People v. Alvarez CA2/6

Filed 7/28/16 P. v. Alvarez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B263561 (Super. Ct. No. 1452773) Plaintiff and Respondent, (Santa Barbara County)

v.

MARCELLO TEOFILO ALVAREZ,

Defendant and Appellant.

Here the sole question is whether the trial court erred in imposing two of three prior prison term enhancements pursuant to Penal Code section 667.5, subdivision (b).1 The defendant contends the enhancements do not apply because he reoffended while he was on mandatory supervision. (§ 1170, subd. (h)(5)(B).) We affirm. A jury convicted Marcello Teofilo Alvarez of assault with a deadly weapon (count 1; § 245, subd. (c)); felony resisting an officer (count 3; § 69); felony evading an officer (count 4; Veh. Code § 2800.2, subd. (a)); possession of a firearm by a felon (count 5; § 29800, subd. (a)(1)); misdemeanor possession of a controlled substance (count 6; Health & Saf. Code § 11377, subd. (a)); and felony possession of ammunition (count 7; § 30305, subd. (a)(1)). The jury also found that count 1 is a serious felony. (§ 1192.7, subd. (c)(11).)

1 All statutory references are to the Penal Code unless otherwise stated.

The trial court found Alvarez suffered a prior conviction of a serious violent felony. (§§ 667, subds. (d)(1) & (e)(1), 1170.12, subds. (b)(1) & (c)(1); 1192.7, subd. (c).) The court also found Alvarez served three prior prison commitments. (§ 667.5, subd. (b).) The trial court sentenced Alvarez to a total of 17 years 4 months, including a consecutive one-year term for each of his prior prison commitments. FACTS The facts of the underlying offenses are not relevant. The only question is whether two of the prior prison term enhancements imposed pursuant to section 667.5, subdivision (b) apply. Alvarez’s prior prison terms were as follows: On February 24, 2011, Alvarez was sentenced to 16 months for evading an officer. (Veh. Code § 2800.2, subd. (a).) On July 3, 2013, Alvarez was sentenced to two years for taking a vehicle without the owner’s consent. (Veh. Code § 10851.) On March 20, 2014, Alvarez was sentenced to two years for receiving stolen property. (§ 496, subd. (a).) Alvarez committed the third offense while he was still serving a period of mandatory supervision on the second offense. Alvarez committed the present offenses while he was still serving a period of mandatory supervision on the third offense. DISCUSSION Alvarez contends two of his prison priors do not qualify for one-year enhancements under section 667.5, subdivision (b) because he committed the offenses while he was on mandatory supervision. Section 667.5, subdivision (b) provides for a one-year sentence enhancement for a new offense for which a prison sentence or a county jail sentence, pursuant to section 1170, subdivision (h), is imposed prior to a period of five years in which the defendant remained free of both the commission of a felony offense and prison custody or jail custody imposed under section 1170, subdivision (h).