P. v. McNiel

Filed 8/20/08 P. v. McNiel CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In case No. CC503038, defendant Ryan McNiel[1] was convicted by no contest plea of two counts of receiving a stolen motor vehicle with a specified prior conviction (Pen. Code, 496d, 666.5)[2] and one count of receiving stolen property ( 496, subd. (a)). Defendant also admitted having suffered a prior strike ( 667, subds. (b)-(i), 1170.12) and having served two prior prison terms ( 667.5, subd. (b)). In case No. CC504606, defendant was convicted by no contest plea of second degree burglary ( 459, 460, subd. (b)) and he admitted the same prior strike and prior prison terms. After striking the two prison priors, the trial court sentenced defendant to seven years four months in state prison on these two cases and, pursuant to section 669, imposed a consecutive term of one year eight months for an uncompleted sentence that had been imposed in an earlier Alameda County case. (People v. McNiel (Super. Ct. Alameda County, 2006, No. H39969).)

The sole issue in this appeal is whether the Santa Clara County Superior Court in this case properly included in defendants sentence a one-year term for the prison prior previously imposed in the Alameda County case even though the Santa Clara County Superior Court struck the same prison prior in the case before it. As we find that the Santa Clara County Superior Court properly imposed the one-year term for the prison prior, we will affirm the judgment.

BACKGROUND[3]

On August 5, 2005, defendant was arrested in Alameda County for violating Vehicle Code section 2800.2, subdivision (a) (attempting to evade a peace officer while driving recklessly). He was charged by amended complaint in People v. McNiel, supra, No. H39969 with this and other offenses, and the complaint further alleged that he had four prior convictions and had served two prior prison terms. On October 21, 2005, defendant pleaded no contest to the reckless evasion charge and admitted having previously been convicted of a felony in Santa Cruz County and having served a prison term therefor. On February 28, 2006, he was sentenced to four years in state prison, the sentence consisting of the upper term of three years for the new offense and a consecutive term of one year for the prison prior.

Meanwhile, defendant was identified from a surveillance camera videotape as one of two individuals who was involved in a burglary at the ITI Company in San Jose on July 23, 2005. On August 16, 2005, a witness called the Fremont Police Department after seeing defendant drive away in another persons company car. Officers located defendant a short distance away in the car and pursued him at high speed. The pursuit ended when defendant crashed into a tree. He was taken into custody and officers learned that he had an outstanding warrant for possession of a stolen vehicle that was recovered on August 9, 2005. Officers also recovered two stolen laptop computers from the car defendant had crashed.

Defendant was charged by amended complaint in case No. CC503038 with two counts of vehicle theft with a specified prior (Veh. Code, 10851, subd. (a), 666.5; counts 1 & 3), two counts of receiving a stolen motor vehicle with a specified prior ( 496d, 666.5; counts 2 & 4), and receiving stolen property ( 496, subd. (a); count 5). The complaint further alleged that defendant had suffered a prior strike ( 667, subds. (b)-(i), 1170.12) and that he had served three prior prison terms ( 667.5, subd. (b)).

Defendant was charged by information in case No. CC504606[4] with second degree burglary ( 459, 460, subd. (b)), and the information further alleged that he had suffered the same prior strike and had served the same three prior prison terms. On August 8, 2006, defendant pleaded guilty to counts 2, 4 and 5 in case No. CC503038 and to the sole count against him in case No. CC504606, and admitted having suffered a prior strike and having served two prior prison terms. One of the prior prison terms defendant admitted having served was the same prior prison term he admitted in the earlier Alameda County case.

On December 26, 2006, defendant filed a request that the court dismiss his prior strike under section 1385 and People v. Superior Court (Romero) 13 Cal.4th 497. The prosecutor opposed the request. On April 30, 2007, the court denied defendants motion to withdraw his pleas, denied his Romero motion, and sentenced him to a total term of 11 years for both the Santa Clara County cases and the Alameda County case. The sentence consisted of six years, double the midterm, for count 2, a consecutive term of two years, or one-third the midterm, doubled, for count 4, and a concurrent term of four years for count 5, in case No. CC503038; a consecutive term of 16 months, or one-third the midterm, doubled, in case No. CC504606; and eight months, or one-third the midterm, plus one year for the prison prior in the Alameda County case. The court struck the two prison priors in the Santa Clara County cases.

On June 4, 2007, the court recalled defendants sentence pursuant to section 1170, subdivision (d), and resentenced him to nine years in state prison. The sentence consists of four years, double the mitigated term, for count 2, a consecutive term of two years, or one-third the midterm, doubled, for count 4, and a concurrent term of 32 months, or double the mitigated term, for count 5, in case No. CC503038; a consecutive term of 16 months, or one-third the midterm, doubled, in case No. CC504606; and eight months, or one-third the midterm, plus one year for the prison prior in the Alameda County case. The court, again, struck the two prison priors in the Santa Clara County cases.

Defendant filed a timely notice of appeal. (Cal. Rules of Court, rule 8.304.)

DISCUSSION

Defendant contends that the trial court had no authority to impose the one-year term for the prison prior in the Alameda County case. He argues that, since the court struck the two prison priors in the Santa Clara County cases, one of which was the same prison prior that was involved in the Alameda County case, it could not thereafter impose sentence for the prison prior in the Alameda County case.

