Opinion
B232173
12-06-2011
THE PEOPLE, Plaintiff and Respondent, v. ELNATHAN WASHINGTON, Defendant and Appellant.
Law Offices of James Koester and James Koester, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, and Scott A. Taryle and Paul M. Roadarmel, Deputies Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MA043769)
APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Blanchard, Judge. Affirmed and remanded for resentencing.
Law Offices of James Koester and James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, and Scott A. Taryle and Paul M. Roadarmel, Deputies Attorney General, for Plaintiff and Respondent.
This case is before us a second time. In a prior appeal filed by appellant Elnathan Washington, this Court affirmed his conviction for one count of offering false evidence (Pen. Code, § 132) and one count of preparing false documentary evidence (§ 134), and remanded the matter to the trial court to correct two sentencing errors. In the present appeal, Washington contends, and the Attorney General concedes, that the trial court committed three additional sentencing errors on remand by (1) imposing two one-year prior prison term enhancements (§ 667.5, subd. (b)) based on a single period of incarceration, (2) staying an eight-month white collar crime enhancement (§ 186.11, subd. (a)) pursuant to section 654, and (3) failing to recalculate Washington's actual custody credits following the modification of his sentence on remand. We agree that the trial court erred in resentencing Washington, and accordingly, remand the matter to the trial court to correct these sentencing errors.
All further statutory references are to the Penal Code.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In the current case, Los Angeles County Superior Court case No. MA043769, Washington was convicted by jury of one count of offering false evidence (§ 132) and one count of preparing false documentary evidence (§134). Prior to trial, Washington admitted the following sentence enhancement allegations: (1) at the time of the commission of the charged offenses, he was released on bail in two other criminal cases within the meaning of section 12022.1; (2) he had suffered one prior serious or violent felony conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); and (3) he had suffered two prior felony convictions and served a prison term for said offenses within the meaning of section 667.5, subdivision (b).
At the original sentencing hearing, the parties agreed to a "global settlement" encompassing this case and two other criminal cases pending against Washington (Los Angeles County Superior Court case Nos. MA039535 and MA043794). In accordance with the parties' agreement, the trial court sentenced Washington to an aggregate prison term of 15 years and 4 months calculated as follows:
In the current case, case No. MA043769, the trial court sentenced Washington to a three-year term on the offering false evidence count and to a consecutive eight-month term on the presenting false documentary evidence count, each of which was doubled pursuant to the Three Strikes law. The trial court also imposed a consecutive two-year term on the out-on-bail enhancement, but neither imposed nor struck the two prior prison term enhancements. The total sentence imposed in case No. MA043769 was 9 years and 4 months.
In case No. MA039535, Washington previously had pled to two counts of possession of a firearm by a felon (§ 12021, subd. (a)(1)) and to two counts of possession of ammunition (§ 12316, subd. (b)(1)). The trial court sentenced Washington to a consecutive eight-month term on one of the firearm possession counts, which was doubled pursuant to the Three Strikes law, and to concurrent terms on each of the three remaining counts. The total prison term to be served by Washington in case No. MA039535 was 1 year and 4 months.
In case No. MA043794, Washington pled no contest to two of nine counts of grand theft of personal property (§ 487, subd. (a)), and admitted a white collar crime enhancement allegation that the crimes involved a pattern of felony conduct (§ 186.11, subd. (a)). The trial court sentenced Washington to two consecutive eight-month terms on the grand theft counts, each of which was doubled pursuant to the Three Strikes law. The court also imposed a consecutive two-year term on the white collar crime enhancement. The total sentence imposed in case No. MA043794 was 4 years and 8 months.
In Washington's prior appeal, this Court affirmed his convictions in case No. MA043769, but held that the trial court erred in failing to either impose or strike the two prior prison term enhancements (§ 667.5, subd. (b)). (People v. Washington (Nov. 16, 2010, B217457 [nonpub. opn.].) We also held that the trial court erred in case No. MA043794 by imposing a full two-year term on the white collar crime enhancement (§ 186.11, subd. (a)), rather than one-third of the statutory term, as required for an enhancement on a subordinate offense under section 1170.1, subdivision (a). (Ibid.) We remanded the matter to the trial court to correct these sentencing errors consistent with the terms of the parties' global sentencing agreement. (Ibid.)
On remand, after conferring with counsel for both parties, the trial court imposed two consecutive one-year terms on the prior prison term enhancements (§ 667.5, subd. (b)), thereby increasing Washington's sentence in case No. MA043769 by two years. Additionally, the court reduced the term on the white collar crime enhancement (§ 186.11, subd. (a)) from two years to eight months, and then stayed that enhancement under section 654, effectively reducing Washington's sentence in case No. MA043794 by two years. Therefore, Washington's aggregate sentence for all three cases resolved by the global sentencing agreement remained at 15 years and 4 months. Washington has filed a timely appeal from his resentencing following remand.
