Opinion
SIMONS, Acting P. J.
Appellant Anthony Brewer was convicted, after a jury trial, of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a); count one); assault with intent to commit forcible sodomy, sexual penetration, and/or oral copulation during the course of a burglary
(id.,
§ 220, subd. (b); count two); and false imprisonment by means of violence, menace, fraud, or deceit
(id.,
§§ 236, 237, subd. (a); count three).
He argues on appeal his conviction on count two lacks substantial evidence; he also asserts certain errors in his sentence.
In the published portion of this opinion, we address the following issue: Where a defendant has served a prison term for a felony conviction and
that term is alleged and proved as an enhancement under section 667.5, subdivisions (a) and (b) (hereafter sections 667.5(a) and 667.5(b)), after imposing the former, should the trial court stay the latter or strike it? We conclude the court must stay the section 667.5(b) enhancement and affirm the decision to do so by the trial court, though we rely on different reasoning. In the unpublished portion of the opinion, we reject appellant’s other contentions, save for correcting one minor sentencing error and, as so modified, affirm.
BACKGROUND
A.
Charged Offenses
The counts arose from an incident on February 20, 2011. The victim, John Doe, was casually acquainted with appellant through a former college classmate of Doe’s. The relationship between Doe and appellant had never been romantic or sexual.
At the time of the incident, Doe had neither seen nor had phone contact with appellant in seven months.
In the early morning hours on the date in question, Doe was in bed watching television. Appellant broke into Doe’s house through the back door, entered Doe’s bedroom, closed the door, and began to remove his own clothes. Doe asked appellant to leave, but appellant continued removing his clothes. Doe tried to push appellant out of the room but appellant, stronger' and bigger than Doe, pushed Doe back onto the bed. Appellant finished removing his clothes and climbed on top of Doe. Doe told appellant to get off of him and to get out; appellant told Doe, “I have to do this,” “I’m going to get you tonight,” and “Don’t move.” Doe was able to push appellant off of him, but appellant kept trying to climb back on top of Doe and to kiss him, touch him, and put his hand under Doe’s shorts.
Appellant smelled of alcohol and eventually started to pass out on Doe’s bed. Doe did not leave the room because appellant kept waking up. Eventually, Doe was able to text a friend who called the police. Shortly thereafter, Doe escaped. The police encountered appellant as he was leaving Doe’s bedroom.
In appellant’s testimony at trial, he admitted entering Doe’s bedroom, removing his clothes, and trying to kiss Doe. However, he claimed he wanted only a consensual encounter with Doe.
B.
Prior Incident
S.Y. testified to an incident taking place in January 1989, when she was 15 years old. About 4:00 a.m., she was alone in a bedroom of her house. Appellant, whom she did not know and who had broken into her house through a window, entered the bedroom, naked and carrying a kitchen knife. Appellant told her he was not there to hurt her, but told her multiple times to remove her clothes. Her little brother knocked on the bedroom door and appellant told her, “If you don’t want your brother hurt, you better tell him to get away.” S.Y. told her brother to leave. Appellant told her again he was not there to hurt her and gave her the knife. He then tried to retrieve the knife and they wrestled. S.Y. broke free, left the bedroom, and woke her mother. Appellant ran out of the house and the police apprehended him shortly thereafter.
In appellant’s testimony about the 1989 incident, he admitted having the intent to rape S.Y.
DISCUSSION
I.
Substantial Evidence Supports the Conviction on Count Two.
II.
Sentencing on Section 667.5(b) Enhancements
The information alleged two enhancements pursuant to section 667.5(a) based on prior prison terms imposed after violent felony convictions in 1989 and 2002, respectively. Section 667.5(a) authorizes a three-year enhancement “for each prior separate” term of imprisonment served, if one of the current offenses
and
an offense for which that prior separate term of imprisonment was served are enumerated violent felonies, unless a certain “washout” period applies.
The information also alleged two enhancements pursuant to section 667.5(b) based on prior prison terms imposed after the
1989 and 2002 felony convictions. Section 667.5(b) similarly authorizes, “[e]xcept where subdivision (a) applies,” a one-year enhancement “for each prior separate” term of imprisonment served, if one of the current offenses and an offense for which that prior separate term of imprisonment was served are felonies.
