisions (b)–(i), subject “to strict compliance with the provisions of
section 1385 and to review for abuse of discretion.” (Romero, supra, 13 Cal.4th at
p. 504.) Romero also summarized the applicable principles for utilization of the authority
granted trial courts in section 1385.

               “‘The trial court’s power to dismiss an action under section 1385,
       while broad, is by no means absolute. Rather, it is limited by the
       amorphous concept which requires that the dismissal be in “furtherance of
       justice.” As the Legislature has provided no statutory definition of this
       expression, appellate courts have been faced with the task of establishing
       the boundaries of the judicial power conferred by the statute as cases have
       arisen challenging its exercise. Thus, in measuring the propriety of the
       court’s action in the instant case, we are guided by a large body of useful
       precedent which gives form to the above concept.

               “‘From the case law, several general principles emerge. Paramount
       among them is the rule “that the language of [section 1385], ‘in furtherance
       of justice,’ requires consideration both of the constitutional rights of the
       defendant, and the interests of society represented by the People, in
       determining whether there should be a dismissal. [Citations.]” [Citations.]
       At the very least, the reason for dismissal must be “that which would
       motivate a reasonable judge.” [Citations.] [Citation.] ‘Courts have
       recognized that society, represented by the People, has a legitimate interest
       in “the fair prosecution of crimes properly alleged.” “‘[A] dismissal which
       arbitrarily cuts those rights without a showing of detriment to the defendant
       is an abuse of discretion.’ [Citations.]”’ [Citation.]

              “From these general principles it follows that a court abuses its
       discretion if it dismisses a case, or strikes a sentencing allegation, solely ‘to
       accommodate judicial convenience or because of court congestion.’
       [Citation.] A court also abuses its discretion by dismissing a case, or a
       sentencing allegation, simply because a defendant pleads guilty. [Citation.]
       Nor would a court act properly if ‘guided solely by a personal antipathy for


                                              6.
       the effect that the three strikes law would have on [a] defendant,’ while
       ignoring [the] ‘defendant’s background,’ ‘the nature of his present
       offenses,’ and other ‘individualized considerations.’ [Citation.]

              “A court’s discretionary decision to dismiss or to strike a sentencing
       allegation under section 1385 is also reviewable. ‘[W]here the court’s
       action lacks reason it may be invalidated upon timely challenge.’
       [Citation.] Section 1385 anticipates, and facilitates, appellate review with
       the requirement that ‘[t]he reasons for the dismissal must be set forth in an
       order entered upon the minutes.’ [Citation.] ‘The statement of reasons is
       not merely directory, and neither trial nor appellate courts have authority to
       disregard the requirement. It is not enough that on review the reporter’s
       transcript may show the trial court’s motivation; the minutes must reflect
       the reason “so that all may know why this great power was exercised.”’
       [Citations.]” (Romero, supra, 13 Cal.4th at pp. 530–531.)
       In People v. Williams (1998) 17 Cal.4th 148 (Williams), the Supreme Court
provided further guidance for ruling on a motion to dismiss a prior conviction. “We
therefore believe that, in ruling whether to strike or vacate a prior serious and/or violent
felony conviction allegation or finding under the Three Strikes law, on its own motion,
‘in furtherance of justice’ pursuant to … section 1385[, subdivision ](a), or in reviewing
such a ruling, the court in question must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony convictions,
and the particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as
though he had not previously been convicted of one or more serious and/or violent
felonies.” (Williams, supra, at p. 161.)
       In this case, we are not reviewing a trial court’s decision to strike a prior
conviction allegation, but its refusal to do so. In People v. Carmony (2004) 33 Cal.4th
367, 374 (Carmony), the Supreme Court confirmed that a trial court’s refusal to exercise
its discretion is reviewable for an abuse of discretion. Once again, the Supreme Court
provided guidance for trial courts and appellate courts in addressing the issue.

