Opinion
D058395
09-13-2011
THE PEOPLE, Plaintiff and Respondent, v. BRANDON JOSEPH WILLIAMS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. SWF009902, SWF026941, SWF024623, SWF020863, SWF10000242)
APPEAL from a judgment of the Riverside County Superior Court, Mark E. Petersen, Judge. Affirmed as modified with directions.
On March 15, 2010, Brandon Joseph Williams pleaded guilty to the following offenses in five cases: in case No. SWF009902, robbery (Pen. Code, § 211), assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(1)) and misdemeanor resisting arrest (§ 148, subd. (a)(1)); in case Nos. SWF026941 and SWF024623, one count each of possessing "pruno" in jail (§ 4573.8); in case No. SWF020863, five counts of possessing "pruno" in jail; and in case No. SWF10000242, destroying jail property (§ 4600, subd. (a)); vandalism (§ 594, subd. (b)(1)), possessing a weapon in jail (§ 4502, subd. (a)) and manufacturing and possessing a weapon in jail (§ 12020, subd. (a)(1)).
All further statutory references are to the Penal Code.
The offenses took place in 2004 (case No. SWF009902); June, August and September 2006 and February and June 2007 (case No. SWF020863); November 2007 (case No. SWF024623); 2008 (case No. SWF026941); and 2009 (case No. SWF10000242).
Williams waived jury and the court found true allegations he had served two prior prison terms (§ 667.5, subd. (b)), and had suffered one prior serious felony conviction (§ 667, subd. (a)) and one strike (§ 667, subds. (b)-(i)). The strike, the serious felony prior and one of the prison priors were based on a 1992 conviction. The remaining prison prior was based on a 1997 conviction.
Both of the prison priors and the strike were alleged in case Nos. SWF009902, SWF026941, SWF020863 and SWF10000242. The serious felony prior was alleged only in case No. SWF009902. No priors were alleged in case No. SWF024623.
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The court sentenced Williams to 34 years eight months in prison. The sentence included 18 years in case No. SWF009902: twice the five-year upper term for robbery, a consecutive two-year term (one-third the middle term, doubled) for assault, a concurrent term for resisting arrest, five years for the serious felony prior and one year for the 1997 prior prison term; the court stayed sentence for the 1992 prison prior. The court imposed consecutive terms in the remaining cases: three years four months in case No. SWF026941 (16 months for the substantive offense—one-third the middle term, doubled—and one year for each prison prior); eight months in case No. SWF024623 (one-third the middle term); eight years eight months in case No. SWF020863 (16 months—one-third the middle term, doubled—on each count and one year for each prison prior); and four years in case No. SWF10000242 (two years for possessing a weapon in jail—one-third the middle term, doubled; stayed terms on each of the remaining counts; and one year for each prison prior).
Williams appeals, contending the court erred by imposing multiple terms for each prison prior, notwithstanding that the five separate charging documents resulted in a unified sentence. He concludes his sentence must be reduced by six years. The People concede the point.
The court was not entitled to impose more than one one-year term for each of the two prison priors. (People v. Tassell (1984) 36 Cal.3d 77, 90-92, overruled on another ground by People v. Ewoldt (1994) 7 Cal.4th 380, 398-401.) It was not entitled to impose the five-year serious felony prior enhancement and a one-year prison prior enhancement based on the same underlying conviction. (People v. Jones (1993) 5 Cal.4th 1142, 1144-1145, 1150, 1153.) It was not entitled to stay sentence on the 1992 prison prior in case No. SWF009902; it was required either to impose and execute a one-year sentence or dismiss that enhancement. (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Campbell (1999) 76 Cal.App.4th 305, 311.)
The court imposed four one-year terms for the 1997 prison prior and, for the 1992 prison prior, three one-year terms plus one stayed term. The court said it was staying sentence on the 1992 prison prior because it was based on the same conviction as the serious felony prior in case No. SWF009902, for which the court imposed a five-year term. It is clear that had the court been aware of its options, it would have dismissed the 1992 prison prior in case No. SWF009902 rather than staying sentence. We modify the judgment accordingly. We further modify the judgment by dismissing the 1992 and 1997 prison priors in case Nos. SWF026941, SWF020863 and SWF10000242. This will reduce the total sentence by six years.
DISPOSITION
The judgment is modified by striking the 1992 prison prior in case Nos. SWF009902, SWF026941, SWF020863 and SWF10000242, and the 1997 prison prior in case Nos. SWF026941, SWF020863 and SWF10000242. As so modified, the judgment is affirmed. The trial court is directed to amend the abstracts of judgment accordingly and to forward the amended abstracts of judgment to the Department of Corrections and Rehabilitation.
BENKE, Acting P. J. WE CONCUR:
HALLER, J.
AARON, J.