P. v. Arriola
Filed 6/6/07 P. v. Arriola CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. GEORGE ARRIOLA, Defendant and Appellant. | E040849 (Super.Ct.No. FVI20900) O P I N I O N |
In re GEORGE ARRIOLA, on Habeas Corpus. | E041893 (Super.Ct.No. FVI20900) |
APPEAL from the Superior Court of San Bernardino County. Erik M. Nakata, Judge. Affirmed as modified.
ORIGINAL PROCEEDING; petition for writ of habeas corpus. Erik M. Nakata, Judge. Denied.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Lilia E. Garcia, Supervising Deputy Attorney General, for Plaintiff and Respondent.
On December 16, 2005, defendant George Arriola pled guilty to one count of possession of heroin, in violation of Health and Safety Code section 11350, subdivision (a). He also admitted seven prior nonstrike convictions, each of which exposed defendant to a one-year prison term.[1] Two other drug charges were dismissed, and defendant was placed on probation with a referral to the Proposition 36 drug court.
On February 6, 2006, a probation review hearing was held pursuant to Penal Code section 1210.1. Defendant was found to have violated the terms of his probation, but he was continued on probation.
A second review hearing was held on March 27, 2006. Defendant was taken into custody and a probation revocation hearing was set for April 24, 2006. A petition to revoke probation was filed on April 27, 2006, and the revocation hearing was subsequently continued until May 12, 2006.
A probation officer testified at the revocation hearing that defendant had violated the terms of his probation and had admitted to the probation officer that he had begun using heroin again. The trial court found defendant in violation of his probation and not amenable to the drug program. It sentenced him to a two-year midterm sentence for the original offense of possession of heroin, plus seven consecutive one-year terms for the prior offenses pursuant to Penal Code section 667.5, subdivision (b).
Penal Code section 667.5, subdivision (b), provides, in relevant part: [W]here 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.
Penal Code section 667.5, subdivision (g), provides: A prior separate prison term for the purposes of this section shall mean a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after an escape from incarceration.
On appeal, defendant contends that his sentence was unauthorized because the court included two enhancements for two prior felony convictions that were not shown to have resulted in separate prison terms. He argues that the information fails to allege that defendant served separate prison terms for two of the prior convictions, and he points out that he never admitted serving separate prison terms for the seven prior convictions. Defendant therefore argues that the prior conviction enhancement for one of his prior convictions must be stricken.
The People state: Since it cannot be determined from the record whether the challenged prior-prison-term enhancement was unauthorized and thus improperly imposed, this Court in the interest of judicial and prosecutorial economy should strike one of the seven prior-prison-term enhancements and order the Abstract of Judgment so amended, with a copy of the corrected abstract forwarded to the California Department of Corrections and Rehabilitations upon issuance of the remittitur. The People specifically do not request a remand for resentencing.
Defendant also filed a petition for habeas corpus (E041893) which was consolidated with this appeal by our order of December 15, 2006. The petition, which is based on a claim of ineffective assistance of counsel, seeks the same relief as the appeal. An exhibit to the petition provides record evidence that the sentence in the 1983 grand theft case (A456719) was ordered to run concurrently with the sentence in the second 1983 grand theft case (A456312). However, in the light of the Peoples concession on direct appeal, the petition is moot.
DISPOSITION
In case No. E040849, the judgment of conviction is affirmed and the sentence is modified by striking the consecutive one-year prior prison term enhancement for the 1983 grand theft conviction in Los Angeles County case No. A456719. The modified term of imprisonment is eight years. The trial court is directed to prepare an amended abstract of judgment and to forward it to the appropriate prison authorities.
The petition for writ of habeas corpus (E041893) is denied as moot.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ King
J.
We concur:
/s/ Ramirez
P.J.
/s/ Richli
J.
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[1] Defendant admitted two counts of grand theft, two counts of auto theft, possession of a firearm by a felon, receiving stolen property, and simple felony possession of a controlled substance. The two counts of grand theft were alleged in the information to have occurred on April 8, 1983. This allegation is the basis for defendants contention on appeal.
