Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. Marie Sovey Silviera, Judge. Super. Ct. No. 1239780
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
Before Dawson, A.P.J., Hill, J., and Kane, J.
OPINION
It was alleged by an information filed June 17, 2008, as follows: Appellant Gary Joseph Valverde committed petty theft with a prior conviction of a theft-related offense (Pen. Code, § 666), he had suffered four “strikes,” and he had served five separate prison terms for prior felony convictions (§ 667.5, subd. (b)).
Except as otherwise indicated, all references to dates of events are to dates in 2008.
All statutory references are to the Penal Code.
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
We refer to section 667.5, subdivision (b) as section 667.5(b).
On August 1, after appellant waived his right to jury trial on the prior prison term enhancement, strike and section 666 prior conviction allegations, the jury convicted appellant of petty theft.
The trial court, on September 12, dismissed one of the section 667.5(b) allegations, and, on September 17, found true the strike, section 666 prior conviction and remaining section 667.5(b) allegations.
On December 8, the court struck three of the four strike allegations and one more section 667.5(b) allegation, and imposed a prison term of seven years, consisting of the two-year midterm on the substantive offense, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1)), and one year on each of the three remaining prior prison term enhancements.
On appeal, appellant’s sole contention is that the evidence was insufficient to support three prior prison term enhancements and that one of those enhancements must be stricken. The People concede the point, and we agree. We will modify the judgment accordingly.
FACTUAL BACKGROUND
It was alleged appellant served five separate prison terms for prior felony convictions as follows: (1) two counts of first degree burglary, on November 23, 1983, in Santa Clara County case No. 85462 (case No. 85462); (2) assault with a deadly weapon, on April 20, 1988, in Stanislaus County case No. 229481 (case No. 229481); (3) petty theft with a prior theft-related conviction, on June 24, 1997, in Stanislaus County case No. 57560 (case No. 57560); (4) receiving stolen property and petty theft with a prior theft-related conviction, on May 13, 1999, in Stanislaus County case No. 190618 (case No. 190618); and (5) attempted threat to commit a crime resulting in death or great bodily injury, on December 4, 1993, in Del Norte County case No. CRPB035160 (case No. 035160).
On September 12, the court dismissed the 667.5(b) allegation arising out of the 1997 conviction in Del Norte County; at the trial on September 17, the court found true the remaining four section 667.5(b) allegations; and at sentencing on December 8, the court struck the true finding on the section 667.5(b) allegation arising out of the two 1983 burglary convictions in Santa Clara County. The sentence imposed included one-year terms on each of the three remaining section 667.5(b) enhancements, viz., those imposed based on the prison terms appellant served in case Nos. 229481, 57560, and 190618.
At the trial on the section 667.5(b) allegations, the prosecution introduced documentary evidence of the following: Following appellant’s conviction in 1988 in Stanislaus County and his commitment to prison, he was discharged on August 9, 1994. On June 24, 1997, less than five years after his discharge, he was convicted of petty theft with a prior theft-related conviction in Stanislaus County case No. 57560. There is no dispute that this evidence was sufficient to support the section 667.5(b) enhancement based on the prison term appellant served in case No. 229481.
With respect to the section 667.5(b) allegations based on the prison terms imposed in case Nos. 190618 and 57560, the prosecution introduced evidence of the following: In a single sentencing proceeding in May 1999, the court imposed a prison term of six years eight months, consisting of a four-year term in case No. 190618, a consecutive term of eight months in case No. 57560 and one year on each of two section 667.5(b) enhancements. Appellant was delivered to state prison in May 1999, he was paroled in September 2005, his parole was revoked in April 2006, and he was returned to prison in November 2006.
DISCUSSION
Appellant argues, and the People concede, that because the court imposed consecutive sentences in case Nos. 190618 and 57560, the court erred in imposing two prior prison term enhancements, rather than only one, based on the sentence imposed in those cases. We agree.
Section 667.5(b) mandates, for a defendant who is convicted of any non-violent felony and sentenced to prison, the imposition of a one-year enhancement “for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.” Thus, “[section 667.5(b)] [e]nhancements are imposed for each ‘prior separate prison term’ the defendant served, except for those previous prison terms unavailable for enhancement by operation of the five-year ‘washout’ period. (§ 667.5, subd. (b), italics added.)” (People v. Cardenas (1987) 192 Cal.App.3d 52, 55.)
Section 667.5, subdivision (g) defines a prior separate prison term 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, 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.”
“The plain language of [section 667.5,] subdivision (g) indicates after a defendant is committed to state prison, additional concurrent or consecutive sentences imposed in the same or subsequent proceedings are deemed to be part of the same prison term.” (People v. Cardenas, supra, 192 Cal.App.3d at p. 56.)
Thus, as the parties agree, the consecutive terms imposed in case Nos. 190618 and 57560 constituted a single “separate prison term” within the meaning of section 667.5(b). Accordingly, the court erred in imposing two section 667.5 enhancements, rather than only one, based on the prison terms appellant served for his convictions in those cases.
DISPOSITION
The judgment is modified to provide that one of the three one-year prior prison term enhancements is stricken. The court is directed to prepare an amended abstract of judgment indicating a six-year sentence, consisting of four years on the instant offense and one year on each of two prior prison term enhancements. The court is further directed to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.