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The People v. Angelo Miguel Melendez

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


May 23, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ANGELO MIGUEL MELENDEZ, JR., DEFENDANT AND APPELLANT.

(Super. Ct. No. SF111853A)

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

P. v. Melendez CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury acquitted defendant Angelo Miguel Melendez, Jr., of several counts of attempted murder, assault with a firearm, and shooting from a vehicle, but found him guilty of making criminal threats (Pen. Code,*fn1 § 42 12022, subd. ( 12316, subd. ( , prohibited possession of a firearm by a felon (§ (1)), and prohibited possession of ammunition (§ (1)). Defendant appeals, contending (1) trial counsel was ineffective in failing to request a jury instruction on voluntary intoxication for the criminal threats charge; (2) the prosecutor committed prejudicial misconduct; and (3) a prior prison term enhancement (§ 667.5) should be stricken as duplicative. We shall strike the enhancement but shall otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The prosecution charged defendant with 10 offenses allegedly occurring on May 16, 2009: (1) attempted murder of police officer Emiliano Rincon (§§ 664, 187); (2) attempted murder of Sylvia Gaines (§§ 664, 187); (3) shooting a firearm at an occupied motor vehicle (§ 246); (4) shooting a firearm from a vehicle at Officer Rincon (§ 12034, subd. (c)); (5) shooting a firearm from a vehicle at Sylvia Gaines (§ 12034, subd. (c)); (6) assault with a firearm on Sylvia Gaines (§ 245, subd. (a)(2)); (7) assault with a semiautomatic firearm on Officer Rincon (§ 245, subd. (d)(2)); (8) criminal threats against Sylvia Gaines (§ 422); (9) felon in possession of a firearm (§ 12021, subd. (a)(1)); and (10) felon in possession of ammunition (§ 12316, subd. (b)(1)). Sentencing enhancement allegations included personal use of a firearm (§ 12022.5, subd. (a)), two prior serious felony convictions--an assault with a firearm from 1999 and domestic violence from 2008 (§§ 667, subds. (a), (d), 1170.12, subd. (b))--and a prior prison term for the 1999 assault (§ 667.5, subd. (a)).

The trial court granted defendant's motion for judgment of acquittal after trial on count 4. (§ 1118.1.)

The evidence adduced at trial included the following:

The incidents that resulted in the charges occurred around 1:30 a.m. on May 16, 2009. Before that, defendant spent several hours with his cousin, Regence Gaines.*fn2 They drove around, made three stops at liquor stores, picked up defendant's girlfriend around midnight, and around 1:30 a.m. stopped to greet another cousin, Howard Gaines aka Ray Ray. Regence testified defendant drank "a couple" of 24-ounce cans of malt liquor and snorted an unspecified amount of cocaine during the several-hour time period.

Regence testified defendant and Howard started to argue. Defendant pulled a sawed-off .22 caliber rifle from the front passenger side of Regence's car and walked back to Howard. From what he could see in the dark, it appeared to Regence that defendant held the rifle in his right hand at his side.

Howard's mother, Sylvia Gaines, lived nearby. She testified she heard gunshots outside and heard someone ask, "you trying to shoot me in my back?" She looked outside and saw more than 10 people in a "bunch." She went outside, where she saw her son Howard*fn3 and defendant (Sylvia's ex-husband's nephew) arguing "neck to neck" and "going around in circles." She stepped between them. She saw that defendant was holding a gun about two feet long, pointed toward the ground. When asked if defendant said anything to her, Sylvia testified, "Words w[ere] going back and forth, and then he said, 'I don't give a fuck about being kin.'" When asked if defendant was talking to her or Howard, Sylvia testified, "I have no idea. We both w[ere] standing there."

Sylvia testified that Howard started to respond, but she grabbed him, covered his mouth, and whispered in his ear to be quiet because, "He [defendant] looks like he's high." Defense counsel objected, and the trial court overruled the objection but immediately instructed the jury, "The jury will consider that, if at all, for a limited purpose, and that is to explain the witness's actions, not for the truth of the notion that somehow the defendant was high."

When asked on cross-examination if she ever saw defendant high before, Sylvia said, "I seen [sic] Miguel [defendant]--like right now, Miguel is fine. He looks like Miguel. That night Miguel's eyes were like beamin.'" Sylvia explained by "beamin'" she meant his eyes were "just big"--"his eyes and pupils like he's on something." Sylvia has previously seen people high.

