P. v. McDaniel
Filed 10/16/07 P. v. McDaniel CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
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THE PEOPLE, Plaintiff and Respondent, v. EZRA CHARLES MCDANIEL, SR., Defendant and Appellant. | C054950 (Super. Ct. No. CM025403) |
A jury convicted defendant Ezra Charles McDaniel, Sr., of second degree robbery (Pen. Code, 211)[1]and attempted second degree robbery ( 664 & 211). The trial court also found true three prior prison term allegations ( 667.5, subd. (b)), and sentenced defendant to an aggregate term of six years in state prison -- three years for the second degree robbery conviction and an additional one year for each prior prison term in Butte County case Nos. CM014925, CM002129, and 100257. The court further sentenced defendant to a concurrent eight-month term for the attempted robbery conviction.
On appeal, defendant contends the trial court should have imposed only two years for his prior prison terms because defendant served his sentence in Butte County case No. 100257 in the California Rehabilitation Center (CRC). In essence, defendant is arguing there was insufficient evidence to support the trial courts finding that defendant served a prison term in Butte County case No. 100257 pursuant to section 667.5, subdivision (b). Defendant is wrong.
On appeal, this court merely considers whether a reasonable trier of fact could have found that the prosecution had proved the enhancements beyond a reasonable doubt. In doing so, it views the record in the light most favorable to the finding below. (People v. Fielder (2004) 114 Cal.App.4th 1221, 1232.)
Section 667.5 provides, in pertinent part:
Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [] . . . [] (b) Except where subdivision (a) [concerning violent felonies] applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.
A felony conviction for which a defendant is sentenced to CRC can count as the commission of an offense which results in a felony conviction for section 667.5, subdivision (b), but the serving of the sentence in CRC cannot count as prison custody for that statute because CRC is considered a civil commitment. (People v. Fielder, supra, 114 Cal.App.4th at pp. 1230-1231.)
Here, the prosecution submitted certified records from the Department of Corrections and Rehabilitation (a 969b prison packet) to prove the prior prison term allegations. Defendant contends these evidentiary records do not show, beyond a reasonable doubt, that he served a prison sentence for his 1989 conviction for second degree burglary ( 459) in Butte County case No. 100257. We disagree.
The abstract of judgment in case No. 100257, which was included in the section 969b prison packet, indicates defendant was sentenced to three years in state prison. When read together with the letter from the CRC indicating defendant was discharged from the CRC on November 30, 1990, also in case No. 100257, it is reasonable to conclude that less than two weeks after defendant was discharged from the CRC, he was returned to custody and sentenced to state prison on the same conviction.
Accordingly, the enhancement finding is supported by substantial evidence.
DISPOSITION
The trial courts judgment is affirmed.
NICHOLSON , J.
We concur:
SCOTLAND, P.J.
CANTIL-SAKAUYE , J.
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[1] Further undesignated statutory references are to the Penal Code.
