Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR233500.
McGuiness, P.J.
Appellant John Scott Savage (appellant) was convicted of driving under the influence of alcohol and with a blood alcohol level in excess of 0.8 percent, offenses punishable as felonies given his prior alcohol-related convictions under the Vehicle Code. (See Veh. Code, §§ 23550 & 23550.5.) The trial court sentenced him to an aggregate term of four years, including two one-year sentence enhancements for prison terms he had served. (See Pen. Code, § 667.5, subd. (b).) Appellant challenges this sentencing determination, contending that: (1) it is not supported by the evidence, as the exhibits establishing his prior convictions and prison terms were not received in evidence, and (2) the trial court failed to make adequate findings of fact regarding his prior prison terms. We reject appellant’s construction of the record, conclude the trial court’s factual findings were sufficient, and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2006, appellant drove his vehicle into a private parking lot at the Dixon May Fair without stopping to present a parking pass to the security guard, and appeared to be intoxicated. An officer with the California Exposition Police Department observed that he was unsteady on his feet, staggering, and had red, watery eyes, slurred speech, and a strong odor of alcohol on his breath. He had difficulty manipulating his hand to provide his drivers’ license. The officer detained appellant and delivered him to the custody of Dixon Police Officer Joseph Strickland, who conducted field sobriety tests and found appellant’s performance unsatisfactory. Officer Strickland then administered two breathalyzer tests, which revealed a blood alcohol content of 0.26 percent and 0.27 percent, respectively.
In June 2006, a felony complaint was filed alleging that appellant had been driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) (count 1), with a blood alcohol content in excess of 0.08 percent (Veh. Code, § 23152, subd. (b)) (count 2), and with a suspended license (Veh. Code, § 14601.2, subd. (a)) (count 3). The first two counts were charged as felonies based on allegations that appellant had been convicted of felony violations of Vehicle Code section 23152 in 1997, 2001, and 2004. (See Veh. Code, §§ 23550 [at least three convictions of driving under the influence in the preceding 10 years] & 23550.5 [a prior felony conviction for violating section 23152 in the preceding 10 years].) The People also alleged as sentence enhancements that appellant’s blood alcohol level exceeded 0.15 percent (Veh. Code, § 23578) and that he had served prison terms following his felony convictions in 1995, 1997, 2001, and 2004. (Pen. Code, § 667.5, subd. (b) (section 667.5(b).) For each prison term, the People included an allegation that appellant had not remained free of prison custody and the commission of further offenses resulting in a felony conviction for a period of five years after the term ended. (See ibid.) In October 2006, the trial court conducted a preliminary hearing and held appellant to answer on all three counts. The People filed an information setting out substantially the same allegations and charges.
In April 2008, appellant entered into a plea agreement, waiving his right to a jury trial and agreeing to submit the matter to the trial court on the preliminary hearing transcript in lieu of live testimony, with the understanding that, if convicted, his sentence would not exceed four years. The trial court noted, “I want to be sure we have everything that’s necessary to try this case.... [¶] What else is going to be submitted?” The People submitted six exhibits related to sentencing, marked for identification as People’s Exhibits 2-7.
Exhibits 5, 6, and 7 show that appellant was convicted of felony violations of Vehicle Code section 23152 in March 1997, November 2001, and January 2004. Exhibits 2, 3, and 4 consist of certified “prison packets” from the California Department of Corrections (CDC) that relate to three of appellant’s CDC numbers. (Pen. Code, § 969b.) Penal Code section 969b permits the prosecution to prove a prior prison term by introducing into evidence a packet of certified prison records.
The trial court reviewed the preliminary hearing transcript and the People’s exhibits and, after allowing the parties to be heard, rendered a verdict the same afternoon. The trial court found appellant guilty on the first two counts and dismissed the third count, as the People had not pursued it. The trial court concluded the offenses were felonies, since the three prior convictions were “in proper order... [and] qualify,” and found the 0.15 percent blood alcohol enhancement true. The trial court also noted, “The prison priors are there. There is no five year gap between a prior and the subsequent commi[ssion] of an offense.”
In July 2008, the trial court sentenced appellant to the middle term of two years on count 1, as well as a concurrent two-year term on count 2, which was stayed. The trial court added two consecutive one-year terms as enhancements for appellant’s prior prison terms (Pen. Code, § 667.5(b)), for an aggregate term of four years, the maximum allowed under the plea agreement. Appellant filed a timely notice of appeal from the judgment of conviction.
DISCUSSION
A. Appellant’s Challenge to the Sufficiency of the Evidence Is Without Merit.
Appellant contends the evidence is not sufficient to establish his offenses as felonies or to support the enhancements imposed because the exhibits on which the People relied to prove his prior convictions and prison terms (People’s Exhibits 2-7) were never admitted in evidence. He is mistaken. The exhibit list prepared by the clerk shows that these exhibits were marked for identification and received in evidence. Appellant does not accept this document as conclusive because the reporter’s transcript does not show that the trial court expressly received these exhibits in evidence. He contends that “[t]he clerk’s transcript is unclear as to whether [these] notations reflect the court clerk’s independent decision to not just identify but also to receive the exhibits into evidence, or whether they reflect the [trial] court’s contemporaneous directions that the exhibits be admitted into evidence....” We presume, however, that the clerk properly prepared the minutes. (See Evid. Code, § 664 [presumption that official duty has been regularly performed].) The record shows that the People submitted Exhibits 2 through 7 to the trial court for its consideration in reaching a verdict, and that the trial court reviewed these exhibits and relied upon them in reaching its verdict.
Appellant does not contend that these exhibits were substantively insufficient to establish his prior convictions and prison terms.
