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People v. Lowe6/18/2003
THE COURT
Appellant James Ira Lowe pled nolo contendere to unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a), count one) and to evading a peace officer (Veh. Code, § 2800.2, subd. (a), count three). Lowe admitted four misdemeanor violations of driving with a suspended license (count four), driving under the influence of alcohol or drugs (count five), being under the influence of an intoxicating narcotic (count six), and possession of a narcotic smoking device (count seven). Lowe admitted a prior serious felony conviction within the meaning of the three strikes law and a prior prison term enhancement, which had been alleged as to counts one and three.
At sentencing, the trial court struck the prior serious felony allegation and found Lowe ineligible for probation. The court imposed the upper term of four years on count one plus one year for the prior prison term enhancement for a total prison sentence of five years. The court imposed a concurrent two-year term on count three. The court imposed a prior prison term allegation alleged on count three, but stayed imposition of sentence on this enhancement. The court imposed a restitution fine and granted applicable custody credits. The abstract of judgment incorrectly indicated Lowe's convictions on counts one and three were violations of the Penal Code and that his conviction on count seven was a felony.
On appeal, Lowe contends the trial court improperly imposed the prior prison term enhancement twice. Lowe also contends the abstract of judgment incorrectly states that counts one and three were violations of the Penal Code and that count seven was a felony. Respondent concedes the errors.
DISCUSSION
Lowe contends the trial court erred in applying the same prior prison term enhancement twice. The trial court took a single prior prison term enhancement and applied it consecutively to count one and then applied it consecutively a second time to count three. Though the court stayed sentence on the application of the enhancement to count three, the court applied the same status enhancement twice. This was error.
Sentences for prior prison term enhancements do not attach to particular counts but are added just once as the final step in computing the total sentence. (People v. Tassell (1984) 36 Cal.3d 77, 90 [overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 387, 398-401].) The trial court could not impose a single prior prison term enhancement twice even though the second imposition of the enhancement was imposed concurrently.
The abstract of judgment also incorrectly designates counts one and three as violations of the Penal Code. Both counts are violations of the Vehicle Code. Also, the abstract of judgment incorrectly designates count seven as a felony. Count seven is a misdemeanor. We will remand this case for the trial court to correct the abstract of judgment.
DISPOSITION
The case is remanded to the trial court to correct the abstract of judgment to show there is a single consecutive prior prison term enhancement which is not attached to either count. On remand, the abstract shall be corrected to reflect Lowe's convictions on counts one and three are violations of the Vehicle Code. Count seven shall be removed from the list of felony convictions. The court shall forward the amended abstract of judgment to the Department of Corrections. The judgment is otherwise affirmed.
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