             “In reviewing for abuse of discretion, we are guided by two
       fundamental precepts. First, ‘“[t]he burden is on the party attacking the

                                              7.
sentence to clearly show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial court is
presumed to have acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will not be set
aside on review.”’ [Citations.] Second, a ‘“decision will not be reversed
merely because reasonable people might disagree. ‘An appellate tribunal is
neither authorized nor warranted in substituting its judgment for the
judgment of the trial judge.’”’ [Citations.] Taken together, these precepts
establish that a trial court does not abuse its discretion unless its decision is
so irrational or arbitrary that no reasonable person could agree with it.

       “Because ‘all discretionary authority is contextual’ [citation], we
cannot determine whether a trial court has acted irrationally or arbitrarily in
refusing to strike a prior conviction allegation without considering the legal
principles and policies that should have guided the court’s actions. We
therefore begin by examining the three strikes law.

       “‘[T]he Three Strikes initiative, as well as the legislative act
embodying its terms, was intended to restrict courts’ discretion in
sentencing repeat offenders.’ [Citation.] To achieve this end, ‘the Three
Strikes law does not offer a discretionary sentencing choice, as do other
sentencing laws, but establishes a sentencing requirement to be applied in
every case where the defendant has at least one qualifying strike, unless the
sentencing court “conclude[es] that an exception to the scheme should be
made because, for articulable reasons which can withstand scrutiny for
abuse, this defendant should be treated as though he actually fell outside the
Three Strikes scheme.”’ [Citation.]

        “Consistent with the language of and the legislative intent behind the
three strikes law, we have established stringent standards that sentencing
courts must follow in order to find such an exception. ‘[I]n ruling whether
to strike or vacate a prior serious and/or violent felony conviction allegation
or finding under the Three Strikes law, on its own motion, “in furtherance
of justice” pursuant to … section 1385[, subdivision ](a), or in reviewing
such a ruling, the court in question must consider whether, in light of the
nature and circumstances of his present felonies and prior serious and/or
violent felony convictions, and the particulars of his background, character,
and prospects, the defendant may be deemed outside the scheme’s spirit, in
whole or in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent felonies.’
[Citation.]

        “Thus, the three strikes law not only establishes a sentencing norm,
it carefully circumscribes the trial court’s power to depart from this norm

                                       8.
       and requires the court to explicitly justify its decision to do so. In doing so,
       the law creates a strong presumption that any sentence that conforms to
       these sentencing norms is both rational and proper.

              “In light of this presumption, a trial court will only abuse its
       discretion in failing to strike a prior felony conviction allegation in limited
       circumstances. For example, an abuse of discretion occurs where the trial
       court was not ‘aware of its discretion’ to dismiss [citation], or where the
       court considered impermissible factors in declining to dismiss. [Citation.]
       Moreover, ‘the sentencing norms [established by the Three Strikes law
       may, as a matter of law,] produce[] an “arbitrary, capricious or patently
       absurd” result’ under the specific facts of a particular case. [Citation.]

               “But ‘[i]t is not enough to show that reasonable people might
       disagree about whether to strike one or more’ prior conviction allegations.
       [Citation.] Where the record is silent [citation], or ‘[w]here the record
       demonstrates that the trial court balanced the relevant facts and reached an
       impartial decision in conformity with the spirit of the law, we shall affirm
       the trial court’s ruling, even if we might have ruled differently in the first
       instance.’ [Citation.] Because the circumstances must be ‘extraordinary …
       by which a career criminal can be deemed to fall outside the spirit of the
       very scheme within which he squarely falls once he commits a strike as part
       of a long and continuous criminal record, the continuation of which the law
       was meant to attack’ [citation], the circumstances where no reasonable
       people could disagree that the criminal falls outside the spirit of the three
       strikes scheme must be even more extraordinary. Of course, in such an
       extraordinary case—where the relevant factors described in Williams,
       supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction
       and no reasonable minds could differ—the failure to strike would constitute
       an abuse of discretion.” (Carmony, supra, 33 Cal.4th at pp. 376–378.)
       Carmony makes clear that the refusal to strike a prior conviction will constitute an
abuse of discretion in only rare cases, an observation supported by Mitchell’s failure to
cite a single case in which an appellate court overturned a trial court’s refusal to strike a
prior conviction. The cases we have found in which an abuse of discretion was found in
these circumstances do not aid Mitchell. (People v. Vargas (2014) 59 Cal.4th 635, 638–
639 [failure to strike one of two prior convictions an abuse of discretion where both
convictions arose from a single criminal act]; People v. Burgos (2004) 117 Cal.App.4th




