P. v. Vaughn

Filed 7/25/06 P. v. Vaughn CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Luke Alex Vaughan was convicted in separate jury trials of two counts of unlawfully taking or driving a vehicle and one count of evading an officer with willful disregard for the safety of others. (Veh. Code, §§ 10851, subd. (a), 2800.2, subd. (a).) The court imposed an aggregate sentence of 15 years 4 months, which included additional time for two prison prior enhancements (Pen. Code, § 667.5, subd. (b)), a prior conviction under the Three Strikes law (Pen. Code, § 1170.12) and an on-bail enhancement (Pen. Code, § 12022.1, subd. (b)). Appellant argues that one of the two prison priors must be reversed because while he admitted the convictions underlying these allegations, he did not admit serving a separate prison term for each one. We disagree.

The information filed in appellant's first case included two prison prior allegations and one allegation that appellant had been previously convicted of a serious felony within the Three Strikes law. One of the prison priors was based on a 1989 conviction of receiving stolen property, the second prison prior was based on a 1991 conviction of taking or driving a vehicle, and the Three Strikes allegation was based on a 1991 conviction of attempted robbery that was part of the same case as the second prison prior. The information alleged that as to each prison prior allegation, "a term was served as described in Penal Code section 667.5." Before trial commenced, appellant indicated that he was going to change his plea on "the prior convictions" and admit their truth. The court advised him of his right to a jury trial, to confront and cross-examine witnesses, and to present a defense to the allegations. Appellant stated that he understood those rights, admitted the priors, and admitted that he had served time in prison in both cases.

Penal Code section 667.5, subdivision (b) provides, "[W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefore, 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." (Italics added.) By admitting two prison priors that were alleged in the information to be based on terms "served as described in Penal Code section 667.5," appellant admitted that the first was separate from the second and that the requirements of section 667.5, subdivision (b) were met. (People v. Welge (1980) 101 Cal.App.3d 616, 623.)

We reject appellant's claim that he admitted only the fact of the underlying convictions. In taking the admission, the court referred not only to the convictions underlying the allegations, but also to his service of a prison term in each case. (Contrast People v. Epperson (1985) 168 Cal.App.3d 856, 865; People v. Lopez (1985) 163 Cal.App.3d 946, 951.) Although the court referred to the allegations as "priors," it is clear in context that appellant was admitting the allegations set forth in the information, which included all elements necessary to support an enhancement under section 667.5, subdivision (b).^[1]

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Allan L. Steele, Judge

Glen M. Reiser, Judge

Superior Court County of Ventura

______________________________

Larry S. Dushkes, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria G. Wilson, Supervising Deputy Attorney General, Sharon E. Loughner, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] There was some discussion about holding a trial on the limited issue of whether the five-year "washout" period applied, but defense counsel never raised the issue again. Appellant does not now contend that the five-year washout period barred either prison prior.