Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CH43590
Kline, P.J.
Appellant David Darrell Sanders (appellant) was found guilty, following a jury trial, of attempted extortion. On appeal, he contends (1) the jury’s verdict is not supported by substantial evidence; (2) the trial court incorrectly instructed the jury on attempted extortion; (3) the court abused its discretion when it denied appellant’s motion to strike one or more prior serious felony convictions; (4) the court erred in failing to award appellant presentence conduct credits for time spent in county jail before sentencing; and (5) the court erred when it stayed, rather than struck, five one-year prior prison term enhancements. Because we conclude (1) the court should have awarded appellant presentence conduct credits, and (2) the court was only permitted to impose or strike—not stay—the one-year prior prison term enhancements, we shall remand the matter for resentencing as to these two issues only. We shall otherwise affirm the judgment.
PROCEDURAL BACKGROUND
Appellant was charged in an amended information with attempted extortion (Pen. Code, § 524). The information further alleged that appellant had two prior strike convictions (§§ 1170.12, subd. (c)(2), 667, subd. (e)(2)), and that he had served five prior prison terms (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
A jury found appellant guilty as charged. The trial court subsequently found the prior convictions true.
Appellant’s brother and codefendant, Allen Curtis Sanders (Allen), was also charged with attempted extortion. He failed to appear during trial and a bench warrant was issued for his arrest. The jury ultimately found him not guilty.
On March 27, 2008, the trial court denied appellant’s motion to strike one or more of his prior strike convictions and sentenced him to a term of 25 years to life in state prison, after staying imposition of the prior prison term enhancements.
Also on March 27, 2008, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Richard Inocencio, the victim in this matter, was 57 years old at the time of trial. He had suffered a stroke two years previously and had some ongoing memory and hearing issues. He had owned a roofing company in San Leandro for about 20 years. He also owned a transitional care home for recovering addicts and homeless people in Hayward.
According to the director of the transitional care home, in May 2007, approximately $2,500 in cash and some prescription medication was stolen from an unlocked file cabinet in the office of the home. The theft was common knowledge among the home’s residents, but was not reported to the police. The home’s records did not show the names of either appellant or his brother (and codefendant) Allen as prior residents of the home.
In late May 2007, Inocencio started receiving calls on his cell phone from a person—later identified as appellant—who told him that “things” were going to be taken from his safe and he was going to be “in big trouble” and needed appellant’s help because “people can get hurt.” Appellant wanted money, specifically $10,000, to protect Inocencio from the people planning to get money from him and to let him know who was planning the theft. Appellant’s number did not appear on Inocencio’s cell phone.
Appellant said things that made Inocencio feel concerned for his and his family’s safety. Specifically, appellant said he was driving by Inocencio’s house and described the car that was parked in the driveway, which made Inocencio realize appellant knew where his house was. Appellant also told Inocencio that he knew Inocencio was doing a roofing job on a particular house on Nob Hill in San Francisco. The phone calls frightened Inocencio so much that he immediately moved his pregnant daughter out of his house.
Inocencio had no idea who was calling him, but he felt scared. He therefore decided to go to the sheriff’s department in San Leandro, where he met with Detective Mike Godlewski.
Detective Godlewski, a deputy sheriff with the Alameda County Sheriff’s Office, was assigned to the crimes against persons unit. On May 29, 2007, Inocencio came into a substation in San Leandro and Godlewski met with him and took his report about a person attempting to extort money from him. He said he was expecting a call from the person shortly, so Godlewski obtained a tape recorder and device that could be plugged into Inocencio’s cell phone to record the call. The phone call came a short time later, with appellant’s phone number blocked. Inocencio talked with appellant for 11 minutes. The recorder did not function properly and Godlewski could only hear a bit of appellant’s part of the conversation.
The recording was played for the jury.
During the recorded conversation, Inocencio said, “I want to find out who these people are that you say is going to rob me, man. I’m really concerned about that ‘cause I don’t want me to get hurt, my family, you know. If I have to pay five or ten thousand dollars, I’ll have to pay it. What the fuck. I’m going to save my family first, man.” When Inocencio said he was glad to hear appellant worked because it meant he would not be bothering Inocencio during his eight-hour shift, appellant responded, “Well,... just you take care of that shit.” Near the end of the conversation, Inocencio said he could get $8,000 to give to appellant, and appellant apparently said he would call again the next day.
