Opinion
H023992.
7-11-2003
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO GOMEZ RAMIREZ, Defendant and Appellant.
On June 2, 2000, the Santa Clara County District Attorney filed an information charging appellant Alberto Gomez Ramirez with attempted grand theft (Pen. Code, §§ 484, 487, subd. (a), 667, count one); grand theft (Pen. Code, §§ 484-487, subd. (a), count two); attempting to dissuade a witness (Pen. Code, § 136.1, subd. (a), count three); and petty theft with a prior (Pen. Code, § 666, count four). Further, it was alleged that appellant had suffered two prior serious and/or violent felony convictions within the meaning of Penal Code section 667, subdivisions (b)-(i) and Penal Code section 1170.12, and had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
On June 5, 2000, appellant entered a plea of not guilty. On August 8, 2001, following a jury trial, appellant was found guilty on counts one and three and not guilty on counts two and four. Following a bifurcated trial, the jury found true one of the prior strike allegations and all of the allegations of prison priors.
On November 19, 2001, the court denied appellants motion to strike the prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 917 P.2d 628.
The court sentenced appellant to nine years, eight months in prison consisting of the following: the upper term of three years on count three (dissuading a witness), doubled pursuant to appellants second strike status (Pen. Code, §§ 18, 136.1, subd. (a), 667, subd. (e)(1)), for a term of six years; a consecutive term of eight months on count one (attempted grand theft); and three one-year terms for the prison priors. The court credited appellant with 1092 days of custody credits and imposed a $ 3,600 restitution fine.
Appellant filed a timely notice of appeal.
On appeal appellant contends that his conviction on count three must be reversed because his counsel was ineffective "in not properly proffering" a letter marked as court exhibit 2, resulting in its exclusion. Alternatively, count three "must be reversed because the court erroneously failed to instruct the jury sua sponte with cautionary language in giving CALJIC No. 2.70." Finally, "one of the section 667.5, subdivision (b) prior prison term enhancements must be stricken because no substantial evidence shows [he] served separate prison terms for two of his prior convictions."
On May 22, 2003, after the appeal was fully briefed, appellant filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. Again, he argues that his trial counsel "was ineffective in not properly proffering" a letter marked as court exhibit 2. We have disposed of the habeas petition by separate order filed this day. (Cal. Rules of Court, rule 24(b)(4).)
For the reasons outlined in this opinion, we will affirm the conviction on count three. However, respondent concedes that there was insufficient evidence presented to establish that appellant served separate prison terms for two of his prior convictions. We agree.
Facts and Proceedings Below
On February 11, 1999, David Schick was working alone at DeAnza Appliance located on DeAnza Boulevard in Cupertino. He is the sales manager and part owner of the store. The store sells Maytag appliances, including the Jenn-Air brand. DeAnza Appliance is located at the end of a "strip mall." The store is on the corner of De Anza Boulevard and Rodrigues Street. A small parking lot separates the store from Rodrigues Street.
In the late afternoon of February 11, Tyrine Bell had delivered several new appliances to the store. They were in cardboard boxes. The appliances were left outside the front of the store immediately adjacent to the stores front window.
Mr. Bell delivered and installed appliances for the store.
At approximately, 6:30 p.m. on February 11, 1999, Mr. Schick was assisting a customer when he heard what he believed to be a boxed appliance being moved along the concrete in front of the store. Mr. Schick walked out of the front of the store. He noticed appellant and another man trying to put a Jenn-Air range into a mini-van.
Mr. Schick questioned the men about what they were doing. He was told that they were from "Millwood Appliance," which Mr. Schick determined to be a fictitious company. Mr. Schick told the men to put down the box and that he would not call the police. After the men had replaced the range in front of the store, Mr. Schick went inside and wrote down the vans license plate number.
Mr. Schick called the police to say that a "robbery" was going on. At some point he gave them the license plate number of the van. Sergeant Salcido from the Santa Clara County Sheriffs Department determined that the van was registered to appellant.
Mr. Schick used the word "robbery" to described what had happened to him. The jury were admonished that the witness used the word robbery to describe to the police what was happening, but there was no evidence that this was a robbery.
Sergent Salcido interviewed Mr. Schick on May 20, 1999. Mr. Schick identified appellant from a photographic line-up as one of the men who had attempted to take the Jenn-Air range.
On October 8, 1999, the Santa Clara County District Attorney filed a complaint charging appellant with one count of attempted grand theft. (Pen. Code, §§ 484, 487, subd. (a), 667.)
