People v. Quair CA5 ( 2016 )

Filed 2/29/16 P. v. Quair CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F068313
Plaintiff and Respondent,
(Super. Ct. No. 13CM1205)
v.
SAMMY RICHARD QUAIR, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Louis F.
Bissig, Judge.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Ryan B.
McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Gomes, Acting P.J., Poochigian, J. and Detjen, J.
Sammy Richard Quair (defendant) was charged by first amended information with
possession of a firearm after having been convicted of a felony (Pen. Code,1 § 29800,
subd. (a)(1); count 1), possession of ammunition while prohibited from possessing a
firearm (§ 30305, subd. (a)(1); count 2), misdemeanor exhibition of a firearm (§ 417,
subd. (a)(2); count 3), and misdemeanor obstruction of a peace officer (§ 148,
subd. (a)(1); counts 4 & 5). As to counts 1 and 2, it was alleged defendant had served
three prior prison terms. (§ 667.5, subd. (b).) Defendant subsequently pled no contest to
counts 1 through 3 and guilty as to counts 4 and 5, and admitted the prior prison term
allegations. On September 6, 2013, he was sentenced to a total of five years eight months
in prison. The sentence on count 1 included a one-year consecutive term for each of the
prior prison term enhancements. The enhancements were again imposed, but stayed, as
to count 2.
On November 4, 2014, voters enacted Proposition 47, “the Safe Neighborhoods
and Schools Act” (Proposition 47 or the Act), which went into effect the next day.
(People v. Rivera (2015) 233 Cal. App. 4th 1085, 1089.) The Act reduced certain felony
or wobbler drug- and theft-related offenses to misdemeanors, unless committed by an
ineligible defendant. (People v. Lynall (2015) 233 Cal. App. 4th 1102, 1108; see
§ 1170.18, subd. (i).) Insofar as is pertinent here, it also provided a mechanism by which
a person who had completed his or her sentence for a conviction of a felony that was
made a misdemeanor by the Act, could apply to the trial court that entered the judgment
of conviction and have the felony offense designated as a misdemeanor. (§ 1170.18,
subds. (f), (g).)
While defendant’s appeal was pending, the convictions underlying two of the prior
prison term enhancements imposed in the current case were designated as misdemeanors
under the Act. The issue before us is whether two of the additional one-year terms
1 Further statutory references are to the Penal Code unless otherwise stated.
2.
imposed by the trial court pursuant to section 667.5, subdivision (b), for those prior
convictions must now be stricken because, subsequent to defendant’s September 6, 2013,
sentencing, those prior convictions were reduced to misdemeanors pursuant to
section 1170.18, subdivision (f).
On appeal, we hold that a previously imposed sentence enhanced by a
section 667.5, subdivision (b) prior prison term is not altered by the granting of a
Proposition 47 application reducing the felony that gave rise to that prior prison term to a
misdemeanor. The Act does not so operate retroactively. Nevertheless, while we
conclude all three section 667.5, subdivision (b) enhancements properly were imposed,
we agree with defendant that they could be imposed only once. We modify the judgment
accordingly and affirm the judgment as so modified.
DISCUSSION2
Section 1170.18, enacted as part of Proposition 47, provides in pertinent part:
“(f) A person who has completed his or her sentence for a conviction
… of a felony … who would have been guilty of a misdemeanor under this
act had this act been in effect at the time of the offense, may file an
application before the trial court that entered the judgment of conviction in
his or her case to have the felony conviction or convictions designated as
misdemeanors.
“(g) If the application satisfies the criteria in subdivision (f), the
court shall designate the felony offense or offenses as a misdemeanor.”
With respect to each felony count, the first amended information alleged, and the
trial court found, upon defendant’s admission, that defendant had incurred the following
enhancements under section 667.5, subdivision (b): (1) A conviction for violating
section 666, suffered on September 13, 1995, in Kings County Superior Court case
No. 95CM1869, and (2) A conviction for violating Health and Safety Code
2 As the circumstances of the present offenses are irrelevant to the issues on appeal,
we dispense with a statement of facts.
