Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA079173 Jesse I. Rodriguez, Judge.
David L. Bernstein, 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, Senior Assistant Attorney General, Victoria Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Gustavo Vital appeals from the judgment entered following his conviction by jury on two counts of second degree robbery (Pen. Code, § 211). Vital was sentenced as a second strike offender to an aggregate term of 18 years in state prison. We appointed counsel to represent Vital on appeal. After examination of the record, counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436, 441, in which no issues were raised. At our request, the parties briefed the issue of whether the trial court properly imposed both serious felony (§ 667, subd. (a)) and prior prison term (§ 667.5, subd. (b)) enhancements for the same prior felony conviction pursuant to People v. Jones (1993) 5 Cal.4th 1142, 1148-1149. The parties agree the trial court erred in this regard, however, the People request we remand this case to the trial court for further proceedings. We deny this request and strike the improperly imposed prior prison term enhancement.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Vital was charged by information with the second degree robbery of Bryan Mateik (count 1) and of Dorian King (count 2). The information further alleged as to both counts that Vital had suffered one serious or violent felony conviction (voluntary manslaughter in case No. NA037887) under the “Three Strikes” law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and under section 667, subdivision (a)(1); and he had previously served two separate prison terms for felonies (voluntary manslaughter and possession of a dangerous weapon in case No. JCF16753) under section 667.5, subdivision (b).
According to the trial evidence, on July 30, 2008, Bryan Mateik and Dorien King, Target store security officers, saw Vital hide store merchandise in his clothing and exit the store without paying for it. They followed Vital outside and confronted him. He became combative and refused to return with them to the store. Vital struck Mateik in the face, and had to be physically restrained by both security officers. Police arrived, searched Vital and recovered the stolen merchandise on his person.
The jury convicted Vital as charged on June 12, 2009. Having waived his right to a jury trial on the special allegations, a bench trial was held on June 15, 2009. For purposes of the prior conviction allegations, over defense objection, the prosecutor had certified copies of section 969b packet and court documents admitted into evidence concerning Vital’s voluntary manslaughter conviction. The prosecutor then moved to dismiss the prior prison term allegation relating to Vital’s possession of a dangerous weapon conviction. The prosecutor explained, “It is not a valid one-year conviction because there was no time that [Vital] was released on the underlying conviction and was reincarcerated. So there is only one valid one-year prior.” At the conclusion of the bench trial, the court found true the remaining special allegations, including the remaining prior prison term allegation, “keeping in mind that the People struck” the allegation relating to the possession of a dangerous weapon conviction.
The trial court sentenced Vital to an aggregate state prison term of 18 years: on count 1, a term of 10 years for the robbery of Bryan Mateik (the upper term of five years doubled under the Three Strikes law); on count 2 a consecutive term of two years for the robbery of Dorien King (one-third the middle term of three years, doubled); plus five years for the serious felony enhancement, and one-year for the prior prison term enhancement. In sentencing Vital on the one-year prior prison term enhancement, the court noted Vital had served concurrent terms for his voluntary manslaughter and possession of a dangerous weapon convictions.
DISCUSSION
The court imposed both a serious felony enhancement and a prior prison term enhancement based on the same voluntary manslaughter conviction. The People acknowledge it is improper to impose both enhancements based on a single felony conviction for which the defendant served time in prison (Jones, supra, 5 Cal.4th 1142, 1145-1150 [“[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.”].) However, citing People v. Gonzales (1993) 20 Cal.App.4th 1607 (Gonzales), the People urge that remand is appropriate to enable the prosecutor to prove the prior conviction for possession of a dangerous weapon as a section 667.5, subdivision (b) enhancement. Gonzales held that “a concurrent prison sentence imposed for two separate crimes, one of which was a serious felony prior … does not preclude imposition of the... one-year enhancement for the... prior prison term allegation.” (Id. at p. 1610.) In relying on Gonzales, the People overlook the fact the prosecutor not only had the trial court dismiss the prior conviction for possession of a dangerous weapon as a prior prison term allegation, but also he explained it failed to qualify as a section 667, subdivision (b) enhancement. Accordingly, there is no reason for such remand.
DISPOSITION
The prior prison term enhancement is stricken. The superior court is to amend the abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation. As modified the judgment is affirmed.
We concur: WOODS, Acting P. J., JACKSON, J.