Appellant was arrested on November 24, 1999.
In the early evening of January 7, 2000, Irma Soriano went to De Anza Appliance and asked to speak to Mr. Schick. She inquired about the events of February 11, 1999. At some point she asked Mr. Schick if he was sure about what he saw. Specifically, she asked if the person he had identified in the photographic line-up was the right person. Mr. Schick told her that he was sure.
Irma Soriano testified that she is appellants wife.
It appears that Irma Soriano asked to speak to David Scott. David is Mr. Schicks first name and Scott is his middle name.
Ms. Soriano returned on January 14, 2000. Mr. Schick recalled that this conversation revolved around her concern in making sure that he "saw what [he] saw."
Ms. Soriano went to the store on January 18, 2000. This time she asked Mr. Schick to read "something." He told her that he had to leave to pick up his child. She indicated that she would return the next day.
Ms. Soriano returned to the store the next day, January 19, 2000. She told Mr. Schick that she was going to give him a letter, which she wanted him to read. According to Mr. Schick, she told him that she was supposed to get an answer and then take back the letter. Ms. Soriano handed Mr. Schick an envelope containing a letter. The return portion of the address indicated that the letter was from appellant.
Mr. Schick read the handwritten letter from appellant. After initial pleasantries, the letter asked Mr. Schick to do one of two things. According to Mr. Schick appellant wrote, "either say youre not sure who you saw or when its time to go to court, can you not show up to court?" The last line of the letter asked, "will you be able to help me in this regard?"
Mr. Schick handed the letter to Ms. Soriano and told her that he would not be able to help. Mr. Schick was annoyed that the letter had asked him "to lie under oath or something of that nature." However, the letter had not threatened him with any harm.
At trial, Ms. Soriano testified that there was nothing in the letter telling Mr. Schick not to come to court, or if he did, to say that it was not Mr. Ramirez that he had seen.
On February 26, 2000, Mr. Schick received another letter from appellant. This time the letter came in the mail.
There is some confusion in the record as to whether this letter was received in January or February. Mr. Schick stated that he received the letter on February 26, 2000. However, Sergeant Salcidos notes reflected that Mr. Schick received the letter in January. Also, it appears that there was a third letter that Mr. Schick received from appellant. This letter was given to Sergeant Salcido along with the second letter.
On March 31, 2000, the Santa Clara County District Attorney filed an amended complaint charging appellant with, among other things, one count of attempting to dissuade a victim or witness from testifying. (Pen. Code, § 136.1, subd. (a).) A preliminary hearing was held on May 23 and 24, 2000, over which Judge Pichon presided. Deputy District Attorney Denise Raabe represented the People. Appellant was held to answer and remanded into custody on $ 250,000 bail. A short time after the hearing Ms. Raabe received a letter from appellant.
At the same time, the complaint was amended to add one count of grand theft (Pen. Code §§ 484-487, subd. (a).) It appears that one of the appliances that Tyrine Bell delivered to the front of the store on February 11, 1999, was a dishwasher. He was scheduled to install the dishwasher the next day.
On February 12, 1999, Mr. Schick received a call from Roger Boucher, the co-owner of the store, asking about the whereabouts of the dishwasher. Eventually, it was determined that a Maytag dishwasher valued at $ 559 was missing.
On December 30, 1999, Mr. Boucher received an anonymous telephone call from a woman. She said that the store had accidentally delivered a dishwasher to her home, but it had been returned to the store. The woman refused to give her name or address. Mr. Boucher found a dishwasher on the curb on Rodrigues Street adjacent to the store. It was the same dishwasher that was missing on February 12, 1999.
On the first afternoon that Ms. Soriano went to see Mr. Schick, he reported to the police that she said she needed to speak to him about a dishwasher.
Penal Code section 136.1 states in pertinent part: " (a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: [P] (1) Knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. [P] (2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.
At trial Ms. Raabe testified that she had received the letter but was not questioned about the contents.
In addition, appellant wrote two more letters, this time to Judge Pichon. In one of these letters he wrote, "I your Honor wrote you a letter yesterday that I would like to take some of that back, about being not guilty for the rest of my life about dissuading a witness. Im guilty a 100 [%] if writing letters and begging wife and kids to go to Mr. [Schick]."