3.
section 11377, subdivision (a), suffered on September 26, 2001, in Butte County Superior
Court case No. CM015569.3 At the time defendant suffered those convictions, both
offenses were felonies. (Health & Saf. Code, former § 11377, subd. (a); former § 666;
see § 17, subd. (b).) Post-Proposition 47, Health and Safety Code section 11377,
subdivision (a) is a misdemeanor, punishable “by imprisonment in a county jail for a
period of not more than one year,” unless the offender has certain specified prior
convictions.4 According to the probation officer’s report, defendant has no such prior
convictions, and the Attorney General does not claim otherwise. Petty theft, in violation
of section 490, is a misdemeanor, as it is “punishable by fine … or by imprisonment in
the county jail not exceeding six months, or both.” A violation of section 666 can be a
misdemeanor, as it is “punishable by imprisonment in the county jail not exceeding one
year, or in the state prison.” (§ 666, subd. (a).) Thus, had the Act been in effect at the
time defendant committed the violation of Health and Safety Code section 11377,
subdivision (a), he could only have been convicted of a misdemeanor. The violation of
section 666 could have been deemed a misdemeanor. (See §§ 17, subd. (b), 490.)5
3 The third prior prison term enhancement alleged and admitted — a conviction for
violating Vehicle Code section 10851, subdivision (a), suffered on March 11, 1991, in
Kings County Superior Court case No. 10087 — is not at issue on this appeal.
4 The prior convictions enumerated in the statute are “for an offense specified in
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the
Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section
290 of the Penal Code.” (Health & Saf. Code, § 11377, subd. (a).)
5 Section 666 was amended by Proposition 47 to provide: “(a) Notwithstanding
Section 490, any person described in subdivision (b) who, having been convicted of petty
theft, grand theft, a conviction pursuant to subdivision (d) or (e) of Section 368, auto theft
under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony
violation of Section 496, and having served a term of imprisonment therefor in any penal
institution or having been imprisoned therein as a condition of probation for that offense,
and who is subsequently convicted of petty theft, is punishable by imprisonment in the
county jail not exceeding one year, or in the state prison. [¶] (b) Subdivision (a) shall
apply to any person who is required to register pursuant to the Sex Offender Registration
Act, or who has a prior violent or serious felony conviction, as specified in clause (iv) of
4.
Subdivision (k) of section 1170.18, provides in pertinent part:
“Any felony conviction that is … designated as a misdemeanor under
subdivision (g) shall be considered a misdemeanor for all purposes, except
that such resentencing shall not permit that person to own, possess, or have
in his or her custody or control any firearm or prevent his or her conviction
under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4
of Part 6.”6
Defendant argues his convictions in Kings County Superior Court case
No. 95CM1869 and Butte County Superior Court case No. CM015569 are now
“misdemeanor[s] for all purposes” except certain firearm restrictions. (§ 1170.18,
subd. (k).) He says these convictions “may not be used as prison prior enhancements
because such enhancements are only for felony convictions. (Pen. Code, § 667.5,
subd. (b).)”
In People v. Park (2013) 56 Cal. 4th 782 (Park), the defendant’s sentence for his
current crimes was enhanced by five years under section 667, subdivision (a), based on
his prior conviction of a serious felony. Prior to the defendant’s commission of his
current crimes, however, the trial court reduced the prior offense to a misdemeanor under
section 17, subdivision (b)(3), and then dismissed it pursuant to section 1203.4,
subdivision (a)(1). (Park, supra, 56 Cal.4th at p. 787.)
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667, or has a conviction
pursuant to subdivision (d) or (e) of Section 368. [¶] (c) This section shall not be
construed to preclude prosecution or punishment pursuant to subdivisions (b) to (i),
inclusive, of Section 667, or Section 1170.12.”
Insofar as can be discerned from the record on appeal, defendant is not a person
described in subdivision (b) of section 666. That being the case, it is unclear whether,
had the Act been in effect at the time of his prior Kings County conviction, he could even
have been charged with violating section 666. We need not make this determination, as it
does not affect our reasoning or conclusion in the present case. Accordingly, we will
assume defendant could only have been convicted of a misdemeanor had the Act been in
effect at the time he incurred his prior section 666 conviction.
6 The specified statutes contain restrictions and prohibitions on firearm possession
for certain persons.
5.
Section 17, subdivision (b)(3) states in part, “When a crime is punishable, in the
discretion of the court, either by imprisonment in the state prison or imprisonment in a
county jail …, it is a misdemeanor for all purposes … [¶] … [¶] … [w]hen the court
grants probation to a defendant without imposition of sentence and at the time of granting
probation … declares the offense to be a misdemeanor.”
