Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB800185, Arthur Harrison, Judge. Affirmed in part and reversed in part with directions.
Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Daniel Rogers and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King J.
I. INTRODUCTION
A jury found defendant Antonio Valentino Ramirez guilty of a single count of possessing ammunition while prohibited from owning or possessing a firearm, a felony. (Pen. Code, § 12316, subd. (b).) Defendant waived his right to a jury trial on additional allegations that he had five prison priors (§ 667.5, subd. (b)), and the trial court found all five prison priors true. Defendant was sentenced to seven years in prison, consisting of the upper term of three years for his current conviction plus consecutive four 1-year terms for four of his five prison priors.
All further statutory references are to the Penal Code unless otherwise indicated.
At sentencing, the court said it was imposing the upper term on defendant’s current conviction based on his “recidivism” and “prior convictions” and for this reason struck the prison prior resulting from defendant’s “eldest” conviction, namely, a December 20, 2000, conviction in case No. FRE04309. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(c) [court may rely on fact of enhancement in imposing upper term only if it has discretion to strike the punishment for the enhancement and does so].) The court observed that the four remaining prison priors upon which it was imposing one-year terms were based on convictions that defendant suffered in 2001, 2004, 2005, and 2006. However, it appears from the record that defendant’s 2001 conviction in case No. FRE04323 was incurred on December 20, 2000, the same date as his conviction in case No. FRE04309.
All further references to rules are to the California Rules of Court.
Defendant appeals, claiming the matter must be remanded for resentencing. He argues that two of his prison priors—namely, those based on his two convictions on December 20, 2000—supported only one prison prior, not two, because he was sentenced consecutively rather than separately on the two convictions. Moreover, he argues it is reasonably probable the trial court would have sentenced him to six years rather than seven, because the record shows the trial court was unaware he truly had only four prison priors rather than five. We agree. We therefore remand the matter for resentencing. In all other respects, we affirm the judgment.
II. FACTS UNDERLYING DEFENDANT’S CURRENT CONVICTION
Around 1:40 a.m. on January 9, 2008, Redlands Police Officer Dan Figgins was on patrol in his police vehicle when he noticed a vehicle pass him in the opposite direction with no rear license plate. Officer Figgins turned his police vehicle around and saw the driver of the vehicle run a red light. The driver failed to yield when Officer Figgins attempted a traffic stop. In addition to the driver, there was one other person in the vehicle.
Officer Figgins activated his overhead lights and siren and pursued the vehicle onto Interstate 10. Other officers assisted in the pursuit. Near the Interstate 215 interchange, and when Officer Figgins was only a single car length away from the vehicle, he saw the passenger throw a small silver-colored object from the passenger side window. The pursuit ended in Fontana, where Officer Figgins apprehended the driver and passenger. Officer Figgins identified defendant in court as the passenger.
Corporal Mark Brannen was driving the third police vehicle in the pursuit, behind Officer Figgins and another officer in a second police vehicle. Corporal Brannen abandoned the pursuit and looked for the silver-colored object in the area where Officer Figgins reported it had been thrown from the vehicle. Along the side of the freeway, he found a small coin purse with one unspent.357-caliber bullet inside. In the same area, he found four additional.357-caliber rounds. At trial, defendant stipulated that he was a convicted felon for purpose of the charge of unlawfully possessing ammunition.
III. DISCUSSION
Defendant argues the trial court erroneously found one of his five prison priors true, because two of the five prison prior allegations were based on two convictions that defendant suffered on the same date in December 2000, and upon which he was sentenced to consecutive rather than separate terms. The People and this court agree. Indeed, because defendant was sentenced to consecutive terms for his two December 2000 convictions, he served only one “prior separate prison term” for both convictions for purposes of section 667.5. (§ 667.5, subds. (b), (e), (g).) Thus, the trial court should have found only one prison prior true, rather than two, based on defendant’s two December 2000 convictions. We explain.
Section 667.5 provides that when, as here, a defendant is sentenced to prison for a current felony conviction, the court “shall” impose a one-year enhancement “for each prior separate prison term served for any felony,” provided that, during five years following the completion of his term, he did not remain free of custody or commit another offense resulting in a felony conviction. (§ 667.5, subd. (b), italics added.) Subdivision (e) of the statute restates this limitation: “The additional penalties provided for prior prison terms shall not be imposed for any felony for which the defendant did not serve a prior separate term in state prison.” (§ 667.5, subd. (e), italics added; People v. Jones (1998) 63 Cal.App.4th 744, 747.) Subdivision (e) thus contemplates that a defendant may have at least one prior felony conviction for which he did not serve a “prior separate prison term.”
