Opinion
B200946
7-1-2008
THE PEOPLE, Plaintiff and Respondent, v. ADMASU GOSHU MEKONNEN, Defendant and Appellant.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Defendant and appellant Admasu Goshu Mekonnen appeals from a judgment of conviction following a jury trial. Appellant contends there was insufficient evidence to support the trial courts imposition of a one-year enhancement under Penal Code section 667.5, subdivision (b). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 19, 2007, at approximately 9:00 p.m., appellant entered a busy Ethiopian restaurant and spoke with a waitress at the bar. Appellant then approached the restaurant manager, Fekere Gebremariam, and asked for a drink. Gebremariam refused, telling appellant that he was already drunk. Appellant smelled of alcohol, his eyes were red, he spoke loudly and he pounded his fist on the bar several times. Appellant was a previous customer, but the last time he had been in Gebremariam refused to serve him and ultimately banned him from returning to the restaurant because he had appeared drunk. This time, appellant responded "`I have to have a drink" and pounded his fist on the bar again. Gebremariam led appellant outside through the back door under the guise of wanting to talk with him, but then shut the door behind him.
Appellant returned to the restaurant approximately 25 minutes later. He threw rocks behind the bar, breaking a mirror and a television set. Several restaurant customers grabbed appellant and subdued him. The police arrived approximately 25 minutes later in response to Gebremariams call. Officers observed that appellant appeared to be drunk, given that his eyes were bloodshot, his breath smelled of alcohol and he was behaving belligerently. They recovered two concrete rocks from appellants pockets and one concrete rock from the restaurants bar area. According to Gebremariam, the replacement cost of the mirror was $300 and the television was $900.
Appellant testified that he went to the restaurant for a drink at about 9:30 p.m., but Gebremariam told him the restaurant was busy and no one could serve him. He was not drunk. After waiting a few more minutes for someone to serve him, he heard a noise and turned to see a mirror breaking. Gebremariam ran over and asked appellant what happened. When appellant said he did not know, Gebremariam pushed him. The two began to argue and restaurant employees grabbed appellant, tied him up and dragged him to a back room where he remained until the police came. Appellant did not know how any rocks got in his pocket. A few months earlier, appellant had a verbal confrontation with Gebremariam when he was participating in a demonstration against the Ethiopian government at a shopping center near the restaurant.
An information charged appellant with one count of vandalism exceeding $400 in damage in violation of section 594, subdivision (a). The information further alleged that appellant had suffered a prior conviction and served a prior prison term within the meaning of section 667.5, subdivision (b). Appellant pleaded not guilty. A jury trial commenced on June 12, 2007. Two days later, the jury found appellant guilty. Immediately preceding the verdict, appellant waived his right to a jury trial on the prior conviction and admitted suffering a prior conviction for violating section 666.
On July 23, 2007, the trial court sentenced appellant to an aggregate term of two years and four months in prison, comprised of the low term of one year and four months on count 1 (§ 594, subd. (a)) and a consecutive one-year enhancement under section 667.5, subdivision (b). The trial court denied appellants motion to strike the prior pursuant to section 1385. Appellant received 231 total days of credit. He was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)), a $20 court security assessment (§ 1465.8, subd. (a)(1)) and a $20 DNA sample assessment (§§ 261, 261.5); the trial court stayed a $200 parole revocation fine (§ 1202.45).
This appeal followed.
DISCUSSION
Appellant contends there was insufficient evidence to support the imposition of the one-year enhancement under section 667.5, subdivision (b) because he did not admit one of the elements of the enhancement—namely, that he completed a prison term for the prior conviction. We disagree. The totality of the circumstances demonstrated that appellant understood and admitted all requisite elements of the enhancement.
Section 667.5 provides in relevant part: "Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [¶] . . . . [¶] (b) Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction." The statute further defines a "prior separate prison term" 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, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after an escape from incarceration." (§ 667.5, subd. (g).)
Proof of an enhancement under section 667.5, subdivision (b) thus requires the prosecution to establish that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed the term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. (People v. Tenner (1993) 6 Cal.4th 559, 563.) "Due process requires the prosecution to shoulder the burden of proving each element of a sentence enhancement beyond a reasonable doubt." (Id. at p. 566.) We review section 667.5 enhancements in the light most favorable to the judgment "to determine whether substantial evidence supports the fact finders conclusion, i.e., whether a reasonable trier of fact could have found that the prosecution . . . sustained its burden of proving the defendant guilty beyond a reasonable doubt." (People v. Tenner, supra, at p. 567.)
