Opinion
C081725
08-07-2017
THE PEOPLE, Plaintiff and Respondent, v. LOUIS PAUL MACDONALD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. P15CRF0375)
Following a jury verdict, defendant Louis Paul MacDonald admitted to various enhancements, including three enhancements for prior separate prison terms under Penal Code section 667.5, subdivision (b). On appeal, defendant challenges one of those enhancements arguing the underlying prison term was not a separate term. We conclude defendant's challenge has merit, and we will strike that enhancement.
Undesignated statutory references are to the Penal Code.
BACKGROUND
A jury convicted defendant of corporal injury (§ 273.5, subd. (a)), misdemeanor false imprisonment (§ 236); and battery (§ 243, subd. (e)(1)). Following the verdicts, defendant's counsel told the trial court defendant was prepared to admit special allegations of prior offenses.
The trial court said to defendant, "you have two special allegations, and the first one concerns prior prison terms, and there are three alleged prior prison terms . . . ." The court listed three offenses including an April 9, 2009, conviction for battery on a correctional officer (§ 243, subd. (c)). For each conviction, the court asked, "do you admit or deny that you suffered that conviction," and for each, defendant responded: "I admit."
Two months later, at sentencing, defense counsel said to the trial court: "I did have one question on the prison priors." Counsel explained that defendant had indicated his commitment for his April 9, 2009, conviction occurred while he was in prison for his previous offense. Counsel added: "I honestly haven't had a chance to look at this. This was just brought to my attention just now that, under 667.5(g), that could be a bit of an issue as to whether or not that's an appropriate third prison prior. [¶] . . . I just wanted to just bring that up to make sure I'm not missing something and the Court is not missing something."
The court responded, "I obviously haven't researched it, either, but just reading the language of the statute, it does not appear to be a problem."
The trial court imposed an aggregate seven-year term, including three one-year enhancements (§ 667.5, subd. (b)).
DISCUSSION
Section 667.5 subdivision (b) imposes a one-year enhancement "for each prior separate prison term . . . ." A "prior separate prison term" is defined as "a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes . . . ." (§ 667.5, subd. (g).) "Courts have consistently recognized that this statutory language means that only one enhancement is proper where concurrent sentences have been imposed in two or more prior felony cases." (People v. Jones (1998) 63 Cal.App.4th 744, 747 (Jones).)
On appeal, defendant challenges the section 667.5, subdivision (b) enhancement imposed for his April 9, 2009, battery conviction. He argues there was no proof the underlying term was separately served. Defendant's claim has merit.
Preliminarily, defendant's claim is preserved for review as defense counsel raised the issue before the trial court. And as we shall explain, the record shows defendant did not serve a separate prison term for his April 9, 2009 conviction. (Cf. People v. Ruiz (1982) 130 Cal.App.3d 758, 761 [A failure to allege the prior terms were separately served is not fatal if the record discloses the defendant served separate terms].)
We augmented the record to include the sentencing transcript for the April 9, 2009 conviction. That record reflects that on February 4, 2009, defendant was housed in the Deuel Vocational Institute, and during an altercation with a correctional officer, he kicked the officer in the face. Defendant pleaded no contest to one count of battery on a correctional officer (§ 243, subd. (c)). In exchange, the trial court imposed the stipulated upper term of three years and ran the term concurrently with defendant's existing term.
We directed the parties to address whether the prior prison term enhancement was proper if defendant received a concurrent term for his April 9, 2009 conviction.
The People argue the enhancement was proper, reasoning the underlying term was a separate prison term, for purposes of section 667.5 subdivision (b), because defendant incurred the term by committing an in-prison felony. In support, the People cite People v. Cardenas (1987) 192 Cal.App.3d 51, 60 (Cardenas).
Cardenas held a consecutive term imposed for an in-prison felony constituted a separate term for purposes of section 667.5, subdivision (b). (Cardenas, supra, 192 Cal.App.3d at p. 58.) The court explained, under section 1170.1, subdivision (c), terms for in-prison felonies "commence from the time the person would otherwise have been released from prison." (Ibid.) Thus, a term imposed for an in-prison felony is separate from the existing term. (Id. at p. 60.) The court added: "It is inconceivable the Legislature intended a defendant's subsequent crimes be exempt from recidivist enhancement merely because the offense was committed inside prison walls. Equally absurd is the idea the prisoner must be released, then recommitted to prison to validate the separateness of the two prison terms." (Ibid.)
Section 1170.1, subdivision (c) provides in pertinent part: "In the case of any person convicted of one or more felonies committed while the person is confined in the state prison . . . and the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all the convictions that the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison." (Italics added.) --------
The People argue Cardenas' reasoning should also apply where a concurrent term is imposed for an in-prison felony. The People further argue the term for defendant's in-prison felony was separate because it only partially overlapped with his existing term. Thus, when defendant's existing term ended, the remaining portion of his new term constituted a separate prison term. We disagree with the People.
Cardenas is inapposite. Cardenas received a consecutive term for his in-prison felony. That consecutive term triggered section 1170.1, subdivision (c), which mandated that the new term commence at the time Cardenas would otherwise have been released from prison — resulting in separate terms. (See Cardenas, supra, 192 Cal.App.3d at p. 60 ["By mandating the sentences for in-prison offenses be served only after all other prison terms are completed [section 1170.1], subdivision (c) comports with the definition of separate prison terms . . ."].) Here, defendant received a concurrent term, which does not trigger section 1170.1 subdivision (c). (See § 1170.1, subd. (c) [section 1170.1, subdivision (c) applies to in-prison felonies where "the law either requires the terms to be served consecutively or the court imposes consecutive terms . . ."]; see also People v. Arant (1988) 199 Cal.App.3d 294, 298 [A trial court has discretion to impose a concurrent term for a single in-prison offense].)
Accordingly, defendant's concurrent term for his in-prison offense was not a separate term for purposes of section 667.5, subdivision (b). (See Jones, supra, 63 Cal.App.4th at pp. 747, 750 [where defendant received two concurrent terms, one for violating probation and one for the crime that constituted the probation violation, only one prior prison term enhancement was proper]; People v. Ruiz, supra, 130 Cal.App.3d at pp. 760, 763 [striking the enhancement for a 1961 conviction where "the prison term for the 1961 conviction of possession of a dirk or dagger in prison was not completed prior to the imposition of [a concurrent] sentence for the 1965 conviction for voluntary manslaughter"].)
We similarly reject the People's argument that defendant served a separate term for his April 9, 2009, conviction because part of that term did not overlap with his existing prison term. We have not been provided with and we are unaware of any authority for that argument. To the contrary, as Cardenas observed, "[p]rison commitments commenced after a previous term is 'completed' constitute separate periods of incarceration." (Cardenas, supra, 192 Cal.App.3d at p. 59; emphasis added.)
We will, therefore, strike the prior prison term enhancement arising from the concurrent term imposed for battery on a correctional officer. (See Jones, supra, 63 Cal.App.4th at pp. 749-750 ["If the sentencing court in this case had been informed that the sentences in the prior cases ran concurrently, we have no doubt but that it would have imposed, in conformity with the relevant statutory definition and case law, [one fewer enhancement]"].)
DISPOSITION
We modify the judgment to strike one of the enhancements imposed pursuant to Penal Code section 667.5, subdivision (b), leaving a total term of imprisonment of six years. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
HULL, J. We concur: RAYE, P. J. HOCH, J.