Appellants trial began on July 30, 2001. During motions in limine, defense counsel told the court that there were several letters sent to Mr. Schick. He believed "that the prosecution [took] the position that the letters are confessions." He argued that if the prosecution was allowed to introduce testimony regarding any of the letters, then, the "full force and effect of Evidence [Code] section 356 . . . is implicated in this case and with respect to the letters, we take the position that the letters are in essence a communication to the proprietor that this is not just a theft of a washing machine, range or whatever the appliance may have been, that this is a very serious case where the defendant is facing 25 years to life."
Evidence Code section 356 states: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."
The district attorney made reference to several letters that appellant had written to Mr. Schick. She indicated that she would be eliciting testimony about one letter that she did not have because it was "read and handed back to the individual who brought it into the store and handed it to the proprietor." The district attorneys theory of admissibility regarding the contents of the letter was that it "would come in . . . under Evidence Code section 1220," as "the defendants admission."
Evidence Code section 1220 states: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity."
Additionally, the prosecutor indicated that there was another letter from appellant to Mr. Schick dated 4-21, which she was contemplating introducing, and possibly a third letter.
The district attorney made reference to the letter sent to Ms. Raabe. Again, the theory of admissibility was that she was "entitled to introduce a letter under Evidence Code section 1220." However, she planned to redact portions of the letter that made "references to the three strikes." Further, she asked that the court rule "that there be no reference direct or otherwise by anyone involved in the case to the fact that it is a three strikes case."
Defense counsel objected arguing, "this would violate 356. They cant have selective portions of the letter introduced. It explains the nature of the alleged — the defendant is charged with intimidating witnesses that arises out of the letter. [P] So there is no way that this trial can occur in a vacuum where the entire context of this alleged intimidation that the defendant is making, is not discussed. And the same thing with the letter. The letter is basically a letter to the district attorney saying `Look, you know I had nothing to do with this and I am facing three strikes and I ask you to have serious consideration for the alleged allegations here. If you want me to admit that I did these things, fine Ill admit it but dont send me to prison for the rest of my life. " The court read all the letters with which it was provided and ruled that the first letter, which Mr. Schick read and returned, was admissible. The court noted, "that is not an admission or confession, that is the crime itself." As to the fourth letter, the one that was sent to Ms. Raabe, the court ruled that it was admissible, subject to any references to the case being a three strikes case being redacted.
Before the court ruled, the district attorney attempted to clarify the chronology of the letters and which letters she was seeking to introduce into evidence as follows: "The first letter was the letter that was brought into the store for the first time on January 18th 2000. That is the letter that the female gave to Mr. Schick was actually the next day, the 19th of January, that he read it and gave it back to the woman who had given it to him. [P] We will not be seeking to introduce the letter but the content of that letter which is the essence of the 136.1 charge. Then the next communication which is either January 26th or more probably February 26th of 2000; in either case its after the letter that the woman brings into the store, is the letter that has the number `1 written on the photocopy of the envelope accompanying it that the court has. [P] Then next in line, the letter marked letter number 2 has `received 4-21 in handwriting on the photocopy of the envelope; Ive confirmed with Mr. Schick that the `received 4-21 is his writing noting the date that he received it. So that was received on 4-21-2000. The last of the four is the letter to Denise Raabe dated 5-25-2000. Thats the last in time. [P] People are only seeking to introduce evidence pertaining to the first and last of those four communications. We are not seeking to introduce either of the letters marked `letter 1 and `letter 2 respectively. In fact we will be objecting to those on hearsay grounds and we will be seeking to introduce the substance of the letter that was brought to Mr. Schick on January 18th and 19th 2000 and we will [be] seeking to introduce the letter that was written to Ms. Raabe."
Again, defense counsel argued that if testimony was elicited with regard to the contents of the first letter, then he should be able to inquire "into the full contents of the letter." He argued, "each letter is a link in the chain . . . . Each letter puts this entire issue in perspective. . . . And I think . . . under 356 of the Evidence Code and under relevancy rules, we should be entitled to give this communication complete context and not just bits and pieces; otherwise its just unfair.
As to the other letters that appellant had sent to Mr. Schick, the court noted that the People did not seek to admit those letters, but went on, "at this point I dont know what the defense is, if the defense argument is that somehow it explains the first letter or the fourth letter; I am not going to allow it. If the defendant testifies, that then we will revisit this."
A redacted copy of the letter sent to Ms. Raabe was admitted into evidence.
In the letter to Ms. Raabe appellant wrote the following: "I will take full responsibility for dissuading a witness, I asked my wife to go and see Mr. Schick and kids also, and wrote him letters. I am guilty 100% if thats dissuading. I admit it 100%."
