Skip to content
Name: People v. Ayers
Case #: B165908
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 06/24/2004
Subsequent History: 7/13/04 Rhg. Granted & Depub.

The appellate court in this case requested supplemental briefing on whether the trial court erred in computing the subordinate term on count 3 (attempted robbery) as simply one-third of one-half of the middle term of four years (8 months), in light of the fact that the prosecution had pleaded and proved that appellant was a second strike offender. Although both parties agreed that the correct term should have been double one third of the mid term (16 months), they disagreed on whether the eight month term was an unauthorized sentence which may be corrected on appeal absent an objection below. Appellant argued that since the trial court had the discretion to dismiss the prior strike, the term imposed was a discretionary sentencing choice, and therefore subject to waiver absent an objection. The appellate court here held that appellant’s position would be correct if the trial court had stated it was dismissing the prior strike and set forth its reasons for doing so. But here, the trial court neither did so, nor imposed the strike-mandated sentence. The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal. Therefore, the judgment was reversed and remanded for resentencing.