One of these felonies may but need not be a violent felony covered by section 667.5(a).
All four section 667.5 enhancement allegations were found true. The trial court imposed sentence on the two section 667.5(a) enhancements and stayed sentence on the two section 667.5(b) enhancements pursuant to section 654. Initially, appellant argued on appeal the section 667.5(b) enhancements should have been struck because the trial court had no authority to stay them under section 654, and the People conceded the section 667.5(b) enhancements should be struck. Because we were hesitant to accept the concession, we ordered supplemental briefing. In that briefing, both appellant and the People concluded the trial court’s decision to stay the enhancements should be affirmed. We agree with this conclusion.
It is clear that the section 667.5(b) enhancements in this case are prohibited by law. First, these enhancements were imposed for the same prison terms that served as the basis for the enhancements alleged under section 667.5(a). Section 667.5, subdivision (g), “indicates after a defendant is committed to state prison, additional concurrent or consecutive sentences imposed in the same or subsequent proceedings are deemed to be part of the same prison term. [Citations.] Generally, the number of separate prison terms available for enhancement is determined by identifying the ‘continuous completed’ terms of prison incarceration served. [Citations.] For example,
multiple prior convictions served concurrently constitute one separate prison term for which only one sentence enhancement can be imposed. [Citations.]”
(People v. Cardenas
(1987) 192 Cal.App.3d 51, 56 [237 Cal.Rptr.
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Opinion
SIMONS, Acting P. J.
Appellant Anthony Brewer was convicted, after a jury trial, of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a); count one); assault with intent to commit forcible sodomy, sexual penetration, and/or oral copulation during the course of a burglary
(id.,
§ 220, subd. (b); count two); and false imprisonment by means of violence, menace, fraud, or deceit
(id.,
§§ 236, 237, subd. (a); count three).
He argues on appeal his conviction on count two lacks substantial evidence; he also asserts certain errors in his sentence.
In the published portion of this opinion, we address the following issue: Where a defendant has served a prison term for a felony conviction and
that term is alleged and proved as an enhancement under section 667.5, subdivisions (a) and (b) (hereafter sections 667.5(a) and 667.5(b)), after imposing the former, should the trial court stay the latter or strike it? We conclude the court must stay the section 667.5(b) enhancement and affirm the decision to do so by the trial court, though we rely on different reasoning. In the unpublished portion of the opinion, we reject appellant’s other contentions, save for correcting one minor sentencing error and, as so modified, affirm.
BACKGROUND
A.
Charged Offenses
The counts arose from an incident on February 20, 2011. The victim, John Doe, was casually acquainted with appellant through a former college classmate of Doe’s. The relationship between Doe and appellant had never been romantic or sexual.
At the time of the incident, Doe had neither seen nor had phone contact with appellant in seven months.
In the early morning hours on the date in question, Doe was in bed watching television. Appellant broke into Doe’s house through the back door, entered Doe’s bedroom, closed the door, and began to remove his own clothes. Doe asked appellant to leave, but appellant continued removing his clothes. Doe tried to push appellant out of the room but appellant, stronger' and bigger than Doe, pushed Doe back onto the bed. Appellant finished removing his clothes and climbed on top of Doe. Doe told appellant to get off of him and to get out; appellant told Doe, “I have to do this,” “I’m going to get you tonight,” and “Don’t move.” Doe was able to push appellant off of him, but appellant kept trying to climb back on top of Doe and to kiss him, touch him, and put his hand under Doe’s shorts.
Appellant smelled of alcohol and eventually started to pass out on Doe’s bed. Doe did not leave the room because appellant kept waking up. Eventually, Doe was able to text a friend who called the police. Shortly thereafter, Doe escaped. The police encountered appellant as he was leaving Doe’s bedroom.
In appellant’s testimony at trial, he admitted entering Doe’s bedroom, removing his clothes, and trying to kiss Doe. However, he claimed he wanted only a consensual encounter with Doe.
B.