Discussion
Appellant Has Failed to Establish that Defense Counsel Was Ineffective With Regard to Proffering Court Exhibit 2
Appellant contends that because defense counsel was ineffective in not "properly proffering" the letter marked as court exhibit 2, count three must be reversed.
Appellant claims that defense counsel was incompetent for erroneously arguing that this letter to Mr. Schick was admissible pursuant to Evidence Code section 356. He contends that defense counsel should have argued that the letter "was relevant to show that appellants specific intent in contacting [Mr.] Schick was not to try to dissuade him from testifying, was not hearsay but rather a nonassertive statement, and in any case came under an exception to the hearsay rule under Evidence Code section 1250. As a result of the deficient proffer, the evidence was excluded. Exclusion of this evidence prejudiced appellant because the exclusion deprived appellant of the opportunity to fully contest the specific intent element of the [Penal Code] section 136.1 charge in this close case."
In this letter to Mr. Schick appellant wrote the following: "Im not stopping you or saying to you not to go to court, but just to ask you to please remember what happened on that day. And come forward with what you remember." The envelope in which the letter was sent is postmarked April 19, 2000.
Evidence Code section 1250 states: "(a) Subject to Section 1252, evidence of a statement of the declarants then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [P] (1) The evidence is offered to prove the declarants state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [P] (2) The evidence is offered to prove or explain acts or conduct of the declarant. [P] (b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed."
In turn, Evidence Code section 1252 states: "Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness."
"To demonstrate ineffective assistance of counsel, a defendant must show that counsels action was, objectively considered, both deficient under prevailing professional norms and prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052. . . .) To establish prejudice, a defendant must show a reasonable probability that, but for counsels failings, the result of the proceeding would have been more favorable to the defendant. (Id. at p. 694 . . . .)" (People v. Seaton (2001) 26 Cal.4th 598, 666.)
However, "the mere fact that counsel, had he chosen another path, `might have convinced the court to issue a favorable evidentiary ruling, is not enough to carry defendants burden on demonstrating that `"counsels representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.]" (People v. Jennings (1991) 53 Cal.3d 334, 379-380, 279 Cal. Rptr. 780, 807 P.2d 1009.)
As respondent points out, as to the second letter, it is not reasonably probable that the evidence would have been admissible even if counsel had expressly articulated that he was relying on Evidence Code section 1250 to gain its admission. If offered to prove circumstantially appellants state of mind in January 2000, the content of the second letter, written in April of 2000, was untrustworthy under Evidence Code section 1252. Given the much later circumstances under which the second letter was written (appellant was in jail and had been charged with attempting to dissuade a witness) appellant had a motive to attempt to deceive others concerning his earlier letter to Mr. Schick. "Evidence of the declarants state of mind, even if otherwise admissible under Evidence Code section 1250, is inadmissible `if the statement was made under circumstances such as to indicate its lack of trustworthiness. [Citation.]" (People v. Livaditis (1992) 2 Cal.4th 759, 779, 831 P.2d 297.)
Accordingly, we reject appellants first contention.
CALJIC No. 2.70
The January 19, 2000 letter that appellant sent to Mr. Schick, in which he asked Mr. Schick to "either say youre not sure who you saw" or not turn up to court, was never introduced into evidence. Instead, Mr. Schick testified as to its content. Appellant contends that the court "was required to instruct the jury sua sponte with language that the statement should be viewed with caution." Since the court failed so to do, appellants conviction on count three must be reversed. We do not agree.
The court instructed the jury as follows: "A confession is a statement made by a defendant in which he has acknowledged his guilt of the crimes for which he is on trial. [P] In order to constitute a confession, the statement must acknowledge participation in the crimes as well as the required criminal intent. An admission is a statement made by a defendant which does not by itself acknowledge his guilt of the crimes for which the defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence. [P] You are the exclusive judges as to whether the defendant made a confession or an admission, and if so, whether that statement is true in whole or in part. Evidence of an oral confession — excuse me. I dont think these were orals."
Respondent argues that the court "did not treat the substance of the letter as an `admission, rather, the oral testimony reflected what was written in the letter, which itself constituted the gravamen of the offense. As such, no cautionary instruction, much less a sua sponte cautionary instruction, was required." We are not convinced.
Among other things, CALJIC No. 2.70 tells the jury that an admission is a statement that tends to prove guilt. It instructs the jury to determine whether a defendant made an admission. That is, whether the defendant made the statement and whether the statement tends to prove guilt when considered with the rest of the evidence. (See People v. Shoals (1992) 8 Cal.App.4th 475, 497-498; People v. Vega (1990) 220 Cal. App. 3d 310, 317.)
