People v. Roe CA3

DISCUSSION

Defendant contends, and the People concede, that the trial court erred in imposing sentence enhancements for the prior conviction allegation (§ 666.5, subd. (a)) and the prior prison term allegation (§ 667.5, subd. (b)), neither of which was admitted by defendant or found true by the trier of fact, nor was evidence presented to support those allegations. We agree. Defendant and the People also agree, as do we, that remand for retrial is appropriate to determine if there is sufficient evidence of a qualifying prior conviction for purposes of imposing the upper term of the elevated triad as to counts one and two pursuant to section 666.5.

As relevant here, section 666.5, subdivision (a), provides that a defendant who, having been previously convicted of a felony violation of Vehicle Code section 10851 or a felony violation of Penal Code section 496d, regardless of whether he or she actually

3 Defendant contends retrial of the prior prison term allegation is not appropriate for purposes of enhancing a sentence pursuant to section 667.5, subdivision (b). It is well-settled that retrial of a prior conviction allegation “offends neither the state nor federal former…