People v. James

Opinion

KING, J.

In this case we hold that on an appeal by the defendant

in a criminal case the People cannot obtain review of a ruling staying a sentence enhancement, except to secure affirmance of the judgment. Vernis Leon James appeals from a judgment of imprisonment for robbery (Pen.

[166]

Code, § 211). We modify the judgment by striking a one-year enhancement under Penal Code section 667.5, subdivision (b), but otherwise affirm the judgment.

James and an accomplice robbed a savings and loan in 1983. James pleaded nolo contendere to one count of robbery, and on the prosecutor’s motion the court dismissed two remaining robbery counts.

The information alleged two prior robbery convictions, the first occurring in Santa Clara County in April 1979 and the second occurring in San Mateo County in May 1979. Each prior was alleged under both Penal Code section 667 (five-year enhancement for prior felony conviction) and Penal Code section 667.5, subdivision (b) (one-year enhancement for prior prison term). James waived a jury trial on the prior conviction allegations.

The prosecutor presented evidence, consisting of two separate abstracts of judgment, showing two sets of convictions in two counties. The first abstract of judgment indicated that on April 5, 1979, in Santa Clara County, James pleaded guilty to two robberies, one attempted robbery, and three Vehicle Code violations, and that on June 29, 1979, the court sentenced him to imprisonment for four years and eight months. The second abstract of judgment indicated that on May 10, 1979, in San Mateo County, James pleaded guilty to three more robberies, and that on July 6, 1979, the court imposed prison terms consecutive to the terms for the Santa Clara County offenses, resulting in a total term of six years imprisonment for both sets of offenses. The court in the present case found both prior conviction allegations to be true.

The court sentenced James to the upper term of five years imprisonment for robbery. The court also imposed the five-year enhancement (Pen. Code, § 667) but stayed the one-year enhancement (Pen. Code, § 667.5, subd. (b)) for the April 1979 prior, and imposed the one-year enhancement but stayed the five-year enhancement for the May 1979 prior. The total term of imprisonment was 11 years.