California Court of Appeal Apr 18, 2016 No. D068238Unpublished
Filed 4/18/16 P. v. Price CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068238
Plaintiff and Respondent,
v. (Super. Ct. No. SCD255280)
MICHAEL LEE PRICE,
Defendant and Appellant.
APPEAL from judgment of the Superior Court of San Diego County, Peter C.
Deddeh, Judge. Affirmed as modified.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Arlene A. Sevidal and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and
Respondent.
After a bench trial, the trial court convicted Michael Lee Price (aka Michael Lee
Knighton), of four counts of a lewd act upon a child (Pen. Code, § 288, subd. (a), counts
1-4),1 and one count of contacting a minor with the intent to commit a sexual offense
(§ 288.3, subd. (a), count 5). The trial court sentenced Price to an indeterminate sentence
of 125 years to life, plus a determinate sentence of 29 years. Price contends that a one-
year term imposed for one of his prison priors under section 667.5, subdivision (b) must
be stricken because the court made impermissible dual use of the same burglary
conviction to support both a five-year serious felony prior enhancement and a one-year
prison prior enhancement. Price further contends, and the People concede, that the trial
court improperly imposed a five-year serious felony prior enhancement under section
667, subdivision (a) to the aggregate indeterminate term. We affirm the judgment, but
modify the sentence to strike the five-year serious felony prior term imposed by the trial
court to the aggregate indeterminate term.
FACTUAL AND PROCEDURAL BACKGROUND
Price created an advertisement on Craigslist seeking to have sex with young Asian
males. Price received a response to the ad and began communicating with Jeremy R.
through e-mail and Facebook messaging. Jeremy told Price he was 13 years old. Price
arranged for the two to meet at a store near his home. Price and Jeremy walked back to
Price's apartment, where they repeatedly engaged in oral and anal sex. After Jeremy's
mother discovered the communications between Jeremy and Price, she contacted
1 All further statutory references are to the Penal Code unless otherwise specified.
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Jeremy's school and the police. During the ensuing investigation, the police recorded a
call that Jeremy placed to Price, in which Price agreed to meet Jeremy again.
Price was arrested and charged with four counts of a lewd act upon a child and one
count of contacting a minor with the intent to commit a sexual offense. Each count
included allegations under section 1203.066, subdivision (a)(3) and (8).2 The
information also alleged Price had suffered four prison priors under sections 667.5,
subdivision (b), and 668; two serious felony priors under sections 667, subdivision (a)(1),
668, and 1192.7, subdivision (c); and two strike priors under sections 667, subdivisions
(b)-(i), 668, and 1170.12.
After the bench trial, the trial court found Price guilty of all five counts. Price
admitted four prison priors, two serious felony priors, and two strike priors. The fourth
prison prior was supported by multiple offenses based on five separate convictions: one
for forgery on September 2, 1987, in case number CR89545, two for two separate
burglaries on June 6, 1988, in case number CR94123, one for unauthorized use of
computers on June 6, 1988, in case number CR94413, and one for escape from a work
furlough facility on December 2, 1991, in case number CR127762. The trial court
sentenced Price to 125 years to life, plus a consecutive sentence of 29 years for the
2 Section 1203.066, subdivision (a)(3) provides, notwithstanding other statutory provisions, a person convicted of "a violation of Section 288 or 288.5 and who was a stranger to the child victim or befriended the child victim for the purpose of committing an act in violation of Section 288 or 288.5, unless the defendant honestly and reasonably believed the victim was 14 years of age or older," shall not be granted probation. Section 1203.066, subdivision (a)(8) provides, notwithstanding other statutory provisions, a person "who, in violating Section 288 or 288.5, has substantial sexual conduct with a victim who is under 14 years of age," shall not be granted probation.