The following day, Inocencio called Godlewski, and he was “highly upset.” He told Godlewski appellant had been by Inocencio’s home and had described the vehicle in his driveway, which showed that he knew where Inocencio lived. At approximately 5:45 p.m., Godlewski and Inocencio met at an animal shelter in San Leandro; Inocencio was anticipating another phone call.
At approximately 6:13 p.m., appellant called Inocencio and Godlewski used a digital recorder to record both sides of the conversation. During that conversation, Inocencio said that he had gotten the money, but had put it into his safe deposit box because he had not heard back from appellant. Appellant later said, “I told you to have it. I will contact you. You’re gonna meet with me and I’m going to share the information with you in exchange for the money and after that then, you know, you can take your information in. You gonna know what it is once you hear it. You gonna know who it is, you gonna hear, everything’s gonna come together, I guarantee you.”
Appellant then said that Inocencio would need to have the money at 4:00 p.m. the next day, and continued: “I will contact you and you know, to protect me, we’ll have to go through a series of chains of things in order for us to connect. I’m not no dummy, okay? I don’t know who you have contacted and I don’t know what you’re, maybe,... attempting to do on your hand, but, I’m ligit [sic] and I’m telling you that this is gonna come down on you and so, to prevent it you need to have the information about these people. Once you know the people, once that’s revealed to you, everything’s gonna make sense to you. All your dealings that you have been dealing with them over the years, okay, it has come to the point where they, they’re upset with you about just certain things and once you get these names, it’s gonna become crystal clear to you. Everything gonna click. So, you gonna be able to put the pieces together and you gonna be able to, you know, know what to do from there. You just need to know who and without that information, they got you for your, your safe at your other place.”
Appellant then asked, “How would I know all this information, you know, how would I know you getting a house built on Nob Hill?” Appellant again mentioned the house Inocencio was involved in building on Nob Hill, and then said, “You see, you’d be surprised, you know, because the amount of information I already have on you but that’s not for me to, you know, try to do you in. I’m trying to protect you, you know, on the one hand, and for my giving you this information I just ask for a compensation.” Finally, appellant told Inocencio to “have it [the money] together at 4 o’clock when I call you.”
On May 31, 2007, at approximately 3:45 p.m., Godlewski and his supervisor, Sergeant Scott Dudek, met Inocencio again at the animal shelter. Inocencio brought $5,300, which he had withdrawn from his bank. Three detectives also came to act as surveillance units. Godlewski told Inocencio that, when he received the phone call regarding where to meet, Inocencio should try to keep the meeting within the local jurisdiction and not to let the suspect into his vehicle. Godlewski asked Inocencio to wear a body wire, but Inocencio “pretty much flipped out,” became upset and started screaming, and said no repeatedly. Inocencio was scared and screamed that he felt nauseous and that he was going to throw up in the bushes. Godlewski put the wire on the visor of Inocencio’s pickup truck. He told Inocencio to repeat everything appellant said so Godlewski would know what he was saying. Inocencio was also too afraid to keep the money in the cab of his truck and put it in the bed of the truck under a piece of wood. He said he did not want to let the suspect into his vehicle and wanted limited contact with him for his own safety.
At 4:41 p.m., Inocencio received a phone call from the same caller, who asked Inocencio to meet him at 6:00 p.m. and said he would call back at 5:30 p.m.. Appellant called again at 5:35 p.m. and told Inocencio to drive to downtown Oakland. Inocencio said he did not want to go to Oakland and they agreed to meet at a Shell station on 150th Avenue, where appellant would call him again. Appellant told Inocencio, “[Y]ou know, your suspicion is [sic] only been alerted because of the information that I’ve given you thus far. However, you know, if I wanted to do something, I know where your office is on East 14th.”
Godlewski and the other deputies followed Inocencio to the Shell station. Once there, Inocencio called Godlewski and said he had been told to head to Benedict Drive. Godlewski followed Inocencio to Benedict and then heard Inocencio over the wire communicating with appellant, stating, “give it to the guy in the gray shirt and the black hat?” Inocencio turned into a parking lot at Kindred Hospital. On the sidewalk, Godlewski saw a man wearing a gray shirt and black hat talking on a cell phone. Godlewski drove past the man, who was watching him go by, and went into the parking lot.
