Opinion
G054765
11-29-2017
In re DONYAE DWAYNE HALEY on Habeas Corpus.
Petitioner Donyae Dwayne Haley, in pro. per. Xavier Becerra, Attorney General, and Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 04CF2000) OPINION Original proceedings; petition for a writ of habeas corpus to challenge an order of the Superior Court of Orange County, Gary S. Paer, Judge. Petition granted in part. Petitioner Donyae Dwayne Haley, in pro. per. Xavier Becerra, Attorney General, and Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Respondent.
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Before O'Leary, P. J., Aronson, J., and Fybel, J.
Petitioner Donyae Dwayne Haley filed a petition for writ of habeas corpus raising numerous claims. Respondent concedes the petition has merit on the issue the trial court unlawfully imposed three one-year prior prison terms. We agree and grant relief solely on this one issue. In all other respects the petition is summarily denied.
In 2004, a jury found petitioner, Donyae D. Haley, guilty of two counts of conspiracy to commit second degree burglary, five counts of second degree robbery, and two counts of street terrorism. Gang enhancements were also found true, and after a bifurcated proceeding where petitioner admitted three prison priors pursuant to subdivision (b) of Penal Code section 667.5 , petitioner was sentenced to 18 years and 8 months. The judgment was affirmed on appeal in case number G035002, and in 2016, this court reversed petitioner's convictions for street terrorism in his petition for writ of habeas corpus in case number G053792, pursuant to People v. Rodriguez (2012) 55 Cal.4th 1125.
All further references are to the Penal Code.
On the court's own motion and for good cause, the court takes judicial notice of the opinions filed in case numbers G035002 and G053792, and the information filed on September 21, 2004, in superior court case number 04CF2000. (Evid. Code, § 452.) --------
In March 2017, petitioner filed the current petition in which he makes numerous claims. We summarily deny all but one claim in which petitioner contends the trial court unlawfully imposed three one-year terms for prison priors. Respondent was ordered to file an informal response solely on this one issue and respondent concedes the issue has merit and petitioner is entitled to relief.
The information in this case alleged three prison priors pursuant to subdivision (b) of section 667.5. The first prison prior was alleged to have occurred in Ventura County on December 1, 1998, in case number CR45393. The second alleged to have occurred in Los Angeles County on September 23, 1999, in case number BA176961, and the third alleged to have occurred in Los Angeles County on June 28, 2000, in case number BA200984.
Respondent confirms that at the time petitioner was sentenced to two years on the third prior in case number BA200984, probation on the second prior in case number BA176961 was revoked and petitioner ordered to serve a concurrent two-year term. And while petitioner was serving concurrent terms in BA200984 and BA176961, probation on the first prior in case number CR45393 was revoked and petitioner ordered to serve eight months consecutive to case numbers BA200984 and BA176961.
Section 667.5(b) provides for a one-year sentence enhancement "for each prior separate prison term" served by the defendant. A "prior separate prison term" is "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(g).) "Under this provision, 'a defendant who has served concurrent or consecutive prison sentences on various commitments is deemed to have served only one prior prison term for the purpose of the enhancement provisions of Penal Code section 667.5.' [Citations.]" (People v. Grimes (2016) 1 Cal.5th 698, 738-739; People v. Riel (2000) 22 Cal.4th 1153, 1203.)
Respondent agrees that "All three sentences were served in one continuous prison term," and states, "Since [petitioner] served prison sentences for all three priors in one continuous prison term, for purposes of section 667.5, subdivision (a), [petitioner] only served one prison term and could only be sentenced to one enhancement."
According to respondent, "it appears the one-year terms for Prior 1 and Prior 2 should be stricken. [Citations.] Therefore, this court should grant Haley relief on claim two of his petition and strike the one-year terms imposed on two of his prior convictions."
Because respondent's informal response concedes petitioner is entitled to relief by striking the one-year prior prison terms imposed pursuant to Penal Code section 667.5, subdivision (b), for prior convictions in Ventura County Superior Court case number CR45393 and Los Angeles Superior Court case number BA176961, the court advised respondent it was considering granting relief by striking the two one-year prior prison terms without the issuance of an order to show cause. (People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7.) Respondent was invited to file opposition to the court granting the aforementioned relief without the issuance of an order to show cause and respondent filed no opposition to the court's proposed relief.
Accordingly, the petition for writ of habeas corpus is granted solely with respect to petitioner's claim the trial court unlawfully imposed three one-year priors. The one-year prior prison terms imposed pursuant to Penal Code section 667.5, subdivision (b), for the prior conviction in Ventura County Superior Court case number CR45393, and the prior conviction in Los Angeles Superior Court case number BA176961, are vacated. The clerk of the superior court is ordered to prepare forthwith an amended abstract of judgment to reflect the disposition of this court and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects the petition is denied.
In the interest of justice, the opinion in this matter is deemed final in this court and the clerk of this court is directed to issue the remittitur forthwith.