Santana

In this case, we hold that when the functional effect of a trial court’s order is to strike a Penal Code section 667, subdivision (a) enhancement, even though the action is denominated a stay, the court must comply with section 1385. Moreover, a trial court cannot use a prior 667, subdivision (a) conviction as a factor in aggravation of a sentence.

Facts

Defendant was charged with burglary of a residence in violation of section 459. An amendment to the information further alleged that he came within the provisions of section 667, subdivision (a) because he had been previously convicted “of a serious felony, to wit, Burglary (Residential), in violation of Section 459 of the Penal Code. ...”

After the court had read and considered a preplea probation report (Code Civ. Proc., § 131.3), defendant, through counsel, advised the court that he had decided to plead guilty, admit the prior, and also admit a pending probation violation. Defense counsel commented that “the court is indicating it intended to use the prior as an enhancement and give [defendant] six years in the state prison, stay the prior and run the violation of probation concurrent.” , The court replied, “That is…