P. v. Allen CA1/3 ( 2013 )

Filed 6/13/13 P. v. Allen CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A135375, A135376
v.
CHARLES ALLEN, (City and County of San Francisco
Super. Ct. Nos,. 211293 & 216715)
Defendant and Appellant.
Defendant Charles Allen appeals from a judgment of conviction for one count of
second degree robbery and one count of assault with force likely to cause great bodily
injury. He argues that the trial court incorrectly imposed two one-year sentence
enhancements due to his prior service of two terms in a state prison. Because Allen’s
prior service in state prison was for one continuous period of time, it counts as only one
term in state prison under Penal Code section 667.5, subdivision (g),1 even though he was
serving consecutive sentences in two separate cases. Thus, we agree with Allen that the
trial court should have imposed only one prior prison term enhancement. So does the
Attorney General. We modify the sentence imposed by striking one of the enhancements
assessed pursuant to section 667.5, subdivision (b). As so modified, we affirm.
BACKGROUND
Allen accosted a blind man on Mission Street in San Francisco and forcibly took
his pen and iPod. A jury found him guilty of a single count of second degree robbery in
1
All further statutory references are to the Penal Code unless otherwise indicated.
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violation of section 211, enhanced under section 667.9, subdivision (a), because he
should have known his victim was blind, and a single count of assault with force likely to
cause great bodily injury in violation of section 245, subdivision (a)(1). The court
conducted a separate trial on Allen’s prior convictions and found true allegations that he
had twice been convicted in Alameda County of transportation of a controlled substance
in violation of Health and Safety Code section 11352, subdivision (a). One of the
convictions was entered on July 30, 1997, the other on October 29, 1999.
The court imposed a total prison sentence of eight years four months consisting of
an aggravated term of five years for the robbery, a stayed mid-term sentence on the
assault, a four-month enhancement due to the victim’s vulnerability, a one-year
enhancement for each of the prison terms served on the Alameda County convictions, and
one year for an unrelated assault conviction for which Allen was on parole when he
committed the crimes in this case. He timely appealed.
DISCUSSION
Allen contends that the court should not have imposed two sentence enhancements
under section 667.5, subdivision (b), because the sentences in the Alameda cases were
imposed at the same time and served consecutively and continuously. He is correct.
When a defendant with a prior criminal history is convicted of a felony and
sentenced to state prison, section 667.5, subdivision (b), requires that the court “impose a
one-year term for each prior separate prison term” served by the defendant. (§ 667.5,
subd. (b).) A “prior separate prison term” is defined in section 667.5 to mean, “a
continuous completed period of prison incarceration 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.” (§ 667.5, subd. (g).)
Allen was sentenced to prison on the same day, April 4, 2001, for each of the
Alameda County convictions. He was given a five-year sentence for the 1999
conviction, to be followed consecutively by a one-year, four-month conviction for the
1997 conviction. He entered state prison and began serving the consecutive sentences
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on April 30, 2001. Although Allen violated his parole and was returned to custody
several times following his release from prison in January 2004, he was never returned to
prison on a new conviction prior to his sentencing here in the trial court in 2012.
“By the terms of section 667.5, subdivision (g), one continuous completed period
of incarceration amounts to one separate prison term, whether ‘imposed for the particular
offense alone or in combination with concurrent or consecutive sentences for other
crimes.’ ” (People v. Torres (2011) 198 Cal.App.4th 1131, 1151.) Accordingly, before
he was returned to prison when the trial court sentenced him in 2012, Allen had only
served one prior separate prison term as defined in section 667.5, subdivision (g), not
two. Thus, he should have only received a single one-year enhancement due to his
service of a prior term in state prison. We will strike one of the sentence enhancements
ordered pursuant to section 667.5, subdivision (b).
In our review of the record, we also notice that the abstract of judgment does not
show Allen’s conviction of assault with force likely to cause great bodily injury for which
he was given a one-year sentence that was stayed pursuant to section 654. We will
exercise our independent authority to also order the correction of this clerical error.
(People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The sentence in this case shall be corrected to strike one year of the sentence
enhancements imposed pursuant to section 667.5, subdivision (b), thereby resulting in
Allen’s commitment to state prison for total of 6 years, four months. The abstract of
judgment shall also be corrected to include Allen’s conviction of assault with force likely
to cause great bodily injury in violation of section 245, subdivision (a)(1), for
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which he was assessed one year, which is one-third of the mid-term sentence, to be
stayed pursuant to section 654. As so modified, the judgment is affirmed.
_________________________
Siggins, J.
We concur:
_________________________
McGuiness, P.J.
_________________________
Jenkins, J.
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