People v. Harris

Opinion

STONE (W. A.), J. The issues in this appeal concern whether the trial court committed sentencing error following remand from this court for resentencing. Of first impression is the issue whether the court erred when it imposed an enhancement for service of a prior prison term (Pen. Code, [494]§ 667.5, subd. (b)), which appellant would not have served were it not for an unconstitutional conviction.

The Case

In 1988 a jury convicted appellant of robbery. The trial court imposed the aggravated term of five years, with a five-year enhancement based upon a prior robbery conviction and a one-year enhancement for a prior prison term for grand theft. This court vacated the sentence and remanded for resentencing because in stating its reasons for imposing the aggravated term the trial court improperly relied upon a prior serious felony conviction (robbery/kidnap)1 which it had stricken for the purpose of enhancement because appellant had received no assistance of counsel and no constitutional advisements at the time of his conviction.

On remand, the trial court again sentenced appellant to the aggravated term with a five-year enhancement for having previously been convicted of a serious felony (Pen. Code, § 667, subd. (a)), and a one-year enhancement for having previously served a prison term for a serious felony conviction (Pen. Code, § 667.5, subd. (b)).

Discussion

Part I

Use of Prior Prison Term for Enhancement

The grand theft conviction, which served as the basis for the one-year prior prison term enhancement pursuant to Penal Code section 667.5, subdivision (b), occurred in 1979. Appellant has not challenged the legality of that conviction. Initially, appellant received a term of probation for the conviction. In 1980 appellant was convicted of robbery with the use of a firearm. Solely on the basis of this robbery conviction, the court revoked appellant’s probation previously granted on the grand theft conviction and committed him to state prison. That prison term forms the basis of the prior prison term enhancement pursuant to Penal Code section 667.5, subdivision (b) which is at issue in this appeal.

In the present action the trial court found the 1980 conviction for robbery with a firearm unconstitutional because appellant was denied his right to counsel. Appellant moved to strike the enhancement because the prior