Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB059805, Brian S. McCarville, Judge. Affirmed as modified.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P.J.
A jury found defendant William Earl White guilty of one count of forcible rape. (Pen. Code, § 261, subd. (a)(2).) In a bifurcated proceeding, defendant admitted that he had sustained four prior strike convictions, to wit, four prior rape convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); four prior serious felony convictions (§ 667, subd. (a)(1)), to wit, the four prior rape convictions; and four prior rape convictions resulting in prison (§ 667.6, subd. (b)). As a result, defendant was sentenced to 75 years to life for the current rape offense, plus a consecutive aggregate determinate term of 20 years for the four prior serious felony convictions, plus an additional consecutive aggregate determinate term of 30 years for three prior rape convictions resulting in prison terms. Defendant’s sole contention on appeal is that the trial court violated the prohibition against dual use by imposing both a five-year serious felony enhancement under section 667, subdivision (a)(1) and a 10-year prison term enhancement under section 667.6, subdivision (b). As explained below, two of defendant’s five-year prior serious felony enhancements must be stayed, and one of his five-year prior serious felony enhancements must be stricken.
All future statutory references are to the Penal Code unless otherwise stated.
I
The details of defendant’s criminal conduct are not relevant to the limited issue raised in this appeal. Those details are set out in defendant’s opening brief, and we will not recount them here. Instead, we will recount only those facts that are pertinent to the issue we must resolve in this appeal.
Defendant admitted that he had suffered four prior rape convictions, occurring in 1981, 1975, and two separate cases in 1972. For these prior convictions, defendant was sentenced to an aggregate determinate term of 50 years, comprised of four 5-year terms under section 667, subdivision (a)(1) and three 10-year terms under section 667.6, subdivision (b).
Defendant contends his four prior rape convictions were improperly used to impose enhancements under both sections 667, subdivision (a)(1) and 667.6, subdivision (b) and claims that each of the four 5-year prior serious felony enhancements (§ 667, subd. (a)(1)) must be stayed. The People agree that two of the four challenged enhancements must be stayed.
Section 667.6 was enacted by the Legislature in 1979 to increase, in certain circumstances, the punishment for persons convicted of serious sex offenses. (People v. Flournoy (1994) 26 Cal.App.4th 1695, 1698 (Flournoy).) Section 667.6, subdivision (b) provides in pertinent part that “[a]ny person who is convicted of an [enumerated sex] offense [including rape] and who has served two or more prior prison terms as defined in Section 667.5 for any of those offenses shall receive a 10-year enhancement for each of those prior terms.”
Section 667 was added to the Penal Code in 1982 by Proposition 8 to increase sentences for recidivist offenders. (People v. Jones (1993) 5 Cal.4th 1142, 1147 (Jones).) In relevant part, section 667, subdivision (a)(1) states that “any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any 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.”
The trial court here imposed three 10-year enhancement terms under section 667.6, subdivision (b) for the four prior rape convictions for which defendant had served prison terms: 1975, 1981, and two in 1972, arising out of case Nos. A179404 and A065317. The court also imposed a five-year enhancement under section 667, subdivision (a)(1) for each of the four prior rape convictions.
In Jones, supra, 5 Cal.4th at page 1150, our Supreme Court held that “when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply.” The court, therefore, found that the trial court had erred when it used the same prior conviction to impose a five-year serious felony enhancement under section 667, former subdivision (a) (now subd. (a)(1)), and a one-year prior prison term enhancement under section 667.5, subdivision (b). (Jones, at pp. 1150-1151.)
In Flournoy, the court, applying Jones, held that a single prior rape conviction could not be the basis of both a prior serious felony enhancement under section 667, subdivision (a)(1) and a prior sex offense enhancement under section 667.6, subdivision (a). (Flournoy, supra, 26 Cal.App.4th at pp. 1697-1701.)
As the People point out, although here the prior sex enhancements were imposed pursuant to subdivision (b), rather than subdivision (a), of section 667.6, there appears to be no distinction between the two provisions. Accordingly, Jones, as applied in Flournoy, applies to the instant case. The five-year section 667, subdivision (a)(1) enhancements imposed for defendant’s 1975 and 1981 rape convictions should therefore be stayed.
Regarding the five-year enhancement terms imposed for the two rape convictions defendant suffered in 1972, we note that both of those offenses were adjudicated in the same proceedings. Hence, it appears those convictions did not arise from charges “brought and tried separately,” as required for the imposition of a prior serious felony enhancement under section 667, subdivision (a)(1). Our Supreme Court held in In re Harris (1989) 49 Cal.3d 131 that “the requirement in section 667 that the predicate charges must have been ‘brought and tried separately’ demands that the underlying proceedings must have been formally distinct, from filing to adjudication of guilt.” (Id. at p. 136.) Accordingly, the trial court erred in imposing separate five-year enhancements for the two rape convictions defendant suffered in 1972. Therefore, one such enhancement must be stricken.
The surviving five-year enhancement, however, was properly imposed. People v. Gonzales (1993) 20 Cal.App.4th 1607 (Gonzales) involved a one-year sentence enhancement for a prior prison term served for concurrent prison sentences imposed for two separate convictions. (Id. at pp. 1610-1611.) The sentencing court in that case also imposed an enhancement for a serious prior felony conviction for one of the convictions on which the prior prison term enhancement was based. (Ibid.) The appellate court held that, although the prior prison term enhancement was based in part on the same case that was the basis for the prior felony conviction enhancement, there was no dual use of facts because it was also based on a separate, independent conviction. (Ibid.; People v. Sandoval (1994) 30 Cal.App.4th 1288.)
In other words, Gonzales holds that as long as the prior serious felony enhancement and the prior prison term enhancement are based on two different convictions in two different cases, the Jones court’s concern that a single prior conviction might be the basis for “piling on” is not implicated. We also note that a number of subsequent cases have unanimously come to the same conclusion as Gonzales. (People v. Solorzano (2007) 153 Cal.App.4th 1026, 1040-1041; People v. Ruiz (1996) 44 Cal.App.4th 1653, 1667-1669; People v. Brandon (1995) 32 Cal.App.4th 1033, 1055; People v. Sandoval, supra, 30 Cal.App.4th at pp. 1303-1304.)
By analogy, the case here warrants a similar finding. Since the imposition of one 10-year prior sex offense enhancement under section 667.6, subdivision (b) was based upon a singular prison term defendant had served for his rape convictions in case Nos. A179404 and A065317, each conviction provided an independent basis for the enhancement allegation. The trial court was thus entitled to impose a five-year serious felony enhancement for the rape conviction, which remained unused.
II
DISPOSITION
The trial court is directed to stay the five-year section 667, subdivision (a)(1) enhancements imposed for defendant’s 1975 and 1981 rape convictions. The trial court is also ordered to strike one of the five-year section 667, subdivision (a)(1) enhancements suffered in 1972. The trial court is further directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) As modified, the judgment is affirmed.
We concur: GAUT, J., KING, J.