Relying on People v. Epperson (1985) 168 Cal.App.3d 856 (Epperson) and People v. Lopez (1985) 163 Cal.App.3d 946 (Lopez), appellant contends the one-year enhancement should not have been imposed because he admitted only the validity of his prior conviction, not that he had served a separate prison term for the conviction. In Epperson, the appellate court struck the section 667.5, subdivision (b) enhancements on the ground that the defendants admission of his prior convictions did not encompass an admission that he satisfied the five-year "washout" requirement and therefore could not be interpreted "as including admissions of all the necessary elements of the enhancements alleged under Penal Code section 667.5, subdivision (b)." (Epperson, supra, at p. 865.) In Lopez, the court affirmed an order striking two section 667.5, subdivision (b) enhancements. It observed that although the defendant admitted that the prior convictions were valid, "the record does not indicate that the amendment to the felony complaint was read to defendant, that he waived a reading thereof, or that he was ever advised that by admitting the validity of the prior convictions he would also be admitting that he served separate prison terms therefor. Thus, his admission that the prior convictions were valid cannot be construed as an admission of the allegations that he served prior, separate prison terms for each of those convictions." (Lopez, supra, at p. 951.)
Appellants reliance on this authority is misplaced. In People v. Mosby (2004) 33 Cal.4th 353 (Mosby), the California Supreme Court replaced the Epperson and Lopez reversal per se rule for technical errors in advisements and admissions with the totality of the circumstances test, holding that a review of the entire record "sheds light on defendants understanding" in cases involving admissions of prior prison term enhancements. (Mosby, supra, at pp. 364, 365; see also People v. Christian (2005) 125 Cal.App.4th 688, 694.) Viewing appellants admission of his prior conviction in the context of the entire proceedings, it is clear that appellant was admitting the allegations set forth in the information, which included all elements necessary to support an enhancement under section 667.5, subdivision (b).
In this case, the information alleged: "It is further alleged as to count(s) 1 pursuant to Penal Code section 667.5(b) that the defendant(s), ADMASU GOSHU MEKONNEN, has suffered the following prior conviction(s) . . . ." Thereafter, the information listed the violation of section 666 by case number, conviction date and court, and alleged: "and that a term was served as described in Penal Code section 667.5 for said offense(s), and that the defendant did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during, a period of five years subsequent to the conclusion of said term." At appellants arraignment on March 19, 2007, appellants counsel received a copy of the information and appellant specifically denied the allegation under section 667.5, subdivision (b).
On June 14, 2007, the trial court advised appellant that the jury had reached a verdict. Appellants counsel stated that he had discussed with appellant how he would like to proceed with respect to the prior allegation under section 667.5, subdivision (b) and told the court: "If the jury comes back with a guilty verdict for a felony vandalism, Mr. Mekonnen is prepared to admit that prison prior is correct and it does fall within the statute." At that point, the trial court advised appellant of his right to a jury trial on the prior conviction and took express waivers of appellants right to a jury trial, right to cross-examination of witnesses and right against self-incrimination. The trial court then referred to the case number as set forth in the information and stated: "In case number BA 323121, which alleges a conviction January 9th, 2002, in the Los Angeles County Superior Court for a violation of Penal Code section 666 do you admit having suffered that conviction sir?" Appellant responded "Yes" and his counsel joined in the admission.
Reviewing the record under the totality of the circumstances, substantial evidence supported the trial courts imposition of the enhancement under section 667.5, subdivision (b). Case law holds that where, as here, the information specifically alleges the elements of section 667.5, subdivision (b), a defendants admission of having sustained the prior conviction is an adequate basis for imposition of the enhancement. (See, e.g., People v. Ebner (1966) 64 Cal.2d 297, 303 ["admission of the prior convictions is not limited in scope to the fact of the convictions but extends to all allegations concerning the felonies contained in the information"]; People v. Bowie (1992) 11 Cal.App.4th 1263, 1266 ["admission of a sentence enhancement allegation is deemed to constitute a judicial admission of every element of the offense charged"]; People v. Cardenas (1987) 192 Cal.App.3d 51, 61 ["admission of prior convictions where the charging information specifically alleges the convictions resulted in prior separate prison terms is deemed an admission such prison terms were separately served"].) Here, after receiving a copy of the information, appellant indicated his desire to admit that the prison prior was correct and fell within section 667.5, subdivision (b). Under these circumstances, appellants admission of his prior conviction constituted an admission of all allegations in the information pertaining to the enhancement, including that appellant had served a prior prison term.
DISPOSITION
The judgment is affirmed.
We concur:
BOREN, P. J.
CHAVEZ, J. --------------- Notes: Unless otherwise indicated, all further statutory references are to the Penal Code.