Godlewski heard Inocencio arguing over the wire, insisting that he would not give the money to anyone other than appellant. There were not many vehicles or pedestrians around, but the man in the gray shirt and black hat was still standing on the sidewalk. Within a minute after he arrived in the parking lot, Godlewski saw a white vehicle with one person inside pull out of the driveway of the hospital parking lot and drive past the man on the sidewalk and continued south, out of sight.
After Inocencio turned into the parking lot, following appellant’s instructions, appellant told Inocencio to look for a person in a gray sweatshirt. Inocencio eventually saw the man on the sidewalk, and appellant told him to give the money to him. Inocencio refused to give the money to the other man, saying he would give it only to appellant. Appellant then hung up. When he called back, he seemed “pretty upset,” and said, “[y]ou better have all your buddies with you.” He also told Inocencio that “he got all the building surrounded, and he was telling me that the police were going to surround me. You blew it now, and that’s it. He hung up [and] he was mad.” Appellant called back one more time and told Inocencio that “you really did it now.” These calls made Inocencio feel “pretty scared.”
Godlewski, who had changed location slightly, saw the white car return, pick up the man in the gray shirt and black hat, and then drive north. Appellant was the driver of the car and the passenger was appellant’s brother, codefendant Allen Sanders. Godlewski spoke with Inocencio and said to meet him back at the animal shelter while other deputies tailed appellant and his brother.
Deputies stopped the car containing appellant and his brother at 6:24 p.m. When appellant was detained, he identified himself to officers as Kamua Kambon. He had in his possession two driver’s licenses, one in the name of Kamua Kambon and the other in the name of David Sanders. Both men were taken to a sheriff’s substation. Appellant’s brother Allen was dressed in a gray t-shirt, sweatpants, and a black baseball cap. Police subsequently decided to release appellant and his brother pending receipt of their cell phone records.
Phone records ultimately indicated that appellant and his brother spoke with each other by cell phone before and during the time of the planned money drop-off. Appellant’s phone records also showed that he was the person calling Inocencio and that each time he called, he hit “star 67” to prevent his phone number from appearing on Inocencio’s phone.
DISCUSSION
I.
Appellant contends the jury’s verdict of attempted extortion is not supported by substantial evidence.
“When considering a challenge to the sufficiency of the evidence to support a criminal conviction, we review the whole record in the light most favorable to the verdict, drawing all inferences that reasonably support it, and determine whether it contains substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a trier of fact could rationally find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Little (2004) 115 Cal.App.4th 766, 771, citing People v. Johnson (1980) 26 Cal.3d 557, 558.)
Section 518 defines extortion in relevant part as “the obtaining of property from another, with his consent... induced by a wrongful use of force or fear....” Section 519 explains that “fear,” for purposes of extortion, “may be induced by a threat,” inter alia, “[t]o do an unlawful injury to the person or property of the individual threatened or of a third person....”
Attempted extortion, of which appellant was convicted, punishes “[e]very person who attempts, by means of any threat, such as is specified in Section 519 of this code, to extort money or other property from another....” (§ 524.) “The elements of the crime of attempted extortion are (1) a specific intent to commit extortion and (2) a direct ineffectual act done towards its commission. [Citations.]” (People v. Sales (2004) 116 Cal.App.4th 741, 749.)
Although a threat of “unlawful injury” is required (§ 519), “ ‘[n]o precise words are necessary to convey a threat....’ [Citations.] [¶] Threats may consist of a menace of destruction or injury to person or property. No precise or particular form of words is necessary in order to constitute a threat under the circumstances. Threats can be made by innuendo and the circumstances under which the threat is uttered....” (People v. Oppenheimer (1962) 209 Cal.App.2d 413, 422 (Oppenheimer).)
In the present case, appellant argues that he “did not threaten Inocencio; rather, he offered to share certain information with Inocencio for a price.” Appellant notes that he told Inocencio, “I’m trying to protect you, you know, on the one hand, and for my giving you this information I just ask for a compensation.” Thus, according to appellant, his actions “should not be considered a ‘threat’ under section 519, but rather a basic oral contract, entered into willingly and voluntarily by one party in possession of a good or service and another party desirous of the good or service. As such, this should be considered a legal transaction between contracting parties.” Although appellant’s argument is certainly creative, we find it unpersuasive.
