Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 08HF0835, Carla M. Singer, Judge.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald Jakob and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Sills, P. J., Rylaarsdam, J., and Ikola, J.
The only issue raised on appeal concerns the validity of a prior out-of-state conviction. We conclude the issue is moot and affirm the judgment.
Following a court trial, Bradley Eugene Armes was convicted of one count of second degree burglary and one count of theft with a prior conviction. The crimes involved the taking of two small electrical items worth $83 from a Home Depot store in Costa Mesa which he intended to sell to acquaintances for about $40. Armes then admitted four prior prison term allegations. The complaint also alleged he had suffered a prior conviction for arson, a serious and violent felony, in Colorado some 20 years earlier. (Pen. Code, §§ 667, subds. (d) & (e)(1), and 1170.12, subds. (b) & (c)(1).) It is this out-of-state conviction and the court’s finding the allegation was true that is at the fulcrum of the appeal.
Armes first moved to exclude the Colorado conviction from trial but that motion was denied. After the allegation was found true, the court, at appellant’s invitation, struck the strike for purposes of sentencing. (Pen. Code, § 1385.) The court explained that “the reason is that the defendant’s criminal history is primarily one of illegal narcotic use and theft to support a drug habit. I don’t see any serious crime of violence in the four pages or so that the probation officer used to enumerate the prior California offenses. [¶] What he does is he steals. And what he did on this occasion was he stole some items that have, you know, negligible value.” The court recognized his most recent conviction involved the “possession of a weapon, but again it wasn’t used on any human being as far as I know. So that being said I will strike the strike for the purpose of sentencing.” The court then sentenced Armes to the upper term of three years on count one for burglary, stayed sentencing on count two for theft (Pen. Code, § 654), and imposed one year for each prior prison term (Pen. Code, § 667.5, subd. (b)) for a total of seven years in prison.
He asserts the out-of-state conviction does not qualify as a strike because Colorado’s first degree arson statute does not include all of the same elements as arson under California law. He asks this court to reverse and remand the matter for re-sentencing. Rather than engage in a debate on the merits, the Attorney General simply points out the obvious: the matter is moot because the out-of-state conviction was stricken for purposes of sentencing. We agree. “Striking an enhancement is tantamount to dismissing it.” (People v. Aubrey (1998) 65 Cal.App.4th 279, 284.) Thus, even if we were to conclude the out-of-state conviction does not qualify as a strike there would be no reason to remand for re-sentencing because there is nothing to correct. As the record clearly reflects, the trial court sentenced Armes based solely on his lengthy criminal history in California (four recent convictions for drug use and theft), and no argument is made that the sentence imposed is in any other way improper.
In response, Armes offers two reasons why the appeal is not moot. First, he insists the “error was not harmless because had the trial court determined the Colorado prior was not a serious and violent felony, it is conceivable that the trial court may have been more lenient in imposing sentence.” He then insists that had the trial court granted the defense’s motion to exclude the Colorado conviction, “the record makes clear that Armes would have been sentenced to six years, rather than the seven years sentence ultimately imposed.” Armes offers no explanation as to why this is so, and we have reviewed the two pages in the reporter’s transcript cited but can find nothing therein that would support his assertion. It is clear from the transcript the trial court was only stating why it was sentencing Armes to a seven-year term. Consistent with its decision not to use the conviction for purposes of sentencing, the court did not mention or use it in imposing the sentence. His argument is therefore puzzling.
Second, he makes a one-sentence assertion that “if left unchecked, this error risks repetition in further proceedings.” It is unclear what he means by this or why it matters. To the extent he may be referring to what could happen if he reoffends and this out-of-state conviction is again alleged, the matter is still moot. The effect of striking the prior conviction allegation “does not wipe out such prior convictions or prevent them from being considered in connection with later convictions.” (In re Varnell (2003) 30 Cal.4th 1132, 1138 [internal quotation marks omitted].) The prosecution may still allege them, and will still be required to prove them; similarly, Armes will still be able to challenge any such allegation on the merits. Whether any future trial court will use them in connection with a potential future conviction will then depend on whether the prosecution makes its case there.
The judgment is affirmed.