Opinion
NOT TO BE PUBLISHED.
Before Dawson, Acting P.J., Hill, J. and Kane, J.
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. BF113234A, Charles P. McNutt, Judge.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Defendant Solomon McCall pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 1), and possession of paraphernalia (Health & Saf. Code, § 11364; count 2). It was further alleged that he served five prior prison terms. He admitted serving three and the other two were struck as concurrent. In exchange for his plea, the trial court suspended the imposition of a sentence and placed defendant on probation with drug treatment pursuant to Proposition 36 (Pen. Code, § 1210.1, et seq.).
All statutory references are to the Penal Code unless otherwise noted.
Following defendant’s violation of probation, the trial court sentenced him to a state prison term of four years, including the middle term of two years, plus two one-year prior prison term enhancements pursuant to section 667.5, subdivision (b). The trial court struck the third prior prison term finding.
On appeal, defendant contends the record shows insufficient evidence to support the prior prison term enhancements because he did not admit that he served separate prison terms or that he failed to remain free for the five-year wash-out period. We affirm the judgment.
A sentence enhancement under section 667.5 “requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction.” (People v. Tenner (1993) 6 Cal.4th 559, 563.) The five-year wash-out period starts when the defendant is officially discharged from custody or released on parole. (In re Panos (1981) 125 Cal.App.3d 1038, 1041.) If the wash-out period is satisfied, the enhancement does not apply. (§ 667.5, subd. (b).) Also, the enhancement may not be imposed for any prior felony for which the defendant did not serve a prior, separate prison term. (§ 667.5, subd. (e).)
FACTS
At the pre-preliminary hearing, defense counsel informed the court that defendant would enter a no contest plea to both counts and admit three of the prior prison term allegations. After a discussion of which prior prison terms should be used, defendant admitted three and agreed he went to prison for each of them. While the trial court did not discuss whether the prior prison terms were served separately or whether defendant satisfied the wash-out period, defendant initialed the rights waiver form and waived a formal reading. Defendant also agreed he understood his maximum sentence was six years in state prison and stated he did not have any questions about his rights or the consequences of the plea. Lastly, defendant stipulated to a factual basis for the plea and defense counsel agreed she believed defendant understood the charges and the consequences of his plea.
DISCUSSION
At the outset, we recognize defendant may not have filed a timely appeal. However, even assuming the appeal is timely, the issue is not cognizable. By pleading guilty or no contest, a defendant admits every element of the offense and the sentence enhancement. (People v. Thomas (1986) 41 Cal.3d 837, 842-844, fn.6; People v. Lobaugh (1987) 188 Cal.App.3d 780, 785 [enhancement admissions are subject to the same principles as guilty pleas]; People v. Warburton (1970) 7 Cal.App.3d 815, 820-821 [no contest plea has the same effect as a guilty plea].) When a defendant enters into a plea, he should be bound to the terms of the bargain. (People v. Thomas, supra, at p. 840.) An admission waives the right to challenge the sufficiency of the evidence, including that supporting a section 667.5, subdivision (b) prior prison term enhancement. (People v. Gonzalez (1993) 13 Cal.App.4th 707, 713-714.)
We requested supplemental briefing from the parties on this issue.
Here, defendant pled no contest and admitted three prior prison terms as a part of his plea bargain. By doing so, he admitted every element of the prior prison term enhancements and he cannot now challenge the sufficiency of the evidence supporting those enhancements. He waived this issue with his plea.
Nevertheless, we note that defendant’s claim fails on the merits. When a defendant admits a charge of a prior conviction, he is held to have admitted as great a charge as is set forth in the information. (People v. Welge (1980) 101 Cal.App.3d 616, 623 [where the information alleges the defendant served separate prior prison terms, an admission of the prior convictions constitutes an admission that separate prison terms have been served for each prior conviction].)
Here, defendant admitted the information’s allegations, which were specific and included every element required by section 667.5, subdivisions (b) and (e). He waived a formal reading and agreed he understood the charges and the plea’s consequences. He initialed the advisement of rights, waiver, and plea form, which included an advisement of increased sentencing for admitted prior convictions. Lastly, defense counsel agreed she believed defendant understood the charges and defendant stipulated to a factual basis for the plea. The record reflects sufficient evidence to impose the enhancements because defendant admitted all of the necessary elements.
DISPOSITION
The judgment is affirmed.