Sylvia testified that, after she told Howard to be quiet, "some people were pulling me. I don't know who they were, but they were pulling me and I turned around and he [defendant] had the gun up pointing." The gun was pointing at Sylvia and Howard. Sylvia said she would call 911. Someone called for defendant to get in the car. Defendant said "I'll be back," and then he got in the car and left. A police officer testified that Sylvia reported defendant had said he would come back and "kill all you motherfuckers"; Sylvia denied having reported that specific phrase; she did, however, testify that defendant had said he would be back and was "cussing." Sylvia testified she was shocked and "a little scared" that defendant pointed the gun in her direction. She still considered him her nephew despite her divorce from his uncle.

After defendant got into the car, Sylvia heard gunshots but did not know where they came from. They seemed to come "from all over." She called 911. Police Officer Emiliano Rincon responded in a patrol car. Rincon testified that, as he sat in his car speaking to Sylvia through the window, a black Mercedes drove by, and Rincon heard several gunshots that appeared to come from that car. The Mercedes drove away, hit a truck, and stalled. After the car stalled, defendant fled on foot.

Regence testified he was originally charged as a co-defendant in this case, but he reached an agreement with the prosecution to testify truthfully against defendant in exchange for a stipulated state prison term of 16 months on a charge of letting someone discharge a gun from his car, as opposed to a potential life sentence on the original charges.

Defendant's fingerprints were found on the Mercedes.

The defense did not call any witnesses.

The jury found defendant guilty on counts 8, 9, and 10 (criminal threats and felon in possession of a gun and ammunition). The jury found defendant not guilty on the remaining counts.

In a bifurcated bench trial, the trial court found true the allegations of two prior serious felony convictions and one prior prison term.

The trial court sentenced defendant, under the three strikes law (§ 667, subds. (b)-(i)), to a term of 25 years to life on count 8 (criminal threats), concurrent terms of 25 years to life on counts 9 and 10 (felon in possession of gun and ammunition), plus consecutive terms of four years for use of a firearm (§ 12022.5), five years for each of the two prior serious felony convictions (§ 667, subd. (a)), and three years for the prior prison term (§ 667.5). The total sentence was 42 years to life.*fn4

DISCUSSION

I

Ineffective Assistance Of Counsel

Defendant contends his trial counsel was ineffective in failing to request a jury instruction that presented the jury with the option of finding that voluntary intoxication prevented defendant from having the specific intent to threaten under section 422.*fn5 We disagree.

Defendant acknowledges the trial court did not have any sua sponte duty to instruct on voluntary intoxication. (People v. Saille (1991) 54 Cal.3d 1103, 1120; accord, People v. San Nicolas (2004) 34 Cal.4th 614, 669.) Even if the defendant requests the instruction, the trial court is not required to give it unless there is substantial evidence that (1) defendant was intoxicated, and (2) that the intoxication affected his actual formation of specific intent. (People v. Williams (1997) 16 Cal.4th 635, 677; see also, § 22 [evidence of intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, not to negate capacity to form intent].)

Defendant bears the burden to show ineffective assistance of counsel. (People v. Gray (2005) 37 Cal.4th 168, 207 (Gray).) To succeed, defendant must show trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 678-679] (Strickland); Gray, supra, 37 Cal.4th at pp. 206-207.) Defendant must then show a reasonable probability he would have received a more favorable result but for counsel's deficiency. (Strickland, supra, 466 U.S. at p. 687 [80 L.Ed.2d at p. 678]; Gray, supra, at p. 207.)

Here, defendant cannot show counsel performed deficiently, much less show prejudice. Although there was evidence that defendant had consumed 48 ounces of beer and an undisclosed amount of cocaine in the four or five hours before the incident, there was no evidence that the intoxicants affected his actual formation of specific intent. Defendant did not testify. Sylvia testified that defendant might be "high," but also that she believed defendant meant his words as a threat--a belief that was evidenced by her warning to Howard and her calling 911. Being "high" and forming specific intent to commit a crime are not mutually exclusive. (See People v. Williams, supra, 16 Cal.4th at p. 677 [evidence that defendant was "probably spaced out" and "doped up" did not constitute evidence that intoxication had any effect on the defendant's formation of intent].)

Defendant argues that, by the time Regence and defendant picked up defendant's girlfriend around midnight, the condition of both defendant and Regence had "deteriorated to the point that she immediately took over the driving." However, defendant cites no evidence that the girlfriend had to take over the driving due to the inebriated state of the driver (Regence) or defendant. Regence testified he has a "high tolerance" for beer, he "tried" the cocaine, and he "let her [the girlfriend] drive." The jury heard no evidence signaling defendant was incapable of driving.

