Courtney

Appellant Charles Courtney pled guilty to arson of an occupied San Mateo residence (Pen. Code, § 451, subd. (b)) 1 and admitted a prior felony conviction (§§ 667, 667.5, subd. (b)). He was sentenced to the lower base term of three years for the present offense and given a five-year enhancement under section 667 for the prior conviction. He appeals, contending that the case should be remanded for resentencing because the trial court erroneously believed that it had no discretion (§ 1385) to strike the five-year section 667 sentence enhancement. We affirm the sentence imposed.

*1006 I. Facts

Because Courtney contests only the validity of the sentence imposed, no detailed discussion of the facts underlying the 1983 arson incident or the 1984 conviction is necessary. At sentencing, defense counsel argued that Courtney should be granted probation. In the alternative, counsel argued that the terms of section 667 did not apply 2 and that, for this reason, the court should strike or stay the enhancement. There was no mention of the provisions of section 1385, nor discussion of the trial court’s authority to exercise its discretion to strike or stay the section 667 enhancement…

I agree with my colleagues that Fritz 1 error has not been demonstrated on this record because: (1) there is no indication that counsel asked the trial court to strike the prior; and (2) there is no affirmative showing that the trial court believed that it had no such power.

Since the question is not before us I express no opinion on the appropriate standard of prejudice in situations where Fritz error is demonstrated.

A petition for a rehearing was denied December 19, 1985, and appellant’s petition for review by the Supreme Court was denied February 14, 1986. Bird, C. J., and Broussard, J., were of the opinion that the petition should be granted.

People v. Fritz (1985) 40 Cal.3d 227 [ 219 Cal.Rptr. 460 , 707 P.2d 833 ].

Appellant Charles Courtney pled guilty to arson of an occupied San Mateo residence (Pen. Code, § 451, subd. (b)) [1] and admitted a prior felony conviction (§§ 667, 667.5, subd. (b)). He was sentenced to the lower base term of three years for the present offense and given a five-year enhancement under section 667 for the prior conviction. He appeals, contending that the case should be remanded for resentencing because the trial court erroneously believed that it had no discretion (§ 1385) to strike the five-year section 667 sentence enhancement. We affirm the sentence imposed.

Because Courtney contests only the validity of the sentence imposed, no detailed discussion of the facts underlying the 1983 arson incident or the 1984 conviction is necessary. At sentencing, defense counsel argued that Courtney should be granted probation. In the alternative, counsel argued that the terms of section 667 did not apply [2] and that, for this reason, the court should strike or stay the enhancement. There was no mention of the provisions of section 1385, nor discussion of the trial court's authority to exercise its discretion to strike or stay the section 667 enhancement…