In Park, the Court of Appeal held the conviction remained a prior serious felony
for purposes of sentence enhancement under section 667, subdivision (a), but the
California Supreme Court disagreed: “[W]hen the court in the prior proceeding properly
exercised its discretion by reducing the … conviction to a misdemeanor, that offense no
longer qualified as a prior serious felony within the meaning of section 667,
subdivision (a), and could not be used, under that provision, to enhance defendant’s
sentence.” (Park, supra, 56 Cal.4th at p. 787, first italics added.)
In Park, the reduction and dismissal occurred prior to the defendant’s commission
of his current crimes. (Park, supra, 56 Cal.4th at p. 787.) Here, the reduction to a
misdemeanor pursuant to section 1170.18, subdivision (f), occurred after defendant’s
commission, conviction, and sentence for his current crimes. In Park, in response to an
argument that People v. Feyrer (2010) 48 Cal. 4th 426 and People v. Banks (1959) 53
Cal. 2d 370 were contrary to their conclusion, the court stated: “There is no dispute that,
under the rule in those cases, defendant would be subject to the section 667[, subdivision
](a) enhancement had he committed and been convicted of the present crimes before the
court reduced the earlier offense to a misdemeanor.” (Park, supra, 56 Cal.4th at p. 802.)
The issue before us is not whether defendant’s convictions and prison
commitments in Kings County Superior Court case No. 95CM1869 and Butte County
Superior Court case No. CM015569 can now be used to enhance a future sentence
pursuant to section 667.5, subdivision (b), should defendant commit a new felony upon
release from prison on his current sentence. The issue is whether defendant’s current
sentence, enhanced pursuant to section 667.5, subdivision (b), must be now be altered
6.
because, subsequent to defendant’s sentencing, the convictions that gave rise to those
enhancements were reduced to misdemeanors pursuant to section 1170.18,
subdivision (f). In other words, does the Act operate retroactively? To make that
determination, we look to the language of section 1170.18 and to voter intent.
Section 3 specifies that no part of the Penal Code “is retroactive, unless expressly
so declared.” This language “erects a strong presumption of prospective operation,
codifying the principle that, ‘in the absence of an express retroactivity provision, a statute
will not be applied retroactively unless it is very clear from extrinsic sources that the
Legislature [or electorate] … must have intended a retroactive application.’ [Citations.]
Accordingly, ‘ “a statute that is ambiguous with respect to retroactive application is
construed … to be unambiguously prospective.” ’ [Citation.]” (People v. Brown (2012)
54 Cal. 4th 314, 324.)
An “important, contextually specific qualification” to the prospective-only
presumption regarding statutory amendments was set forth in In re Estrada (1965) 63
Cal. 2d 740 (Estrada). (People v. Brown, supra, 54 Cal.4th at p. 323.) That qualification
is: “When the Legislature [or electorate] has amended a statute to reduce the punishment
for a particular criminal offense, we will assume, absent evidence to the contrary, that the
Legislature [or electorate] intended the amended statute to apply to all defendants whose
judgments are not yet final on the statute’s operative date. [Citation.]” (Ibid., fn.
omitted.)
Although Estrada’s language is broad, the California Supreme Court has
emphasized the rule’s narrowness (People v. Hajek and Vo (2014) 58 Cal. 4th 1144,
1196): “Estrada is today properly understood, not as weakening or modifying the default
rule of prospective operation codified in section 3, but rather as informing the rule’s
application in a specific context by articulating the reasonable presumption that a
legislative [or voter] act mitigating the punishment for a particular criminal offense is
7.
intended to apply to all nonfinal judgments. [Citation.]” (People v. Brown, supra, 54
Cal.4th at p. 324.)
The question of retroactivity is ultimately one of legislative — or, in this case,
voter — intent. (People v. Shabazz (2015) 237 Cal. App. 4th 303, 312-313; see People v.
Nasalga (1996) 12 Cal. 4th 784, 793.) “To resolve this very specific retroactivity
question, we apply the well[-]settled rules governing interpretation of voter intent[.]”
(People v. Shabazz, supra, 237 Cal.App.4th at p. 313.) “ ‘In interpreting a voter initiative
…, we apply the same principles that govern statutory construction. [Citation.] Thus, …
“we turn first to the language of the statute, giving the words their ordinary meaning.”