Subdivision (g) of section 667.5 sheds additional light on the meaning of the phrase “prior separate prison term.” It defines the phrase 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), italics added.) Based on this language, courts have interpreted the phrase as authorizing only one prison prior when the defendant has served either concurrent or consecutive terms on two or more prior felony convictions. (People v. Jones, supra, 63 Cal.App.4th at p. 747 [discussing concurrent sentence limitation]; People v. James (1980) 102 Cal.App.3d 728, 733 [noting in dicta that “a defendant who has served concurrent or consecutive prison sentences on various commitments is deemed to have served only one prior prison term....” (Italics added)].) Thus, prison terms served concurrently or consecutively do not constitute “prior separate prison term[s]” for purposes of section 667.5.
The People argue that this court should reject defendant’s claim of sentencing error as “moot” because, in striking one of defendant’s two 2000 prison priors, the trial court “achieve[d] the result [defendant] seeks... [and] it cannot be said that the trial court imposed more [prison prior] enhancements than were appropriate under section 667.5, subdivision (b).” The People are incorrect; defendant’s claim is not moot.
As defendant argues, in view of the entire record, it is reasonably probable he would have realized a more favorable result—for example, an aggregate sentence of six years rather than seven—had the court known it could only find four of the five alleged prison priors true. (People v. Watson (1956) 46 Cal.2d 818, 836 [state law error is prejudicial if it is reasonably probable that the defendant would have realized a more favorable result absent the error].) First, the court was apparently unaware it could find only one prison prior true, rather than two, based on defendant’s convictions in case Nos. FRE04309 and FRE04323. Neither the prosecutor nor defense counsel brought the matter to the court’s attention, at least on the record, during the court trial on the prison priors or at any time before or during the sentencing hearing.
Apparently, the court believed consecutive sentences were separate sentences for purposes of section 667.5. During the court trial on the prison priors, the court pointed out that defendant had been sentenced to consecutive terms in cases Nos. FRE04309 and FRE04323, among others, and indicated this meant that both convictions supported separate prison priors.
And, at sentencing, the court said it was not imposing punishment on the “eldest” of the five prison priors, namely, the conviction in case No. FRE04309, because it was imposing the upper term on defendant’s current conviction based on his “recidivism” and “prior convictions.” The court thus indicated it was striking the punishment on the oldest prison prior in order to avoid a “dual use” problem, that is, to avoid imposing punishment on an enhancement when the fact of the same enhancement is used to impose an upper term. (§ 1170, subd. (b); rule 4.420(c) [court may rely on fact of enhancement in imposing upper term only if it has discretion to strike the punishment for the enhancement and does so].) Thus, had the court known there were only four prison priors, it is reasonably probable it would have imposed an aggregate term of only six years rather than seven, by imposing the upper term of three years on the current conviction, while striking punishment on one of the four prison priors and imposing three years for the three remaining prison priors.
Finally, in discussing the case with counsel prior to sentencing, the court indicated it was not inclined to impose the maximum possible aggregate sentence of eight years. The court said it did not intend to sentence defendant to eight years, even though “the recidivism of the defendant might justify that.” The court’s comments further indicate that, had the court known defendant’s maximum possible aggregate sentence was seven years rather than eight years, it may have imposed no more than a six-year aggregate term.
We are not suggesting that, on remand, the trial court is limited to imposing an aggregate term of no more than six years. The court may again impose an aggregate term of seven years, but on different grounds than it imposed the present seven-year term. For example, the court may impose four years for the four prison priors and still impose the upper term of three years on defendant’s current conviction, because the record shows there were aggravating circumstances other than defendant’s service of a prior prison term. (Rule 4.421(b)(3) [circumstances in aggravation include fact that defendant has served a prior prison term].) For example, defendant was on parole when the crimes were committed. (Rule 4.421(b)(4) [circumstances in aggravation include fact that defendant was on parole when crime was committed].)
IV. DISPOSITION
The matter is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.
We concur: Ramirez P.J., Gaut J.