Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA064801, Zaven V. Sinanian, Judge.
Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
Perluss, P. J.
A jury convicted Dammon J. Rogers of false personation of another (Pen. Code, § 529) and use of the personal information of another for an unlawful purpose (§ 530.5). Following a bifurcated bench proceeding involving special allegations regarding Rogers’s prior felony convictions and prison terms, Rogers was sentenced to an aggregate state prison term of three years: the middle term of two years for false personation plus a one-year enhancement for having served a prior prison term for a felony (§ 667.5, subd. (b)), with sentenced imposed and stayed on the identity theft charge pursuant to section 654. On appeal Rogers contends his admissions were insufficient to justify the trial court’s imposition of the prior person term enhancement. We affirm.
Statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The felony charges against Rogers arose from a traffic stop for an infraction in February 2004. Rogers misidentified himself to the officers, using his brother’s name and birth date, and was cited and released under his brother’s name. Rogers later admitted to police he had been impersonating his brother to avoid an out-of-state fugitive warrant.
In an information filed on March 30, 2006 Rogers was charged with one count of false personation and one count of improperly using the personal information of another person. The information also specially alleged as to both counts Rogers had suffered a prior serious or violent felony conviction within the meaning of the “Three Strikes” law (assault with a firearm in case No. GA019336) and had served three separate prior prison terms for felonies under section 667.5, subdivision (b) (assault with a firearm, case No. GA019336; unlawfully driving or taking a vehicle, case No. GA021409; and aggravated assault, case No. RIF078209). Rogers pleaded not guilty to the charges and denied the special allegations. He requested a bifurcated jury trial on the special allegations.
At trial Rogers testified in his own defense and was impeached with his prior convictions. During cross-examination Rogers admitted he had served state prison terms following his convictions for aggravated assault and unlawfully driving or taking a vehicle.
While the jury was deliberating, Rogers elected to waive his right to a jury trial and have a bench trial on “the priors” if he was convicted of the substantive offenses. The jury convicted Rogers as charged. Following the verdict, defense counsel agreed to have “the priors trial” at the same time as the sentencing hearing.
At the outset of the September 8, 2006 sentencing hearing, Rogers agreed to admit the truth of the special allegations regarding his three prior convictions. The court advised Rogers of his right to a trial, to cross-examine witnesses, to present evidence and to remain silent. Rogers stated he understood and relinquished those rights.
The trial court asked Rogers, “Do you admit you have suffered a prior conviction in case number GA019336, a violation of Penal Code section 245(a)(2), alleged as a strike, on June 29, 1994?” Rogers replied, “Yes.” The trial court continued, “Do you admit you have suffered a prior conviction in case number RIF078209, [a] violation of Penal Code section 245(a)(1), conviction date of February 18, 1998?” and Rogers again answered, “Yes.” The court then asked Rogers, “And do you admit you have suffered a prior conviction in case number GA021409, [a] violation of Vehicle Code section 10851(a), on May 10th 1995?” Rogers replied, “Yes.” Defense counsel expressly joined in the admissions, which the trial court accepted.
Following Rogers’s admission, the court stated it “found the prior convictions to be true, and now we can proceed with sentencing.” The court exercised its discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and section 1385 and dismissed the 1994 prior strike conviction and the prior prison term enhancement relating to case No. GA021409 (unlawfully driving or taking a vehicle in 1995).
Although the information was never amended, it appears the trial court and the parties understood Rogers had not been sentenced to state prison term following his 1994 conviction for assault with a firearm. Rogers repeatedly denied having served a prison term in that case, and the probation officer’s report and the prosecutor’s sentencing memorandum indicate the disposition was three years formal probation on the condition Rogers serve 365 days in county jail. Thus, the section 667.5, subdivision (b), allegation with respect to case No. GA019336 was impliedly stricken.
The trial court sentenced Rogers to an aggregate state prison sentence of three years, consisting of the two-year middle term for false personation (count 1) plus one year for the remaining prior prison term enhancement relating to case No. RIF078209 (aggravated assault in 1998). The court stayed the sentence imposed for identity theft (count 2) pursuant to section 654.
CONTENTION
Although Rogers admitted he had been convicted of three prior felonies, including aggravated assault in 1998, he contends his admissions did not establish that he had served a prior prison term for the 1998 offense or that he had not thereafter remained free for five years of both prison custody and the commission of a new offense resulting in a felony conviction, both necessary elements for imposition of the section 667, subdivision (b), prior prison term enhancement.
DISCUSSION
When a defendant is convicted of a felony (other than a violent felony specified in section 667, subdivision (c)) and sentenced to state prison, section 667.5, subdivision (b), mandates imposition of a one-year enhancement for each prior separate prison term served by the defendant for a felony conviction unless the prison term was served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction (frequently referred to as the “five-year washout period”). 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).) A prior separate prison term is “a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after an escape from incarceration.” (§ 667.5, subd. (g).)