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enhancements. The indeterminate sentence was composed of five consecutive terms of
25 years to life on counts 1 through 5. The trial court imposed four five-year
enhancements on counts 1 through 4 for Price's serious felony priors, for a total of 20
years, and imposed four one-year enhancements for four prior prison terms on count 5,
adding another four years to Price's sentence. The trial court also imposed an additional
five-year serious felony prior enhancement to the entire aggregate indeterminate term
under section 667, subdivision (a)(1).
DISCUSSION
Price contends that the trial court impermissibly made dual use of the same serious
felony burglary convictions to support both the fourth one-year prior prison term
enhancement under section 667.5, subdivision (a) and the serious felony enhancement
under section 667.5, subdivision (b).
A. Legal Standard
Price's claim requires us to construe section 667.5, subdivisions (b) and (a), and
thus raise issues of statutory interpretation. We apply a de novo standard of review.
(Doe v. Brown (2009) 177 Cal.App.4th 408, 417.) The provisions of the Penal Code "are
to be construed according to the fair import of their terms, with a view to effect its objects
and to promote justice." (§ 4.) In construing a statute that was part of an initiative, "our
primary purpose is to ascertain and effectuate the intent of the voters who passed the
initiative measure." (In re Littlefield (1993) 5 Cal.4th 122, 130.) To do that, we first
examine the language of the statute. (Ibid.) If the statutory language is clear and
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unambiguous, we generally must apply the statute according to its terms without resort to
other indicia of the voters' intent. (People v. Jones (1993) 5 Cal.4th 1142, 1146 (Jones).)
Section 667.5, subdision (b) authorizes the court to 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." Under section 667.5,
subdivision (g), a "prior separate prison term . . . shall 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."
Under section 667, subdivision (a)(1), "any person convicted of a serious felony
who previously has been convicted of a serious felony in this state . . . shall receive, in
addition to the sentence imposed by the court for the present offense, a five-year
enhancement for each such prior conviction on charges brought and tried separately. The
terms of the present offense and each enhancement shall run consecutively."
Furthermore, "[a]s used in this subdivision, 'serious felony' means a serious felony listed
in subdivision (c) of Section 1192.7." (§ 667, subd. (a)(4).)
The underlying purposes of sections 667.5, subdivision (b) and 667, subdivision
(a) are different. (People v. Ruiz (1996) 44 Cal.App.4th 1653, 1668 (Ruiz).) "The
purpose of section 667, subdivision (a) is to visit greater punishment on recidivists who
commit serious felonies, while section 667.5, subdivision (b) was intended to provide for
additional punishment of the felon whose prior prison term failed to deter him or her
from future criminal conduct." (Ruiz, at p. 1668, citing People v. Medina (1988) 206
Cal.App.3d 986, 991.) When a five-year serious prior felony and a one-year prior prison
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term enhancement are supported by the same prior offense, only the greatest
enhancement applies. (Jones, supra, 5 Cal.4th at p. 1150.) However, an enhancement
under section 667.5, subdivision (b) does not prevent the court from also imposing an
enhancement under section 667, subdivision (a), if the enhancements are based on
different underlying convictions. (Ruiz, at p. 1671; see also People v. Irvin (1991) 230
Cal.App.3d 180, 189-190 ["A defendant may be sentenced for a prior serious felony
conviction and then also sentenced for a prior prison term for a different prior offense
even though the convictions occurred at the same time and the sentences were served
together."].)
B. The court properly imposed sections 667, subdivisions (a) and (b) enhancements because they were supported by multiple convictions
Price relies on Jones, supra, 5 Cal.4th at p. 1150, where the trial court improperly
used the same felony conviction to support both a serious felony enhancement for a prior
serious felony under section 667.5, subdivision (b) and a prison prior under section 667.5,
subdivision (a). Use of a single serious felony conviction to support two enhancements
constituted an impermissible dual use because one serious felony conviction may
properly support only one recidivist enhancement. (3 Witkin & Epstein, Cal. Criminal
Law (4th ed. 2012) Punishment, § 413, p. 639.) In cases such as Jones, where one prior
is used to support multiple enhancements, only the greatest will apply. (Ibid.) However
multiple enhancements can be imposed under both section 667, subdivisions (a) and (b),
based on multiple convictions that are part of the same prison term. (See, e.g. Ruiz,
supra, 44 Cal.App.4th at pp. 1666-1660.)
