People v. Cardenas

192 Cal. App. 3d 51, 237 Cal. Rptr. 249
California Court of Appeal·Decided May 22, 1987·No. D004424·Published·Cited by 16 cases

Opinion

192 Cal.App.3d 51 (1987)
237 Cal. Rptr. 249

THE PEOPLE, Plaintiff and Respondent,
v.
JAVIER AGUILAR CARDENAS, Defendant and Appellant.

Docket No. D004424.

Court of Appeals of California, Fourth District, Division One.

May 22, 1987.

*54 COUNSEL

John McDougall, under appointment by the Court of Appeal, for Defendant and Appellant.

John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Steven H. Zeigen and Michael D. Wellington, Deputy Attorneys General, for Plaintiff and Respondent.

[Opinion certified for partial publication.[1]]

OPINION

BUTLER, J.

A jury convicted Javier Aguilar Cardenas of second degree burglary (Pen. Code,[2] § 459) and he admitted three previous felony convictions. The trial court imposed sentence totaling six years: the three-year upper term for the burglary plus one year consecutive for each felony prior pursuant to section 667.5, subdivision (b).

Cardenas now appeals, contending the court's denial of his motion to proceed in propria persona deprived him of a fair trial, and use of his previous in-prison felony conviction to enhance his sentence was improper.

I-III[*]

.... .... .... .... ....

*55 IV

Cardenas claims the court erroneously used his in-prison felony conviction to enhance his present sentence under section 667.5, subdivision (b).

The People alleged Cardenas had suffered four earlier felony convictions: (1) 1978 convictions for unlawful taking or driving of a vehicle (Veh. Code, § 10851) and receiving stolen property (§ 496, subd. 1); (2) a 1980 conviction for assault with a deadly weapon (§ 245, subd. (a)); (3) 1981 convictions for burglary (§ 459) and unlawful taking or driving of a vehicle; and (4) a 1982 conviction for possession of a sharp instrument (§ 4502) committed while serving his 1981 prison term. The information also alleged Cardenas served separate prison terms for the 1980, 1981 and 1982 convictions within the meaning of section 667.5, subdivision (b), for purposes of enhancement. While the jury was deliberating on the present case, the court granted the People's motion to strike the 1978 prior and Cardenas admitted the three remaining felony convictions.

At sentencing, Cardenas argued under People v. Ruiz (1982) 130 Cal. App.3d 758 [181 Cal. Rptr. 875], the prison terms for his 1981 burglary conviction and 1982 in-prison felony were served during a single continuous prison commitment; therefore, only one section 667.5 enhancement should be imposed. The People agreed. The court, however, read Ruiz differently, concluding a consecutive sentence imposed pursuant to section 1170.1, subdivision (c), for an in-prison felony constituted a separate prison term and sentenced Cardenas to three additional consecutive years for his prior convictions.

We first review the law and legislative purposes underlying sections 667.5 and 1170.1, subdivision (c), then resolve Cardenas's contentions.

A.

The determinate sentencing law (DSL) permits enhancement of felony sentences for prior felony convictions resulting in state prison commitment. (§ 667.5, subds. (a) & (b).) Section 667.5, subdivision (b), governs the imposition of one-year consecutive sentence enhancements for nonviolent felony offenses (cf. § 667.5, subd. (c)). Enhancements are imposed for each "prior separate prison term" the defendant served, except for those previous prison terms unavailable for enhancement by operation of the five-year "washout" period. (§ 667.5, subd. (b), italics added.)

Section 667.5, subdivision (g) (subdivision (g)), defines a prior separate prison term as "a continuous completed period of prison incarceration *56 imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after an escape from incarceration."

Beginning with People v. Espinoza (1979) 99 Cal. App.3d 59 [159 Cal. Rptr. 894], much attention has been given to interpreting subdivision (g). (See generally, People v. English (1981) 116 Cal. App.3d 361 [172 Cal. Rptr. 122]; People v. George (1980) 109 Cal. App.3d 814 [167 Cal. Rptr. 603]; People v. Butler (1980) 104 Cal. App.3d 868 [162 Cal. Rptr. 913], repudiating its earlier decision in People v. Cole (1979) 94 Cal. App.3d 854 [155 Cal. Rptr. 892]; People v. James (1980) 102 Cal. App.3d 728 [162 Cal. Rptr. 548]; People v. Mathews (1980) 102 Cal. App.3d 704 [162 Cal. Rptr. 615]; People v. Welge (1980) 101 Cal. App.3d 616 [161 Cal. Rptr. 686].)

The plain language of 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. (See People v. Burke (1980) 102 Cal. App.3d 932 [163 Cal. Rptr. 4]; People v. Williamson (1979) 90 Cal. App.3d 164 [153 Cal. Rptr. 48].) (1) Generally, the number of separate prison terms available for enhancement is determined by identifying the "continuous completed" terms of prison incarceration served. (People v. Welge, supra, 101 Cal. App.3d 616 at pp. 620-621; People v. Espinoza, supra, 99 Cal. App.3d 59 at pp. 68-76.) For example, multiple prior convictions served concurrently constitute one separate prison term for which only one sentence enhancement can be imposed. (People v. English, supra, 116 Cal. App.3d 361 at p. 372; People v. Burke, supra, 102 Cal. App.3d 932 at pp. 942-943.) Recommitment to prison for a new offense after the earlier term is "completed" results in two separate prison terms.

In People v. Espinoza, supra, 99 Cal. App.3d 59, the defendant was on parole for three prior offenses when he committed a burglary, causing his parole to be revoked. (At p. 63.) He contended the prior imprisonment could not be used to enhance his sentence in the current crime because the term of imprisonment for his earlier offenses was not "completed" as required by subdivision (g). He argued his parole revocation and recommitment to prison resulted in his continuing to serve the original sentence imposed for the three priors. (At p. 71.) The Court of Appeal disagreed, holding: "[S]ection 667.5 does not define `a continuous completed period of prison incarceration.' The best indication of what the Legislature meant by that expression is found, we believe, in section 3000 in which the Legislature speaks of the `expiration of a term of imprisonment' in contradistinction to release on parole and `completion of parole, or ... the end of the maximum *57 statutory period of parole.' The language of section 3000 makes plain the legislative assumption that a term of imprisonment expires prior to release on parole. A term of imprisonment which has expired, has been `completed.' We conclude, therefore, that a term of imprisonment is `completed' at the expiration of the stated term notwithstanding the undoubted legal truism that additional imprisonment on revocation of parole is referable to and in legal theory a part of an original term and notwithstanding that for purposes of determining how many prior separate prison terms a convicted

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People v. Cardenas, 192 Cal. App. 3d 51, 237 Cal. Rptr. 249 (Cal. Ct. App. 1987).

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