The evidence adduced at trial amply demonstrated implied threats on the part of appellant. (See Oppenheimer, supra, 209 Cal.App.2d at p. 422 [“ ‘No precise words are necessary to convey a threat. Conduct takes its legal color and quality more or less from the circumstances surrounding it’ ”].) Evidence of these implied threats included appellant’s efforts at remaining anonymous, his promises to protect Inocencio and his family from unspecified harm—“People can get hurt”—in exchange for money, and his statements showing he knew the location of Inocencio’s home, office, and work site, including the remark: “[I]f I wanted to do something, I know where your office is on East 14th.” Moreover, when he learned that Inocencio had returned the payoff money to the bank, appellant said, “I told you to have it. I will contact you. You’re going to meet with me and I’m going to share the information with you in exchange for the money....” Then, when Inocencio refused to give the money to appellant’s brother, appellant said that Inocencio had “really messed up now. You better have all your buddies with you.” Inocencio’s fear of appellant is also circumstantial evidence of appellant’s intent to instill fear in his victim. (Cf. Oppenheimer, at p. 422 [“ ‘[t]he more vague and general the terms of the accusation the better it would subserve the purpose of the [defendant] in magnifying the fears of his victim’ ”].)
Taken together, all of this evidence supports a finding of implied threats that harm would befall Inocencio and his family if the money demanded were not paid. (See Oppenheimer, supra, 209 Cal.App.2d at p. 422 [“Threats can be made by innuendo and the circumstances under which the threat is uttered”].) A reasonable jury plainly could (and did) conclude that appellant’s words and actions constituted an attempt to obtain money from Inocencio, with his consent, by a wrongful use of fear. (See §§ 518, 524.) The verdict is supported by substantial evidence. (See People v. Little, supra, 115 Cal.App.4th at p. 771.)
II.
Appellant contends the trial court incorrectly instructed the jury on attempted extortion.
A. Trial Court Background
The trial court instructed the jury regarding attempted extortion as follows:
“The defendants are charged in the Information with the crime of attempted extortion by means of any threat.
“Every person who attempts to obtain money, property or other thing of value from another with his consent, which consent has been obtained by use of fear induced by any threat, is guilty of the crime of attempted extortion in violation of Penal Code section 524.
“In order to prove this crime, each of the following elements must be proved:
“1. The defendant took a direct but ineffective step toward committing extortion;
“2. The defendant intended to commit extortion;
“3. The defendant attempted to obtain money, property or other thing of value from the alleged victim with his consent;
“4. The alleged victim’s consent was obtained by means of fear induced by any threat such as to do an unlawful injury to the person or property of the individual threatened or to the person or property of a third person;
“5. The defendant used fear induced by any threat with the specific intent to cause the alleged victim to consent to giving up his money, property or other thing of value.
“A ‘direct step’ requires more than merely planning or preparing to commit extortion or obtaining or arranging for something needed to commit extortion. A direct step is one that goes beyond planning or preparation and shows that a person is putting his plan into action. A direct step indicates a definite and unambiguous intent to commit extortion. It is a direct movement towards the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.
“A person who attempts to commit extortion is guilty of attempted extortion even if, after taking a direct step towards committing the crime, he abandoned further efforts to complete the crime or if his attempt failed or was interrupted by someone or something beyond his control. On the other hand, if a person freely and voluntarily abandons his plans before taking a direct step toward committing attempted extortion, then that person is not guilty of attempted extortion.
“The term ‘consent’ has a special meaning here. Consent for extortion can be coerced or unwilling, as long as it is given as a result of the wrongful use of fear induced by threat.
“The fear induced from any threat must be the controlling reason that the alleged victim consented. If the alleged victim consented because of some other controlling reason, each of the defendants is not guilty of the crime of attempted extortion.
“The threat may involve harm to be inflicted by either or both defendants or someone else. No particular words are required in order to constitute a threat.”
B. Legal Analysis
Respondent asserts that appellant forfeited this issue by failing to raise it in the trial court. (See People v. Rundle (2008) 43 Cal.4th 76, 151 [claim of instructional error is not generally cognizable on appeal if instruction is correct in law and defendant fails to request a clarifying instruction].) Respondent observes that appellant objected to the instruction’s reference to “any threat,” but he did not allege that the instruction failed to articulate the statutory requirement that the defendant’s use of fear must have been wrongful.
