P. v. Whitehead

Filed 11/24/09 P. v. Whitehead CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Jess Robert Whitehead pleaded guilty to burglary in Marin County and was placed on probation. After he was convicted of further crimes in Sonoma County, the trial court revoked his probation and imposed a sentence to be served consecutively to the Sonoma County sentence. Defendant contends that certain sentence enhancements in the consecutive sentence were improperly imposed. The Attorney General effectively concedes as to one of the enhancements and requests we vacate it. We find the other enhancement to be improper. Accordingly, we vacate the sentences associated with both enhancements and remand for entry of a modified judgment.

I. BACKGROUND

Defendant was charged in a complaint dated June 21, 2004, with burglary (Pen. Code,[1]  459) and giving false information to a peace officer ( 148.9, subd. (a)). With respect to the burglary count, it was alleged as enhancements that defendant had been convicted of two prior felonies for purposes of section 1203, subdivision (e)(4), had served one prior prison term for purposes of section 667.5, subdivision (b), and had suffered a prior serious felony conviction ( 1170.12, subds. (a)(d), 667, subds. (b)(i)). After the trial court struck the prior serious felony allegation, defendant pleaded guilty to both counts and admitted the remaining enhancements. The trial court suspended the imposition of sentence and placed defendant on probation.

Defendants probation was later revoked on the basis of two arrests and convictions in Sonoma County. The sentence imposed in those matters was the subject of a prosecution appeal to this court, decided in People v. Whitehead (May 20, 2009, A119190) [nonpub. opn.] (Whitehead I). As we explained in Whitehead I, defendant was arrested twice in December 2005 in Sonoma County, charged with a variety of crimes and enhancements in two informations, and eventually found guilty of all charges. The alleged enhancements included a prior serious felony conviction under section 667 and a prior prison term under section 667.5. The court sentenced defendant to eight years eight months on the criminal charges and imposed but stayed the enhancements. In our decision, we held the trial court lacked discretion to stay the enhancements. We remanded with directions to impose the nondiscretionary, five-year serious felony enhancement and to decide whether to strike or impose the one-year prior prison term enhancement.

Prior to our issuance of Whitehead I, but after the sentencing in Sonoma County, defendant was sentenced in this matter. The court imposed terms of eight months on the burglary count and one year on the prior prison term enhancement, both to be served consecutively to the Sonoma County sentence. ( 669, 1170.1, subd. (a).) The court therefore imposed a total sentence of 10 years 4 months. A month later, still prior to our issuance of Whitehead I, the trial court was persuaded that the Sonoma County court had erred in staying the serious felony enhancement and amended defendants sentence in this matter to impose that enhancement, resulting in a total sentence of 15 years 4 months.

II. DISCUSSION

In defendants opening brief, which was filed before the issuance of Whitehead I, he contends (1) the trial courts imposition of the five-year enhancement was barred by the doctrine of double jeopardy, (2) the trial court lacked jurisdiction to correct any perceived error of the Sonoma County Superior Court, and (3) the trial court could not impose both the serious felony enhancement and the prior prison term enhancement because the two enhancements were based on the same prior conviction.

By the time the Attorney General filed his respondents brief, Whitehead I had been issued. The respondents brief addresses the merits of defendants arguments only very briefly. Instead, the Attorney General states that [a]lthough the Marin court properly imposed the five-year enhancement, we submit that this Court should vacate the imposition of the five-year enhancement. The brief later argues that [i]n light of this Courts resolution in [Whitehead I] and our request that the Court vacate the five-year enhancement imposed by the Marin court, [defendants] arguments in this appeal are rendered moot. The brief does not explain the Attorney Generals reason for requesting the five-year enhancement be vacated, other than to moot the appeal.

In his reply brief, defendant acknowledges that vacating the serious felony enhancement in this matter would moot his arguments with respect to that enhancement, but he argues it would not moot his argument with respect to the prior prison term enhancement. Because the serious felony enhancement will be imposed in the Sonoma County matter, he argues, the prior prison term enhancement continues to be unlawfully duplicative.

The defendant having no objection, we grant the Attorney Generals request and order the serious felony enhancement to be vacated in this matter. In so doing, we make no ruling as to the propriety of the trial courts action. (See In re James F. (2008) 42 Cal.4th 901, 911 [accepting partys concession without deciding underlying issue].) Although the Attorney Generals request is not literally a concession, his failure to defend the trial courts imposition of the enhancement in any but the most cursory manner is the functional equivalent of a concession. We treat it as such.

Further, we agree with defendant that the issue of the trial courts imposition of the prior prison term enhancement is not mooted by our vacating the serious felony enhancement. As noted in Whitehead I, the serious felony enhancement ordered imposed in Sonoma County was based on a September 1997 conviction for robbery. The only basis for the prior prison term enhancement admitted by defendant in this matter is the same September 1997 robbery conviction. Accordingly, despite our vacating the serious felony enhancement in this matter, defendant continues to be subject to a serious felony enhancement and a prior prison term enhancement based on the same conviction.

When the prosecution proves a serious felony enhancement under section 667 and a prior prison term enhancement under section 667.5 based on the same prior conviction, the trial court may impose only the longer of the two enhancements. (People v. Jones (1993) 5 Cal.4th 1142, 11491150; see similarly People v. McFearson (2008) 168 Cal.App.4th 388, 394395.) Had these two enhancements been alleged in the same proceeding, there is no question that, under Jones, the prior prison term enhancement could not be imposed.[2]The analysis does not change merely because the enhancements were imposed in different proceedings in different courts. The statutes governing the imposition of consecutive sentences for multiple felonies must be imposed consistently whether [the convictions occur] 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. ( 1170.1, subd. (a); see similarly  669.) The trial court acknowledged as much by treating the Marin County charge as a subordinate conviction under these statutes when sentencing defendant. Accordingly, the rules governing imposition of sections 667 and 667.5 enhancements must be applied consistently, regardless of whether sentencing for the multiple felony convictions occurred in the same or different courts. The trial courts imposition of the section 667.5 enhancement must be vacated in light of our ruling in Whitehead I that a section 667 enhancement based on the same conviction must be imposed in Sonoma County.

III. DISPOSITION

The trial courts imposition of a five-year sentence enhancement under section 667 and its imposition of a one-year sentence enhancement under section 667.5 are vacated. The trial court is directed to enter a modified judgment imposing a total sentence of nine years four months.

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Margulies, J.

We concur:

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Marchiano, P.J.

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Dondero, J.

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[1] All statutory references are to the Penal Code.

[2] This problem was not encountered in Whitehead I only because, in addition to the September 1997 robbery conviction, a second, different conviction was alleged and proven as a basis for the prior prison term enhancement there. In this matter, only the robbery conviction was alleged and admitted.