Opinion
B230330
02-03-2012
THE PEOPLE, Plaintiff and Respondent, v. DAVID LYNN REESE, Defendant and Appellant.
George W. Taylor, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback II and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA076576)
APPEAL from a judgment of the Superior Court of Los Angeles County. Steven R. Van Sicklen, Judge. Affirmed as modified.
George W. Taylor, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback II and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant David L. Reese was convicted, following a jury trial, of one count of first degree residential burglary in violation of Penal Code section 459. The trial court found true the allegations that appellant had suffered two prior serious felony convictions within the meaning of the "Three Strikes" law (sections 1170.12 and 667, subdivisions (b) through (i)) and section 667, subdivision (a). The trial court also found true the allegations that appellant had suffered five prior felony convictions for which he served a prison term within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court struck one of appellant's prior strike convictions and sentenced appellant to a total of 20 years in state prison, consisting of the mid-term of four years in state prison, doubled by the Three Strikes law to eight years, plus two five-year terms for the section 667, subdivision (a) serious felony allegations, plus two one-year terms for the section 667.5 prior prison terms allegations.
Appellant appeals from the judgment of conviction, contending that the trial court erred in imposing two one-year terms for the section 667.5 allegations and in imposing a 15 percent limitation on his conduct credits. We order one section 667.5 enhancement stricken and appellant's conduct credits increased, as set forth in more detail in the disposition. We affirm the judgment of conviction in all other respects.
Facts
On November 11, 2009, about 2:30 a.m., Charles Hodges, the manager of an apartment building in Inglewood, looked at a monitor in his apartment which showed a video feed from the building's laundry room. The monitor showed a book bag on one of the washing machines. Hodges then saw an arm reach to the back of the washer and move the machine away from the wall. Hodges, who was in his own apartment, called 911.
Police officers arrived at the complex in about five minutes. They saw appellant standing in the doorway of the laundry room. The officer observed that the door of the laundry room and the coin slot on the washing machine appeared to have been pried open.
Hodges came out of his apartment as police officers were leading appellant down the driveway. Hodges told officers that appellant was the man in the video. Hodges later observed that lines to the washing machine had been cut and that the machine's coin box was damaged.
Discussion
The court found true the allegations that appellant had served five prior prison terms, in cases YA045789, YA038439, YA033028, YA035182, and YA027915. Case numbers YA045789 and YA038439 were the prior strike convictions. They were both serious felony convictions as well. The court sentenced appellant to two one-year terms for his prison terms in YA033028 and YA035182 and stayed the prior conviction in YA027915. Appellant contends that only one prior prison term enhancement could be imposed. Respondent agrees. We agree as well.
A 1998 abstract of judgment introduced by the prosecution showed that appellant was sentenced to concurrent terms for convictions in case numbers YA027915, YA033028 and YA035182. Courts have consistently held that only one section 667.5 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.) Thus, "multiple convictions resulting in a single term of state prison confinement constitute one [prison term] prior." (People v. Shea (1995) 39 Cal.App.4th 1257, 1274.)
Since appellant served a single prison term for his convictions in YA033028 and YA035182, only one prison term enhancement could be imposed for those two convictions. The second enhancement must be stricken. (See People v. Riel (2000) 22 Cal.4th 1153, 1203 [improperly imposed enhancements under section 667.5 should be stricken].)
There are no other usable prior prison terms. The prison term for case number YA027915 was concurrent with case numbers YA033028 and YA035182. The convictions in case numbers YA045789 and YA038439 were used to impose serious felony conviction enhancements under section 667, subdivision (a). They cannot also be used for a section 667.5 enhancement. (People v. Jones (1993) 5 Cal.4th 1142.)
2. Conduct credit limitation
Appellant was in custody for 427 days. The trial court awarded him 63 days of conduct credit under the provisions of section 2933.1, which limits conduct credit to 15 percent of actual custody days served for specified felony offenses. Appellant contends that his conviction was not a felony specified by section 2933.1, and so the trial court erred in limiting his conduct credit. Respondent agrees. We agree as well.
Section 2933.1 limits conduct credit for defendants convicted of felony offenses listed in subdivision (c) of section 667.5. Section 667.5, subdivision (c)(21) lists "[a]ny burglary of the first degree, as defined in subdivision (a) of section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary." (Italics added.)
Here, the People did not charge that a person was present in the residence during the commission of the burglary. Further, all enhancements alleged must either be admitted by defendant in open court or found true by the jury or the trial court. (People v. Garcia (2004) 121 Cal.App.4th 271, 278-279.) None of those events occurred.
Appellant did not admit that anyone was in the residence when the burglary occurred. The jury convicted appellant of first degree residential burglary, but the burglary instruction told them that they could convict whether or not someone was in an inhabited dwelling at the time of the burglary. The jury made no special findings concerning the burglary. The court did not make a finding that anyone was present in the residence. We agree with respondent that it is unlikely that the evidence would support a finding that a person "was present in the residence" during the burglary. (See People v. Singleton (2007) 155 Cal.App.4th 1332, 1337-1339.) Thus, the limitations of section 2933.1 did not apply to appellant.
Both parties agree that appellant is entitled to half time conduct credit. Appellant had 427 days of actual custody, so he is entitled to 212 days of conduct credit. (People v. Williams (2000) 79 Cal.App.4th 1157, 1176, fn. 14.)
Appellant had 427 days of actual custody. This number divided by 4 is 106.75, which must be rounded down to 106. One hundred and six times two is 212.
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Disposition
One section 667.5 one-year enhancement term is ordered stricken. Appellant's sentence is ordered corrected to reflect this change and show a total of 19 years in state prison. Appellant's custody credits are ordered corrected to show 427 days of actual custody and 212 days of conduct credit, for a total of 639 days of custody credit. The clerk of the superior court is instructed to prepare an amended abstract of judgment reflecting these changes, and to deliver a copy to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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ARMSTRONG, Acting P. J.
We concur:
MOSK, J.
KRIEGLER, J.