DISCUSSION
I. The trial court erred in imposing two consecutive one-year terms on the prior prison term enhancements.
At the resentencing hearing, the trial court imposed two separate prior prison term enhancements pursuant to section 667.5, subdivision (b), based on Washington's two prior convictions in Los Angeles County Superior Court case Nos. MA005564 and MA005992. Washington contends, and the Attorney General concedes, that the trial court should have imposed only one prior prison term enhancement because Washington served one continuous period of confinement in state prison for both convictions. We agree.
Section 667.5, subdivision (b) states, in pertinent part, that "where the new offense is any felony for which a prison sentence . . . is imposed, . . . the court shall impose a one-year term for each prior separate prison term . . . for any felony." (§ 667.5, subd. (b).) Subdivision (g) of the statute in turn defines "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 . . . ." (§ 667.5, subd. (g).) "'The plain meaning of section 667.5, subdivision (g) is to prevent multiple one-year enhancements under section 667.5 itself where the offender has served one period of prison confinement, or block of time, for multiple offenses or convictions. . . .' [Citation.]" (People v. Ruiz (1996) 44 Cal.App.4th 1653, 1669.) Based on this statutory language, California courts consistently have held that only one prior prison term enhancement is proper where concurrent or consecutive sentences have been imposed in two or more prior felony cases and the defendant has served one continuous period of confinement for such offenses. (See People v. Langston (2004) 33 Cal.4th 1237, 1241 ["Section 667.5, subdivisions (b), (d), and (g), each requires that, in order to qualify for the enhancement, the prior prison terms must have been served separately."]; People v. Jones (1998) 63 Cal.App.4th 744, 747 [The "statutory language [of section 667.5] means that only one enhancement is proper where concurrent sentences have been imposed in two or more prior felony cases."]; People v. James (1980) 102 Cal.App.3d 728, 733 ["[A]s long as there is 'a continuous completed period of prison incarceration,' a defendant who has served concurrent or consecutive prison sentences on various commitments is deemed to have served only one prior prison term for the purpose of the enhancement provisions of Penal Code section 667.5."].)
In this case, the Information charged Washington with two prior prison term enhancements based on his felony convictions in Los Angeles County Superior case Nos. MA005564 (burglary) and MA005992 (grand theft). The conviction date for both crimes was alleged to be May 11, 1993. At a May 18, 2009 pretrial hearing, the trial court explained the nature of these enhancements to Washington: "Each of those allegations carries a one-year consecutive term. I'm just looking at the dates and let me explain to you, if for these two cases you only went to prison once, that's a one-year prior. If you went two separate times, then it's two years. So I will be able to review the documents and decide whether that exposes you to one or two years."
Defense counsel noted that "[t]his appears to be one prison term," and asked if Washington would nevertheless have to admit both allegations to avoid submitting the issue to a jury. The trial court responded: "That's my understanding. That's how it's pled right now. So he pleads to both of them. By law if there's only one commitment, it's only one year. It doesn't matter whether there were ten listed or one listed. . . . It goes by the number of commitments. [¶] And so at sentencing I will review the documents and make that decision. I am looking at the conviction dates, and I'm pretty confident there was one conviction, but I need to advise him of all the consequences."
Washington thereafter admitted the two prior prison term allegations. Specifically, he admitted that he suffered a prior felony conviction for burglary in case No. MA005564 on May 11, 1993, that he suffered a prior felony conviction for grand theft in case No. MA005992 on May 11, 1993, and that he "served a prior prison term for each of those offenses" and "did not remain free of prison custody for and did commit an offense resulting in a felony conviction during a period five year subsequent to the conclusion of said term." Defense counsel stipulated to a factual basis for the admissions based on Washington's criminal history and the trial court found a factual basis based on counsel's stipulation. However, at both the original sentencing hearing on June 17, 2009, and the resentencing hearing on April 1, 2011, the trial court failed to make any finding as to whether Washington had served two separate prison terms for his prior convictions within the meaning of section 667.5, subdivision (b).
The parties agree that, irrespective of Washington's admissions, the record on appeal affirmatively shows that he served only one continuous period of confinement for the two convictions. (People v. Mickens (1995) 38 Cal.App.4th 1557, 1564 ["[W]hen trial counsel stipulates to a factual basis for a plea, but appellate counsel claims the plea lacks an adequate factual basis, an appellate court may review the record to determine if it meets the factual basis requirement."].) According to the probation and sentencing reports, Washington was convicted and sentenced in both cases on the same date, May 11, 1993, and his sentence in case No. MA005992 was ordered to run consecutively to his sentence in case No. MA005564. Pursuant to section 667.5, subdivision (b), the trial court should have imposed only one prior prison term enhancement for the two convictions, and thus, the other prior prison term enhancement must be stricken. (People v. Riel (2000) 22 Cal.4th 1153, 1203 ["[T]he enhancement was for the prison term, not the convictions. [Citation.] Defendant had two felony convictions, but he served only one prison term. Accordingly, we must strike the redundant second prison term finding."].)
