Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCN244456, K. Michael Kirkman, Judge.
HALLER, J.
Paul N. Kingman was convicted of residential burglary (Pen. Code, §§ 459/460) in a bench trial. Subsequently, Kingman admitted he had a prior serious/violent felony or strike conviction (§ 667, subds. (b)-(i)) and a prior serious felony conviction (§ 667, subd. (a)(1)). Kingman also admitted he had served a prior prison term within the meaning of section 667.5, subdivision (b).
Statutory references are to the Penal Code.
The trial court sentenced Kingman to a total of 10 years in prison—four years for the burglary (the lower term of four years doubled under the "Three Strikes" law) plus a consecutive five-year enhancement for the prior serious conviction and a consecutive one-year enhancement for the prior prison term.
Kingman appeals, contending the trial court erred by imposing the one-year enhancement for the prior prison term because it constituted dual punishment for a single prior conviction.
FACTS
On December 27, 2007, Joyce Gregg returned to her Oceanside residence after a two-day trip and discovered the residence had been burglarized. The burglar had entered her house through a kitchen window and had taken a laptop computer and a large quantity of jewelry. Kingman's fingerprints were found on the inside of the kitchen window. After Kingman was arrested, he admitted he had traded the stolen laptop computer for methamphetamine.
Kingman admitted his prior strike conviction was based on a 2005 conviction for residential burglary. Kingman also admitted his prior serious felony conviction was based on the 2005 conviction for residential burglary. Kingman admitted his prior prison term stemmed from 2004 convictions for burglary and unlawfully taking/driving a stolen vehicle as well as the 2005 conviction for residential burglary.
DISCUSSION
Kingman contends his one-year enhancement for the prior prison term must be reversed because it constituted a prohibited dual use of a single prior conviction. The contention is without merit.
In People v. Jones (1993) 5 Cal.4th 1142 (Jones), our Supreme Court held that a single prior conviction cannot be the basis of both a prior serious felony enhancement and a prior prison term enhancement. (Id. at p. 1150.) The Jones court relied on former section 667, subdivision (b) which provided: " 'This section shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment.' [Citation.]" (Id. at p. 1149; see now § 667, subd. (a)(2).) The Supreme Court held: "[W]hen multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." (Jones, at p. 1150.) Although enhancements imposed pursuant to section 667.5, subdivision (b) are often referred to as prior prison term enhancements, they are imposed for "that particular subset of 'prior felony convictions' that were deemed serious enough by earlier sentencing courts to warrant actual imprisonment." (People v. Prather (1990) 50 Cal.3d 428, 440, quoting Cal. Const., art. I, § 28, subd. (f); see Jones, at p. 1148.) Accordingly, a section 667.5, subdivision (b) enhancement cannot be imposed for the prior offense underlying a prior prison term in addition to a section 667, subdivision (a) enhancement for the same prior offense. (Jones, at pp. 1149-1150.)
If Kingman's prior prison term was based solely on the 2005 conviction for residential burglary, Jones would be controlling. But the prior prison term was based on both his 2005 conviction for residential burglary and his 2004 convictions for second degree burglary and unlawfully taking/driving a stolen vehicle. In People v. Gonzales (1993) 20 Cal.App.4th 1607, 1610-1611, this court carved out an exception to Jones. We held Jones does not preclude imposition of a prior prison term enhancement when the prior prison term is based only in part on the same case that also is the basis of the prior serious felony enhancement. (Gonzales, at p. 1610.) "Each of these cases therefore provides an independent basis for the... prior prison allegation alleged against [Kingman] in the amended information. Each case involves a separate crime, which was committed separately and brought and tried separately." (Id. at p. 1611.) The 2004 convictions serve as a sufficient basis in and of themselves to support the prior prison term allegation against Kingman. (Ibid.)
Here, the trial court did not run afoul of Jones, supra, 5 Cal.4th 1142 by imposing a section 667, subdivision (a)(1) enhancement for Kingman's prior residential burglary conviction as well as a section 667.5, subdivision (b) enhancement because the prior prison term was not a one-offense prison commitment. Kingman's prior prison term was based on both his 2005 conviction of a (serious felony) residential burglary and on his wholly separate 2004 convictions of second degree burglary and unlawfully taking/driving a stolen vehicle. Thus, the 2004 convictions provided "an independent basis" for the prior prison term under People v. Gonzales, supra, 42 Cal.App.4th at page 1611.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P.J., IRION, J.