Respondent contends that the trial court properly sentenced defendant. Respondent argues that, when it resentenced defendant on the Alameda County case pursuant to section 669, the court modified and recalculated the original sentence but it did not and could not strike the prison prior as to that case.

It is well established that, as a general matter, a court has discretion under section 1385, subdivision (c), to dismiss or strike an enhancement, or to strike the additional punishment for that enhancement in the furtherance of justice. (People v. Meloney (2003) 30 Cal.4th 1145, 1155, fn. omitted.) Neither the Three Strikes law enacted by the Legislature ( 667, subds. (b)-(i)) nor the Three Strikes law adopted by voters ( 1170.12) abrogated a trial courts section 1385 discretion to strike a prior prison term enhancement. Accordingly, a trial court retains the section 1385 power to strike a section 667.5, subdivision (b) prior prison term enhancement even when sentencing a defendant under the Three Strikes law. (People v. Bradley (1998) 64 Cal.App.4th 386, 395; Meloney, supra, at pp. 1155-1156.) Unless it strikes a prison prior that was pleaded and proved, the trial court must impose a one-year term for the prison prior when sentencing a defendant. (Bradley, supra, 64 Cal.App.4th at p. 390.)

When a consecutive determinate term is included in the sentence imposed on a second strike offender such as defendant here, it is imposed under section 1170.1 and is one-third the midterm, doubled. (People v. Nguyen (1999) 21 Cal.4th 197, 203-204.) Under the Determinate Sentencing Act ( 1170 et seq.), multiple consecutive determinate terms must be combined into a single, aggregate term of imprisonment for all [such] convictions ( 1170.1, subd. (a)) that merges all terms to be served consecutively and complies with the rules for calculating aggregate terms (e.g., one-third the base term for subordinate terms and specific enhancements applicable to subordinate terms (ibid.)), whether or not the consecutive terms arose from the same or different proceedings (ibid.; see also 669; Cal. Rules of Court, rule 4.452). (In re Reeves (2005) 35 Cal.4th 765, 772-773; see also 667, subd. (c)(8), 1170.12, subd. (a)(8).) However, when the judge in a current case imposes an aggregate term of imprisonment that includes uncompleted terms arising from previous cases, the [d]iscretionary decisions of the judges in the previous cases may not be changed by the judge in the current case. (Cal. Rules of Court, rule 4.452(3).) Accordingly, the sentencing judge in the current case may not change a judges decision in a previous case to strike or not strike a prison prior enhancement in the furtherance of justice. (Ibid.)

Section 1170.1, subdivision (a) states in pertinent part that when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principle term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The section makes it very clear that enhancements for prior convictions do not attach to particular counts but instead are added just once as the final step in computing the total sentence. (People v. Tassell (1984) 36 Cal.3d 77, 90 (Tassell), fn. omitted; overruled on another point in People v. Ewoldt (1994) 7 Cal.4th 380, 401.) This is because prior prison term enhancements go to the nature of the offender (Tassell, supra, 36 Cal.3d at p. 90) as a previously convicted felon (People v. McClanahan (1992) 3 Cal.4th 860, 869, italics omitted) rather than to the nature of the offense. (Tassell, supra, at 36 Cal.3d p. 90.) Also, the Three Strikes law clearly states that a sentence pursuant to its provisions is imposed in addition to any other enhancements or punishment provisions which may apply. ( 667, subd. (e), 1170.12, subd. (c).)

In this case, the sentencing court in Santa Clara County struck both prison priors that were pleaded and proved in the current case. However, the Alameda County Superior Court did not strike the prison prior that was pleaded and proved in its case. Therefore, when the Santa Clara County Superior Court in the current case imposed an aggregate term that included the uncompleted term in the previous Alameda County case, the Santa Clara County Superior Court was required to include in the current sentence a one-year term for the prison prior pleaded and proved in the previous case. (Bradley, supra, 64 Cal.App.4th at p. 390; Cal. Rules of Court, rule 4.452(3).) This is so, whether or not a prison prior stricken in the current case was the same prison prior as in the previous case, as status enhancements such as prison priors under section 667.5, subdivision (b), are imposed only once, no matter how many counts or cases are included in an aggregate determinate sentence. (Tassell, supra, 36 Cal.3d at p. 90.) Therefore, contrary to defendants contention, the sentence imposed by the Santa Clara County Superior Court in the current case which included a one-year term for the prison prior pleaded and proved in the previous Alameda County case was not an unauthorized sentence.

DISPOSITION

The judgment is affirmed.

_______________________________________________________

Bamattre-Manoukian, J.

WE CONCUR:

__________________________

PREMO, ACTING P.J.

_________________________

ELIA, J.

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[1] The record on appeal includes documents with defendants last name spelled both McNiel and McNeil. We use McNiel as that is the spelling on the abstract of judgment.

[2] Further unspecified statutory references are to the Penal Code.

[3] On February 20, 2008, this court granted defendants request to take judicial notice of documents relating to his Alameda County conviction. The facts underlying defendants convictions are taken from these documents and from the probation report in the current cases.

[4] The same information included additional charges against Bryan James Luna and Katie Bernice Hungate. Neither Luna nor Hungate is a party to this appeal.