P. v. Harris

Filed 6/26/08 P. v. Harris CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Eric Lamont Harris (appellant) appeals from a judgment entered after a jury found him guilty of two counts of robbery (Pen. Code,  211, 212.5, subd. (c))[1] (counts one and two) and one count of commercial burglary ( 459, 460, subd. (b)) (count three). He contends the trial court erred in using his prior serious felony conviction twice to enhance his sentence by two, five-year terms, for a total of ten years. The Attorney General states that appellant appears to be correct. We conclude the trial court erred and remand the matter for resentencing.

Factual and Procedural Background

On April 27, 2007, an information was filed charging appellant with two counts of robbery and one count of commercial burglary. For each robbery count, the information alleged that appellant had suffered a prior serious felony conviction ( 667, subd. (a)(1) [a consecutive five-year enhancement is imposed for a serious felony conviction when the defendant has a prior serious felony conviction]). The information also alleged that appellant had suffered a prior serious felony conviction for purposes of the Three Strikes Law ( 667, subds. (b)-(i), 1170.12 [a prior serious felony conviction counts as a strike, requiring that the sentence for a second felony conviction be doubled]) and had served four prior prison terms ( 667.5 [a one-year consecutive enhancement of a current prison term is imposed for each prior prison term]).

A jury trial commenced on June 12, 2007. Three employees of a bank testified that two men, one of whom was appellant, entered the bank, announced it was a robbery, demanded money from two tellers, and took money from each of them. Appellant was not wearing a mask at the time of the incident, and the employees identified him in photographic lineups, in photographs taken by the banks surveillance camera, and in court. One of the tellers testified that appellant and the other man took a total of $28,000.

The jury found appellant guilty on all three counts. The trial court found appellant had suffered a prior serious felony conviction and had served four prior prison terms. The court imposed the middle term of three years on count one, doubled the sentence to six years pursuant to the Three Strikes Law, and added five years for the prior serious felony conviction. On count two, the court imposed a consecutive sentence of one year four months (one-third of the lower term, doubled) and added another five years for the prior serious felony conviction, stating, And I am required to add the 667[, subd.] (a) of five [years] here [for count two] as well. The trial court stayed the sentence for the burglary conviction in count three and ordered that all enhancements based on the four prior prison terms be stricken. In striking the prior prison term enhancements, the court stated: I believe that the term of prison that . . . I added up so far is a sufficient punishment for the offense . . . . [] And the Court will, in the interest of justice, strike, for purposes of sentencing, the . . . four 667.5[, subd.] (b)s [prior prison term enhancements]; therefore, the total sentence in this matter is 17 years and four months.

Discussion

Appellant contends the trial court erred in using his prior serious felony conviction twice to enhance his sentence by two, five-year terms, for a total of ten years. The Attorney General acknowledges that appellant appears to be correct.

Preliminarily, we conclude that appellant has not waived his claim because a challenge to an unauthorized sentence may be made for the first time on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 354.) We also conclude the trial court erred in enhancing appellants sentence by ten years based on his prior serious felony conviction.

As noted, the prison sentence for a serious felony conviction is subject to a five-year consecutive enhancement if the defendant suffered a prior serious felony conviction. ( 667, subd. (a)(1).) In People v. Tassell (1984) 36 Cal.3d 77, 90 (Tassell), overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401, the California Supreme Court held that when 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. (People v. Williams (2004) 34 Cal.4th 397, 400, second emphasis added, fn. omitted.)

Tassell distinguished between enhancements that (1) go to the nature of the offender, i.e., are based on a defendants prior record, and (2) enhancements that are based on the nature of the offense and arise from the circumstances of the crime, e.g., was a firearm used or was great bodily injury inflicted? (Tassell, supra, 36 Cal.3d at p. 90.) It held: 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. (Ibid.)

Here, the trial court imposed a determinate sentence and used appellants prior serious felony conviction twice to enhance the sentence by a total of ten years. Because a prior serious felony conviction go[es] to the nature of the offender, and not to the nature of the offense, the court should have imposed the five-year enhancement only once as a step in arriving at the aggregate sentence. (See Tassell, supra, 36 Cal.3d at p. 90.)

There is nothing in the record indicating whether the court would have stricken the prior prison term enhancements had it known that only one, five-year enhancement could be imposed for the prior serious felony conviction.[2] Accordingly, we remand the matter for the trial court to make that determination and to resentence appellant in accordance with the principles set forth in this opinion. In remanding the matter for this purpose, we note that the same conviction may not be used as both a prior prison term and a prior serious felony conviction to enhance a sentence (People v. Jones (1993) 5 Cal.4th 1142, 1149-1150) unless the conviction and prior prison term were based on both serious and non-serious felonies (People v. Brandon (1995) 32 Cal.App.4th 1033, 1054-1055).

Disposition

The conviction is affirmed and the matter is remanded to the trial court for resentencing.

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McGuiness, P.J.

We concur:

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Siggins, J.

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Jenkins, J.

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[1] All statutory references are to the Penal Code.

[2] As noted, the trial court struck the prior prison terms for sentencing purposes after noting that the aggregate sentence of 17 years 4 months that it had imposed was a sufficient punishment for the offense.