II. The trial court erred in staying the eight-month white collar crime enhancement under section 654.
Washington argues that the trial court issued an unauthorized sentence in case No. MA043794 when it stayed the eight-month white collar crime enhancement (§ 186.11, subd. (a)) imposed on the grand theft counts pursuant to section 654. The Attorney General agrees that the enhancement should have been either imposed or stricken, but not stayed, and asserts that section 654 is inapplicable to any sentence enhancement that is
based on the nature of the offense. For purposes of this appeal, we need not determine whether sentence enhancements are generally subject to section 654. Rather, we conclude that, based on the statutory language and purpose of section 186.11, subdivision (a), the trial court erred in applying section 654 to stay the white collar crime enhancement in this case.
The California Supreme Court has observed that "there are at least two types of sentence enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense." (People v. Coronado (1995) 12 Cal.4th 145, 156.) While the Supreme Court has held that section 654 is inapplicable to enhancements that are based on the status of the defendant (id. at pp. 157-158), it has not decided whether section 654 applies to enhancements that are based on the nature of the crime committed by the defendant. (People v. Rodriguez (2009) 47 Cal.4th 501, 507 ["We need not . . . decide whether section 654 applies to sentence enhancements that are based on the nature of the offense. . . ."]; People v. Palacios (2007) 41 Cal.4th 720, 728 ["[W]e need not address the People's argument that section 654 generally does not apply to enhancements. We leave that question for another day."].) The Courts of Appeal are split on the issue. (See People v. Arndt (1999) 76 Cal.App.4th 387, 394-395 [describing split in appellate court authority].)
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As the Court of Appeal noted in People v. Chaffer (2003) 111 Cal.App.4th 1037, "[w]here statutes are in conflict, it is well settled that '"'a general [statutory] provision is controlled by one that is special, the latter being treated as an exception to the former.'"'" (Id. at p. 1045.) "Section 654 is a general statute that applies to all species of criminal conduct." (Ibid.) It provides that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) Section 186.11, on the other hand, is a narrowly crafted statute intended to apply to a specific category of conduct. Subdivision (a)(1) of that statute provides, in relevant part: "Any person who commits two or more related felonies, a material element of which is fraud or embezzlement, which involve a pattern of related felony conduct, and the pattern of related felony conduct involves the taking of, or results in the loss by another person or entity of, more than one hundred thousand dollars ($100,000), shall be punished, upon conviction of two or more felonies in a single criminal proceeding, in addition and consecutive to the punishment prescribed for the felony offenses of which he or she has been convicted, by an additional term of imprisonment in the state prison as specified in paragraph (2) or (3). This enhancement shall be known as the aggravated white collar crime enhancement. The aggravated white collar crime enhancement shall only be imposed once in a single criminal proceeding." (§ 186.11, subd. (a)(1).)
"The purpose of the aggravated white collar crime enhancement [is] to provide a mechanism for greater punishment for criminals who engage in a pattern of fraudulent activity that results in a large amount of accumulated takings." (People v. Williams (2004) 118 Cal.App.4th 735, 747.) To effectuate this purpose, the imposition of the enhancement "shall be . . . in addition and consecutive to the punishment prescribed" for the underlying crimes. (§ 186.11, subd. (a)(1).) Moreover, because the enhancement and the underlying offenses always involve the same act of unlawful taking, application of section 654 to the enhancement would effectively nullify section 186.11, subdivision (a). (See People v. Chaffer, supra, 111 Cal.App.4th at 1045 ["If we were to apply the general provisions of section 654 to the more specific [section 12022.7 great bodily injury] enhancement, it would nullify section 12022.7, because the enhancement and underlying offense always involve the same act."].) The trial court therefore erred in staying the white collar crime enhancement under section 654. On remand, the trial must either impose or strike the enhancement in accordance with applicable law and consistent with the parties' sentencing agreement.
III. On remand, the trial court is required to recalculate actual custody credits through resentencing.
At the original sentencing hearing on June 17, 2009, the trial court awarded Washington a total of 367 days of presentence custody credits, consisting of 245 days of actual custody credits and 122 days of conduct credits. At the resentencing hearing on April 1, 2009, the trial court modified Washington's sentence in accordance with our prior opinion in this case, but failed to award him any additional custody credits. Washington asserts that he is entitled to additional actual custody credits for the period of incarceration between his original sentencing and resentencing after remand. The Attorney General agrees, as do we.
In People v. Buckhalter (2001) 26 Cal.4th 20, 23, the California Supreme Court held that "[w]hen . . . an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the 'subsequent sentence.' [Citation.]" Accordingly, after the trial court modifies Washington's sentence on remand in accordance with this opinion, it must calculate all actual days that he has spent in custody, whether in jail or prison, and award such credits in the new abstract of judgment. (Id. at p. 41; § 2900.1.)
DISPOSITION
The matter is remanded to the trial court with the following directions: (1) in case No. MA043769, the court shall strike one of the two prior prison term enhancements pursuant to section 667.5, subdivision (b); (2) in case No. MA043794, the court shall either impose or strike, but not stay, the white collar crime enhancement pursuant to section 186.11, subdivision (a); and (3) the court shall recalculate Washington's actual custody credits through the date of resentencing and award such credits in a new abstract of judgment. Washington's sentence on remand shall be consistent with the terms of the parties' global sentencing agreement. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
ZELON, J.
We concur:
PERLUSS, P. J.
JACKSON, J.