Prior Incident
S.Y. testified to an incident taking place in January 1989, when she was 15 years old. About 4:00 a.m., she was alone in a bedroom of her house. Appellant, whom she did not know and who had broken into her house through a window, entered the bedroom, naked and carrying a kitchen knife. Appellant told her he was not there to hurt her, but told her multiple times to remove her clothes. Her little brother knocked on the bedroom door and appellant told her, “If you don’t want your brother hurt, you better tell him to get away.” S.Y. told her brother to leave. Appellant told her again he was not there to hurt her and gave her the knife. He then tried to retrieve the knife and they wrestled. S.Y. broke free, left the bedroom, and woke her mother. Appellant ran out of the house and the police apprehended him shortly thereafter.
In appellant’s testimony about the 1989 incident, he admitted having the intent to rape S.Y.
DISCUSSION
I.
Substantial Evidence Supports the Conviction on Count Two.
II.
Sentencing on Section 667.5(b) Enhancements
The information alleged two enhancements pursuant to section 667.5(a) based on prior prison terms imposed after violent felony convictions in 1989 and 2002, respectively. Section 667.5(a) authorizes a three-year enhancement “for each prior separate” term of imprisonment served, if one of the current offenses
and
an offense for which that prior separate term of imprisonment was served are enumerated violent felonies, unless a certain “washout” period applies.
The information also alleged two enhancements pursuant to section 667.5(b) based on prior prison terms imposed after the
1989 and 2002 felony convictions. Section 667.5(b) similarly authorizes, “[e]xcept where subdivision (a) applies,” a one-year enhancement “for each prior separate” term of imprisonment served, if one of the current offenses and an offense for which that prior separate term of imprisonment was served are felonies.
One of these felonies may but need not be a violent felony covered by section 667.5(a).
All four section 667.5 enhancement allegations were found true. The trial court imposed sentence on the two section 667.5(a) enhancements and stayed sentence on the two section 667.5(b) enhancements pursuant to section 654. Initially, appellant argued on appeal the section 667.5(b) enhancements should have been struck because the trial court had no authority to stay them under section 654, and the People conceded the section 667.5(b) enhancements should be struck. Because we were hesitant to accept the concession, we ordered supplemental briefing. In that briefing, both appellant and the People concluded the trial court’s decision to stay the enhancements should be affirmed. We agree with this conclusion.
It is clear that the section 667.5(b) enhancements in this case are prohibited by law. First, these enhancements were imposed for the same prison terms that served as the basis for the enhancements alleged under section 667.5(a). Section 667.5, subdivision (g), “indicates after a defendant is committed to state prison, additional concurrent or consecutive sentences imposed in the same or subsequent proceedings are deemed to be part of the same prison term. [Citations.] Generally, the number of separate prison terms available for enhancement is determined by identifying the ‘continuous completed’ terms of prison incarceration served. [Citations.] For example,
multiple prior convictions served concurrently constitute one separate prison term for which only one sentence enhancement can be imposed. [Citations.]”
(People v. Cardenas
(1987) 192 Cal.App.3d 51, 56 [237 Cal.Rptr. 249].) Here, the two section 667.5(a) enhancements were based on prison terms served after convictions on May 15, 1989, and June 17, 2002, respectively. The two section 667.5(b) enhancements were based on prison terms served after convictions on the same dates. The conviction records show only two continuous prison terms imposed in 1989 and 2002, respectively.
Second, under the express language of section 667.5(b), because the trial court imposed sentence for the section 667.5(a) enhancements based on these prison terms, sentence for the section 667.5(b) enhancements based on the same prison terms was not allowed. (§ 667.5(b) [enhancement pursuant to subd. (b) authorized “[e]xcept where subdivision (a) applies”].)
The trial court erroneously stayed the section 667.5(b) enhancements pursuant to section 654 because section 654 does not apply to prior prison term enhancements that focus on a defendant’s status as a repeat offender rather than on the acts underlying the convictions.
(People v. Coronado
(1995) 12 Cal.4th 145, 157-158 [48 Cal.Rptr.2d 77, 906 P.2d 1232].) Further, “[t]he trial court has no authority to stay an enhancement, rather than strike it . . . when the only basis for doing either is its own discretionary sense of justice. [Citations.]”