Proof of an enhancement under section 667.5, subdivision (b), therefore, requires the prosecution establish the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed the 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.) Due process requires the prosecution prove beyond a reasonable doubt every element of a sentencing enhancement allegation. (Id. at p. 566.) We review section 667.5 enhancements in the light most favorable to the judgment “to determine whether substantial evidence supports the fact finder’s conclusion, i.e., whether a reasonable trier of fact could have found that the prosecution . . . sustained its burden of proving the defendant guilty beyond a reasonable doubt.” (Tenner, at p. 567.)
Rogers contends he admitted only the validity of his prior convictions, not that he had served a separate prison term for each conviction or that the five-year washout period was inapplicable to each conviction. Citing People v. Epperson (1985) 168 Cal.App.3d 856, 864-865 (Epperson) and People v. Lopez (1985) 163 Cal.App.3d 946 (Lopez), Rogers urges that we reverse the one prior prison term enhancement imposed by the trial court.
In Lopez, supra, 163 Cal.App.3d 946, although the defendant admitted he had suffered two prior burglary convictions, “he was not asked to and did not admit that he served a separate prison term for either of those prior convictions, and no evidence was introduced to so establish. [Citations.] Moreover, unlike the situation in People v. Franco (1970) 4 Cal.App.3d 535, 539-540, where the defendant was advised prior to admitting the prior conviction that the information charged him both with having suffered a prior conviction and with having served a prior term of incarceration therefor, here the record does not indicate that the [information] was read to defendant, that he waived a reading thereof, or that he was ever advised that by admitting the validity of the prior convictions he would also be admitting that he served separate prison terms therefor. Thus, his admission that [he sustained] the prior convictions [] cannot be construed as an admission of the allegations that he served prior, separate prison terms for each of those convictions.” (Id. at p. 951.)
Similarly, in Epperson, supra, 168 Cal.App.3d 856, the defendant admitted only his prior convictions; and the People conceded on appeal those convictions could not support imposition of the section 667.5, subdivision (b), enhancements ordered by the trial court because the defendant had “satisfied the five-year ‘washout’ requirement.” (Epperson, at p. 865.) In that context, in dicta, the court stated, the admission of prior convictions could not be interpreted “as including admissions of all the necessary elements of the enhancements alleged under Penal Code section 667.5, subdivision (b).” (Epperson, at p. 865.)
Unlike the situation in both Lopez and Epperson, in this case Rogers testified at trial and admitted he had served a state prison term for the 1998 aggravated assault conviction (and for the 1995 conviction for unlawfully driving or taking a vehicle, as well). Moreover, the information specially alleged not only that Rogers had suffered the 1998 felony conviction but also that he had served a prison term as described in section 667.5 for that offense and “did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during, a period of five years subsequent to the conclusion of said term.” Viewing his post-trial admissions in the context of the entire proceedings (cf. People v. Mosby (2004) 33 Cal.4th 353, 356 [court to evaluate totality of circumstances surrounding admission of sentencing enhancement allegations to determine if admission voluntary and intelligent]), it is clear Rogers was admitting the allegations set forth in the information, which included all elements necessary to support an enhancement under section 667.5, subdivision (b). (See People v. Ebner (1966) 64 Cal.2d 297, 303 [“[d]efendant’s admission of the prior convictions is not limited in scope to the fact of the convictions but extends to all allegations concerning the felonies contained in the information”]; People v. Cardenas (1987) 192 Cal.App.3d 51, 61 [“admission of prior convictions where the charging information specifically alleges the convictions resulted in prior separate prison terms is deemed an admission such prison terms were separately served”]; see also People v. Welge (1980) 101 Cal.App.3d 616, 623 [“admission of prior convictions cannot be construed as an admission that separate terms were served therefor, in the absence of an allegation in the information or complaint that the defendant served separate terms on the prior convictions”].)
Because Rogers’s trial counsel elected to have the bifurcated proceeding on the prior strike and prior prison term enhancements occur at the sentencing hearing, when taking Rogers’s plea, the trial court had before it a probation and sentencing report that reflects Rogers was sentenced to a three-year term in state prison for the 1998 conviction under section 245, subdivision (a)(1), that he was released and then found in violation of parole in February 2000 and that he was again released and found in violation of parole in January 2001, at which time he was returned to prison to finish his term. Because it is hearsay and Rogers did not consent to its consideration, the information in this report is not properly included in assessing whether the People established the elements necessary for the section 667.5, subdivision (b), enhancement. Nonetheless, the fact this report clearly confirms Rogers’s 1998 conviction and sentence support imposition of the one-year enhancement perhaps explains why the trial judge and the prosecutor were not more thorough in eliciting detailed admissions from Rogers.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., WILEY, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.