                                              9.
1209, 1211–1212 [same]; People v. Fritz (1985) 40 Cal.3d 227 [trial court unaware of its
discretion to strike prior conviction].)
       We conclude this is not the unusual case where the trial court abused its discretion,
i.e. whether, in light of the nature and circumstances of her present felonies and prior
serious and/or violent felony convictions, and the particulars of her background,
character, and prospects, Mitchell may be deemed outside the spirit of the Three Strikes
law and, hence, should be treated as though she had not previously been convicted of a
serious and/or violent felony. (Williams, supra, 17 Cal.4th at p. 161.)
       The probation report provides the starting point for our analysis. Mitchell was 67
years old at the time of sentencing. Mitchell’s criminal history began in the late 1960’s
and early 1970’s, when she suffered four misdemeanor convictions for what appear to be
prostitution related crimes. In 1972, she was convicted of burglary and placed on three
years’ probation.
       Mitchell’s next conviction occurred 33 years later, when she was convicted of
misdemeanor theft. Three years later, she was convicted of felony exhibiting a deadly
weapon to avoid arrest and was sentenced to two years in prison. This final conviction
was the basis for the trial court’s finding that Mitchell had suffered a prior serious felony
and prior strike conviction.
       The primary thrust of both Mitchell’s motion in the trial court and in this court is
her psychiatric evaluation, which is significant but did not amount to a defense to the
action. We begin by rejecting Mitchell’s suggestion that the trial court may not have
reviewed this report. Defense counsel attached the report to the motion, which the trial
court indicated it had read. The comment on which Mitchell relies came in response to
defense counsel’s inquiry if the trial court and the prosecutor had received the
attachment. The trial court asked, “What is the attachment?” at the same time Mitchell
asked to be heard. Defense counsel then informed the court that Mitchell wished to be
heard, and the trial court permitted her to speak. We read the trial court’s comment as an

                                             10.
attempt to verify to what defense counsel was referring when he referred to the
attachment, and not as a comment that it did not read or receive the psychologist’s report.
       The psychologist’s report does not aid Mitchell’s argument. The diagnostic
impressions section of the report listed a diagnosis of “Other Specified Personality
Disorder, with paranoid, schizotypal and antisocial features.” The report explained this
diagnosis in the summary.

               “Diagnostically, Ms. Mitchell appears to suffer from a severe
       personality disorder marked by paranoid ideation, unstable thought
       processes, pronounced guardedness and defensiveness, antisocial behavior,
       difficulty sustaining interpersonal relationships and weak reality testing.
       Specifically she (a) suspects, without sufficient basis, that others might be
       trying to harm her; (b) can read demeaning meanings into benign remarks
       from others and can be quick to react angrily; (c) lacks close friends and
       confidants and does not appear to desire close relationships; (d) has a
       pervasive pattern of social and interpersonal deficits; (e) has eccentric
       behavior; (f) is subject to cognitive or perceptual distortions; (g) is
       impulsive; (i) [sic] has a pattern of failing to conform to social norms with
       respect to lawful behaviors, as indicated by repeatedly performing acts that
       are grounds for arrest; and (j) has repeated failure to sustain consistent work
       behavior.”
       Further clarification was provided later in the report. After explaining that
Mitchell was not convinced the police were conspiring against her and her family, the
report explained, “On the other hand, Ms. Mitchell’s inflexible and disordered
characterological style is marked by suspiciousness of … others, paranoid ideation,
impulsivity, antisocial attitudes and weak reality testing, which leaves her vulnerable to
acting impulsively on inaccurate perceptions and beliefs about others and the world. In
addition, her poor insight leaves her to usually not question the veracity of her
perceptions, beliefs or attitudes.”
       The report then explained the likely sequence of events that led to the instant
charges. Mitchell likely panicked when the officer told her she had a warrant for her
arrest, jumped to the conclusion she was going to be arrested, and quickly responded



