Opinion
C091648
05-05-2021
THE PEOPLE, Plaintiff and Respondent, v. RYAN ANDREW POLING, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCCRCRF201921461)
After a jury found defendant Ryan Andrew Poling guilty of elder abuse (Pen. Code, § 368, subd. (b)(1)); count 1) and assault with a deadly weapon (§ 245, subd. (a)(1); count 2), the trial court sentenced defendant to an aggregate term of 15 years in state prison, which included five years for a prior serious felony enhancement (§ 667, subd. (a)). On appeal, defendant argues we must strike that enhancement as unauthorized, because it was neither alleged nor admitted. The Attorney General agrees, as do we. We shall strike the prior serious felony enhancement as unauthorized and otherwise affirm the judgment.
Undesignated statutory references are to the Penal Code.
BACKGROUND
The underlying facts of this case are not relevant to our resolution of the issue presented on appeal. It suffices to say that a jury found defendant guilty of elder abuse and assault with a deadly weapon after defendant hit a 76-year-old man with a cane. Defendant admitted that he suffered a prior conviction under the three strikes law (§§ 667, subd. (c) & (e)(1), 1170.12, subd. (c)(1)) and that he had served a one-year prior prison term for the same conviction (§ 667.5, subd. (b)). The information did not allege, and defendant did not admit, a five-year serious felony enhancement under section 667, subdivision (a)(1).
At sentencing, the trial court remarked that the probation officer's recommendation contained an apparent "error" because it "did not address the fact that [defendant] has a prior strike and is being sentenced on a strike," which "adds a five[-]year consecutive enhancement under 667(a)(1)." The prosecutor agreed. Defense counsel submitted on the issue of the enhancement. The court then addressed whether it should exercise its discretion to strike the enhancement. The prosecutor argued defendant was not entitled to the benefit of the doubt based on his record. Defense counsel argued that the victim's injuries were not severe but thanked the trial court for considering exercising its discretion. The court reiterated its belief that "there is the five-year enhancement pursuant to 667(a)(1) given the fact that [defendant] has a prior strike and is convicted of now a second strike" and concluded that "under the totality of the circumstances [] it would be an abuse of discretion to grant the request or any request to strike the five-year enhancement."
The trial court sentenced defendant to 15 years in prison, comprised of the upper term of four years for assault with a deadly weapon and a consecutive one year (one-third the midterm) for elder abuse, doubled for the prior strike, plus a five-year serious felony enhancement under section 667, subdivision (a).
The enhancement appears on the abstract of judgment, together with the corresponding five year term; although the abstract reflects that the term was stayed, this notation is incorrect. No correction is needed, as we are modifying to strike the enhancement and corresponding sentence in their totality. The trial court struck the one-year prior conviction at sentencing (pursuant to Senate Bill No. 136).
DISCUSSION
Defendant argues the trial court was not authorized to impose the five-year serious felony enhancement because it was neither pleaded nor admitted. While defendant concedes his attorney failed to object at the time of sentencing, he argues that to the extent we find this issue was forfeited, his counsel was constitutionally deficient. We agree the serious felony enhancement was unauthorized. And because it was unauthorized, we conclude defendant did not forfeit his claim.
The case People v. Nguyen (2017) 18 Cal.App.5th 260 (Nguyen), relied upon by the parties, is directly on point and is persuasive. In Nguyen, the information alleged a prior strike conviction as well as a one-year prior prison term enhancement, but did not reference section 667, subdivision (a)(1). (Nguyen, at p. 262.) At sentencing, the trial court imposed a five-year prior serious felony enhancement, to which defense counsel failed to object. (Ibid.)
On appeal, the Nguyen court referenced section 1170.1, subdivision (e), which provides that an enhancement must " 'be alleged in the accusatory pleading . . . .' " (Nguyen, supra, 18 Cal.App.5th at p. 263.) The Nguyen court held that an accusatory pleading sufficiently alleges an enhancement when it alleges both the facts of the underlying conviction and the legal basis for imposing the enhancement. (Nguyen, at pp. 266-267.) We agree with the Nguyen court that: "Charging language [that] expressly states that a fact is alleged to invoke one particular statute does not adequately inform the accused that the People will use it to invoke a different statute." (Id. at p. 267.) "Accordingly, when, as here, the People allege a prior serious felony conviction and when they cite the three strikes law but do not cite the prior serious felony conviction statute, we can only conclude that they have made a 'discretionary charging decision.' " (Ibid.)
The Nguyen court further held that the imposition of an unpleaded enhancement resulted in an unauthorized sentence that may be raised for the first time on appeal, even if defendant failed to object in the trial court. (Nguyen, supra, 18 Cal.App.5th at pp. 271-272.)
Here, as in Nguyen, the charging document did not allege that defendant's prior conviction was a serious felony for purposes of section 667, subdivision (a)(1), and defendant did not admit to a prior serious felony conviction under that section. Thus, the trial court erred by imposing the enhancement.
Further, because the enhancement was unauthorized, defendant's claim is not forfeited despite counsel's failure to recognize and lodge an objection to the error, and the claim may be properly brought on appeal. (Nguyen, supra, 18 Cal.App.5th at pp. 271-272; People v. Scott (1994) 9 Cal.4th 331, 354 [exception to forfeiture rule where an error results in an unauthorized sentence].)
DISPOSITION
We modify the judgment to strike the five-year enhancement. The judgment is otherwise affirmed. The trial court is directed to prepare an amended abstract of judgment and to send a certified copy thereof to the Department of Corrections and Rehabilitation.
/s/_________
Duarte, J. We concur: /s/_________
Murray, Acting P. J. /s/_________
Krause, J.