However, giving appellant the benefit of the doubt and addressing this issue on the merits, we nonetheless conclude that the court’s lengthy instruction on attempted extortion, taken as a whole and in context, properly explained section 518’s requirement that the property obtained from another “with his consent [be] induced by a wrongful use of force or fear.” Although the initial description of the crime in the court’s instruction does not include the word “unlawful” or “wrongful,” subsequent language makes plain that the use of fear must be wrongful to constitute attempted extortion. First, one of the elements of attempted extortion, set forth in the instruction, was that the victim’s “consent was obtained by means of fear induced by any threat such as to do an unlawful injury to the person or property of the individual threatened....” (Italics added.) Second, the instruction further explained that the term “consent,” for purposes of extortion, “can be coerced or unwilling, as long as it is given as a result of the wrongful use of fear induced by threat. [¶] The fear induced from any threat must be the controlling reason that the alleged victim consented.” (Italics added.)
The court’s specific intent instruction (CALJIC No. 251) also clearly informed the jury that the “crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent.”
We conclude that, in context, the instructions conveyed to the jury the requirement that Inocencio’s consent was induced by the wrongful use of fear. (See § 518.) We agree with respondent that there is no possibility that the jury misunderstood the prosecution’s duty to prove this requirement beyond a reasonable doubt.
III.
Appellant contends the trial court abused its discretion when it denied his motion to strike one or more prior serious felony convictions.
A. Trial Court Background
At the conclusion of the bifurcated court trial, the trial court found that appellant had suffered the following prior felony convictions: (1) a 1980 conviction for second degree robbery (§ 211); (2) a 1985 conviction for being an accessory after the fact (§ 32); (3) a 1988 conviction for receiving stolen property (§ 496, subd. (a)); (4) a 1989 conviction for unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)); (5) a 1990 conviction for first degree residential burglary (§ 459); (6) a 1992 conviction for battery with injury on a peace officer (§ 243, subd. (c)(2)); and (7) a 1998 conviction for second degree commercial burglary (§ 459)).
At the sentencing hearing, two people presented statements on behalf of appellant. Arthur Coleman stated that he had known appellant for 10 years and was his spiritual practitioner. He asked the court to look at appellant’s life and see if there was any possibility of leniency. Michael Holland, a retired Oakland deputy police chief, stated that he had known appellant for about 15 years and, while he knew appellant had made “some horrible mistakes,” he believed that appellant could “give back to society in a positive way” if he was not in prison for life.
After these statements, defense counsel asked the court to strike the priors, or at least one prior, in the interest of justice. He observed that while appellant was not totally blameless, the offense in this case was not a violent one and there had been “no direct threat to [the victim].”
Following arguments of counsel, after stating that it had read and taken into consideration the probation report, the court declined to strike any of the prior convictions. It then found that the prior convictions for robbery and first degree residential burglary were strike priors, and sentenced appellant to, inter alia, 25 years to life in prison.
B. Legal Analysis
“ ‘[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts’ discretion in sentencing repeat offenders.’ ([People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 528].).... [¶] Consistent with the language of and the legislative intent behind the three strikes law, we have established stringent standards that sentencing courts must follow in order to find such an exception. ‘[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, “in furtherance of justice” pursuant to... section 1385[, subd.] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ ([People v. Williams (1998) 17 Cal.4th 148, 161].)
“Thus, the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (People v. Carmony (2004) 33 Cal.4th 367, 377-378 (Carmony).)
A trial court’s failure to dismiss a strike prior conviction allegation under section 1385 is reviewed for abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 376.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
According to appellant, the court abused its discretion when it refused to strike one or more of his strike priors because attempted extortion (§ 524) is not considered either a “violent” or “serious” felony under California law. Rather it is a “wobbler,” punishable either as a felony or a misdemeanor. Appellant also notes that he did not use any actual violence against Inocencio; nor were any weapons involved. Finally, appellant argues that his two strike priors were remote in time, having occurred some 27 and 17 years before the offense in this case.
