In recalculating a defendant’s sentence following the granting of a Proposition 36 petition, the trial court may impose prior prison term enhancements where the punishment for the enhancements was previously stricken. Pursuant to a plea agreement, Garner was given a life Three Strikes sentence for receiving stolen property (the amount was over $950). The plea agreement provided that other charges would be dismissed, and the prosecution agreed to not file new charges for witness intimidation (Pen. Code, § 136.1). The trial court struck the punishment for three prior prison term enhancements (Pen. Code, § 667.5, subd. (c)). After the passage of Proposition 36, Garner petitioned to reduce his sentence. The trial court granted his petition and sentenced him to the upper term of three years, doubled to six years. It then added three, one-year terms for the previously stricken prior prison term enhancements. On appeal, Garner claimed the trial court was restricted to resentencing only the base term. Held: Affirmed. The trial court did not strike the true findings on the prior prison terms, only the punishment as allowed by Penal Code section 1385, subdivision (c)(1). Further, the trial court properly reconsidered all of the charges against defendant in selecting the appropriate term. Proposition 36 requires a trial court to resentence a qualified defendant to double the determinate term selected for the offense. However, this is independent of any other possible punishment, such as prior prison term enhancements. By way of comparison, when a sentence is recalled under Penal Code section 1170, subdivision (d), the entire sentence may be reconsidered. Proposition 36 similarly provides for a “recall of sentence” upon timely petition. There is no reason to treat the scope of these two provisions differently.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C079865.PDF