P. v. Canady
Filed 6/19/13 P. v. Canady CA2/4
NOT TO BE PUBLISHED IN THE
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
JEROME CANADY,
Defendant and Appellant.
B239609
(Los Angeles County
Super. Ct. No. BA298800)
APPEAL
from a judgment of the Superior Court of
County, Jose I. Sandoval, Judge.
Affirmed in part, reversed in part, and remanded with instructions.
Meredith J. Watts, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Eric E. Reynolds and
Esther P. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
>
Appellant
Jerome Canady appeals from the court’s sentencing determinations. He contends the court erred in imposing
multiple statutory enhancement provisions
for the same two prior offenses. In the
alternative, he argues the court abused its discretion in deciding to impose
two one-year enhancements for his prior prison terms pursuant to Penal Code
section 667.5, subdivision (b),
name="_ftnref1" title="">[1] in addition to three five-year enhancements
under section 667, subdivision (a)(1), which were ordered by this court in a
prior unpublished opinion. Appellant
contends the court also erred in failing to recalculate his credits and to take
into consideration the time he served prior to resentencing. Respondent agrees that the enhancements were
imposed improperly and that the court should have recalculated his credits,
including the actual days in custody up to the time of resentencing.
We
shall direct the trial court to strike the two one-year enhancements that were
imposed under section 667.5, subdivision (b), and remand the case to that court
for recalculation of presentence credits.
According
to the charging information, on February 25, 2006, appellant reached into a
woman’s car and grabbed her purse.
Appellant was later taken into custody and charged with second degree
robbery. (§ 211.) The information further alleged that appellant
suffered three prior serious felony convictions (§ 667, subd. (a)(1)) and
11 prior “strike†convictions (§§ 1170.12, 667, subds. (b)-(i)). The information also alleged appellant had
served three prior separate prison terms within the meaning of section 667.5,
subdivision (b).
In
December 2007, a jury found appellant guilty of the robbery charge. The jury also found he had suffered five
prior felony convictions and served three prior prison terms for those
convictions. Appellant was sentenced to
25 years to life, and the court imposed, but stayed, the sentence enhancements. He filed a timely appeal.
In
an unpublished opinion (People v. Canady
(Jun 15, 2011, B220620)), we affirmed the conviction and the true findings on
the special allegations. However, we
found the sentence imposed by the court was legally improper. Appellant had only served two separate prison
terms within the meaning of section 667.5, subdivision (b), and thus the court
was required to strike one of the one-year prior prison term enhancements. We also found the court erred in staying the
three five-year enhancements for prior serious felony convictions and
instructed the court to impose them consecutive to the sentence for the current
offense pursuant to section 667, subdivision (a)(1).
Upon
remand, the court re-sentenced appellant to prison for 25 years to life for the
robbery conviction. It further imposed
two one-year prior prison term enhancements under section 667.5, subdivision
(b), and three five-year violent felony enhancements pursuant to section 667,
subdivision (a), all to run consecutively.
The total term imposed was 42 years to life. Appellant received 1,569 days of presentence
credit. This appeal followed.
Appellant
contends the trial court erred when it imposed two one-year prior prison term
enhancements under section 667.5. He
argues the sentence is illegal and unauthorized because the court imposed three
five-year enhancements under section 667 based on the same prior felony
convictions. Respondent agrees.
Section
667, subdivision (a)(1), provides that “any person convicted of a serious
felony who previously has been convicted of a serious
felony . . . , shall receive, in addition to the sentence
imposed by the court for the present offense, a five-year enhancement for each
such prior conviction . . . .†Section 667.5, subdivision (b), provides that
when a person is convicted of any felony for which a prison sentence is
imposed, “the court shall impose a one-year term for each prior separate prison
term.†Our Supreme Court has stated that
“when multiple statutory enhancement provisions are available for the same
prior offense, one of which is a section 667 enhancement, the greatest
enhancement, but only that one, will apply.
(People v. Jones (1993) 5
Cal.4th 1142, 1149-1150.)
Upon
our remand, the court imposed two one-year sentence enhancements pursuant to
section 667.5, subdivision (b), based on appellant’s prior prison terms in case
numbers A762668 and BA024931. It then
imposed three five-year sentence enhancements pursuant to section 667,
subdivision (a)(1), based on appellant’s convictions in case numbers A090467,
A762668, and BA024931. Because the court
has imposed multiple statutory enhancements for appellant’s prior offenses in
case numbers A762668 and BA024931, the sentence is unauthorized. Only the greater enhancement under section
667, subdivision (a)(1), may be applied, and the court is directed to strike
the two one-year sentence enhancements imposed under section 667.5, subdivision
(b). (People v. Jones, supra, 5
Cal.4th at pp. 1149-1150, 1152-1153.)
Appellant
contends the trial court erred in failing to recalculate his presentence
credits when it resentenced him on remand.
Appellant argues the court should have recalculated his credits and
taken into account the time served from his first day in custody through the
date of resentencing. Respondent
agrees.
“When,
as here, an appellate remand results in modification of a felony sentence
during the term of imprisonment, the trial court must calculate the
served and credit that time against the ‘subsequent sentence.’ (§ 2900.1.)†(People
v. Buckhalter (2001) 26 Cal.4th 20, 23.)
After
we remanded the case for resentencing, the court indicated that it did not
believe it was required to recalculate appellant’s credits and did not do
so. The court erred in concluding that
it “need not recalculate and credit the actual
time [appellant] had served on his sentence prior to the
modification.†(People v. Buckhalter, supra,
26 Cal.4th at p. 23.)
The
sentence is reversed in part, and the case is remanded with directions to
strike the two one-year enhancements imposed pursuant to section 667.5,
subdivision (b), and to recalculate appellant’s presentence credits with
consideration of the “actual time†he
served prior to resentencing. (
affirmed.
EPSTEIN,
P. J.
We concur:
WILLHITE, J.
MANELLA, J.
name="_ftn1" title="">[1] All further statutory citations are to the Penal Code
unless otherwise noted.
name="_ftn2" title="">[2] Based on our conclusion that the section 667.5,
subdivision (b), enhancements must be stricken, appellant’s argument regarding
the court’s abuse of discretion in imposing those enhancements is moot.
