People v. Holding

California Court of Appeal Dec 21, 1987 No. B024375Published

Before: Gilbert

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Holding. The court held that a one-year sentence enhancement for a prior prison term was proper because the enhancement was applied to a separate offense rather than the felony petit theft charge, and the prior terms served were distinct enough to satisfy both the elements of the theft statute and the enhancement statute.

Issues

Whether a prior prison term used as an element of felony petit theft can also be used to enhance a sentence for a separate drug possession conviction.
Whether the trial court violated the prohibition against double punishment by applying a sentence enhancement for a prior prison term.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“We affirm and hold that the one-year enhancement for service of a prior prison term was proper.”

“the trial judge did not enhance Holding’s sentence for felony petit theft with a one-year enhancement under section 667.5, subdivision (b) for his prior prison term for burglary. Only the sentence for possession of cocaine was enhanced.”

[983]

Opinion

GILBERT, J.

Defendant David James Holding appeals the sentence ordered by the trial court after his guilty plea to possession of cocaine (Health & Saf. Code, § 11350) and petit theft (Pen. Code,

§§ 484, subd. (a), 666). We affirm and hold that the one-year enhancement for service of a prior prison term was proper. (§ 667.5, subd. (b).)

Facts

In case No. CR21597, the information alleged that Holding unlawfully possessed cocaine on May 19, 1986. The transcript of the preliminary hearing reflects that Holding was arrested for an unrelated offense and a booking search revealed cocaine and drug paraphernalia in his clothing. The information also alleged that Holding served a prior prison term within section 667.5, subdivision (b) for both discharging a firearm at an occupied vehicle and burglary within the past five years. Holding had received concurrent prison sentences for these 1981 convictions.

In case No. CR21455, the information alleged that Holding unlawfully took merchandise from Lumber City, a building supplies store in Ventura. The probation report reveals that on September 29, 1986, Holding visited Lumber City and secreted merchandise in an outdoor garden area. After the store closed, Holding climbed a fence, entered the garden area and retrieved the hidden merchandise. The information also alleged that Holding suffered a prior burglary conviction and was imprisoned “in a penal institution . . . as a condition of probation for said offense.”

Although factually unrelated, cases No. CR21597 and CR21455 were consolidated for sentencing. Holding pleaded guilty to both offenses and admitted serving the prior “jail or prison” terms. The trial judge sentenced Holding to a midterm prison sentence of two years for the cocaine conviction and enhanced this with another year for service of a prior prison term within section 667.5, subdivision (b). He also sentenced Holding to a midterm prison sentence of two years on the petit theft conviction and ordered Holding to serve one-third of this term consecutive to the term on the drug conviction. Holding therefore received a total prison sentence of three years and eight months.

People v. Holding

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GILBERT, J.

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