Filed 2/3/00

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Appellant,

CHAD MELVIN MANCEBO,

Defendant and Appellant.

F028473

(Super. Ct. No. 38599)

MODIFICATION OF OPINION AND DENIAL OF REHEARING

[CHANGE IN JUDGMENT]

[Modification of Opinion [certified for partial publication] on denial of Rehearing]

The Attorney General requests we grant a rehearing on two grounds: (1) because the trial court’s imposition of one-third the upper term on the firearm-use enhancements attached to counts 4, 5 and 6 results in an unauthorized sentence; and (2) because he wants us to reconsider our holding that a multiple victim circumstance under the one strike law was not adequately pled. We decline to reconsider our holding regarding the inadequate pleading. However, on denial of the petition for rehearing, we will modify the disposition to reflect that the sentences imposed for the firearm-use enhancements attached to counts 3 and 9 are stricken, the matter is remanded for resentencing on the firearm-use enhancements attached to counts 4, 5 and 6, and that in all other respects the judgment is affirmed.

The opinion filed in this action on January 4, 2000, is modified as follows:

1. The first sentence (on page one of the typed opinion and ending on page two) is modified to delete the last part thereof, so that it now reads:

In the published portion of this opinion we address alleged sentencing errors under Penal Code section 667.61, also known as the "One Strike" law.

2. The third paragraph of the introductory portion, located on page two of the opinion, is modified to delete the last sentence, beginning with "We reject" and ending with "subordinate counts." The following is substituted :

In the unpublished portion of this opinion we reject defendant’s remaining contentions, but remand for resentencing on the firearm-use enhancements pertaining to counts 4, 5 and 6, based on respondent’s contention that the court imposed an unauthorized sentence on these counts.

3. Part V of the opinion was originally certified for publication. However, it is no longer certified for publication. The publication instructions footnote is modified to read as follows:

*Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of Procedural History, Factual History, Parts I-III and V-VI.

4. Part V of the opinion is deleted in its entirety and the following inserted in its place:

*V. The firearm-use enhancement sentence

Defendant contends the court erred by imposing one-third the upper term of 10 years for firearm use on the subordinate terms for counts 4, 5 and 6. Defendant contends section 1170.1, subdivision (a) required the court to use one-third the middle term for the gun-use enhancement in calculating his sentence and that it erred in using the upper term instead. As pointed out by respondent in its petition for rehearing, the firearm-use enhancements were unauthorized because subdivision (i), not subdivision (a), of section 1170.1 applies. Therefore, we remand for resentencing so the court may impose any firearm-use enhancements on counts 4, 5 and 6 pursuant to the provisions of section 1170.1, subdivision (i).

In his petition for rehearing, for the first time, respondent points out that under Penal Code section 1170.1, subdivision (i) (now subdivision (h)), the court imposed an unauthorized sentence when it ordered the enhancements on subordinate counts 4, 5 and 6 to be served at one-third the upper term. In our published discussion of Part V, we rejected defendant’s argument that the enhancement terms could only be one-third the midterm under section 1170.1, subdivision (a). Respondent is correct that subdivision (i) rather than subdivision (a) controls the sentencing regarding enhancements when the underlying offense is an enumerated violent sex offense, like here. Under subdivision (i), "Each of the enhancements shall be a full separately served enhancement and shall not be merged with any term or with any other enhancement." In People v. Crooks (1997) 55 Cal.App.4th 797, 811, the court held that the imposition of one-third the midterm for an enhancement was an unauthorized sentence, which may be corrected whenever it "is called to our attention .…" Thus, respondent’s failure to make this argument in his respondent’s brief does not constitute a waiver of the issue, even though it is raised for the first time in the petition for rehearing.

Rather than ordering modification of the sentence, we remand for resentencing in light of the errors in sentencing that are discussed in the opinion. Remand is appropriate because the court may have had a certain length of sentence in mind when it sentenced defendant on counts 4, 5 and 6 under section 1170.1, instead of section 667.6, which was used on other counts. Since section 12022.5 provides a range of three, four or ten years, the court may decide to impose a low or midterm enhancement rather than the upper term. The low or midterm would result in a term closer to the court’s original sentencing on the enhancements in counts 4, 5 and 6 (3 years, 4 months). On the other hand, the court may decide to order a sentence identical in length by imposing the upper term enhancements since, under issue IV we hold it was error to impose two ten-year enhancements on counts 3 and 9. We leave this determination to the court’s discretion.

5. The two footnotes in Part V will be renumbered in accordance with their location in the opinion.

6. The Disposition, at page 35 of the typed opinion, is modified to read as follows:

The judgment is modified by striking the sentences imposed for the firearm-use enhancements attached to counts 3 and 9. The matter is remanded for resentencing on the firearm-use enhancements in counts 4, 5 and 6. In all other respects the judgment is affirmed.

The respondent’s petition for rehearing is denied.

_________________________

I CONCUR: WISEMAN, J.

__________________________

DIBIASO, Acting P.J.