                                             11.
angrily. Instead of questioning her perceptions, Mitchell reacted impulsively. “Believing
she was going to be arrested, she decided that she wanted to get her vehicle and
belongings to the house she felt was safe so they would not be vandalized by the vehicle
remaining at the storage facility. She did not care whether what she was doing was right
or wrong, only that she was intent—due to her rigid and inflexible thinking—on doing
what she wanted to do. Even in the midst of her confusion, she described taking pains to
tell the officer to move out of the way, stating that she did not want to hit him. She said
she knew she was going to be arrested and likely taken to jail but wanted to be arrested
on her terms. Her poor judgment and distorted, inflexible thinking result[ed] in her not
taking the time to fully think through the consequences of her actions.”
       The report concluded that “Ms. Mitchell is in dire need of long-term
psychotherapy to address her severe personality disorder. She does not appear to have
had any history of psychiatric or psychological treatment to address these issues.
Unfortunately, she does not really believe she has any mental or emotional problems,
preferring to externalize her problems onto those around her. Her compliance with
treatment would likely be problematic.”
       Mitchell made a statement to the court that largely confirmed the observations in
the report. In essence, she claimed that because of something she wrote, the Bible
predicted people would follow her everywhere she goes. She described this group of
people as a religious cult. She claimed she is required to share her government benefits
with these people, apparently because the sheriff’s department was assisting these people.
       Counsel argued the charges arose out of Mitchell’s mental health issues, as did the
2008 conviction. According to defense counsel, these mental health issues were a
mitigating factor in her criminal conduct. Moreover, because of her age, the proposed
sentence would be a life sentence. Finally, defense counsel pointed out that most of her
criminal conduct was over 30 years old, and she had not caused anyone serious harm.



                                            12.
Accordingly, defense counsel argued Mitchell did not fall within the spirit of the Three
Strikes law, and the trial court should dismiss the prior strike conviction.
       These facts and defense counsel’s argument were worthy of consideration by the
trial court, but did not require the trial court to dismiss the prior conviction. Other factors
weighed heavily in favor of denial of the request, primarily Mitchell’s severe
psychological problems and her refusal to recognize these problems or seek treatment for
them. As a result, Mitchell presented a serious risk of reoffense once out of prison, and
also a serious risk her behavior would escalate, causing great bodily injury or death. The
trial court could reasonably draw these inferences, and rely on these inferences when
concluding the request should be denied. It did not abuse its discretion in reaching this
conclusion.
       In reviewing the record, we noted the second amended information charged
Mitchell in count 2 with assault with a deadly weapon. This count also included an
enhancement alleging Mitchell had suffered a prior serious felony conviction within the
meaning of section 667, subdivision (a). Unlike the prior strike allegation, which was
alleged as to all four felony counts, the prior serious felony enhancement was alleged as
to count 2 only.
       At sentencing the trial court imposed sentence on count 1, assault with a deadly
weapon on a police officer, and properly stayed the sentence on count 2, which was based
on the same assaultive conduct, Mitchell’s act of striking Officer Spears with her vehicle.
However, the trial court imposed the prior serious felony enhancement that was alleged in
count 2. We requested supplemental briefing from the parties on the question of whether
the trial court could impose an enhancement even though it stayed imposition of the
sentence on the count to which the enhancement attached.
       We included in our letter a reference to People v. Guilford (1984) 151 Cal.App.3d
406 (Guilford). In Guilford, the defendant was convicted of attempted robbery and
murder. These two convictions arose out of the same acts. Guilford attempted to steal