Defendant compares this case to People v. Hughes (2002) 27 Cal.4th 287, where the defendant had alcohol on his breath, "glassy eyes," slightly slurred speech, seemed unsteady but was able to stand, and seemed intoxicated but not drunk. (Id. at p. 317.) In that case, however, the issue before the Supreme Court was whether a different instruction eviscerated the voluntary intoxication instruction also given by the trial court. (Id. at pp. 340-341.) The Supreme Court concluded it did not. (Ibid.) Thus, Hughes did not discuss or resolve the question whether there was substantial evidence to support a voluntary intoxication instruction. Cases are not authority for propositions not decided therein. (People v. Scheid (1997) 16 Cal.4th 1, 17.)

Since there was no evidence that the intoxicants affected defendant's actual formation of specific intent, trial counsel was not deficient for failing to request a voluntary intoxication instruction. (People v. Williams, supra, 16 Cal.4th at p. 677.)

Even assuming the evidence supported a voluntary intoxication instruction, defendant fails to meet his burden to show that there could be no satisfactory tactical explanation for counsel's choice not to request the instruction. (Strickland, supra, 466 U.S. at p. 689 [80 L.Ed.2d at p. 681]; Gray, supra, 37 Cal.4th at p. 207 [reviewing court gives deference to trial counsel's tactical choices and will not find ineffective assistance where the record is devoid of counsel's reasoning unless there can be no satisfactory explanation for counsel's choice].) The defense theory, as argued to the jury, was (1) the only witnesses placing defendant at the scene--Regence and Sylvia--were not credible witnesses, and (2) the words "I don't give a fuck if you're kin" did not constitute a threat. Trial counsel may have felt that an intoxication defense would have muddied the waters by appearing inconsistent with this theory--not an unreasonable interpretation. Counsel may also have believed that the argument against intent in effect conceded that the threat was made to Sylvia as charged--a logical belief. That trial counsel made a tactical choice is supported by counsel's initial objection to Sylvia's testimony that defendant looked high; clearly counsel felt the evidence of intoxication was more prejudicial than probative, given that it was clear from Sylvia's reaction to defendant that she believed he specifically intended to not only threaten her and Howard, but also to kill one or both of them.

Defendant argues the defense theory that the words did not constitute a threat runs counter to case law that language must be evaluated in the context of the surrounding circumstances--in this case the gun in defendant's hand. However, the defense theory was that the only two witnesses who claimed defendant held a gun lacked credibility. The theory and argument were consistent with each other and with the evidence presented at trial. Counsel's representation was not ineffective.*fn6

II

Prosecutorial Misconduct

Defendant claims the prosecutor engaged in misconduct that violated defendant's federal constitutional rights to due process and a fair trial, compelling reversal. We disagree.

Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Earp (1999) 20 Cal.4th 826, 858 (Earp).) Prosecutorial misconduct implicates federal due process when a prosecutor's remarks so infect the trial with unfairness as to make the resulting conviction a denial of due process. (Ibid.)

A. Phone Calls

Defendant first claims the prosecutor's failure to admonish witness Sylvia Gaines not to mention any alleged phone call from defendant to Howard (who did not testify), and the prosecutor's failure to advise the court of the potential for hearsay, constituted prejudicial misconduct that was not cured by the trial court's admonition. We disagree.

1. Facts

On cross-examination by defense counsel, Sylvia testified she told the police officers what happened as it involved her. On redirect examination by the prosecutor, the following exchange occurred:

"Q. Why did you limit it just to what happened involving you?

"A. Because Miguel [defendant] had called and apologized for what he had done.

"[Defense counsel]: Objection, Your Honor. Can we approach?

"THE COURT: Yes, approach the bench.

"(Discussion held at bench.)

"THE COURT: Overruled."

The prosecutor asked if the witness had anything to add. The trial court told the prosecutor to ask another question. The prosecutor then turned to questions about why Sylvia did not identify for police the other people who were in the street that night. Sylvia said they did not trust the police and did not want to be involved.

On recross-examination by defense counsel, Sylvia testified as follows:

"Q. . . . [Y]ou said today for the first time that at some point that [defendant] called you, correct?

"A. Yeah.

"Q. When did he call you?

"A. He didn't call me, he called my son.

"Q. He never called you?

"A. No. I didn't tell you he called me. I said he called my son and apologized.

"Q. Okay. And your son told you this?

"A. Yes.

"Q. And this is Howard?

"A. Howard.

"Q. When did Howard tell you this?

"A. After everything was over with. First of all, when everything was over with a couple of days after that he was getting phone calls from [defendant] with threats at first.