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As we detailed ante, Price's fourth prison prior is supported by multiple offenses,
i.e., five different convictions in four separate cases including two separate burglaries in
one case, and one additional case for each of the three other felony convictions for
forgery, unauthorized use of computers, and escape from a work furlough facility. In
contrast to the situation in Jones, in addition to the two burglary convictions that
supported the serious felony prior allegation under section 667.5, subdivision (a), there
were three other offenses available for sentence enhancement under section 667.5,
subdivision (b), to support the fourth prior prison term enhancement.
The trial court did not specify which of the five convictions it used as a basis for
the prison prior enhancement. As we have stated, enhancements can be imposed under
both section 667, subdivisions (a) and (b), based on multiple prior convictions. (Ruiz,
supra, 44 Cal.App.4th at pp. 1666-1669; see also People v. Brandon (1995) 32
Cal.App.4th 1033, 1055 [finding Jones inapposite and allowing the court to split multiple
(two) serious felonies in the same case so that one could be used to support a serious
prior felony enhancement and the other to support a one-year prison prior enhancement].)
In the absence of a showing to the contrary, the trial court is presumed to have acted to
achieve legitimate sentencing objectives. (People v. Superior Court (Alvarez) (1997) 14
Cal.4th 968, 977-978.) Thus, we must assume that the trial court relied on different
convictions to support each of the two enhancements for a serious felony prior and a prior
prison term. Accordingly, the court did not err; it properly used the serious burglary
felonies to support the section 667.5 subdivision (a) serious prior felony enhancement,
and one of the three remaining felonies to support the one-year section 667.5, subdivision
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(b) prison prior, or the court could have split the two burglary priors so that each separate
burglary conviction supported one enhancement.3
II
Price asserts, and the People concede, that the five-year enhancement added to the
indeterminate term should be stricken.
As noted, under section 667, subdivision (a)(1), ". . . any person convicted of a
serious felony who previously has been convicted of a serious felony in this
state . . . shall receive, in addition to the sentence imposed by the court for the present
offense, a five-year enhancement for each such prior conviction on charges brought and
tried separately."
Enhancements under section 667, subdivision (a)(1) may be added to either
individual indeterminate sentences or the aggregate term of a determinate sentence. The
statute does not authorize the trial court to do both. (People v. Sasser (2015) 61 Cal.4th
1, 12-13; People v. Williams (2004) 34 Cal.4th 397, 400, 402). Here, the trial court
imposed a five-year serious felony enhancement for each indeterminate sentence (counts
1 through 4) and a fifth five-year serious felony enhancement to the aggregate total term.
The record is clear that this fifth serious felony enhancement was not related to any
3 In his reply brief Price tacitly concedes that the trial court could have properly elected to base the prison prior on a one of the three nonserious felonies. He contends that we should remand the case to allow the trial judge to clarify that determination. We decline his suggestion. Clearly the trial judge intended to impose the additional one-year prior prison enhancement based on the fourth prison prior, and, as we stated ante, we presume the trial court acted with legitimate sentencing objectives. (People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 977-978.)
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specific offense. Rather, it was imposed generally on top of the entire sentence. As the
Attorney General concedes, the imposition of this fifth serious prior felony enhancement
was not authorized. Accordingly, the judgment is modified to strike that five-year
enhancement.
DISPOSITION
We direct the trial court to modify the sentence to strike the five-year prior serious
felony enhancement imposed on the aggregate determinate term, reducing the
determinate term to 24 years. The trial court is directed to forward a certified copy of the
amended abstract of judgment to the Department of Corrections and Rehabilitation. The
judgment is otherwise affirmed.
PRAGER, J.*
WE CONCUR:
NARES, Acting P. J.
AARON, J.
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.