Byrd
People v. Byrd
Opinion
Lead Opinion
Benke, J.
Aaron Wade Byrd contends the trial court erred when it sentenced him to prison for forcible sodomy (Pen. Code; 1 § 286, subd. (c)(2); count 3) with a fixed-term enhancement for aggravated kidnapping for purposes of committing the crime (§ 667.61, subd. (d)(2)), but refused to stay his sentence for simple kidnapping (§ 207; count 1) because, *92 Byrd contends, he committed the sodomy during the same kidnapping. Byrd also contends his case should be remanded for resentencing because the trial court did not recognize it had discretion to impose concurrent, as opposed to consecutive, sentences on counts 1, 2, 3 and 5 based on the trial court’s failure to recognize that all the offenses arose on the same occasion or out of the same operative facts.
As we explain, we agree the record fails to show the trial court recognized it had discretion to sentence Byrd concurrently when it sentenced him consecutively on count 5, possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)) under the “Three Strikes” law. We thus remand for resentencing on count 5 only. In all other respects, we affirm the judgment of conviction.