"Q. I want to stop you there. I'm trying to ask you just about this phone call that you're saying that [defendant] made to Howard where he apologized. This is the first time that you told anybody about this, right?

"A. Yeah, that's a couple of days after the incident.

"Q. But [defendant] never called you?

"A. No, I didn't tell you he called me.

"Q. This is all coming from Howard, right?

"A. Yes.

"Q. . . . [T]here is never a time when [defendant] called you?

"A. No.

"Q. And all this information you're telling us is what Howard told you?

"A. Exactly."

At the next recess (after 40 trial transcript pages of testimony by two police officers), defense counsel said, "I want to ask the Court to strike some of [Sylvia's] testimony about everything her son said about any phone calls, and that's--when she first said it, the way I heard it and we approached the bench, it was different than what she was saying and I ask all that be stricken and the Court admonish the jury that that was improper hearsay evidence." The trial court indicated it initially overruled the objection due to its impression that defendant spoke directly to Sylvia on the phone, admissible as an exception to the hearsay rule.

After the recess, the trial court instructed the jury: "Ladies and gentlemen, this morning there was testimony by Ms. Gaines about a phone call the defendant allegedly made to her son Howard, also known as Ray Ray, you'll disregard that testimony, and disregard any words allegedly said during that conversation. That part of her testimony has been stricken from the record."

2. Analysis

"A prosecutor 'has the duty to guard against statements by his witnesses containing inadmissible evidence,' and if a prosecutor 'believes a witness may give an inadmissible answer during his examination, he must warn the witness to refrain from making such a statement.' [Citation.]" (Earp, supra, 20 Cal.4th at p. 865.)

Defendant argues the prosecutor knew or should have known it was Howard, not Sylvia, who received phone calls from defendant (according to Sylvia), and no hearsay exception would allow Sylvia to testify about phone calls to Howard.

On this record, we see no indication that the prosecutor knew or should have known Sylvia would bring up hearsay phone calls between defendant and Howard. Sylvia showed a strong desire to keep Howard out of the case and therefore it is likely she said nothing about the phone calls to the prosecutor before trial. The prosecutor did not raise the topic at trial. The witness's initial reference to a phone call came unexpectedly given the surrounding testimony and was not pursued by the prosecutor.

Citing authority that the prosecutor has a duty to correct misleading testimony (In re Jackson (1992) 3 Cal.4th 578, 595, overruled on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 545), defendant argues the prosecutor misled the trial court and caused a delay between testimony and admonition, by failing to correct the court's initial impression that defendant spoke directly to Sylvia on the phone. However, this argument assumes the prosecutor actually knew about the phone calls. Nothing in the record supports this assumption. Moreover, the defense did not request an immediate admonition.

In any event, we presume the jury followed the trial court's admonition to disregard the testimony about the phone calls. (People v. Osband (1996) 13 Cal.4th 622, 718.)

Defendant argues the admonition was ineffective to "blot[] out" of the jurors' minds the "egregious and shocking attack upon the integrity of [defendant]." (People v. Schiers (1971) 19 Cal.App.3d 102, 112.) We disagree with the suggestion that defendant's apology to his aunt-by-marriage was an egregious and shocking attack on defendant's integrity. Moreover, any reasonable juror would understand that any testimony from Sylvia regarding a phone call that she had merely heard about was entitled to little, if any, weight.

We see no prejudicial prosecutorial misconduct evidenced in the portion of the trial discussed above.

B. Claims of Improper Vouching

Defendant contends the prosecutor improperly vouched for the veracity of witnesses Sylvia and Regence. We disagree. As explained below, the record shows permissible argument by the prosecutor regarding the credibility of the witnesses.

"It is misconduct for prosecutors to bolster their case 'by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it.' [Citation.] Similarly, it is misconduct 'to suggest that evidence available to the government, but not before the jury, corroborates the testimony of a witness.' [Citation.] The vice of such remarks is that they 'may be understood by jurors to permit them to avoid independently assessing witness credibility and to rely on the government's view of the evidence.' [Citation.]" (People v. Bonilla (2007) 41 Cal.4th 313, 336.)

"However, these limits do not preclude all comment regarding a witness's credibility. '"'A prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.'"' [Citation.] 'So long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the "facts of the record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief," her comments cannot be characterized as improper vouching.' [Citations.]" (People v. Bonilla, supra, 41 Cal.4th at pp. 336-337.) A prosecutor is not permitted "to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness's truthfulness at trial. [Citation.] However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the 'facts of the record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' her comments cannot be characterized as improper vouching. [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 971, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) "[T]here is no impropriety in attempting the persuade jurors to draw inferences based on the evidence." (Id. at p. 972.)

