APPEAL from the Superior Court of San Bernardino County. Robert J. Lemkau, Judge. Affirmed. (Super.Ct.No. FSB049602).
The opinion of the court was delivered by: Ramirez P. J.
Opinion following rehearing
CERTIFIED FOR PUBLICATION
Defendant and appellant Michael Troy Jones appeals his jury conviction for arson (Pen. Code, § 451, subd. (d))*fn1 because he believes the trial court made several errors in reaching his total sentence of 16 years in state prison. He contends the trial court failed to properly inform him of the direct consequences of his admission of a prior arson offense. He also argues the trial court violated section 654, the prohibition against the dual use of facts, and his federal constitutional right to a jury trial.
FACTUAL AND PROCEDURAL BACKGROUND
In a first amended information, defendant was charged with arson of property of another. (§ 451, subd. (d).) It was further alleged defendant had a prior conviction for arson (§ 451, subd. (c)) within the meaning of section 451.1, which also qualified as a prior strike (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and a prior serious felony (§ 667, subd. (a)). Before trial, defendant admitted the truth of the prior arson allegations.
Evidence presented at trial indicated defendant was seen leaning and reaching inside a stolen, abandoned truck by a passing motorist. As defendant ran from the truck, the motorist saw smoke and flames coming from inside the vehicle, so he used his cell phone to dial 911. A responding police officer searched defendant after finding him inside a nearby building and found paper and matches in his pockets. An arson expert testified the fire started in the interior driver seat of the vehicle as a result of a combustible open flame device, such as a match or lighter. Defendant testified in his own defense and denied setting the fire. During his trial testimony, defendant once again admitted he had a prior conviction for arson after setting fire to a pile of "girlie books" inside an old abandoned gas station.
The jury convicted defendant of arson of property of another in violation of section 451, subdivision (d). The trial court sentenced defendant to a total of 16 years in state prison. To reach the total term of 16 years, the trial court imposed the upper term of three years for the new arson conviction and doubled it to six years because of the prior strike. The court then added a consecutive term of five years under section 451.1, subdivision (a), based on defendant's prior arson conviction, and another five-year consecutive term because the prior arson conviction qualified as a serious felony.
In his opening brief on appeal, one of defendant's arguments was that the trial court abused its discretion by relying on defendant's prior arson conviction five times to reach the total term of 16 years in violation of the prohibition against the dual use of facts. The People did not fully address this dual-use argument, and the issue became the focus of oral argument held on March 3, 2009. On March 25, 2009, we affirmed the judgment in a published opinion. (See People v. Jones (2009) 172 Cal.App.4th 815, rehg. granted Apr. 24, 2009.) However, on April 3, 2009, defendant filed a petition for rehearing challenging our analysis in the section of the opinion addressing defendant's dual-use argument. On April 24, 2009, we granted defendant's petition for rehearing. We also deemed defendant's petition for rehearing to be a supplemental brief and directed the People to file a response. After consideration of this supplemental briefing, we are now issuing a revised opinion in order to clarify points made in our discussion of this issue.
Defendant's Admission of the Prior Conviction Allegations
Defendant contends his sentence should be vacated because the trial court failed to advise him of the direct consequences of admitting his prior arson conviction. Defendant claims these consequences included an increase in the sentence under section 451.1, subdivision (a), doubling of the base term of his offense under the "Three Strikes" law, and the addition of a five-year term because the prior arson conviction qualified as a serious felony.
"A defendant who admits a prior criminal conviction must first be advised of the increased sentence that might be imposed. [Citations.] However, unlike the admonition required for a waiver of constitutional rights, advisement of the penal consequences of admitting a prior conviction is not constitutionally mandated. Rather, it is a judicially declared rule of criminal procedure. [Citations.] Consequently, when the only error is a failure to advise of the penal ...