Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura, Super. Ct. No. 2006022166, James P. Cloninger, Judge
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
GILBERT, P.J.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Peggy Z. Huang, Deputy Attorney General, for Plaintiff and Respondent.
Here the trial court erred in imposing both a five-year enhancement for a prior serious felony conviction under (Pen. Code, § 667, subdivision (a)(1), and a one-year enhancement for a prior prison term under section 667.5, subdivision (b), where the enhancements were imposed for the same prior felony conviction.
All statutory references are to the Penal Code.
We strike one of the three enhancements the trial court imposed under section 667.5, subdivision (b), thus reducing the defendant's prison term by one year. In all other respects we affirm.
FACTS
On June 10, 2006, at approximately 12:50 a.m., Hernandez and three other men accosted Antonio Ayala and Jose Morones in an alley in the city of Fillmore. Hernandez raised his fist to Ayala's face and demanded money. Ayala said he did not have any money, and attempted to show Hernandez that his wallet was empty. Hernandez found $300 hidden in a compartment in Ayala's wallet and took the money.
Ayala contacted the police and Hernandez was seen by a police officer a short time later. Hernandez was riding a bicycle. When the police officer ordered him to stop, Hernandez sped away. The officer gave chase. Eventually, Hernandez stopped and the officer arrested him.
A jury found Hernandez guilty of second degree robbery (§ 211) and misdemeanor resisting a peace officer (§ 148, subd. (a)(1)). The trial court found that Hernandez had a prior strike conviction for first degree burglary within the meaning of the three strikes law (§§ 667, subds. (c)(1) & (e)(1); 1170.12, subds. (a) & (c)(1)); that he had a prior serious felony conviction (§ 667, subd. (a)(1)); and that he had served three prior prison terms (§ 667.5, subd. (b)). One of the three prior prison terms was for the same first degree burglary that constituted the prior serious felony conviction.
The trial court selected the upper term of five years for the current robbery offense and doubled the term to ten years pursuant to the three strikes law. The trial court added five years for the prior serious felony conviction pursuant to section 667, subdivision (a)(1), plus one year for each of the prior prison terms pursuant to section 667.5, subdivision (b), for a total term of eighteen years.
DISCUSSION
Hernandez contends the trial court erred in imposing both the five-year enhancement for a prior serious felony conviction under section 667, subdivision (a)(1), and the one-year prior prison term enhancement under section 667.5, subdivision (b), for the same prior conviction. The Attorney General concedes the point.
A prison term cannot be enhanced under both section 667, subdivision (a), and under section 667.5, subdivision (b), for the same prior felony conviction. (People v. Jones 1993) 5 Cal.4th 1142, 1150.) In such a case, only the greater enhancement, five years under section 667, subdivision (a), will apply. (Ibid.)
We strike one of the one-year enhancements under section 667.5, subdivision (b), leaving a total prison term of 17 years. In all other respects the judgment is affirmed.
We concur: YEGAN, J., PERREN, J.