P. v. Allen
Filed 6/13/13
P. v. Allen CA1/3
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES
ALLEN,
Defendant and Appellant.
A135375, A135376
(City and County of San Francisco
Super. Ct. Nos,. 211293 & 216715)
Defendant
Charles Allen appeals from a judgment of
conviction for one count of second degree robbery and one count of assault
with force likely to cause great bodily injury.
He argues that the trial court incorrectly imposed two one-year sentence
enhancements due to his prior service of two terms in a
was for one continuous period of time, it counts as only one term in state
prison under Penal Code section 667.5, subdivision (g),
even though he was serving consecutive sentences in two separate cases. Thus, we agree with Allen that the trial
court should have imposed only one prior prison term enhancement. So does the Attorney General. We modify the sentence imposed by striking
one of the enhancements assessed pursuant to section 667.5, subdivision
(b). As so modified, we affirm.
Allen
accosted a blind man on Mission Street in
and forcibly took his pen and iPod. A
jury found him guilty of a single count of second degree robbery in violation
of section 211, enhanced under section 667.9, subdivision (a), because he
should have known his victim was blind, and a single count of assault with
force likely to cause great bodily injury in violation of section 245,
subdivision (a)(1). The court
conducted a separate trial on Allen’s prior convictions and found true
allegations that he had twice been convicted in
County of transportation of a controlled substance in violation of Health
and Safety Code section 11352, subdivision (a).
One of the convictions was entered on July 30, 1997, the other on
October 29, 1999.
The
court imposed a total prison sentence of eight years four months consisting of
an aggravated term of five years for the robbery, a stayed mid-term sentence on
the assault, a four-month enhancement due to the victim’s vulnerability, a
one-year enhancement for each of the prison terms served on the Alameda County
convictions, and one year for an unrelated assault conviction for which Allen
was on parole when he committed the crimes in this case. He timely appealed.
Allen
contends that the court should not have imposed two sentence enhancements under
section 667.5, subdivision (b), because the sentences in the Alameda cases were
imposed at the same time and served consecutively and continuously. He is correct.
When
a defendant with a prior criminal history is convicted of a felony and
sentenced to state prison, section 667.5, subdivision (b), requires that the
court “impose a one-year term for each prior separate prison term†served by
the defendant. (§ 667.5, subd.
(b).) A “prior separate prison term†is
defined in section 667.5 to mean, “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.†(§ 667.5, subd.
(g).)
Allen
was sentenced to prison on the same day, April 4, 2001, for each of the Alameda
County convictions. He was given a
five-year sentence for the 1999 conviction, to be followed consecutively by a
one-year, four-month conviction for the 1997 conviction. He entered state prison and began serving
the consecutive sentences on April 30, 2001.
Although Allen violated his parole and was returned to custody several
times following his release from prison in January 2004, he was never returned
to prison on a new conviction prior to his sentencing here in the trial court
in 2012.
“By
the terms of section 667.5, subdivision (g), one continuous completed period of
incarceration amounts to one separate prison term, whether ‘imposed for the
particular offense alone or in combination with concurrent or consecutive
sentences for other crimes.’ †(
1131, 1151.) Accordingly, before he was
returned to prison when the trial court sentenced him in 2012, Allen had only
served one prior separate prison term as defined in section 667.5, subdivision
(g), not two. Thus, he should have only
received a single one-year enhancement due to his service of a prior term in
state prison. We will strike one of the
sentence enhancements ordered pursuant to section 667.5, subdivision (b).
In
our review of the record, we also notice that the abstract of judgment does not
show Allen’s conviction of assault with force likely to cause great bodily
injury for which he was given a one-year sentence that was stayed pursuant to
section 654. We will exercise our
independent authority to also order the correction of this clerical error. (People
v. Mitchell (2001) 26 Cal.4th 181, 185.)
The
sentence in this case shall be corrected to strike one year of the sentence
enhancements imposed pursuant to section 667.5, subdivision (b), thereby
resulting in Allen’s commitment to state prison for total of 6 years, four
months. The abstract of judgment shall
also be corrected to include Allen’s conviction of assault with force likely to
cause great bodily injury in violation of section 245, subdivision (a)(1), for
which he was assessed one year,
which is one-third of the mid-term sentence, to be stayed pursuant to section
654. As so modified, the judgment is
affirmed.
_________________________
Siggins,
J.
We concur:
_________________________
McGuiness, P.J.
_________________________
Jenkins, J.
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All further statutory references are to the Penal Code unless otherwise
indicated.