                                              13.
the victim’s purse, and struck her over the head with a tire iron when she resisted. The
victim died two days later of a heart attack caused by the attempted theft of her purse.
(Id. at pp. 409–410.) Guilford was sentenced on the murder count, but the sentence on
the attempted robbery count was properly stayed pursuant to section 654. (Guilford,
supra, at p. 411.) However, two enhancements attached to the attempted robbery count.
The trial court stayed sentence on one of the enhancements, but imposed sentence on a
one-year enhancement for use of a deadly weapon (§ 12022, subd. (b)). (Guilford, supra,
at p. 411.) The appellate court concluded the sentence on the use enhancement must also
be stayed.

       “We have not been referred to nor have we discovered any cases dealing
       with the precise question presented here, i.e., whether an enhancement
       relating to a count may be treated as having viability independent of the
       sentence on that count, so that even where the sentence on the count is
       stayed, the enhancement as to that term is not automatically required to be
       stayed. We conclude that the effect of refusing to stay that enhancement
       here breathes independent life into count I and does violence to the concept
       embodied in section 654. We hold that an enhancement must necessarily
       be stayed where the sentence on the count to which it is added is required to
       be stayed.

              “By definition, an enhancement ‘means an additional term of
       imprisonment added to the base term.’ (Cal. Rules of Court, rule 405(c).)
       A base term ‘is the determinate prison term selected from among the three
       possible terms prescribed by statute or the determinate prison term
       prescribed by law if a range of three possible terms is not prescribed.’ (Cal.
       Rules of Court, rule 405(b).)

               “Section 12022, subdivision (b), provides in part that: ‘Any person
       who personally uses a deadly or dangerous weapon in the commission or
       attempted commission of a felony shall, upon conviction of such felony or
       attempted felony, in addition and consecutive to the punishment prescribed
       for the felony or attempted felony of which he has been convicted, be
       punished by an additional term of one year, unless use of a deadly or
       dangerous weapon is an element of the offense of which he was
       convicted.…’




                                            14.
               “By definition, then, since an enhancement for use of a deadly
       weapon in connection with commission or attempted commission of a
       felony is imposed in addition and consecutive to the prescribed punishment
       for the felony or attempted felony, it follows that time to be served for the
       enhancement can only be served if and after time is served on the base
       term. Consequently, if the stay of the sentence for the base term becomes
       permanent, time for that enhancement, by definition, will never be served.
       Furthermore, failure to stay an enhancement, where the base term to which
       it is added is stayed, and requiring that time be served only for the
       enhancement has the effect of elevating the enhancement to the status of an
       offense. Enhancements are not offenses, they are punishments. [Citation.]”
       (Guilford, supra, 151 Cal.App.3d at pp. 411–412, italics added, fn.
       omitted.)
       The Attorney General argues Guilford is inapposite because the enhancement at
issue in Guilford was an enhancement related to the crime, while the enhancement at
issue here relates to Mitchell. While the Supreme Court has explained there is a
difference between the two types of enhancements,4 the Attorney General fails to explain
why this distinction requires a different result in this case. It appears she argues that
because Mitchell was aware the enhancement was charged, i.e., Mitchell knew she was
exposed to an enhanced term because of a prior serious felony conviction, the
enhancement was properly pled. Since the enhancement was properly pled and related to
Mitchell’s status, according to the Attorney General, it is irrelevant that the enhancement
was attached to a count for which the sentence was stayed.




4       “‘A determinate term for a given offense might also be lengthened by sentence
enhancements.’ [Citation.] ‘Enhancements typically focus on an element of the commission of
the crime or the criminal history of the defendant which is not present for all such crimes and
perpetrators and which justifies a higher penalty than that prescribed for the offenses
themselves.’ [Citation.] ‘[T]here are at least two types of sentence enhancements: (1) those
which go to the nature of the offender; and (2) those which go to the nature of the offense.’
[Citation.] The first category typically enhances the sentence due ‘to the defendant’s status as a
repeat offender.’ [Citation.] ‘The second category of enhancements, which are exemplified by
those authorized under sections 12022.5 and 12022.7, arise from the circumstances of the crime
and typically focus on what the defendant did when the current offense was committed.’
[Citation.]” (People v. Ahmed (2011) 53 Cal.4th 156, 161.)


