P. v. Cotton

Filed 9/5/08 P. v. Cotton CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael L. Schuur, Commissioner. Modified and Affirmed.

John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

Byron Sinclair Cotton appeals from the judgment entered following a jury trial in which he was convicted of two counts of second degree commercial burglary (Pen. Code, 459), eight counts of forgery (Pen. Code, 470, subd. (d)) and one count of forgery/possession of a completed check (Pen. Code, 475, subd. (c).). Following a court trial, he was found to have suffered a prior conviction for a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) for robbery in 1982 in case number A562467 and to have served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).[1] Appellant was sentenced to prison for a total of nine years and eight months. He contends his sentence must be reduced by one year in that the trial court erred by twice imposing an enhancement for a single prior prison term. Respondent agrees.

FACTUAL AND PROCEDURAL HISTORY

As appellant challenges only his sentence, it will suffice to observe that on August 9, 2005, appellant presented seven $100 counterfeit travelers checks in an attempt to purchase cookware at a Macys store in the Lakewood Center Mall in the county of Los Angeles. On that same date, he used a $100 counterfeit travelers check to purchase vitamins at a GNC Store in Carson. Sheriffs deputies recovered two additional counterfeit $100 travelers checks from appellants vehicle. Appellant admitted paying approximately $100 to get $1,000 in travelers checks from a man he knew as Lee. He admitted using them to buy vitamins at the GNC store and attempting to buy cookware at the Macys store, even though he knew the checks were counterfeit.

DISCUSSION

At sentencing, the court selected the probation violation in case number YA057079 as the base term for five years, which consisted of a three-year upper term and a year for each of two prior prison term enhancements.[2] The court then sentenced appellant on counts 1 and 3, the instant burglary convictions, to one-third the middle term, or eight months, doubled under the Three Strikes law for an additional two years and eight months. The court also imposed an additional and consecutive year for prior prison terms YA037079 and BA188836 found true pursuant to Penal Code section 667.5, subdivision (b). The court observed that these two prior prison terms reflected a single commitment. The court also imposed an additional year for the prior prison term in case number P88CR43.

Appellant contends his sentence must be reduced by one year. He asserts that by imposing one year for the prior prison term (YA037079) in the current burglary/check fraud case, the trial court violated the provisions of Penal Code section 1170.1, subdivision (a) and People v. Tassell.[3] Respondent agrees.

Penal Code section 1170.1, subdivision (a) provides: Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.

Section 1170.1 refers to two kinds of enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense. Enhancements for prior convictions―authorized by sections 667.5, 667.6 and 12022.1―are of the first sort. The second kind of enhancements―those which arise from the circumstances of the crime―are typified by sections 12022.5 and 12022.7: was a firearm used or was great bodily injury inflicted? Enhancements of the second kind enhance the several counts; those of the first kind, by contrast, have nothing to do with particular counts but, since they are related to the offender, are added only once as a step in arriving at the aggregate sentence. [] Section 1170.1, subdivision (a) starts out by stating the basic rule that when a person is convicted of two or more felonies, the total sentence consists of (1) the principal term, (2) the subordinate term, and (3) any enhancements for prior convictions. In so doing, it makes it very clear that enhancements for prior convictions do not attach to particular counts but instead are added just once as the final step in computing the total sentence. [fn. omitted.] (People v. Tassell, supra, 36 Cal.3d 77, 90, overruled on other grounds by People v. Ewoldt (1994) 7 Cal.4th 380, 401.) [W]hen imposing a determinate sentence on a recidivist offender convicted of multiple offenses, a trial court is to impose an enhancement for a prior conviction only once to increase the aggregate term, and not separately to increase the principal or subordinate term imposed for each new offense. [fn.omitted.] [Citation.] (People v. Williams (2004) 34 Cal.4th 397, 400.)

Here appellants prior conviction was used as an enhancement in Case No. YA057079 and as an enhancement in the instant matter. Appellants sentence must be reduced by one year.

DISPOSITION

The sentence is reduced to eight years and eight months, consisting of three years for the principal term in case number YA057079, plus one-third the middle term sentence of eight months, doubled to 16 months for counts 1 and 3 in Case number VA090642, and one year for each of three prison priors, BA152477, YA037079/BA188836 and P88CR043. The trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

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[1]While three prior prison terms were alleged (YA037079, BA188836, P88CR43), the court found that the YA prior and the BA prior[] were actually the same commitment. So, they were one one-year prior.

[2]Previously, in case number YA057079, appellant pled no contest to one count of possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a) and admitted he served two prior prison terms within the meaning of Penal Code sections 667.5, subdivision (b) in cases BA152477 and YA037079. He was sentenced to the upper term of three years, plus two one-year terms for the prior prison term enhancements. Execution of the sentence was suspended and he was placed on formal probation for three years. Appellants probation was thereafter revoked due to the instant crimes.

[3]People v. Tassell (1984) 36 Cal.3d 77.)