People v. Shoals,supra, 8 Cal.App.4th 475 and People v. Vega, supra, 220 Cal. App. 3d 310, dealt with CALJIC No. 2.71, which is identical to the second part of CALJIC No. 2.70 dealing with admissions.
"`In light of the definition of "admission," if the jury determines a statement does not tend to prove guilt when considered with the other evidence, it is not an admission. The cautionary language instructs the jury to view evidence of an admission with caution. By its terms, the language applies only to statements which tend to prove guilt and not to statements which do not. [Citation.]" (People v. Shoals,supra, 8 Cal.App.4th 475, 498.)
The content of the letter formed the basis for the dissuading a witness charge (Pen. Code, § 136.1, subd. (a)). However, it was an effort to suppress testimony regarding the charge of attempted grand theft (Pen. Code, §§ 484, 487, subd. (a), 667). As such, it indicated a consciousness of guilt as to that charge. (See People v. Slocum (1975) 52 Cal. App. 3d 867, 887, 125 Cal. Rptr. 442; CALJIC No. 2.06.) Thus, the jury could have seen the statement as something that tended to prove guilt with regard to that charge.
CALJIC No. 2.06 was given in this case as follows: "If you find that a defendant attempted to suppress evidence against himself in any manner, such as by the intimidation of a witness, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However this conduct is not sufficient by itself to prove guilt and its weight and significance if any are for you to decide."
Here, during closing argument, the prosecutor addressed the jury as follows: "If Mr. Schick made this whole thing up, what an amazing series of coincidences. He gets a license number for the vehicle, he is then able to pick the defendant out from that photo lineup. The defendant is arrested, the dishwasher mysteriously reappears about a month later, ten months after its been taken and only a month after the defendant has gone into custody and then the wife makes repeated trips to the store. [P] If the defendant is innocent, why does she have to keep going into the store? You had an instruction too talking about efforts to intimidate a witness can show consciousness of guilt. What is she afraid of? And then the truly amazing coincidence is if none of this really happened that Mr. Schick was so good, he was able to get the defendant to write a letter admitting to two of the charges, what are the chances of that ladies and gentlemen? [P] The chances are zero, unless it happened exactly the way David Schick and Roger Boucher told you that it happened. [P] Im not asking you to find the defendant guilty based on any particular isolated fact, I ask you to take the direct evidence, the circumstantial evidence, put it all together and when youve done so, I am confident that you will conclude that we have proved our case beyond a reasonable doubt, any reasonable doubt and Ill be asking you to find the defendant guilty as charged."
"A court has a sua sponte duty to give CALJIC No. 2.7[0] where a defendants admission is used to prove a part of the prosecutions case." (People v. Shoals,supra, (1992) 8 Cal.App.4th at p. 498.) The court should have given the cautionary language that evidence of "an oral admission of the defendant not made in court should be viewed with caution." (CALJIC No. 2.70) The omission of the cautionary instruction, however, does not constitute reversible error if upon reweighing the evidence it does not appear reasonably probable that a result more favorable to appellant would have been reached in the absence of the error. (People v. Shoals, supra, 8 Cal.App.4th at pp. 498-499.)
Relying on People v. Gardner (1961) 195 Cal. App. 2d 829,832, respondent argues that it is unnecessary to give a cautionary instruction sua sponte where defendants statement has been recorded or is in writing. Obviously, a letter or sound recording "is more reliable and satisfactory evidence than testimony from memory." (Id. at p. 833.) However, where as here, the letter was not available to corroborate Mr. Schicks testimony regarding the content of the letter, Mr. Schicks testimony was equivalent to repeating an oral statement made by the defendant.
With regard to the attempted grand theft charge, there was substantial evidence that appellant had attempted to take the Jenn-Air range. From a photographic line-up, Mr. Schick identified appellant as one of the men he saw attempting to take the Jenn-Air range. Further, from the license plate number that Mr. Schick gave to the police, Sergeant Salcido determined that the van that was used in the attempt was registered to appellant.
Appellant asserts that because Ms. Sorianos testimony conflicted with Mr. Schicks testimony with regard to the content of the letter, the court was required to give the cautionary instruction. Assuming arguendo that the content of the January 19, 2000 letter was an admission with regard to the dissuading a witness charge, we find no prejudice to appellant.
