Opinion
E064792
02-17-2017
THE PEOPLE, Plaintiff and Respondent, v. NOEL GEORGE MAYORGA, Defendant and Appellant.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1302755) OPINION APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Affirmed with directions. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant, Noel George Mayorga, of two counts of gross vehicular manslaughter while intoxicated (counts 1-2; Pen. Code, § 191.5, subd. (a); victims 1-2), driving under the influence of alcohol while causing bodily injury (count 3; Veh. Code, § 23153, subd. (a)), and driving with a blood-alcohol level greater than or equal to 0.08 percent while causing great bodily injury (count 4; Veh. Code, § 23153, subd. (b)). The jury additionally found true allegations that defendant had personally inflicted great bodily injury in his commission of the offenses in counts 1 and 2 (Pen. Code, §§ 667, 1192.7, subd. (c)(8)), personally inflicted great bodily injury in his commission of the offenses in counts 3 and 4 as to victims 3 and 4 (Pen. Code, § 12022.7, subd. (a)), and caused bodily injury to victim 5 in his commission of the offense in count 3 (Veh. Code, § 23558).
All further statutory references are to the Penal Code unless otherwise indicated.
The court later found true allegations defendant had suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12), one prior serious felony conviction (§ 667, subd. (a)), and four prior prison terms (§ 667.5, subd. (b)). The court sentenced defendant to an aggregate term of imprisonment of 36 years eight months.
On appeal, defendant contends the one-year sentence on the prior prison term enhancement derived from defendant's conviction for kidnapping must be stricken because it is based upon the same felony conviction upon which the court imposed sentence for the serious felony conviction. Defendant additionally alleges the People adduced insufficient evidence to support the court's true findings on all four prior prison term enhancements. The People concede defendant's latter contention and agree that all four prior prison term enhancements should be stricken. We agree.
I. FACTUAL BACKGROUND
On July 7, 2013, defendant drove his vehicle through an intersection against a red light, traveling at speeds estimated to be between 70 and 110 miles per hour while racing another car. He collided with a vehicle entering the intersection on a green light from the intersecting street. The driver and front passenger of the latter car were killed; the three passengers in the rear seat were all injured, two seriously.
The accident reconstruction expert testified defendant's vehicle was traveling at a minimum speed of 100 miles per hour with a potential speed of 110 miles per hour at the time of the collision.
An emergency medical technician attending defendant at the scene smelled the scent of alcohol emanating from him; defendant admitted he had been drinking. Two separate samples of defendant's blood were taken at the hospital to which defendant had been taken; they were found to have blood-alcohol concentrations of 0.12 and 0.18 percent, respectively.
II. DISCUSSION
Defendant contends insufficient evidence supports the court's true finding on the last of the prior prison term allegations. Specifically, defendant maintains the evidence actually reflects that he had remained free from custody, within the meaning of the statute, for five years prior to his commission of the instant offenses. Thus, defendant argues he falls within the statutory "washout" period such that the true findings on all of the prior prison terms must be stricken and his sentence concomitantly reduced. The People concede the issue. We agree.
Our resolution of the issue renders moot defendant's argument that punishment for his prior prison term for kidnapping must be stricken because it was based on the same conduct for which the court imposed sentence on the prior serious felony. --------
The section 969b packet the People introduced into evidence at defendant's court trial on the prior conviction allegations reflects that defendant's most recent prior conviction occurred on July 30, 2002, when he pled guilty to possession of a firearm by a convicted felon (former § 12021, subd. (a)(1)); defendant also admitted two prior prison term allegations (§ 667.5, subd. (b)). On September 16, 2002, the court sentenced defendant to an aggregate term of imprisonment of four years eight months with 115 days of credit for time served.
