Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. LBF13394A. Armando O. Rodriguez, Judge. (Retired judge of the Fresno S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Hill, J. and Kane, J.
Appellant Mario Flores Benitez contends the trial court erred by imposing a prison term enhancement under Penal Code section 667.5, subdivision (b), twice for the same prison term. Respondent concedes the error. Based on our review of the record, we conclude that appellant is correct. Accordingly, we strike the duplicative prison term enhancement from appellant’s sentence, thereby reducing his total sentence by one year.
All further statutory references are to the Penal Code unless otherwise indicated.
Two criminal cases against appellant were combined for sentencing in the trial court: Merced County Superior Court case Nos. LBF13394A and MF43844. Because two cases were involved, appellant filed two separate appeals. The appeal from case No. LBF13394A is designated F055356, and the appeal from case No. MF43844 is designated F055517. We address both appeals in this opinion. Appellant has also filed a writ of habeas corpus as an alternative basis for relief, which is designated as F056482. Inasmuch as the trial court’s sentencing error will be rectified in the present appeal(s), the writ proceeding will be dismissed as moot.
FACTS AND PROCEDURAL BACKGROUND
Case No. LBF13394A
On December 20, 2007, appellant was arrested outside of a bar in Los Banos for brandishing a weapon and public intoxication. According to witnesses, as appellant and his sister walked out of the bar, appellant’s sister threw a beer bottle into the windshield of someone’s car that was parked in front of the bar. When the startled owner of the car sought to call the police, appellant pulled out a knife and threatened that he “‘could hurt him if he called the police.’” When the police arrived and questioned appellant, he falsely identified himself and denied threatening anyone.
On January 22, 2008, the Merced County District Attorney’s Office filed an information charging appellant in count 1 with attempting to dissuade a witness from reporting a crime (§ 136.1, subd. (b)(2)), and in count 3 with lying about his identity to a peace officer (§ 148.9, subd. (a)). The information alleged two prior prison term enhancements pursuant to section 667.5, subdivision (b). One of the alleged prior prison terms was based on a conviction for burglary (§ 459) in Merced County on December 2, 1999, and the other was based on a conviction for receipt of a stolen vehicle (§ 496d, subd. (a)) in Madera County on February 14, 2007. Additionally, as to count 1, the information alleged an enhancement for use of a deadly weapon (§ 12022, subd. (b)).
On March 27, 2008, appellant was found guilty as charged and the deadly weapon enhancement was found true. In a bifurcated hearing, appellant admitted the two prior prison term enhancement allegations based on the December 2, 1999 and February 14, 2007 convictions.
Case No. MF43844 (Probation Violation)
On June 12, 2006, the Merced County District Attorney filed a complaint charging appellant with burglary (§ 459), vandalism (§ 594, subd. (b)(2)(A)) and theft by credit card (§ 484g). The burglary count alleged a prison term enhancement under section 667.5, subdivision (b), based on a November 29, 1999 conviction for burglary. Pursuant to a plea bargain, appellant pled no contest to the charges and admitted the prison term enhancement. Appellant was sentenced to three years on the burglary count, plus one year for the enhancement. The trial court suspended execution of the sentence and placed appellant on probation for a period of three years on the condition that he enroll in a residential drug treatment program.
Sentencing in Both Cases
On May 15, 2008, the trial court sentenced appellant in both of the above cases together. In case No. LBF13394A, the trial court imposed the upper term of three years as to count 1, plus three years based on the three enhancements. Of the three enhancements in that case, two were prior prison term enhancements based on convictions allegedly occurring on December 2, 1999 and February 14, 2007. In the violation of probation case, case No. MF43844, the trial court imposed a consecutive term of eight months, plus one additional year for the prison term enhancement based on the November 29, 1999 conviction that had been admitted by appellant at the time of his plea agreement. The trial court ordered the sentences to run consecutively, totaling seven years eight months.
Appellant timely filed a notice of appeal in both cases. As the issues are identical, we address both appeals together in this opinion.
Because the cases were not consolidated, this identical opinion will be filed under separate caption in each of the two cases.
DISCUSSION
Appellant contends the trial court improperly imposed two separate enhancements under section 667.5, subdivision (b), based on the same prior prison term.
We agree the trial court erred as claimed. Under section 667.5, subdivision (b), “the court shall impose a one-year term for each prior separate prison term served for any felony.…” Under subdivision (g) of the same statute, “[a] prior separate prison term for the purposes of this section shall mean a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes.…” (See also § 667.5, subd. (e) [enhancement “shall not be imposed for any felony for which the defendant did not serve a prior separate term in state prison”].)
Here, the prison term enhancements for convictions allegedly occurring on November 29, 1999 and December 2, 1999 could not logically have led to separate periods of incarceration for purposes of the enhancement statute. (§ 667.5, subds (e), (g).) Moreover, as appellant points out, the record showed only one conviction for burglary (§ 459) in the period of November through December of 1999, which was the November 29, 1999 conviction, as confirmed by the probation reports in both cases. There was no evidence of two distinct burglary convictions, one on November 29, 1999 and another on December 2, 1999. Further, we note the accusatory pleadings filed by respondent in the two cases alleged either a November 29, 1999 conviction or a December 2, 1999 conviction, but not both. Respondent concedes there was only one prior conviction for burglary during that time frame in 1999, explaining that “the sentencing court was unaware that it was imposing two one-year prior prison term enhancements for the same conviction.”
On the record before us, we conclude the trial court imposed an unauthorized sentence in violation of section 667.5 by imposing two one-year prison term enhancements for the same 1999 burglary conviction and/or the same prison term. A court may not impose two prior prison term enhancements based on a single conviction. (People v. Tassell (1984) 36 Cal.3d 77, 90, 92, overruled on another ground in People v. Ewoldt (1994) 7 Cal.4th 380, 387.) Similarly, where a defendant suffered two separate convictions, but served a single prison term, there can be only one enhancement imposed pursuant to section 667.5, subdivision (b), and the second enhancement must be stricken. (People v. Riel (2000) 22 Cal.4th 1153, 1203.) An unauthorized sentence will be corrected by the appellate court despite failure to raise the issue below. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)
DISPOSITION
The one-year prison term enhancement under section 667.5 based on the alleged December 2, 1999 conviction is stricken. The trial court is directed to file an amended abstract and forward copies to counsel and to the prison authorities. The judgment is affirmed in all other respects.