Here, the court gave CALJIC Nos. 1.01 (Instructions to be considered as a whole); 2.02 (Sufficiency of circumstantial evidence to prove specific intent); 2.20 (Believability of witness); 2.21.1 (Discrepancies in testimony); 2.22 (Weighing conflicting testimony); 2.27 (Sufficiency of testimony of one witness); and 2.70 (Confession and admission-defined). These instructions adequately advised the jury of its responsibilities regarding the contested fact as to whether appellant had asked Mr. Schick not to come to court or, if he did, to testify falsely. Moreover, appellant seems to forget that he admitted that he had sent letters to Mr. Schick and took full responsibility for "dissuading a witness." Thus, there is no reasonable probability that the error was prejudicial.
The One-Year Term for the San Francisco Prison Prior
The information alleged that appellant had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). At appellants trial on the prior prison term allegations, the prosecution introduced into evidence Exhibit 12 (certified copies of the felony complaint, felony minutes, and abstract of judgment in Santa Clara County Superior Court docket number 180683, second-degree burglary (Pen. Code, §§ 459-460, subd. (b) (hereinafter the Santa Clara case)); Exhibit 13 (minutes and abstract of judgment pertaining to San Francisco County Superior Court docket number 158883, convictions for possession of a controlled substance (Health & Saf. Code, § 11350 , subd. (a) (hereinafter the San Francisco case)); and Exhibit 14 (appellants "969b packet").
Pursuant to Penal Code section 969b, " For the purpose of establishing prima facie evidence of the fact that a person being tried for a crime or public offense under the laws of this State has been convicted of an act punishable by imprisonment in a state prison, county jail or city jail of this State, and has served a term therefor in any penal institution, or has been convicted of an act in any other state, which would be punishable as a crime in this State, and has served a term therefor in any state penitentiary, reformatory, county jail or city jail, or has been convicted of an act declared to be a crime by any act or law of the United States, and has served a term therefor in any penal institution, the records or copies of records of any state penitentiary, reformatory, county jail, city jail, or federal penitentiary in which such person has been imprisoned, when such records or copies thereof have been certified by the official custodian of such records, may be introduced as such evidence." (Pen. Code, § 969b.) The packet of information received from the custodian of records is commonly referred to as a defendants 969b packet.
The jury sustained a federal bank robbery prior as both a "serious felony" and a "prison prior." The second-degree burglary and possession of a controlled substance were both sustained as "prison priors."
As noted, appellant was sentenced to three one-year terms for the prison priors.
Appellant argues that there was insufficient evidence that he served separate terms for the Santa Clara case and the San Francisco case. Respondent concedes the issue.
The enhancement at issue is defined by Penal Code section 667.5, subdivision (b). It requires that a one-year enhancement be imposed for each prior separate prison term served for any felony. It is qualified, however, and does not apply if the defendant remained free of both prison custody and the commission of the new felony for five years. "Prior separate prison term" has its own definition and "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 . . . ." (Pen. Code, § 667.5, subdivision (g).)
There is no evidence to show that the prison terms imposed for the convictions in the San Francisco case and the Santa Clara case were served separately. To the contrary, the record shows appellant was sentenced to three years in the Santa Clara case on June 13, 1995, and in the San Francisco case on December 18, 1995.
Appellants "969b packet" indicates that he was received by the Department of Corrections on June 19, 1995, with a release date of June 18, 1997. He was returned to San Francisco for case number 158883 (the San Francisco case) on November 7, 1995. He returned from there to the Department of Corrections on December 21, 1995. His sentence from the San Francisco case commenced that day. This suggests appellant was still serving his term in the Santa Clara case when he began serving his term in the San Francisco case.
Since appellant did not complete his sentence in the Santa Clara case before he started serving his sentence in the San Francisco case, there was not a separate prison term for that offense. Thus, his sentence cannot be enhanced for both commitments. "The plain meaning of [Penal Code] section 667.5, subdivision (g) is to prevent multiple one-year enhancements under section 667.5 itself where the offender has served one period of prison confinement, or block of time, for multiple offenses or convictions." (People v. Medina (1988) 206 Cal. App. 3d 986, 992, 254 Cal. Rptr. 89.)
Therefore, we hold that appellant may be sentenced for only one prison prior arising from the Santa Clara and the San Francisco cases. Accordingly, we strike one year from his sentence of nine years and eight months.
Disposition
The judgment is modified to strike one of the one-year Penal Code section 667.5, subdivision (b), enhancements. As modified, the judgment is affirmed.
WE CONCUR: Rushing, P. J., and Premo, J.