(People v. Lopez
(2004) 119 Cal.App.4th 355, 364 [14 Cal.Rptr.3d 202]
(Lopez).)
However, California Rules of Court, rule 4.447 (rule 4.447) expressly authorizes a stay of an enhancement when “an enhancement that
otherwise
would have to be either imposed or stricken is barred by an overriding statutory prohibition. In that situation—and that situation only—the trial court can and should stay the enhancement.”
(Lopez, supra,
at p. 365.)
“This rule is intended ‘to avoid violating a statutory prohibition or exceeding a statutory limitation, while preserving the possibility of imposition of the stayed portion should a reversal on appeal reduce the unstayed portion of the sentence. [Citation.]’ [Citation.]”
(Lopez,
at p. 364.) As the section 667.5(b) enhancements were precluded by statute, rule 4.447 authorizes the trial court’s stay. This approach serves the purpose of rule 4.447 by allowing for the imposition of the stayed sentence if, for example, the qualifying section 667.5(a) felonies are reversed on appeal.
(Lopez, supra,
at
p. 365 [“it is the possibility that the actual sentence may be invalidated that requires the trial court to stay, rather than dismiss, the prohibited portion of the sentence”];
People
v.
Walker
(2006) 139 Cal.App.4th 782, 794, fn. 9 [43 Cal.Rptr.3d 257]; Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2013) f 12:5, pp. 12-17 to 12-18 [“If a defendant is found to have both a prior prison term under section 667.5(b) and a prior serious felony enhancement under section 667(a) for the
same offense, . .
. likely the better practice is to impose, then stay, any lesser enhancement.”].)
People v. Gonzalez
(2008) 43 Cal.4th 1118 [77 Cal.Rptr.3d 569, 184 P.3d 702] (Gonzalez) is instructive. In
Gonzalez,
the defendant was convicted of attempted premeditated murder (§§ 187, 664), and the jury found true the firearm enhancement in former section 12022.5, subdivision (a)(1)
and the firearm enhancements of subdivisions (b), (c), and (d) of former section 12022.53.
(Gonzalez, supra,
at p. 1123.) The statutory scheme regulating firearm enhancements, like section 667.5, anticipates that multiple enhancements may be found true in circumstances where only one may be imposed. Section 12022.53, subdivision (f) provides, in part, that “[o]nly one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified
in Section . . . 12022.5 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this section.”
Gonzalez
resolved a conflict in the appellate courts on an issue analogous to the one we face: After a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, should the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime be stayed or struck?
(Gonzalez, supra,
43 Cal.4th at p. 1122.) The court concluded the trial court should not strike these enhancements, but, instead, should impose a sentence and then stay it.
(Id.
at pp. 1122-1123.) This interpretation was driven by the court’s understanding of the purpose behind section 12022.53 and the reasoning in
Lopez'.
“[I]t becomes apparent that section 12022.53 was enacted to ensure that defendants who use a gun remain in prison for the longest time possible and that the Legislature intended the trial court to stay, rather than strike, prohibited enhancements under section 12022.53. As noted above, staying rather than striking the prohibited firearm enhancements serves the legislative goals of section 12022.53 by making the prohibited enhancements
readily
available should the section 12022.53 enhancement with the longest term be found invalid on appeal and by making ‘the trial court’s intention clear—it is staying part of the sentence only because it thinks it must. If, on the other hand, the trial court were to strike or dismiss the prohibited portion of the sentence, it might be misunderstood as exercising its discretionary power under Penal Code section 1385.’ ”
(Gonzalez, supra,
43 Cal.4th at p. 1129, quoting
Lopez, supra,
119 Cal.App.4th at p. 365.)
We conclude the analysis in
Gonzalez
is compelling and affirm the trial court’s stay of the section 667.5(b) enhancements.
III., IV.
DISPOSITION
The judgment is modified to reflect the sentences on counts one and three are stayed pursuant to section 654 and, as so modified, is affirmed. The trial court is ordered to prepare and forward to California’s Department of Corrections and Rehabilitation an abstract of judgment modified accordingly.
Needham, J., and Bruiniers, J., concurred.
Appellant’s petition for review by the Supreme Court was denied June 25, 2014, S218095.