The Department of Corrections and Rehabilitation's chronological history of defendant's imprisonment reflects defendant was taken into custody on September 17, 2002. Defendant was granted parole on January 16, 2007. On January 4, 2010, defendant was "Rec'd @ cim/RCC Pend. Rev." A 10-day audit was performed on January 7, 2010; later that day defendant received a "DISCHARGE PER STAT MAX." Defense counsel argued that there had been no revocation of parole and that, regardless, defendant's statutory period of confinement for the offense for which he then stood convicted and sentenced had already been "max'd out." Thus, defense counsel contended that the People had failed to prove there had been no five-year "washout" period, rendering all the section 667.5, subdivision (b) prior offenses inapplicable.
The People countered that defendant was taken into custody on a parole violation and only released when "it was noted at that point that he had reached his statutory maximum incarceration . . . ." Thus, it had been only "three and a half years" since that release and defendant's commission of the current offenses. The court found defense counsel's argument "fails because [defendant] did not stay free from prison custody for the five-year period to trigger a washout." Therefore, the court found true all four prior prison term allegations and sentenced defendant accordingly.
"The prosecution has the burden of proving beyond a reasonable doubt each element of the section 667.5, subdivision (b) sentence enhancement, including the fact of no five-year 'washout' period. [Citation.] When, as here, a defendant challenges on appeal the sufficiency of the evidence to sustain the trial court's finding that the prosecution has proven all elements of the enhancement, we must determine whether substantial evidence supports that finding. The test on appeal is simply whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the enhancement beyond a reasonable doubt. In that regard, in conformity with the traditional rule governing appellate review, we must review the record in the light most favorable to the trial court's finding(s). [Citation.]" (People v. Fielder (2004) 114 Cal.App.4th 1221, 1232.)
"[W]here the new offense is any felony for which a prison sentence . . . is imposed . . . , in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term . . . ; provided that no additional term shall be imposed under this subdivision for any prison term . . . prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody . . . ." (§ 667.5, subd. (b).) "The last phrase is commonly referred to as the 'washout rule' where a prior felony conviction and prison term can be 'washed out' or nullified for the purposes of section 667.5." (People v. Fielder, supra, 114 Cal.App.4th at p. 1229.)
"According to the 'washout' rule, if a defendant is free from both prison custody and the commission of a new felony for any five-year period following discharge from custody or release on parole, the enhancement does not apply. [Citations.] Both prongs of the rule, lack of prison time and no commission of a crime leading to a felony conviction for a five-year period, are needed for the 'washout' rule to apply. This means that for the prosecution to prevent application of the 'washout' rule, it must show a defendant either served time in prison or committed a crime leading to a felony conviction within the pertinent five-year period. [Citations.]" (People v. Fielder, supra, 114 Cal.App.4th at p. 1229.)
"[T]emporary detention or confinement can ripen into reimprisonment for parole revocation only upon findings justifying revocation following a formal hearing consistent with federal constitutional due process requirements. [Citation.]" (In re Panos (1981) 125 Cal.App.3d 1038, 1043.) "[W]hether a parolee has remained free of prison custody depends on whether he has either remained on parole without revocation during, or been discharged from custody preceding, the required continuous five year period. [Citation.]" (In re Preston (2009) 176 Cal.App.4th 1109, 1117.)
Here, the section 969b packet introduced into evidence during defendant's court trial on the prior offense allegations fails to support the court's finding that defendant failed to remain free from custody for five years, within the meaning of section 667.5, before committing the instant offenses. Despite the fact that defendant had been taken into custody for an apparent "parole" violation, defendant was never formally found to have been in violation of his "parole." Indeed, the record reflects defendant was released because he had already reached his statutory maximum period of confinement. Defendant never had his parole revoked. Therefore, defendant had remained free from custody, within the meaning of the statute, for a period exceeding five years. Thus, insufficient evidence supports the court's true finding on the prior term enhancements and they must be stricken.
III. DISPOSITION
The superior court is directed to strike the four 1-year enhancements imposed under section 667.5, subdivision (b). The trial court clerk shall forward a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. CODRINGTON
J.