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In re Preston

August 18, 2009

IN RE ROBERT T. PRESTON, ON HABEAS CORPUS.


(Solano County Super. Ct. Nos. VCR178564, VCR178654 & FCR256618), Hon. Peter B. Foor.

The opinion of the court was delivered by: McGuiness, P.J.

CERTIFIED FOR PUBLICATION

Robert T. Preston petitions for post conviction relief challenging the sentence imposed by the trial court after his conviction for felony possession of counterfeiting apparatus. The court imposed an aggravated term of four years on the substantive offense and consecutive terms of one year for each of five prior prison terms pursuant to Penal Code section 667.5, subdivision (b). Preston presents various arguments in support of his contention that the court exceeded its jurisdiction by imposing sentence enhancements on the three earliest prior prison terms. We disagree, and conclude that the trial court properly imposed the sentence enhancements. Accordingly, we deny the petition for writ of habeas corpus.

FACTUAL AND PROCEDURAL HISTORY*fn1

In case no. VCR178564, a jury convicted Preston of a felony violation of making or possessing a counterfeit die or apparatus. The trial court found true that Preston had served five prior prison terms imposed in 1976, 1978, 1981, 1990 and 2000*fn2 within the meaning of Penal Code*fn3 section 667.5, subdivision (b) (§ 667.5(b)).*fn4 In case no. VCR178654, Preston pleaded no contest to petty theft with a prior conviction, and the prior prison term allegations were again found true.

The court imposed a nine-year aggregate prison term in case no. VCR178564 consisting of the aggravated term of four years for possession of counterfeiting apparatus, and five one-year prior prison term enhancements. In case no. VCR178654, the court imposed a concurrent aggravated three-year term. Preston objected to the court‟s imposition of the enhancements for the three earliest prior prison terms imposed in 1976, 1978, and 1981. He argued that no additional punishment could be imposed for those prior prison terms because he had been paroled from the Department of Corrections and Rehabilitation (DCR)*fn5 in September 1981 and had remained free from prison custody for more than five years until he was reimprisoned for his commission of two burglaries in 1989. The court rejected the argument, noting that after Preston had been released on parole in 1981, he was returned to DCR custody for parole violations that led to parole revocation on two occasions in 1985.*fn6 Therefore, the court found that the enhancements were authorized as Preston had not been free of prison custody for the required five year period.

On December 18, 2007, we affirmed Preston‟s conviction in an unpublished opinion. (People v. Preston (Dec. 18, 2007; A115440 [nonpub. opn.].) On direct appeal, Preston challenged the legality of his sentence on the ground that his nine-year sentence violated Cunningham v. California (2007) 549 U.S. 270. He did not argue that the trial court exceeded its jurisdiction by imposing section 667.5(b) enhancements for the three earliest prior prison terms.

On May 30, 2008, Preston filed his first habeas petition in this court seeking to strike the section 667.5(b) enhancements for the three earliest prior prison terms on the ground that the trial court exceeded its authority by imposing the additional punishment. We denied the petition without prejudice to Preston refiling the petition in the superior court. (In re Preston (June 6, 2008; A121657). Preston‟s request for relief in the superior court was denied. On September 5, 2008, he filed this current petition. After appointing habeas counsel for Preston and requesting informal briefing by the parties, we summarily denied the petition.

On December 17, 2008, the California Supreme Court granted Preston‟s petition for review of our summary denial. The matter was transferred back to us with instructions that we vacate our November 6, 2008, order denying the petition and issue an order directing the Solano County Superior Court to show cause why Preston‟s request for habeas relief should not be granted. The Attorney General, representing the Solano Superior Court, filed a return to the petition, Preston filed a traverse to the return, and we heard argument.

DISCUSSION

I. Preston's Petition Presents Cognizable Claims For This Court's Consideration

Contrary to the Attorney General‟s contention, Preston‟s challenge to the imposition of section 667.5(b) enhancements for the three earliest prior prison terms is properly before us. As a general rule, habeas relief is not available for claims that either were raised or could have been raised on direct appeal. (In re Waltreus (1965) 62 Cal.2d 218, 225; In re Dixon (1953) 41 Cal.2d 756, 759-761.) However, an exception to the general rule applies in this case. Habeas corpus relief may be sought to resolve whether "the trial court "exceeded its jurisdiction by sentencing a defendant "to a term in excess of the maximum provided by law" [citation], or to correct a misinterpretation of [a] statute resulting in confinement "in excess of the time allowed by law" [citation]....‟ [Citation.]" (In re Harris (1989) 49 Cal.3d 131, 134, fn. 2; see In re Crockett (2008) 159 Cal.App.4th 751, 758-759 [failure to appeal conviction is no bar to habeas petition based on claim that the trial court exceeded its jurisdiction].) Preston‟s request for relief is premised solely on arguments that the trial court exceeded its jurisdiction, and misinterpreted section 667.5(b), resulting in his confinement in excess of the maximum allowed by law. Accordingly, we shall address the arguments he has raised in his petition.

II. Trial Court Did Not Err In Imposing Section 667.5(b) Enhancements

Preston argues that his three earliest prior prison terms cannot be used to enhance his current sentence because he remained free of prison custody for a continuous five year period as required by section 667.5(b). Emphasizing, in pertinent part, the statutory language: "prison custody," (ยง 667.5(b), subd. (d)), and "reimprisoned" (id., subd. (d)), Preston argues that his confinement in a county jail after parole revocation is not encompassed by any of these terms, all of which specifically use-or are derived from- the word "prison." Thus, he maintains that a parolee who is not incarcerated in a state prison ...


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