Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA 297271, Harold I. Cherness, Judge.
Karyn H. Bucur, 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, Assistant Attorney General, Victoria B. Wilson and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Brandon Hill appeals from the judgment entered after a jury convicted him of arson of an inhabited structure and arson of property of another in violation of Penal Code section 451, subdivisions (b) and (d). Hill contends the trial court erred by imposing, then staying, three one-year sentence enhancements for prior prison terms pursuant to section 667.5, subdivision (b), because when Hill admitted his three prior felony convictions, he never admitted that he served separate prison terms for each. We agree in part and strike two of the three one-year sentence enhancements. In all other respects, we affirm.
All undesignated statutory references are to the Penal Code.
BACKGROUND
On June 28, 2006, the Los Angeles County District Attorney filed an information alleging that on December 27, 2005, Hill willfully and maliciously set fire to an inhabited structure owned by Willie Jackson, in violation of section 451, subdivisions (b) and (d), and the violation was a serious felony within the meaning of section 1192.7, subdivision (c). The information alleged “pursuant to . . . section 667.5[, subdivision] (b) that [Hill] has suffered the following prior conviction(s): [a July 2004 conviction of forgery in violation of section 475, subdivision (c); a December 1999 conviction of assault with a deadly weapon in violation of section 245, subdivision (a)(1); and an October 1998 conviction of grand theft in violation of section 487, subdivision (a)].” The information further alleged that “a term was served as described in . . . section 667.5 for said offense(s), and that the defendant did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during, a period of five years subsequent to the conclusion of said term.” The information also alleged that Hill’s December 1999 conviction of assault with a deadly weapon was a serious or violent felony pursuant to sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i), and a serious felony pursuant to section 667, subdivision (a)(1). Hill pleaded not guilty and denied the special allegations. On October 12, 2006, a jury convicted Hill of two counts of arson.
In a bifurcated proceeding, Hill waived his right to a jury or court trial of the prior conviction allegations and admitted that these allegations were true. The prosecutor advised Hill that he was charged with having the three prior felony convictions listed in the information, one of which was a prior strike conviction under the Three Strikes law, and that he was charged with “having a prior state prison sentence” arising from that prior strike conviction (Hill’s assault with a deadly weapon conviction). The prosecutor noted that Hill had already waived his right to a jury trial, explained to him the rights he would relinquish if he also waived his right to a court trial, and took his waiver of a court trial. She then admonished Hill as to each of his three prior felony convictions. For his forgery conviction, she asked, “Now, having given up those rights do you admit that you did, in fact, suffer a prior prison sentence . . . ?” Regarding Hill’s conviction for assault with a deadly weapon, she asked, “Do you admit that you suffered a prison sentence . . ., a prior prison commitment . . ., and a prior strike . . .?” As to Hill’s grand theft conviction, the prosecutor asked, “And finally, . . . do you admit [to] a prior prison sentence . . . ?” To each question, Hill answered yes. Defense counsel then joined in the waivers and stipulated that the section 969, subdivision (b) prison packet provided a factual basis for the allegations.
The court sentenced Hill to a total of 10 years in prison: the middle term of 5 years for burning an inhabited structure, plus 5 years for the section 667, subdivision (a)(1) serious felony enhancement, along with a concurrent sentence of 2 years for burning property owned by another plus the 5-year serious felony enhancement. The court struck the prior strike allegation and imposed but stayed three one-year sentence enhancements, one for each of the prior convictions Hill admitted, pursuant to section 667.5, subdivision (b). The court denied probation, imposed various mandatory fines and fees, and gave Hill credit for 197 days in custody. Hill timely appealed.
DISCUSSION
Hill contends the one-year prior prison term sentence enhancements imposed pursuant to section 667.5, subdivision (b), should be stricken because his admission did not provide sufficient proof of all the elements required under that statute. We agree, in part.
Section 667.5, subdivision (b), provides that for any new 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.” Thus, the one-year sentence enhancement pursuant to section 667.5, subdivision (b), is based not upon separate felony convictions or separate prison sentences, but upon separate prison terms.
The charging information in this case, after listing Hill’s three prior felony convictions, alleges “that a term was served as described in Penal Code section 667.5 for said offense(s), and that the defendant did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during, a period of five years subsequent to the conclusion of said term.” (Italics added.) The information thus refers to one term, but only one. Accordingly, as in People v. English (1981) 116 Cal.App.3d 361, “The . . . information here did not charge that [Hill] had served separate prison terms for [his three prior] convictions, nor did the trial judge here make any findings that [Hill] had served concurrent or separate sentences. . . . [¶] By his admissions of [three] prior felony convictions, [Hill] can only be held to have admitted as great a charge as is contained in the . . . information. [Citation.] Absent an allegation in the . . . information that [Hill] served ‘separate’ terms for the prior convictions, his admission of the allegations cannot be construed as an admission to that effect.” (Id. at p. 372; see also People v. James (1978) 88 Cal.App.3d 150, 161-162 [“Nothing in the record here indicates either that defendant admitted serving separate sentences or that the court found that he did so. The enhancements pursuant to . . . section 667.5 must therefore be reversed.”].)
The Attorney General cites People v. Caredenas (1987) 192 Cal.App.3d 51, 61, and People v. Welge (1980) 101 Cal.App.3d 616, 623, but to no avail. Both of these authorities hold that “[g]enerally, an admission of prior convictions where the charging information specifically alleges the convictions resulted in prior separate prison terms is deemed an admission such prison terms were separately served. [Citations.]” (People v. Cardenas, supra, 192 Cal.App.3d at p. 61; see also People v. Welge, supra, 101 Cal.App.3d at p. 623.) Here, as we have seen, the information contains no such allegation. The People also cite People v. Thomas (1986) 41 Cal.3d 837, for the proposition that a defendant can admit an enhancement even if the record does not affirmatively establish that he was advised of every element thereof, but the Thomas court did not hold that a defendant can admit elements that were never alleged in the information. (See id. at pp. 842-844.)
Although Hill did not admit to three separate prison terms, however, he did effectively admit to the one prior prison term described in the information. (See People v. English, supra, 116 Cal.App.3d at pp. 372-373; People v. Cardenas, supra, 192 Cal.App.3d at p. 61; People v. Welge, supra, 101 Cal.App.3d at pp. 623-624.) Thus a single one-year sentence enhancement is appropriate, not three.
DISPOSITION
For the foregoing reasons the judgment is modified in the following respects: that part of the judgment imposing an additional three years for enhancements based upon Hill’s admissions pursuant to section 667.5 is modified to impose only a single one-year enhancement that is stayed; the other two such enhancements are stricken. As modified, the judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment and forward a certified copy thereof to the Department of Corrections.
We concur: MALLANO, Acting P. J. VOGEL, J.