[Citation.] … The statutory language must also be construed in the context of the statute
as a whole and the overall statutory scheme [in light of the electorate’s intent].
[Citation.] … When the language is ambiguous, “we refer to other indicia of the voters’
intent, particularly the analyses and arguments contained in the official ballot pamphlet.”
[Citation.]’ [Citation.] [¶] In other words, our ‘task is simply to interpret and apply the
initiative’s language so as to effectuate the electorate’s intent.’ [Citation.]” (Robert L. v.
Superior Court (2003) 30 Cal. 4th 894, 900-901.)
The Act clearly was intended to lessen punishment for “nonserious, nonviolent
crimes like petty theft and drug possession” (Voter Information Guide, Gen. Elec.
(Nov. 4, 2014) text of Prop. 47, § 3, subd. (3), p. 70)7, in order “to ensure that prison
spending is focused on violent and serious offenses .…” (Voter Information Guide, Gen.
Elec., supra, text of Prop. 47, § 2, p. 70). This purpose was conveyed to voters, both in
the text of the then-proposed law and in the arguments supporting Proposition 47. (Voter
Information Guide, Gen. Elec., supra, argument in favor of Prop. 47, p. 38; id., rebuttal to
argument against Prop. 47, p. 39; id., text of Prop. 47, §§ 2, 3, p. 70.)
7 The voter guide can be accessed at [as of Feb. 29, 2016].
8.
Nowhere, however, do the Act or the ballot materials reference section 667.5,
subdivision (b) or mention recidivist enhancements, and the Act made no amendments to
any such provisions.8 Two of the Act’s expressly stated purposes, however, are to
“[a]uthorize consideration of resentencing for anyone who is currently serving a sentence
for any of the offenses” that would be made misdemeanors by the Act, and to “[r]equire a
thorough review of criminal history and risk assessment of any individuals before
resentencing to ensure that they do not pose a risk to public safety.” (Voter Information
Guide, Gen. Elec., supra, text of Prop. 47, § 3, subds. (4), (5), p. 70, italics added.)
Voters were assured the Act would keep dangerous criminals locked up (Voter
Information Guide, Gen. Elec., supra, argument in favor of Prop. 47, p. 38), and that it
would not require automatic release of anyone: “There is no automatic release.
[Proposition 47] includes strict protections to protect public safety and make sure rapists,
murderers, molesters and the most dangerous criminals cannot benefit.” (Id., rebuttal to
argument against Prop. 47, p. 39.)
“Imposition of a sentence enhancement under … section 667.5 requires proof that
the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of
that conviction; (3) completed that term of imprisonment; and (4) did not remain free for
five years of both prison custody and the commission of a new offense resulting in a
felony conviction. [Citation.]” (People v. Tenner (1993) 6 Cal. 4th 559, 563.)9
8 Section 666 — although dealing with recidivism — is not an enhancement.
(People v. Tardy (2003) 112 Cal. App. 4th 783, 787; accord, e.g., People v. White Eagle
(1996) 48 Cal. App. 4th 1511, 1518.)
9 Section 667.5, subdivision (b) currently provides: “Except where subdivision (a)
applies, where the new offense is any felony for which a prison sentence or a sentence of
imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not
suspended, in addition and consecutive to any other sentence therefor, the court shall
impose a one-year term for each prior separate prison term or county jail term imposed
under subdivision (h) of Section 1170 or when sentence is not suspended for any felony;
provided that no additional term shall be imposed under this subdivision for any prison
term or county jail term imposed under subdivision (h) of Section 1170 or when sentence
9.
“Sentence enhancements for prior prison terms are based on the defendant’s status as a
recidivist, and not on the underlying criminal conduct, or the act or omission, giving rise
to the current conviction. [Citations.]” (People v. Gokey (1998) 62 Cal. App. 4th 932,
936, italics added; see People v. Coronado (1995) 12 Cal. 4th 145, 158-159; People v.
Dutton (1937) 9 Cal. 2d 505, 507.) Thus, the purpose of an enhancement under section
667.5, subdivision (b) “is ‘to punish individuals’ who have shown that they are
‘ “hardened criminal[s] who [are] undeterred by the fear of prison.” ’ [Citation.]” (In re
Preston (2009) 176 Cal. App. 4th 1109, 1115.) The enhancement’s focus on the service of
a prison term “indicates the special significance which the Legislature has attached to
incarceration in our most restrictive penal institutions.” (People v. Levell (1988) 201
Cal. App. 3d 749, 754.)
