Opinion
C084176
01-30-2018
THE PEOPLE, Plaintiff and Respondent, v. JERMAINE LAMAR BOWDEN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE018993)
A jury found defendant Jermaine Lamar Bowden guilty of making a criminal threat (Pen. Code, § 422) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). In a bifurcated proceeding, the trial court found true the allegations he had suffered a prior serious felony conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i); 1170.12) and had served a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced him to an aggregate term of eight years eight months in state prison.
Undesignated statutory references are to the Penal Code. --------
On appeal, defendant's sole contention is that the one-year prior prison term enhancement should be stricken. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In light of the limited issue raised on appeal, a detailed recitation of the underlying facts and procedural history of this case is unnecessary. It suffices to say that defendant strangled and threatened to harm and kill his 66-year-old father, Homer Bowden, after they got into an argument about defendant "not pulling his weight" around the apartment. During the argument, defendant, among other things, threatened to "kick [Homer's] ass," pushed him to the ground, and strangled him really hard for a few minutes. As he was strangling Homer, defendant said, "I'm sorry. I love you. I kill you." Homer eventually broke free from defendant's grasp and attempted to flee out the front door of his apartment. Defendant, however, took Homer to the ground in the doorway and strangled him a second time for a few minutes. A woman living in an apartment upstairs from Homer, Sara Pratt, testified that she heard Homer yelling for help. When she went outside to investigate, she saw defendant grab Homer by the shirt and pull him close. She also saw defendant spit in Homer's face and throw him to the ground. Immediately before Homer was thrown to the ground, Pratt heard defendant say, "You might be my dad, but I'll fucking kill you." At some point, Pratt saw defendant grab Homer's neck with his right hand.
After defendant left the area, Homer went to Pratt's apartment and called 911. During the call, Homer reported that defendant had tried to kill him. The entire 911 call was played for the jury. When the police arrived at Homer's apartment, he was crying and shaking. He had a laceration behind his right ear and a bruise on his neck near his Adam's apple. According to Pratt, when Homer came to her apartment, his shirt was really stretched out, he had redness and scratch marks on his neck, and spit on his face. He was crying and appeared shaken.
Defendant was charged with elder abuse under circumstances and conditions likely to produce great bodily harm and death (§ 368, subd. (b)(1)), making a criminal threat (§ 422), and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). It was also alleged that he had suffered a prior serious felony conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i) & 1170.12) and had served a prior prison term within the meaning of section 667.5, subdivision (b).
A jury acquitted defendant of the elder abuse count and the lesser included offense but found him guilty of the other counts. In a bifurcated proceeding, the trial court found the enhancement allegations true. The court sentenced defendant to an aggregate term of eight years eight months in state prison. On the making a criminal threat conviction, the court imposed the low term of 16 months, doubled for the strike prior, plus five years for the prior serious felony conviction, plus one year for the prior prison term. On the assault conviction, the court imposed but stayed the midterm of three years pursuant to section 654. The court also imposed various fines and fees.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends that the one-year prior prison term enhancement (§ 667.5, subd. (b)) should be stricken because it is contrary to People v. Jones (1993) 5 Cal.4th 1142 (Jones). We disagree.
Pursuant to section 667, subdivision (a)(1), "any person convicted of a serious felony who previously has been convicted of a serious felony . . . 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." Section 667.5, subdivision (b) provides for a consecutive one-year enhancement for each prior separate prison term served for any felony.
In Jones, the defendant had served three prior prison terms for felony convictions, one of which was for a serious felony conviction. (Jones, supra, 5 Cal.4th at p. 1145.) He received both a five-year serious felony enhancement under section 667 and a one-year prior prison term enhancement under section 667.5 based on the same prior serious felony conviction. (Jones, at p. 1145.) He challenged the imposition of two enhancements based on the same prior conviction. Our Supreme Court concluded that when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, only the greatest enhancement will apply. (Jones, at p. 1150.) Accordingly, the court held that the trial court improperly imposed a cumulative enhancement under both sections 667 and 667.5 based on a single prior felony offense and directed the trial court to strike the one-year prior prison term enhancement. (Jones, at pp. 1150-1153.)
Defendant's reliance on Jones is misplaced. In Jones, a single prior conviction underlay both enhancements. Here, the prior prison term enhancement and the prior serious felony enhancement are based on two prior convictions in separate cases. In October 2007 defendant was convicted of second degree robbery (§ 211)—a serious felony (§§ 667, subd. (a)(4), 1192.7, subd. (c)(19))—and placed on probation. In September 2008 defendant was convicted of being a felon in possession of a firearm. His probation was revoked and he was sentenced to three years on the robbery conviction and a concurrent term of two years eight months on the firearm conviction.
At the sentencing hearing in this case, the trial court imposed a five-year enhancement under section 667, subdivision (a) for the robbery conviction and a consecutive one-year enhancement for the firearm conviction under section 667.5, subdivision (b). In doing so, the court recognized that while there was one prison sentence imposed in the prior cases, both enhancements were warranted because they were supported by two convictions.
Since there is no evidence in the record of an improper dual use of enhancements, we find no error in the trial court's imposition of a one-year prior prison term enhancement under section 667.5, subdivision (b). (See People v. Brandon (1995) 32 Cal.App.4th 1033, 1054-1055 [finding Jones inapposite where both the prior prison term enhancement and the prior serious felony enhancement referred to multiple offenses that supported either enhancement]; People v. Wiley (1994) 25 Cal.App.4th 159, 164 [Jones did not preclude imposition of a section 667, subdivision (a) enhancement based on two of three burglary counts and imposition of a section 667.5, subdivision (b) enhancement based on third burglary count where all three burglary counts had been charged in a single information and concurrent prison terms were imposed].)
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: MURRAY, J. HOCH, J.