                                                15.
       The flaw in the Attorney General’s logic is patent; it ignores the issue for which
we asked for supplemental briefing. Mitchell received notice that if she was convicted of
assault with a deadly weapon, she would be exposed to a five-year enhancement because
she had suffered a prior serious felony conviction. She was also put on notice that if she
was convicted of both counts 1 and 2, one would have to be stayed pursuant to the
provisions of section 654. Nowhere does the information inform Mitchell that if she was
only convicted of count 1, she would also be subject to a five-year serious felony
enhancement on count 1.
       We think this is the correct analysis. If Mitchell was found not guilty of count 2,
the jury would never had been asked to consider the five-year serious felony
enhancement. An enhancement cannot be imposed unless the defendant is first convicted
of the count to which the enhancement attaches. Or, in the words of Guilford, an
enhancement does not have any viability independent of the sentence for the count to
which the enhancement attaches. (Guilford, supra, 151 Cal.App.3d at p. 411.) This
concept is simple; enhancements do not define criminal acts, but increase punishment for
criminal acts when an aspect of the crime or the criminal warrants additional punishment.
(People v. Ahmed, supra, 53 Cal.4th at p. 163.) Therefore, if the alleged criminal act is
not punished, the enhancement cannot be imposed.
       A simple example demonstrates this point. Assume the only crime with which
Mitchell was charged was count 2, and this count included the five-year serious felony
enhancement. If the jury found Mitchell not guilty of this count, the enhancement could
not be imposed even though Mitchell had suffered a prior serious felony conviction.
       We cannot conceive of any reason why the analysis would change when
section 654 is considered. Mitchell was convicted of count 2, and the trial court found
the five-year serious felony enhancement true. But since the sentence on count 2 was
stayed pursuant to the provisions of section 654, so must the sentence on the
enhancement on count 2 be stayed.

                                            16.
       The Attorney General’s argument asks us to amend the second amended
information to allege the five-year serious felony enhancement on counts 1 and 2, which
the district attorney could have done. In doing so, the Attorney General is asking us to
infringe on the prosecution’s charging discretion. “‘[T]he prosecuting authorities,
exercising executive functions, ordinarily have the sole discretion to determine whom to
charge with public offenses and what charges to bring. [Citations.] This prosecutorial
discretion to choose, for each particular case, the actual charges from among those
potentially available arises from “‘the complex considerations necessary for the effective
and efficient administration of law enforcement.’” [Citations.] The prosecution’s
authority in this regard is founded, among other things, on the principle of separation of
powers, and generally is not subject to supervision by the judicial branch. [Citations.]’
[Citation.]” (Manduley v. Superior Court (2002) 27 Cal.4th 537, 552.) We cannot
simply amend the information to allege an enhancement the prosecutor chose not to
charge.
       The cases cited by the Attorney General in her supplemental brief do not aid her
argument. For example, People v. Purata (1996) 42 Cal.App.4th 489, 498, People v.
Jordan (2006) 141 Cal.App.4th 309, 318–323, People v. Askey (1996) 49 Cal.App.4th
381, 389, and People v. Jones (2015) 236 Cal.App.4th 1411, 1415–1417, provide general
statements of law unrelated to the issue before this court.
       The only remaining question is the proper disposition. The parties both suggest
remand is unnecessary for different reasons. We disagree. The trial court must
determine the proper sentence, knowing that if it imposes sentence on count 1 and stays
the sentence on count 2, the five-year serious felony enhancement must also be stayed.
Accordingly, we will remand the matter to the trial court to resentence Mitchell.
                                      DISPOSITION
       The judgment of conviction is affirmed. The sentence is vacated and the matter
remanded to the trial court for resentencing.

                                             17.