A person who refuses to reform even after serving time in prison is clearly
significantly more dangerous than someone who merely possesses drugs for personal use
or shoplifts. We cannot conclude, from the language of the Act or the ballot materials,
that voters deemed such persons to be nonserious, nondangerous offenders, and so
intended the Act to reach back to ancillary consequences such as enhancements resulting
from recidivism considered serious enough to warrant additional punishment.
Accordingly, section 3’s default rule or prospective operation, and not Estrada’s narrow
rule of retroactivity, applies.
People v. Flores (1979) 92 Cal. App. 3d 461 (Flores) does not lead to a different
result. In that case, the defendant was convicted in 1966 for possessing marijuana. In
is not suspended prior to a period of five years in which the defendant remained free of
both the commission of an offense which results in a felony conviction, and prison
custody or the imposition of a term of jail custody imposed under subdivision (h) of
Section 1170 or any felony sentence that is not suspended. A term imposed under the
provisions of paragraph (5) of subdivision (h) of Section 1170, wherein a portion of the
term is suspended by the court to allow mandatory supervision, shall qualify as a prior
county jail term for the purposes of the one-year enhancement.”
10.
1977, he sold heroin. His sentence for the 1977 offense was enhanced by one year,
pursuant to section 667.5, because of his 1966 conviction. (Flores, supra, at pp. 464,
470.) On appeal, the defendant claimed the enhancement was improper under Estrada,
because Health and Safety Code section 11357 was amended, in 1975, to make
possession of marijuana a misdemeanor. (Flores, supra, at p. 470.) In agreeing with the
defendant, the appellate court stated:
“The amendatory act imposing the lighter sentence for possession of
marijuana can obviously be applied constitutionally to prevent the
enhancement of a new sentence by reason of a prior conviction of
possession. Moreover, in the case at bench we are not confronted by
legislative silence with respect to its purpose regarding penalties for
possession of marijuana.
“Effective January 1, 1976, Health and Safety Code section 11361.5,
subdivision (b) was enacted to authorize the superior court, on petition, to
order the destruction of all records of arrests and convictions for possession
of marijuana, held by any court or state or local agency and occurring prior
to January 1, 1976. [Citation.] In 1976, [Health and Safety Code]
section 11361.7 was added to provide in pertinent part that: ‘(a) Any
record subject to destruction … pursuant to Section 11361.5, or more than
two years of age, or a record of a conviction for an offense specified in
subdivision (a) or (b) of Section 11361.5 which became final more than two
years previously, shall not be considered to be accurate, relevant, timely,
or complete for any purpose by any agency or person.… (b) No public
agency shall alter, amend, assess, condition, deny, limit, postpone, qualify,
revoke, surcharge, or suspend any certificate, franchise, incident, interest,
license, opportunity, permit, privilege, right, or title of any person because
of an arrest or conviction for an offense specified in subdivision (a) or (b)
of Section 11361.5 … on or after the date the records … are required to be
destroyed … or two years from the date of such conviction … with respect
to … convictions occurring prior to January 1, 1976.…’ [Citation.]
([Original italics].)” (Flores, supra, 92 Cal.App.3d at pp. 471-472.)
The appellate court found the statutory language clear and unambiguous. (Flores,
supra, 92 Cal.App.3d at p. 472.) It concluded: “In view of the express language of the
statute and the obvious legislative purpose, it would be unreasonable to hold that the
Legislature intended that one who had already served a felony sentence for possession of
11.
marijuana should be subjected to the additional criminal sanction of sentence
enhancement.” (Id. at p. 473.) The court found the new laws constituted “a legislative
declaration that the old laws were too severe for the quantum of guilt involved” (ibid.),
and distinguished a situation in which the California Supreme Court refused to give
retroactive effect to an amendment to section 17 (Flores, supra, at p. 473) in part because
“[t]here was no suggestion there, as there is here, that the Legislature intended retroactive
application” (id. at p. 474).
In Flores, as in Park, and in contrast to the present case, the current offense was
committed after the earlier offense was reduced to a misdemeanor. Moreover, the Act
contains no clear expression with respect to retroactivity as was found in Flores. The
closest it gets is the statement, in subdivision (k) of section 1170.18, that “[a]ny felony
conviction that is … designated as a misdemeanor under subdivision (g) shall be
considered a misdemeanor for all purposes, except [specified firearm laws].” (Italics
added.)
