Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF123939 Robert George Spitzer, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Teresa Torreblanca, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
A jury found defendant guilty of conspiring to commit a crime (Pen. Code, § 182, subd. (a)(1)) (count 1), bringing a controlled substance into a prison (Pen. Code, § 4573) (count 2), and possessing a controlled substance for sale (Health & Saf. Code, § 11351) (count 3). As to count 3, the court found true the allegation that defendant suffered a prior felony conviction for transporting, selling, or giving away a controlled substance (Health & Saf. Code, § 11352). (Health & Saf. Code, § 11370.2, subd. (a).) The court also found true the allegations that defendant suffered four prior convictions for which he served prison terms (Pen. Code, § 667.5, subd. (b)) and two prior strike convictions (Pen. Code, §§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)). The court sentenced defendant to a determinate prison term of one year plus an indeterminate prison term of 25 years to life. Defendant contends (1) the court erred by sentencing him to a one-year enhancement pursuant to Penal Code section 667.5, subdivision (b); and (2) the court abused its discretion by denying his motion to strike his prior strike convictions. The People agree with defendant’s first contention, but disagree with defendant’s second contention. We affirm the judgment.
The minute order and abstract of judgment memorialize defendant’s sentence as “26 years to life.”
FACTS
In August 2004, defendant and his codefendant were incarcerated at the California Rehabilitation Center (Center) in Norco. Defendant was incarcerated due to an offense that occurred in Los Angeles County. Correctional Officer Contreras monitored telephone conversations on the Center’s telephone system. Officer Contreras heard several telephone conversations involving defendant, defendant’s wife, defendant’s codefendant, and an unidentified man that led him to believe defendant and his wife were planning to smuggle narcotics into the Center.
On August 15, 2004, defendant’s wife came to the Center during visiting hours. Defendant’s wife was searched by two officers at the Center. During the search, defendant’s wife reached into her vaginal cavity and pulled out a package of black tar heroin that had been wrapped in balloons and tissue paper. The gross weight of the package was 26.94 grams.
Experts opined that the heroin was possessed for sale rather than personal use due to the large quantity of the drug. An individual dose of heroin is typically 0.05 to 0.1 gram. An ounce, or 28 grams of heroin, would yield approximately 560 doses. The value of the black tar heroin in the Center would be approximately $20,000.
Defendant made a motion to strike his two prior strike offenses. The court denied defendant’s motion. We discuss the court’s reasoning post. The court sentenced defendant to an indeterminate state prison term of 25 years to life for count 2, pursuant to the three strikes law. (Pen. Code, § 667, subds. (c) & (e).) The court imposed the same prison terms for counts 1 and 3, but stayed the sentences pursuant to section 654.
All further statutory references will be to the Penal Code unless otherwise indicated.
In regard to the enhancements, the court struck the enhancement in count 3 concerning defendant’s prior felony conviction for transporting, selling, or giving away a controlled substance (Health & Saf. Code, § 11352). (Health & Saf. Code, § 11370.2, subd. (a).) The court sentenced defendant to a consecutive one-year prison term for the enhancement of having suffered a prior conviction that resulted in a prison term. (§ 667.5, subd. (b).) In imposing the one-year enhancement, the court relied on “the first prior offense alleged” in the amended information. The first prior offense alleged in the amended information was a conviction for grand theft (§ 487) on or about July 18, 2000, in Los Angeles County. The court struck the remaining three enhancements regarding defendant’s prior convictions that resulted in prison terms. (§ 667.5, subd. (b).) The court ordered defendant’s sentence in the present case be served consecutively to the sentence he was serving for his Los Angeles County case.
DISCUSSION
1.
ENHANCEMENT
Defendant contends the trial court erred by sentencing him to a one-year prison term for a prior conviction that resulted in a prison term (§ 667.5, subd. (b)). Defendant argues that at the time he committed the substantive offenses at issue in the present case he was serving his prison sentence for the prior Los Angeles County offense, which is the same offense that the court relied upon in justifying the imposition of the one-year sentence enhancement. Defendant asserts that because his prison term for his prior Los Angeles County conviction had not yet been completed, it was improper to use that conviction as a basis for the enhancement. The People support defendant’s argument. We disagree.
