People v. Delahanty CA4/2

I.

INTRODUCTION

A jury found defendant and appellant Brian Thomas Delahanty guilty of first 1 degree burglary (Pen. Code, §§ 459/460), and also found true the allegation that a person

other than an accomplice was present in the residence at the time of the burglary (§ 667.5,

subd. (c)(21). In a bifurcated proceeding, defendant admitted that he had sustained a

prior serious felony (§ 667, subd. (a)) and a prior strike (§§ 667, subds. (c) & (e)(1),

1170.12, subd. (c)(1)) based on his 1998 conviction for carjacking. The trial court

sentenced defendant to an aggregate term of 13 years in state prison as follows: the

midterm of four years for the burglary, doubled to eight years due to the prior strike, and

a consecutive five-year term for the prior serious felony.

On appeal, defendant contends the matter must be remanded for resentencing to

allow the trial court to exercise its discretion to strike the five-year prior serious felony

conviction because the court was unaware that it had discretion to strike the

enhancement. He also argues that remand is separately required because his counsel was

ineffective in failing to ask the court to exercise its discretion to strike…