This language, the italicized portion of which is identical to that contained in
section 17, subdivision (b), is not necessarily conclusive, however. (Park, supra, 56
Cal.4th at pp. 793, 794.) It has not been read to mean a defendant could avoid an
imposed sentence enhancement in his current sentence by having the prior offense
subsequently reduced to a misdemeanor. (Id. at p. 802.) Nothing in the language of the
Act or the ballot materials indicates an intention to override the operation of
section 667.5, subdivision (b), at least retroactively.
Defendant served a prison term for each of his prior convictions at a time those
offenses were felonies. It is the service of those prison terms, coupled with defendant’s
continuing recidivism, that section 667.5, subdivision (b) punishes. Absent a clear
statement of the electorate’s intent to the contrary — which we do not find — we
conclude that, because defendant served a prison term for his conviction in Kings County
Superior Court case No. 95CM1869 and another prison term for his conviction in Butte
12.
County Superior Court case No. CM015569 at a time when the offenses were felonies,
and had his current sentence enhanced accordingly before the convictions were reduced,
he is not entitled to relief.10
This conclusion does not render surplusage the “for all purposes” language of
section 1170.18, subdivision (k). Our determination is one of the electorate’s intent.
“Rules such as those directing courts to avoid interpreting legislative enactments as
surplusage are mere guides and will not be used to defeat legislative intent. [Citations.]”
(People v. Cruz (1996) 13 Cal. 4th 764, 782.) Moreover, “ambiguities are not interpreted
in the defendant’s favor if such an interpretation would provide an absurd result, or a
result inconsistent with apparent legislative intent. [Citation.]” (Id. at p. 783.)
In view of the foregoing, defendant’s sentence properly was enhanced by three
1-year terms pursuant to section 667.5, subdivision (b). As the Attorney General
concedes, however, the trial court erred by attaching one set of the enhancements to
count 1, and another set — based on the same prior prison terms — to count 2, even
though it stayed the second set of enhancements.
A determinate term for a given offense may be lengthened by sentence
enhancements. (People v. Ahmed (2011) 53 Cal. 4th 156, 161.) “ ‘Section 1170.1 refers
to two kinds of enhancements: (1) those which go to the nature of the offender; and
(2) those which go to the nature of the offense.’ ” (People v. Williams (2004) 34 Cal. 4th
397, 402, quoting People v. Tassell (1984) 36 Cal. 3d 77, 90 (Tassell).)11 The first
category focuses on a defendant’s status as a repeat offender, while the second category
focuses on the circumstances of the crime charged. (People v. Williams, supra, 34
10 We are not presented with a situation in which there is some constitutional
infirmity in the prior conviction. (See, e.g., People v. Sumstine (1984) 36 Cal. 3d 909,
914.)
11 Tassell was overruled on another ground in People v. Ewoldt (1994) 7 Cal. 4th 380,
386-387, 401.
13.
Cal.4th at p. 402.) Enhancements for a prior prison term pursuant to section 667.5,
subdivision (b) are status enhancements; they “ ‘have nothing to do with particular counts
but, since they are related to the offender, are added only once as a step in arriving at the
aggregate sentence.’ ” (People v. Williams, supra, at p. 402; accord, People v. Edwards
(2011) 195 Cal. App. 4th 1051, 1060 [prior prison term enhancements can be imposed
only once, on aggregate sentence].) “As Tassell explained, section 1170.1 draws an
important distinction between offense-based enhancements, which apply to every
relevant count, and status-based enhancements, which apply only once.” (People v.
Sasser (2015) 61 Cal. 4th 1, 15.)
In defendant’s case, the prior prison term enhancements should have been applied
only once in arriving at the aggregate term. Accordingly, we will strike the erroneously
imposed second set of prior prison term enhancements attached to count 2.12
DISPOSITION
The second set of Penal Code section 667.5, subdivision (b) enhancements
imposed are stricken. As so modified, the judgment is affirmed. The trial court is
directed to cause the abstract of judgment and the sentencing minute order to be amended
accordingly, and to transmit certified copies of same to the appropriate authorities.
12 We note the abstract of judgment bore an incorrect case number. This should be
corrected when the abstract is modified.
14.