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OPINION

THE COURT*

Defendant James DeMarco Richards was convicted by jury trial of several counts of sex offenses and two counts of dissuading a witness by force or threat. On appeal, he contends, and the People concede, that the weapon use enhancements attached to the two counts of dissuading a witness by force or threat were improper. We will strike the two enhancements, vacate the sentence, and remand for resentencing.

BACKGROUND

In the original information, defendant was charged with six counts of various sex offenses and, in counts 5 and 8, two counts of second degree robbery (Pen. Code, § 211).1 Two types of weapon use allegations were charged in connection with the crimes. Connected to each sex offense was an allegation that defendant used a deadly weapon, a knife, pursuant to section 12022.3, subdivision (a)—a weapon use enhancement specific to certain sex offenses.2 Connected to both counts 5 and 8 was an allegation that defendant personally used a deadly or dangerous weapon, a knife, pursuant to section 12022, subdivision (b)(1)—a weapon use enhancement applicable to felony offenses.3

In the first amended information, count 8 was changed from robbery to dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). For an unknown reason, the weapon use allegation connected to it was changed from a section 12022, subdivision (b)(1) felony allegation to a section 12022.3, subdivision (a) sex offense allegation.

In the third amended information, count 5 was also changed from robbery to dissuading a witness by force or threat (§ 136.1, subd. (c)(1)).4 The prosecutor informed the court that count 5's weapon allegation should also be changed from a section 12022, subdivision (b)(1) allegation to a section 12022.3, subdivision (a) allegation, and that all of the counts should have the same section 12022.3, subdivision (a) weapon use allegation. The court amended the information as requested.

The jurors were instructed on the weapon use allegations with CALCRIM No. 3145, which is expressly applicable to weapon use allegations under sections 667.61, subdivision (e)(3), 1192.7, subdivision (c)(23), 12022, subdivision (b)(1) and (2), and 12022.3.

On the verdict forms for all counts, the jurors found true the allegation that defendant personally used a deadly weapon, to wit, a knife.5

The trial court sentenced defendant to two consecutive 25-year-to-life sentences, plus a determinate term of 34 years. On counts 5 and 8, specifically, the court enhanced the terms by four years each, pursuant to section 12022.3, subdivision (a).

DISCUSSION

Defendant contends the trial court erred in enhancing counts 5 and 8 with the four-year weapon use enhancement applicable to sex offenses under section 12022.3, subdivision (a). The People concede, but note that because the jury made the specific finding that defendant personally used a deadly weapon in the commission of the offense, he should be resentenced with the appropriate weapon use enhancement under section 12022, subdivision (b)(1). We agree that the current four-year enhancements should be stricken and the matter remanded for resentencing on counts 5 and 8 because the section 12022.3, subdivision (a) weapon use allegations were not applicable to the charges of dissuading a witness pursuant to section 136.1, subdivision (c)(1).

DISPOSITION

The judgments of conviction are affirmed. The four-year section 12022.3, subdivision (a) weapon use enhancements on counts 5 and 8 are stricken. The sentence is vacated and the matter remanded to the trial court for resentencing. The court is directed to forward certified copies of the amended abstract and minute order to the appropriate entities.