Opinion
F040975.
11-7-2003
THE PEOPLE, Plaintiff and Respondent, v. ANDREW G. GOMEZ, Defendant and Appellant.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
In case No. 67793, appellant, Andrew G. Gomez, was convicted of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). In case No. 77824, Gomez was convicted of receiving stolen property. In case No. 84028, a jury convicted Gomez, of first degree burglary (Pen. Code, § 459). In a separate proceeding, the jury found true a serious felony enhancement (Pen. Code, § 667, subd. (a)), three prior prison term enhancements (Pen. Code, § 667.5, subd. (a)), two on-bail enhancements (Pen. Code, § 12022.1), and allegations that Gomez had two prior convictions within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)). On May 8, 2002, Gomez was sentenced to a two-year term for his possession of methamphetamine conviction in case No. 67793, a consecutive eight-month term for his receiving stolen property conviction in case No. 77824, and in case No. 84028, a consecutive indeterminate term of 37 years to life consisting of a term of 25 years to life on his burglary conviction, two two-year on bail enhancements, a five-year serious felony enhancement, and three one-year prior prison term enhancements.
On appeal, Gomez contends the court improperly imposed one of the three prior prison term enhancements; and 2) his abstract of judgment does not accurately summarize the judgment. We will find merit to this latter contention. In all other respects, we will affirm.
FACTS
The Serious Felony Enhancement
Gomezs three prior prison term enhancements were based on a prison term he served for his two robbery convictions on July 2, 1991, a November 8, 1988, conviction for being a felon in possession of a firearm, and a May 4, 1984, conviction for burglary. His serious felony enhancement was based on one of his 1991 robbery convictions. Gomez contends the court erred in imposing a serious felony enhancement based on one of his 1991 robbery convictions because it used the prison term he served for those convictions to impose a prior prison term enhancement. We disagree.
In People v. Jones (1993) 5 Cal.4th 1142, the trial court imposed a serious felony enhancement and a prior prison term enhancement based on the defendants prior kidnapping conviction for which he served a prison term. The Supreme Court, however, ordered the trial court to strike the prison term enhancement after it found that in enacting Propsition 8, the electorate did not intend "for a sentence to prison to be enhanced both for a prior conviction and for a prison term imposed for that conviction[.]" (Id. at pp. 1144-1145.) In so finding, the court held that both enhancements applied to the same facts, i.e., the prior conviction of a felony. (Id. at p. 1149.) Thus, it concluded that "when 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." (Id. at p. 1150, emphasis added.)
In People v. Ruiz (1994) 44 Cal.App.4th 1653, this court held that a trial court may properly impose a five-year enhancement pursuant to section 667, subdivision (a), and a one-year enhancement pursuant to section 667.5, subdivision (b) if each enhancement is based on different convictions, even if the defendant serves only one prison sentence for both convictions. (People v. Ruiz, supra, 44 Cal.App.4th at pp. 1664-1669, see also People v. Gonzales (1993) 20 Cal.App.4th 1607, 1610, original italics; see also People v. Wiley (1994) 25 Cal.App.4th 159, 164, and this courts opinion in People v Medina (1988) 206 Cal.App.3d 986.)
Here, the court imposed a serious felony enhancement and a prior prison term enhancement based on two separate robbery convictions for which Gomez served only one prison sentence. Thus, in accord with the authorities cited above, we find that the court did not err in doing so.
Gomez contends the above cases are distinguishable because, there is no showing here that his 1991 robbery convictions were predicated on "separate, distinct or independent crimes[.]" Gomez is wrong. Although the record is unclear whether Gomezs convictions were based on the same or separate incidents, it is clear they involved "separate, distinct [and] independent crimes," otherwise Gomez would not have been convicted on two robbery counts. Further, none of the cases cited above hold that the convictions underlying the enhancements at issue must arise from separate incidents, as Gomez suggests. Accordingly, we reject Gomezs attempt to distinguish the above cases which compel the conclusion here that the court did not err when it imposed two separate enhancements based on Gomezs 1991 robbery conviction, notwithstanding that he served only one prison term for those convictions.
Gomezs Abstract of Judgment
Gomez contends his abstract of judgment in case No. 84028 should be corrected because it does not indicate that he was sentenced pursuant to the three strikes law and it does not set forth the individual components of his aggregate 37 years to life sentence. Respondent concedes and we agree.
"The Legislature intended that the abstract of judgment summarize the judgment." (People v. Hong (1998) 64 Cal.App.4th 1071, 1080.) Gomezs abstract of judgment in case No. 84028, however, does not list the enhancements found to be true in this matter and does not indicate that Gomez was sentenced in this case pursuant to the three strikes law or specify that his sentence in this case was imposed consecutive to the sentences imposed in case Nos. 67793 and 77824. Accordingly, we will direct the trial court to issue an amended abstract of judgment in this case that rectifies these omissions.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment in case No. 84028. The abstract of judgment shall list the enhancements found true in that case and indicate that Gomez was sentenced pursuant to the three strikes law and that his sentence was imposed consecutive to the sentence imposed in case Nos. 67793 and 77824. The court is further directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed. --------------- Notes: Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.