Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. GA074142, Gus Gomez, Judge. Affirmed as modified with directions.
Christopher Nalls, 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, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
After a jury found appellant Juan Jeanbal Contreras guilty of burglary and grand theft, the trial court sentenced him to three years and eight months in prison. Appellant challenges only his sentence on appeal. We modify the judgment with respect to appellant’s sentence, and affirm the judgment so modified.
RELEVANT PROCEDURAL BACKGROUND
On September 12, 2008, an information was filed charging appellant in count 1 with second degree commercial burglary (Pen. Code, § 459) and in count 2 with grand theft of personal property (Pen. Code, § 487, subd. (a)). The information also alleged that appellant had served one prison term for a prior felony conviction (§ 667.5, subd. (b)). Appellant pleaded not guilty and denied the special allegation.
All further statutory references are to the Penal Code.
On January 29, 2009, a jury found appellant guilty as charged. On February 10, 2009, following a bench trial, the trial court found the special allegation to be true. Under count 1, the trial court imposed the middle term of two years, plus a consecutive term of one year for the prior prison term (§ 667.5, subd. (b)). Under count 2, the trial court imposed a term of eight months, to be served consecutively to the sentence under count 1; in addition, the trial court imposed a consecutive one-year term for the prior prison term (§ 667.5, subd. (b)), which it ordered stayed.
FACTS
A. Prosecution Evidence
In July 2008, Soon Ok Lee and her husband operated a liquor store in Pasadena. The cashier’s area of the store was enclosed by panels of bullet-proof glass, whose top edges were approximately eight feet from the floor. The panels ended below the store’s ceiling, resulting in an unobstructed gap of approximately two and one-half feet between the glass and the ceiling. Customers passed payment for goods to the cashier through two openings in the bullet-proof glass. Surveillance cameras recorded events within the store.
Prior to July 31, 2008, appellant often bought beer in the store. At 8:30 p.m. on that date, Lee secured the cashier’s enclosure, locked the store’s doors and security gate, and left. The next morning, she found that the entrances to the store and cashier’s enclosure were open, and that approximately $18,700 in cash and coins and a laptop computer had been taken from the store. Lee viewed the video recording from the surveillance cameras, which showed that two persons had forced the store’s entrance, and that one of the intruders had climbed over the bullet-proof glass into the cashier’s enclosure. Lee was unable to identify the persons shown in the video recording due to its dark images.
Investigating police officers found appellant’s fingerprints inside the cashier’s enclosure on the bullet-proof glass, near the top of a panel. According to Lee, customers ordinarily did not touch the bullet-proof glass when they made purchases, and she never saw appellant touch it. She also testified that the glass had been cleaned four days before the incident.
B. Defense Evidence
George Reis, a video and fingerprint analysis expert, opined on the basis of the surveillance camera video recording that the person who entered the cashier’s enclosure wore gloves and was four or five inches shorter than appellant.
DISCUSSION
Appellant contends (1) that there was sentencing error under section 654, (2) that there is insufficient evidence that he had served a prison term for a prior felony conviction, and (3) that two one-year enhancements were improperly imposed. As explained below, we conclude that appellant’s first and third contentions are meritorious.
A. Section 654
Appellant contends that section 654 obliged the trial court to stay punishment for his conviction for grand theft. We agree. Generally, subdivision (a) of section 654 prohibits multiple punishment for “[a]n act or omission that is punishable in different ways by different provisions of law.” Under section 654, when a burglary is committed for the purpose of engaging in grand theft, the defendant may be convicted of both burglary and grand theft, but the punishment for grand theft must be stayed. (People v. Alford (2010) 180 Cal.App.4th 1463, 1467-1473; People v. Cline (1998) 60 Cal.App.4th 1327, 1336; see People v. Bernal (1994) 22 Cal.App.4th 1455, 1458.) Respondent acknowledges that the trial court was obliged to stay the sentence for grand theft. Accordingly, the eight-month term of imprisonment imposed in connection with the conviction for grand theft must be stayed.
Respondent also acknowledges that appellant may assert his contention regarding section 654 on appeal, even though he did not raise a pertinent challenge before the trial court. (People v. Hester (2000) 22 Cal.4th 290, 295 [“[F]ailure to object is not an implicit waiver of section 654 rights....”]; People v. Cleveland (2001) 87 Cal.App.4th 263, 268, fn. 2 [“In general, claims of error concerning section 654 are subject to review even in [the] absence of a failure to object.”].)
B. Admission of Evidence Supporting Special Allegation Finding
Appellant contends there is insufficient evidence in the record to support the finding that he served a prior prison term for a felony conviction (§ 667.5, subd. (b)). In making this finding, the trial court relied upon a set of documents compiled under section 969b, which the prosecutor called appellant’s “969b packet.” Appellant does not dispute that the trial court examined the packet or that the packet contained information sufficient to support the finding. His sole contention is that the packet is not a part of the record because the prosecutor never formally introduced it into evidence. As explained below, appellant is mistaken.
