P. v. Howard

Filed 8/25/06 P. v. Howard CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. James Stuart, Judge.

Marilyn Drath, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

______________________

*Before Harris, A.P.J., Gomes, J., and Kane, J.

In April 2005, in Kern County Superior Court case No. BF109641A (first case), appellant Elvis Howard pled no contest to possession of heroin (Health & Saf. Code, § 11350) and admitted enhancement allegations that he had served two separate prison terms for prior felony convictions (Pen. Code, § 667.5, subd. (b)). Thereafter, appellant was accepted into the Kern County deferred entry of judgment program (drug diversion program) (Pen. Code, § 1000 et seq.). In May 2005, the court revoked appellant's probation; excluded appellant from the drug diversion program for failure to comply with the conditions of the program; and rendered a finding of guilt based on appellant's previously entered plea.

In July 2005, in Kern County Superior Court case No. BF109991A (second case), a jury convicted appellant of driving under the influence of a drug and/or alcohol while doing an act forbidden by law, viz., failing to yield right-of-way in violation of Vehicle Code section 21802 (Veh. Code, § 23153, subd. (a); count 2), falsely identifying himself to a police officer (Pen. Code, § 148.9, subd. (a); count 3), and driving with a suspended driver's license (Veh. Code, § 14601.1, subd. (a); count 5). The jury also found true enhancement allegations that in committing the count 2 offense appellant caused bodily injury to three victims (Veh. Code, § 23558). In a separate proceeding, the court found true enhancement allegations that appellant had served two separate prison terms for prior felony convictions (Pen. Code, § 667.5, subd. (b)).^[1]

At a sentencing hearing covering both cases, the court imposed sentence as follows. In the second case, the court imposed a seven-year prison term, consisting of the three-year upper term on count 2, two years for the accompanying injury enhancements and one year on each of the two prior prison term enhancements. As to each of counts 3 and 5, the court imposed concurrent terms of 90 days to be served in the custody of the Kern County Sheriff. In the first case, the court, operating under the mistaken belief that three, rather than two, prior prison term enhancements had been found, imposed a concurrent five-year prison term, consisting of the two-year midterm on the substantive offense and three years for the prior prison term enhancements. The abstract of judgment, however, indicates a four-year concurrent term imposed in the first case, including a total of two years for prior prison term enhancements.

Appellant's appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d.436.)

Appellant himself, apparently in response to this court's invitation to submit supplementary briefing, has submitted a document in which, as best we can determine, he contends (1) the evidence was insufficient to support his conviction on Count 2 in the second case and (2) he was denied his constitutional right to the effective assistance of counsel in that case. We have independently reviewed the record, and based on that review have concluded these claims are without merit.

Also based on our independent review of the record, we have further concluded as follows. As indicated above, in imposing sentence in the second case, the court erroneously imposed sentence on three prior prison term enhancements (Pen. Code,

§ 667.5, subd. (b)), even though only two such enhancements were found true. Further, the court erred in imposing each of the two prior prison enhancements twice: once as part of the sentence imposed on the second case and a second time as part of the concurrent term imposed in the first case. A prior prison term enhancement can be imposed only once as a component of an aggregate sentence. (Pen. Code, § 1170.1; People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 398-401.) Accordingly, we will order the enhancements imposed in the first case stricken.^[2]

Finally, we have further concluded based on our independent review of the record that no other reasonably arguable legal or factual issues exist.

DISPOSITION

The prior prison term enhancements imposed as part of the concurrent sentence in the first case are stricken. The trial court is directed to prepare an amended abstract of judgment which indicates the two properly imposed prior prison term enhancements are imposed once as part of the aggregate sentence imposed in the first and second cases. The trial court is further directed to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line Lawyers.

^[1] The prior prison term enhancements in both the first and second case were based on the same two prior convictions.

^[2] Pursuant to Government Code section 68081, we invited the parties to submit briefing on the issue of whether the prior prison term enhancements imposed in case No. 1 should be stricken. Neither side responded to our invitation.