B. The Trial Court’s Findings Were Sufficient.
Appellant also claims that the trial court erred in failing to make express, separate findings as to the truth of each of the prior prison terms that supported its sentence enhancements. When a defendant waives his right to a jury trial, the trial court must announce at the conclusion of trial its “findings upon the issues of fact, which shall be in substantially the form prescribed for the general verdict of a jury and shall be entered upon the minutes.” (Pen. Code, § 1167.) This requirement extends to the predicate facts for sentence enhancements, including the nature, location and date of each prior, that a prison term was served for each, and that the defendant had not remained free of felony conviction or prison custody. (See People v. Williamson (1979) 90 Cal.App.3d 164, 168-169 (Williamson); People v. Jackson (1987) 193 Cal.App.3d 393 [finding and enhancement stricken because neither was admitted by defendant or found true by trier of fact].) “Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged... the judge if a jury trial is waived, must... find whether or not he has suffered such previous conviction.... If more than one previous conviction is charged a separate finding must be made as to each.” (Pen. Code, § 1158.) A record that is silent as to the trial court’s determination of the truth of a particular fact operates as a finding of “not true.” (People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440.) In the absence of the requisite findings, a trial court lacks authority to impose a sentence enhancement. (See People v. Wiley (1995) 9 Cal.4th 580, 589 [noting that determinate sentencing law requires “additional terms to be imposed only after the enhancement has been found true by the trier of fact].)
The language of Penal Code section 1158 suggests that it applies only to previous convictions, not prison terms. Nonetheless, some courts have relied on this section in the context of prison terms. (See People v. Lopez (1982) 128 Cal.App.3d 803, 807-808; Williamson, supra, 90 Cal.3d at p. 170.) CALCRIM jury instructions also treat “prison priors” as an enhancement for a prior conviction. (See CALCRIM No. 3102 [“Prior Conviction: Prison Prior”].) The Use Note to CALCRIM No. 3102 also cites section 1158, stating: “If the court gives this instruction, the court must provide the jury with a verdict form on which the jury will indicate whether the allegation has been proved.” We conclude that, to the extent section 1158 imposes more specific requirements than section 1167, the trial court’s findings were sufficient under section 1158.
In issuing its verdict, the trial court stated: “The prison priors are there. There is no five year gap between a prior and the subsequent committing of offense.” We construe this statement as a finding that all the prison terms alleged in the information are true. In so concluding, we observe that the People’s exhibits constituted prima facie evidence of the elements required for each term (Pen. Code, § 969b), that appellant did not rebut this evidence below or dispute that he had served the prison terms alleged, and that his plea agreement effectively limited the trial court to two enhancements, regardless of how many it found true. In imposing the enhancements, the trial court also impliedly rendered a finding of true as to at least two of the prior prison terms. (See People v. Clair (1992) 2 Cal.4th 629, 691, fn. 17 (Clair) [trial court impliedly found prior conviction true when, after considering “certified copies of [the] conviction” introduced into evidence, it imposed enhancement expressly for that conviction]; People v. Chambers (2002) 104 Cal.App.4th 1047, 1051 (Chambers) [although the trial court did not expressly find the firearm-use allegation true, it impliedly made such a finding when it imposed an enhancement for this reason].)
A sentence enhancement under section 667.5(b) “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.)
Appellant maintains that since the trial court did not “give separate findings as to each of the four prior alleged prison terms” and failed to identify the specific prison terms it used to support the sentence enhancements, its findings were too vague. We note that he did not object when the verdict was issued or when the trial court made its sentencing determination, and never asked the trial court to identify the prison terms on which the enhancements were based. (See People v. Scott (1994) 9 Cal.4th 331, 353 [the waiver doctrine “should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices”]; accord People v. Tillman (2000) 22 Cal.4th 300, 302-303.)
The record does not permit this determination. Although the minute order setting out the trial court’s verdict indicates that it found the 1997, 2001, and 2004 prior convictions to be true, the order does not identify the prison terms that support the sentence enhancements. At the sentencing hearing, the trial court stated: “I am going to impose two of the prior prison term enhancements under [section] 667.5(b) for one year each, an additional two years.” The minute order for this hearing shows only that the trial court had imposed “2 years additional @ 1 year each for 2 [section] 667.5(b) enhs.” The abstract of judgment also notes each one-year enhancement, but identifies each one only as “667.5(b).”
As explained above, the trial court found true all of the prison terms asserted in the information. To the extent the trial court erred in failing to identify which two of the four prison terms it relied upon in imposing the additional one-year terms, such error was harmless. (See People v. Carpenter (1999) 21 Cal.4th 1016, 1041; People v. Watson (1956) 46 Cal.2d 818, 836.) Appellant did not dispute any of the prison terms alleged in the information, and each of them supports an enhancement under section 667.5(b). To remand the matter to require the trial court to set out its findings separately for each prison term would place form above substance and waste judicial resources. (Williamson, supra, 90 Cal.App.3d at p. 169; see Civ. Code, § 3528 [“The law respects form less than substance”].)
Appellant does not contend the trial court was required to set out its findings as to each factual element of an enhancement under Penal Code section 667.5(b). A general verdict requires only the jury’s ultimate determination, not the factual details supporting its decision. (Williamson, supra, 90 Cal.App.3d at p. 170; see Pen. Code, §§ 1151, 1167.) Penal Code section 1158, which has more specific application than section 1167, requires only that the jury find the previous conviction true or not true. (See Williamson, supra, 90 Cal.3d at p. 170.)
DISPOSITION
The judgment is affirmed.
We concur: Pollak, J., Jenkins, J.