DISCUSSION

I Defendant Is Not Entitled To A Reduced Sentence On The Gun Enhancement Attached To Count One Defendant argues his gun enhancement sentence should be reduced to four years because it appears the trial court sentenced him under the 12022.53 enhancement and it did not comply with newly enacted sentencing laws when imposing the upper term for the 12022.5 enhancement. We disagree. As a factual matter, we note that the trial court did not strike the gun enhancement found true pursuant to section 12022.53, subdivision (b). Defendant does not argue that the trial court’s decision not to strike that subdivision’s enhancement was an abuse of discretion. Thus, the trial court properly imposed 10 years pursuant to section 12022.53, subdivision (b), as that is the only term available under that subdivision. Given the imposition of a sentence under section 12022.53, subdivision (b), the trial court should have stayed the sentence under section 12022.5, subdivision (a) because a firearm enhancement specified in section 12022.5 may not be imposed in addition to an

3 enhancement imposed under section 12022.53. (§ 12022.53, subd. (f); People v. Gonzalez (2008) 43 Cal.4th 1118, 1129-1130; People v. Warner (2008) 166 Cal.App.4th 653, 659.) Even if stayed, however, the trial court must select a term pursuant to section 12022.5, subdivision (a). Section 12022.5, subdivision (a) imposes a sentence of either three, four, or 10 years. Defendant argues the trial court improperly chose the upper term sentence under section 12022.5, subdivision (a) rather than the midterm sentence; however, we do not address the issue of term choice here. As discussed post, the matter must be remanded for resentencing, at which point defendant can raise this objection. (See People v. Ramirez (2019) 35 Cal.App.5th 55, 64 [when a case is remanded for resentencing, the trial court is given jurisdiction to modify any aspect of a defendant’s sentence].) II Remand Is Required The parties note, but do not argue error, that the trial court did not impose a sentence for the assault with a deadly weapon conviction and associated enhancements before staying the sentence. When the trial court stayed the sentence for the assault conviction and attached enhancements, the court cited to section 654, which prohibits the imposition of more than one punishment for an act or omission which is made punishable in different ways by different statutory provisions. (§ 654, subd. (a).) “[W]hen a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence.” (People v. Duff (2010) 50 Cal.4th 787, 796, italics omitted.) Failure to follow this procedure results in an unauthorized sentence. (People v. Alford (2010) 180 Cal.App.4th 1463, 1472.) We must remand for the trial court to impose a sentence here because we cannot say what sentence the trial court undoubtedly would have imposed. (See id. at p. 1473 [appellate court imposed a midterm sentence because the trial court imposed a midterm sentence on the

4 nonstayed count involving the same conduct]; People v. Lawley (2002) 27 Cal.4th 102, 172.) Accordingly, we shall remand the matter to the trial court for resentencing so that the court may select a sentence to impose for the assault with a deadly weapon conviction and attached enhancements, impose that sentence, and then stay execution of either the sentence on the assault with a deadly weapon conviction or the sentence on the attempted murder conviction. We note section 654 has recently been amended by Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1). Current section 654 allows the trial court to select in its discretion which term among those falling under its provision to impose. Upon remand, the trial court shall exercise its discretion under the current version of section 654. Further, as both parties agreed, the abstract of judgment contains clerical errors. We need not address this issue because the trial court will prepare a new abstract following resentencing.

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DISPOSITION

The matter is remanded for resentencing so the trial court may impose a sentence on the assault with a deadly weapon conviction and associated enhancements (count two); impose a sentence on the section 12022.5, subdivision (a) gun enhancement (count one); and exercise its discretion pursuant to section 654. The trial court shall also entertain any sentencing objections then raised by defendant. The judgment is otherwise affirmed.

/s/ ROBIE, Acting P. J.

We concur:

/s/

MAURO, J.

/s/ McADAM, J.*

* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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