California Court of Appeal Mar 18, 2014 No. E057282Published
Before: Miller
Synopsis
[CERTIFIED FOR PARTIAL PUBLICATION*]
Filed 3/18/14
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057282
v. (Super.Ct.No. RIF1100824)
CHARLES WEEKS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger,
Judge. Affirmed in part; reversed in part.
Correen Ferrentino, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn
Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of Discussion, part A.
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A jury found defendant and appellant, Charles Weeks, guilty of (1) possessing
marijuana in prison (Pen. Code, § 4573.6),1 and (2) possessing a weapon in prison
(§ 4502, subd. (a)). The trial court found true the allegations defendant suffered (1) a
Former section 667.5, subdivision (b),2 provides in relevant part, “the court shall
impose a one-year term for each prior separate prison term served for any felony.”
Section 667.5, subdivision (g) defines a “prior separate prison term” as “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, and including any reimprisonment after an escape from
incarceration.”
It is unclear from the plain language of subdivisions (b) and (g) what the trigger
date of the statute should be because the subdivisions do not provide any information
about timing other than a “completed period of prison incarceration.” It is unclear from
this language exactly when the term must be “completed.” It could be by the time the
new offense is committed, it could be by the time a conviction is rendered for the new
offense, or it could be by the time the prior is found true and sentence is pronounced in
the new case.
2 We analyze the version of section 667.5 that was effective from November 2006 through September 2011.
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The Legislature’s timing intention becomes clearer when reading section 667.5,
subdivision (k), which provides, “Notwithstanding subdivisions (d) and (g) or any other
provision of law, where one of the new offenses is committed while the defendant is
temporarily removed from prison pursuant to Section 2690 or while the defendant is
transferred to a community facility pursuant to Section 3416, 6253, or 6263, or while
the defendant is on furlough pursuant to Section 6254, the defendant shall be subject to
the full enhancements provided for in this section.”
The plain language of subdivision (k) reflects that, despite subdivision (g)
requiring a defendant complete his sentence, a defendant who is serving time in an
auxiliary prison program can be subject to a prison prior if he commits the new crime
while in the auxiliary program. The language of subdivision (k) reflects a belief that
subdivision (g) (requiring a completed sentence) would not typically apply if a
defendant is involved in a prison auxiliary program on the date the new offense is
committed; hence the need for the explicit inclusion of these defendants.
The critical portion of subdivision (k) is the language “where one of the new
offenses is committed while . . . .” This plain language reflects the Legislature is
concerned with the date the new crime is committed and defendant’s
situation/incarceration on that date. Accordingly, it can be logically inferred from
subdivision (k) that the critical date for subdivisions (b) and (g) is the date “where one
of the new offenses is committed.” (§ 667.5, subd. (k).)
Accordingly, the trigger date for section 667.5, subdivision (b), is the date the
new offense is committed. Defendant had not completed his prison term for the 2006
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offense at the time the new offenses took place. Thus, the trial court erred by finding
the 2006 offense constituted a prison prior. (§ 667.5, subd. (b).) We reverse the trial
court’s finding on the fifth prison prior. (§ 667.5, subd. (b).)3
The People raise a policy argument.4 The People assert section 667.5 is intended
to punish recidivist offenders, and it is illogical to treat incarcerated recidivists more
leniently than out-of-custody recidivists. The People’s reasoning is logical, but we do
not write the law. We interpret the laws written by the Legislature. In this case,
subdivision (k) specifically references subdivision (g) and is plainly concerned with the
date the “new offense[] is committed.” We cannot ignore this plain language in section
667.5. Therefore, the People’s policy argument would be better addressed to the
Legislature since we are bound by this plain language. (See People v. Rathert (2000) 24
Cal.4th 200, 207-208 [fairness argument that ignores the actual language of the statute
is better addressed to the Legislature].)
3 The current version of section 667.5, in effect at the time of defendant’s sentencing hearing, includes the same language in subdivision (k): “Notwithstanding subdivisions (d) and (g) or any other provision of law, where one of the new offenses is committed while the defendant is temporarily removed . . . .” (Italics added.) Thus, the reasoning applied in this opinion is not dependent on the former version of the statute. The reasoning would also apply if the current version of the statute were analyzed.
4 Prior to oral argument in this case, this court issued a tentative opinion reflecting the foregoing plain language analysis. At oral argument, the People conceded this court’s plain language analysis is correct. We address the People’s policy assertion, which was raised in the People’s brief, only for the sake of thoroughness.
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DISPOSITION
The trial court’s finding on defendant’s fifth prior offense (conviction date May
30, 2007, in the County of Los Angeles) is reversed as it relates to section 667.5,
subdivision (b). The trial court is directed to issue an amended abstract of judgment
(1) without a fifth prison prior (§ 667.5, subd. (b)), and (2) reflecting defendant’s total
prison term is 12 years. The trial court is directed to forward the amended abstract of
judgment to the appropriate agencies. In all other respects, the judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
MILLER J.
We concur:
RICHLI Acting P. J.
KING J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that substantial evidence supported the defendant's convictions for possessing marijuana and a weapon in prison, but reversed the sentencing enhancement for a prison prior because the defendant had not completed the prior prison term at the time he committed the current offenses.
Issues
Whether substantial evidence supports the finding that the defendant knowingly possessed marijuana and a weapon in prison.
Whether a prior prison term enhancement under Penal Code section 667.5, subdivision (b) requires the prior term to be completed before the commission of the new offense.
Disposition. Affirmed in part; reversed in part.
Quotations verified verbatim against the opinion
“Accordingly, the trigger date for section 667.5, subdivision (b), is the date the new offense is committed.”