People v. Winbush, B193617 (Cal. App. 9/11/2007), B193617

• Decision Date: 11 September 2007
• Docket Number: B193617
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ERROL WINBUSH, Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. ERROL WINBUSH, Defendant and Appellant.

B193617

Court of Appeals of California, Second Appellate District, Division Five

September 11, 2007

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Los Angeles County, No. TA078790, Allen J. Webster, Judge. Affirmed with modifications.

Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.

ARMSTRONG, Acting P. J.

Appellant Errol Winbush waived his right to a jury trial and pled guilty to two counts of residential burglary in violation of Penal Code section 459,¹ and one count of attempted commercial burglary in violation of sections 664 and 459. Appellant also admitted the allegations that he had suffered nine prior felony convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) (the "three strikes" law) and had served a prior prison term within the meaning of section 667.5, subdivision (b).

The trial court struck all but one of appellant's nine prior strike convictions. The court sentenced appellant to the mid-term of four years for the count 1 residential burglary conviction plus 16 months (one-third the mid-term) for the count 2 residential burglary conviction, plus eight months (one-third the mid-term) for the attempted commercial burglary conviction, all doubled pursuant to the three strikes law. The court also imposed two one-year enhancement terms for the prior prison sentence, for a total of 14 years in state prison.

Appellant obtained a certificate of probable cause from the trial court and now appeals, contending that the trial court erred in sentencing him to two one-year enhancement terms for the prison prior. Respondent agrees. We agree as well. We order one of the one-year terms imposed pursuant to section 667.5 stricken and appellant's total sentence reduced to 13 years. We affirm the judgment of conviction in all other respects.

Discussion

The information in this case alleges that as to counts 1 and 2 (the residential burglaries), appellant suffered one prior conviction within the meaning of section 667.5, subdivision (b). That conviction was alleged to have occurred in case number TA066912 on January 15, 2003. Appellant admitted the truth of this allegation. There was no allegation that appellant had served a prison term in the case which resulted in the strike convictions, case No. A754809.

After admitting the allegations of the information, appellant questioned the authenticity of the prior strike convictions. Out of an abundance of caution, the trial court held a hearing on the priors. The People produced a witness who authenticated and explained appellant's prison records, in the form of a certified section 969(b) packet. The court found the priors to be true.

In sentencing appellant, the trial court stated: "[T]he court's going to find as to count one and two, one year prior to be true. That's violation of Penal Code section 667.5, subdivision (b). That's going to add an additional two years." These comments suggest that the trial court believed that the same prison prior enhancement should be imposed for both count 1 and count 2. Prison priors are not attached to specific counts, however, and only one prison prior per term of incarceration may be imposed. (People v. Tassell (1984) 36 Cal.3d 77, 90, disapproved on other grounds by People v. Ewoldt (1994) 7 Cal.4th 380, 1039, 1044; People v. Smith (1992) 10 Cal.App.4th 178, 182-183.)

Both appellant and respondent focus on the court's minute order, which states: "The defendant admits to prior convictions in cases A754809 conviction date 7/15/86 and TA066912 conviction date 1/15/2003 and the defendant is sentenced to an additional 2 years pursuant to Penal Code section 667.5(b)." This suggests that the trial court believed that a prison prior had been alleged for the conviction in case No. A754809. This is incorrect. Since a prison prior was not alleged for case No. A754809, no penalty could be imposed. (§ 667.5, subd. (d) ["The additional penalties provided for prior prison terms shall not be imposed unless they are charged and admitted or found true in the action for the new offense."].)

Further, the trial court ultimately held a hearing on the convictions in case No. A754809. The section 969(b) prison packet introduced at that hearing contained no indication that appellant committed another felony or went back to prison within five years of the completion of his term of imprisonment in case No. A754809.² Thus, a section 667.5 enhancement could not be imposed for the prison term in case No. A75809. (People v. Tenner (1993) 6 Cal.4th 559, 563.)

Since there is no legally authorized way for the trial court to have imposed a second prison prior enhancement term, that term must be stricken.

Respondent contends that this matter should be remanded to the trial court for reconsideration of all the sentencing choices. We do not agree.

The general rule on appeal is that a defendant may not be subject to a more severe sentence on remand following an appeal. (See People v. Savala (1983) 147 Cal.App.3d 63, 69, fn. 4.) Here, striking one prison prior enhancement term will result in a one-year decrease in appellant's total term. There is no way for the trial court to increase appellant's sentence by only one year on remand. Thus, there is no point in a remand.

Respondent contends that the second prison prior is an unauthorized term and implies that appellant's resultant resentencing is therefore an exception to the above rule. We do not agree.

An exception to the above rule does exist for unauthorized sentences, but the exception is for cases where the court imposed unlawfully shorter sentences on appeal than required by law. (See People v. Serrato (1973) 9 Cal.3d 753, 764-765.) Thus, when such an unauthorized sentence is set aside on appeal "a correct, even if more severe, sentence may be imposed upon retrial." (People v. Craig (1998) 66 Cal.App.4th 1444, 1449 [emphasis added].) "Or as one Court of Appeal has described it, the Serrato exception protects the People's right to the imposition of mandated, lawful sentences. [Citation.]" (Ibid.) Here, the unauthorized sentence was not unlawfully short. Correcting the error does not require or result in a longer sentence.

When the sentence at issue involves an enhancement which was imposed without authorization, the striking of that enhancement may in some instances free up a conviction (or act) for use as an aggravating factor on the underlying offense. In such a situation, it could be argued that the trial court should be permitted to impose the upper term for the underlying offense on remand, even if the resulting sentence was more severe. That is not the case here, however. As we discuss, supra, ...