Flowers
Filed 10/13/10 P. v. Flowers CA5
NOT TO BE PUBLISHED IN THE
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE
OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
BILLY
LEE FLOWERS,
Defendant and
Appellant.
F059027
(Super.
Ct. No. 1402131)
OPINION
THE COURT*
APPEAL from
a judgment of the Superior Court of Stanlislaus
County. Timothy W. Salter, Judge.
Roshni
Mehta, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G.
Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez,
Deputy Attorney General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On July 21,
2009, appellant, Billy Lee Flowers, waived his constitutional rights and pled
no contest to an allegation that he sold a controlled substance (Health &
Saf. Code, § 11352, subd. (a)).
Appellant admitted a prior narcotics conviction enhancement (Health
& Saf. Code, § 11370.2) and a prior prison term enhancement (Pen.
Code, § 667.5, subd. (b)).
Appellant entered into a Cruz[1] waiver, permitting appellant to be released on
his own recognizance pending his sentencing
hearing.
Appellant
failed to appear for his sentencing hearing on August 11, 2009. On October 9, 2009, the trial court sentenced
appellant to the midterm of four years for sale of narcotics plus a consecutive
three-year term for the prior conviction enhancement (Health & Saf. Code,
§ 11370.2) for a total prison term of seven years. The court stayed appellant's prior prison
term enhancement pursuant to section 654.
The parties agree that the trial
court erred in staying the prior prison term enhancement. Appellant requests that we order that this
enhancement be stricken. Respondent
requests that we remand the case for a proper finding by the trial court. We agree with respondent and will remand for
further proceedings.[2]
PRIOR PRISON TERM ENHANCEMENT
The criminal complaint alleged the Health
and Safety Code, section 11370.2 enhancement for the same narcotic conviction
for which appellant served the prior prison term that serves as a section
667.5, subdivision (b) enhancement. It
appears that because both enhancements concerned the same conviction, the trial
court applied section 654 to stay the prior prison term enhancement. Although they relate to the same conviction,
both enhancements may be applied at once.
(People v.
935-937.)
Once a prior prison term
enhancement is found true within the meaning of section 667.5, subdivision (b),
the trial court may not stay implementation of the one-year prison term. The enhancement must be imposed unless
stricken upon a proper statement of reasons.
(People v.
it to exercise its sentencing discretion as to whether to impose or to strike
the prior prison term enhancement. (
ADDITIONAL CUSTODY CREDITS
Pursuant to a standing order of our court, we separately review the
applicability of the recently amended version of section 4019. Under section 2900.5, a person sentenced to
state prison for criminal conduct is entitled to credit against the term of
imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a
criminal defendant may earn additional presentence credit against his or her
sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and
compliance with rules and regulations (§ 4019, subd. (c)). These forms of section 4019 presentence
credit are called, collectively, conduct credit. (People
v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
When appellant was sentenced in October 2009, the court calculated
appellant's conduct credit in accord with the version of section 4019 then in
effect, which provided that conduct credit could be accrued at the rate of two
days for every four days of actual presentence custody. (Former § 4019.) However, the Legislature amended section 4019
effective January 25, 2010, to provide that any person who is not required to
register as a sex offender and is not being committed to prison for, or has not
suffered a prior conviction of, a serious felony as defined in section 1192.7
or a violent felony as defined in section 667.5, subdivision (c), may accrue
conduct credit at the rate of four days for every four days of presentence
custody. We conclude the amendment
applies prospectively only.[3]
Under section 3, it is presumed that a statute operates prospectively
â€
| Description | On July 21, 2009, appellant, Billy Lee Flowers, waived his constitutional rights and pled no contest to an allegation that he sold a controlled substance (Health & Saf. Code, § 11352, subd. (a)). Appellant admitted a prior narcotics conviction enhancement (Health & Saf. Code, § 11370.2) and a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)). Appellant entered into a Cruz[1] waiver, permitting appellant to be released on his own recognizance pending his sentencing hearing. Appellant failed to appear for his sentencing hearing on August 11, 2009. On October 9, 2009, the trial court sentenced appellant to the midterm of four years for sale of narcotics plus a consecutive three-year term for the prior conviction enhancement (Health & Saf. Code, § 11370.2) for a total prison term of seven years. The court stayed appellant's prior prison term enhancement pursuant to section 654. The parties agree that the trial court erred in staying the prior prison term enhancement. Appellant requests that we order that this enhancement be stricken. Respondent requests that we remand the case for a proper finding by the trial court. Court agree with respondent and will remand for further proceedings. |
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