First, appellant was convicted in this case of a felony violation of section 524. Moreover, that the current offense was not a “serious” or “violent” felony does not make him ineligible for a third strike. As our Supreme Court explained in People v. Thomas (1999) 21 Cal.4th 1122, 1128: “ ‘[T]he three strikes law imposes a life sentence on any defendant convicted of “a felony” who has two or more prior convictions for “serious” (§ 1192.7, subd. (c)) or “violent” (§ 667, subd. (c)) felonies.’ [Citations.]” Second, in determining whether appellant is “ ‘outside the [three strikes] scheme’s spirit’ ” the focus is not solely on his current offense, but rather is on “ ‘the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects.’ ” (Carmony, supra, 33 Cal.4th at p. 377, quoting People v. Williams, supra, 17 Cal.4th at p. 161, italics added.) In addition to the present offense, which involved appellant attempting to frighten a victim into giving him a large sum of money, the court’s refusal to strike the priors was also properly based on appellant’s 27-year long history of committing crimes, including serious and/or violent felonies. The trial court did not abuse its discretion in concluding that appellant “fell within the spirit of the three strikes law.” (Carmony, at p. 379.)
Finally, with respect to appellant’s remoteness challenge, respondent asserts that this sentencing issue is forfeited due to appellant’s failure to raise it in the trial court. (See People v. Scott (1994) 9 Cal.4th 331, 353 [sentencing error must be challenged in trial court “to reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them”].) Even assuming this argument is not forfeited, given the trial court’s discretion in this matter—as well as appellant’s nearly nonstop history of criminality—we find no abuse of discretion based on remoteness. (See, e.g., People v. Gaston (1999) 74 Cal.App.4th 310, 319-321 [present felony conviction was for driving or taking a vehicle; prior strikes were 17-year-old robbery and kidnapping convictions, and defendant had not “led a crime-free life during the period between his 1981 strike priors and his current crimes, a factor which would give significance to the remoteness in time of those strikes”].)
In sum, the trial court’s refusal to strike appellant’s prior strike convictions was not “so irrational or arbitrary that no reasonable person could agree with it,” and no abuse of discretion has been shown. (Carmony, supra, 33 Cal.4th at p. 377.)
IV.
Appellant contends the court erred in failing to award him presentence conduct credits, pursuant to section 4019, for time spent in county jail before sentencing. Respondent agrees.
Section 4019 permits an inmate, including a three strikes defendant, to receive two days of credit for every four days of confinement unless he or she has been convicted of murder (see § 2933.2) or a violent felony listed in section 667.5, subdivision (c). (People v. Thomas, supra, 21 Cal.4th at p. 1130; see also People v. Caceres (1997) 52 Cal.App.4th 106, 110; § 2933.1.)
Although the crime of extortion, committed in association with a criminal street gang (§§ 186.22, 518) is listed in section 667.5, subdivision (c)(19), neither extortion alone (§ 518) nor attempted extortion (§ 524) is listed in that section.
Since appellant was not convicted of murder or a violent felony in this case, the parties agree he should have received conduct credits for his time in local custody before he was sentenced. We shall remand the matter to the trial court with directions to calculate appellant’s presentence conduct credits under section 4019.
V.
Appellant contends the trial court erred when it stayed, rather than struck, the five one-year prior prison term enhancements. Respondent agrees that the court was not permitted to stay the enhancements, but instead was required to either impose or strike them.
On February 25, 2008, the trial court found true the allegations that appellant had served five prior prison terms within the meaning of section 667.5, subdivision (b). At the March 27, 2008 sentencing hearing, the trial court imposed and then stayed one-year concurrent terms for each of the five prior prison term enhancements.
Under section 667.5, subdivision (b), a recidivist offender is subject to a one-year enhancement for each prior prison term he or she has served. (People v. Langston (2004) 33Cal.4th 1237, 1241.) “Once the prior prison term is found true within the meaning of section 667.5[, subd.] (b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken. [Citations.]” (Ibid.) “[T]he failure to either impose or strike a section 667.5 prior prison term enhancement pursuant to section 1385, subdivision (a), is a jurisdictional error which may be corrected for the first time on appeal.” (People v. Garcia (2008) 167 Cal.App.4th 1550, 1562.)
Because the trial court lacked authority to stay the five one-year enhancements (see People v. Langston, supra, 33 Cal.4th at p. 1241), and because it is not clear from the record whether the court would have imposed or stricken those enhancements, we shall remand the matter to the trial court so that it can either impose the one-year terms or exercise its discretion to strike them.
We observe that, if imposed, the enhancements must be served consecutively. (§ 667.5, subd. (b); see People v. Myers (1993) 5 Cal.4th 1193, 1198.)
DISPOSITION
The matter is remanded for resentencing in accordance with the views expressed in this opinion (see pts. IV and V, ante). In all other respects, the judgment is affirmed.
We concur: Lambden, J., Richman, J.