Imposition of an enhancement under section 667.5, subdivision (b) “requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that 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.) The prosecution has the burden of proving each element beyond a reasonable doubt. (Id. at p. 566.) This burden may be carried through the admission of a “prison packet” prepared under section 969b (People v. Tenner, at p. 567), which states: “For the purpose of establishing prima facie evidence of the fact that a person being tried for a crime or public offense under the laws of this State has been convicted of an act punishable by imprisonment in a state prison, county jail or city jail of this State, and has served a term therefor in any penal institution,... the records or copies of records of any state penitentiary, reformatory, county jail, city jail, or federal penitentiary in which such person has been imprisoned, when such records or copies thereof have been certified by the official custodian of such records, may be introduced as such evidence.” (§ 969b.)
Subdivision (b) of section 667.5 states: “[W]here 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 prison 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.”
At the inception of the bench trial on the prior prison term, the trial court asked defense counsel whether appellant intended to admit the truth of the special allegation under section 667.5, subdivision (b). Defense counsel responded: “I’ve seen the packet showing the prior, and as I indicated earlier, I [have] asked the court to make a finding....” The prosecutor, in presenting the 969b packet to the trial court, stated that it contained certified copies of appellant’s records from the California Department of Corrections and Rehabilitation, including an abstract of judgment showing a conviction for second degree burglary in 2006. The trial court noted that the abstract of judgment described the date of the conviction as October 24, 2006, whereas the information against appellant alleged that the date was August 6, 2007. At the prosecutor’s request, the trial court amended the information to reflect the date recited in the abstract of judgment.
Following a break in the proceedings, the trial court heard argument regarding the special allegation. Defense counsel contended that appellant had served no time in state prison. According to counsel, appellant had been convicted on October 24, 2006, and sentenced on August 6, 2007. Counsel argued: “[A]t that time he was given time served. But the entire time was actually served in county jail. [¶] Upon completion of [his time in] county jail and upon being sentenced, he was ordered to go to the parole office.... So that’s actually what happened. There was no actual time served in state prison.” In reply, the prosecutor noted that the chronological history in the packet showed that appellant had been sentenced to parole on August 6, 2007, and that he underwent an intake and parole audit in June 2008. Thereafter, the trial court found the special allegation to be true.
Appellant contends that because the 969b packet was never admitted into evidence, there was no basis for the court’s finding that the special allegation was true. We disagree. “‘It is well established... that when a document has been considered by the court and the parties as being in evidence, the fact that no formal offer in evidence was made will not exclude it from consideration as part of the record on appeal. [Citations.] “Where documents are not formally introduced, but it is apparent that the court and the offering party understood that they were in evidence, they must be so considered.” [Citation.]’” (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 742, quoting Reed v. Reed (1954) 128 Cal.App.2d 786, 790-791.) This rule is applicable in criminal proceedings. (Miller v. Superior Court, at pp. 742-743.) Here, defense counsel raised no evidentiary objection to the 969b packet, and invited the trial court to make findings based on it. The packet was therefore properly considered, notwithstanding the absence of a formal motion and ruling on its admission into evidence.
Before the trial court, appellant’s only challenge to the 969b packet was that it failed to show that he had served a prison term, within the meaning of section 667.5, subdivision (b). As appellant has not resurrected this contention on appeal, he has forfeited it. Moreover, the contention fails on its merits. Subdivision (a)(3) of section 1170 provides in pertinent part: “ In any case in which the amount of preimprisonment credit... is equal to or exceeds any sentence imposed pursuant to this chapter, the entire sentence shall be deemed to have been served and the defendant shall not be actually delivered to the custody of the secretary. The court shall advise the defendant that he or she shall serve a period of parole and order the defendant to report to the parole office..., unless the in-custody credits equal the total sentence, including both confinement time and the period of parole. The sentence shall be deemed a separate prior prison term under [s]ection 667.5.” (Italics added.) Accordingly, when a defendant’s presentence custody credits equal or exceed his determinate sentence, his sentence constitutes a prior prison term under section 667.5, even though he “actually never set foot in prison” for the offense. (People v. Childress (1987) 189 Cal.App.3d 1220, 1222-1223.) In sum, appellant has failed to establish error in the finding regarding the special allegation.
C. Imposition of Two One-Year Enhancements
Appellant contends the trial court erred in imposing one-year enhancements on each of his two convictions and staying the enhancement on his conviction for grand theft. As respondent acknowledges, appellant is correct. Absent circumstances not applicable here, a one-year enhancement under section 667.5, subdivision (b), may be imposed only once on a defendant’s aggregate sentence. (People v. Williams (2004) 34 Cal.4th 397, 400; People v. Tassell (1984) 36 Cal.3d 77, 91, overruled on another ground in People v. Ewoldt (1994) 7 Cal.4th 380, 386-387.) The imposition of two one-year enhancements thus resulted in an unlawful sentence, notwithstanding the stay regarding the one-year enhancement imposed on the conviction for grand theft. (People v. Smith (1992) 10 Cal.App.4th 178, 183.) The one-year enhancement imposed in connection with the conviction for grand theft must therefore be stricken. (Ibid.)
As respondent also notes, a legally unauthorized sentence arising from an error regarding an enhancement is subject to correction on appeal even when, as here, no objection was raised before the trial court. (People v. Bradley (1998) 64 Cal.App.4th 386, 391.)
DISPOSITION
The judgment is modified under count 2 (grand theft) to reflect that the eight-month term of imprisonment is stayed and that the one-year enhancement (§ 667.5, subd. (b)) is stricken. In all other respects, the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment to reflect the modifications to appellant’s sentence under count 2, and to forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
We concur: WILLHITE, Acting P. J. SUZUKAWA, J.