THE PEOPLE v. JAMES HOLLOWAY

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JAMES O. HOLLOWAY, Defendant and Appellant.

2d Crim. No. B210741

Decided: June 22, 2010

James O. Holloway appeals the judgment entered after a jury convicted him of possessing cocaine base (Health & Saf.Code, § 11350, subd. (a)).  Appellant admitted suffering three prior Health and Safety Code section 11352 convictions (id. at § 11370.2, subd. (a)) and three prior prison terms (Pen.Code,1 § 667.5, subd. (b)).  The trial court sentenced him to a total term of three years in state prison, consisting of the midterm of two years plus an additional year for one of the prison term priors.   The one-year sentences for the two remaining prior prison term enhancements were ordered stayed.   Appellant contends the matter must be remanded with directions that the court strike the prior prison term enhancements that were stayed and state its reasons for doing so.   We agree that the court erred in staying two of the section 667.5, subdivision (b) enhancements, and that the matter must therefore be remanded for resentencing as to those enhancements.   We further conclude, however, that the court retains discretion on remand to either impose or strike the enhancements.   We shall order the matter remanded accordingly.   In all other respects, we affirm.   STATEMENT OF FACTS On November 14, 2007, Los Angeles Police Detective Eric Armstrong was working undercover in the Skid Row area of Los Angeles when he observed a man approach appellant on the street.   Detective Armstrong recognized appellant from a prior encounter in the same area in June of 2006.   Following a brief conversation, the man handed appellant money.   Appellant produced a plastic bindle, gave the man part of its contents, and put the money in his pocket.   As both men were walking away in opposite directions, Detective Armstrong and his partner drove up and ordered appellant to put his hands on the fence that abutted the sidewalk.   Appellant turned and dropped the plastic bindle on the sidewalk.   The bindle was recovered and found to contain an off-white substance that was later determined to be 0.13 grams of cocaine base.   During a search of appellant's person, $28 was found in his pocket.   Evidence that appellant had sold cocaine to an undercover officer in the same area in 2005 was also offered under Evidence Code section 1101, subdivision (b).  Frederick Moses testified on behalf of appellant.   Moses was with appellant at the time of his arrest.   He testified that he and appellant were smoking cocaine when a woman named Sassie approached and asked appellant for a dollar.   Appellant took a dollar from his pocket and gave it to her.   He did not see appellant sell drugs to anyone, nor did he see him drop anything on the ground.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Judith L. Champagne, Judge

Superior Court County of Los Angeles

Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.