Courts are authorized to impose a one-year consecutive prison term “for each prior separate prison term served for any felony.” (§ 667.5, subd. (b).) A prior separate prison term is defined as “a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes . . . .” (§ 667.5, subd. (g).) New crimes committed while in prison are treated as separate offenses and begin a new aggregate prison term, because the new sentences are “deemed to commence when the prisoner would otherwise have been released.” (People v. Langston (2004) 33 Cal.4th 1237, 1242.) In other words, if the sentence for the offense committed while the defendant was incarcerated is served consecutively to the sentence for the prior offense, then there is no error, because the sentence for the prior offense will be completed at the time defendant begins serving his sentence for his most recent offense. (People v. Walkkein (1993) 14 Cal.App.4th 1401, 1409-1411.)
In the instant case, the court ordered that defendant’s sentence for his most recent offenses be served consecutively to his sentence for the offenses in the prior Los Angeles County case. Consequently, defendant’s sentence for his Los Angeles County case will be completed at the time he begins serving his sentence for the instant case. Accordingly, we find no error in the court’s imposition of a one-year sentence enhancement pursuant to section 667.5, subdivision (b).
2.
PRIOR STRIKE CONVICTIONS
Defendant contends the court erred by denying his motion to strike his prior strike convictions. We disagree.
Defendant’s first prior strike offense occurred on or about November 4, 1985, and consisted of a conviction for first degree burglary (§ 459). Defendant’s second prior strike offense occurred on or about May 8, 1984, and consisted of a conviction for shooting at a dwelling (§ 246).
We review a decision regarding striking a prior conviction under the three strikes law for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375; People v. Gillispie (1997) 60 Cal.App.4th 429, 435.) When a lower court rules on whether to strike a prior strike conviction, and when we review a ruling on the matter, the following issue must be considered: Whether a defendant should be deemed to be outside the spirit of the three strikes sentencing scheme, in whole or in part, given (1) the nature and circumstances of his present and prior convictions; (2) his background; (3) his character; and (4) his prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.)
First, as to defendant’s current and prior convictions, the trial court gave a detailed summary of defendant’s criminal history and current convictions. The court acknowledged that the prior strike convictions occurred almost 20 years prior to the offenses in the instant case, but balanced that against defendant’s persistent convictions and parole violations in the time following the strike convictions. The court cited defendant’s two prior strike convictions, a second degree burglary conviction in 1986, “[s]ome misdemeanor convictions in the late 80s,” a felony conviction for grand theft in 1989, “a series of parole violations,” “[a]nother felony conviction in ’93 for a drug-related offense, again, with parole violations,” “[a]nd a conviction for grand theft which occurred in the year 2000,” which was the offense defendant was incarcerated for at the time he committed the crimes in the instant case.
Second, in discussing defendant’s background, the court commented that defendant “has been almost a continuous resident in state custody” and that he has a “continuing practice of criminal violations of a variety of sorts.”
Third, in regard to defendant’s character, the court concluded that defendant was a habitual offender and that his most recent offenses undermined the safety and security of all the inmates in the prison and violated the integrity of the state prison system.
Fourth, in regard to defendant’s prospects, the trial court stated that defendant had multiple parole violations and convictions, which indicates that the court did not think defendant had good prospects for avoiding future crimes if it decided to strike defendant’s prior strike convictions.
We conclude that the trial court properly considered the four required factors in making its decision not to strike defendant’s prior strike convictions and reasonably concluded that defendant should not be deemed to be outside the spirit of the three strikes sentencing scheme. Accordingly, we find no abuse of discretion.
Defendant argues his prior strikes should have been stricken because he suffered from drug addiction and committed the crimes in the instant case because his wife needed financial support. Defendant’s argument is essentially a request for this court to substitute our discretion for the discretion of the trial court, which we cannot do. (People v. Carmony, supra, 33 Cal.4th at p. 377.)
DISPOSITION
The judgment is affirmed.
We concur: Gaut, J., King, J.