1. Vouching for Sylvia Gaines

Defendant argues the prosecutor improperly vouched for Sylvia's credibility, by saying in closing argument:

"Let's talk first about Sylvia Gaines. Why should we believe what she said when she came in here? Well, Sylvia Gaines has nothing to gain from lying. What's in it for her? Nothing. This is her nephew. Somebody that she was close to as he was growing up, somebody who's her family. It doesn't benefit her in any way to get him in trouble. In fact, it actually probably jeopardizes her family.

"[Defense counsel]: Objection, inappropriate.

". . . .

"THE COURT: Let's hear the rest of the argument.

"[Prosecutor]: Jeopardizes her family relationships, deteriorates the family unit --.

"THE COURT: Overruled."

We conclude the prosecutor did not engage in improper vouching. There was evidence that Sylvia had been related to defendant by marriage, having been married to his uncle, and she still considered defendant her nephew. The prosecutor's remarks were proper comment on the evidence and reasonable inferences to be drawn therefrom.

2. Vouching for Regence

The prosecutor argued to the jury that Regence, as the driver of the car that night, "knew he was facing a lot of time if he didn't tell the truth. [¶] And he told you he decided he didn't want to go away for life for something that wasn't his doing. Those were his exact words: 'I don't want to go for life for something that wasn't my doing.'

"He wasn't responsible for the shooting, personally. He wasn't responsible for having the gun and he didn't want to go down on all of it because of something the defendant did, so he decided that he would come in here and tell the truth and he got a benefit for it. He knew that he would not be able to make that deal if he was lying. He told you what he thought his role was is [sic] to come in here and tell the whole story about what happened that night to the best of his knowledge. That's exactly what he did.

"And if he came in here and lied, pointed at the defendant when it wasn't the defendant that did this, he loses his deal. He actually has an incentive not to lie because if he does lie, he can't have the benefit of that contract he made."

First, defendant has forfeited this particular claim of vouching by failing to make a timely objection and request an admonition to cure any potential harm. (People v. Price (1991) 1 Cal.4th 324, 447; People v. Bonilla, supra, 41 Cal.4th at p. 336 [to preserve claim of prosecutorial misconduct during argument, defendant must contemporaneously object and seek a jury admonition].) Although defendant argues an admonition could not cure the improper vouching once the jury heard the prosecutor believed the witness, we disagree. In this case, as distinguished from People v. Schiers, supra, 19 Cal.App.3d 102, cited by defendant, the prosecutor did not suggest she had any independent evidence of the witness's truthfulness.*fn7 No authority suggests the futility of seeking an admonition in the instant case.

Second, it was proper for the jury to know that Regence had entered a negotiated plea which required him to testify truthfully at defendant's trial. (Bonilla, supra, 41 Cal.4th at p. 337.) "'"When an accomplice testifies for the prosecution, full disclosure of any agreement affecting the witness is required to ensure that the jury has a complete picture of the factors affecting the witness's credibility."'" (Ibid.) The argument regarding his credibility contained reasonable inferences from the evidence and testimony. There was no vouching.

Finally, defendant adds that his trial counsel rendered ineffective assistance by failing to object to the prosecutor's argument. Defendant provides no analysis. None, however, is required, as we have already explained that the prosecutor's conduct was not objectionable.

We conclude defendant has failed to show grounds for reversal based on prosecutorial misconduct. We also reject defendant's claim that the cumulative impact of any errors made at trial prejudiced him. Whether considered individually or for cumulative effect, no error occurred which affected the trial process or deprived defendant of his constitutional rights. (People v. Sanders (1995) 11 Cal.4th 475, 565.)

III Sentencing

In a supplemental brief filed with our permission, defendant asks us to strike his three-year prior prison term enhancement (§ 667.5), because it was based on the 1999 assault which also served as the basis for one of the five-year enhancements for prior serious felony convictions (§ 667, subd. (a)). Defendant cites People v. Jones (1993) 5 Cal.4th 1142, which--in construing previous language of sections 667 and 667.5 substantially identical to the current version of those statutes--held that when multiple statutory enhancements are available for the same prior offense, one of which is a section 667, subdivision (a) enhancement, only the greater enhancement will apply. (Id. at pp. 1146-1147, 1149, 1150 [construing former § 667, subd. (b), now found in § 667, subd. (a)(2).) Jones held the trial court improperly imposed a cumulative enhancement under both sections 667 and 667.5, based on a single prior felony offense. Jones directed the trial court to strike the prior prison term enhancement. (Id. at p. 1153.)

The People argue this case is not controlled by Jones, but rather by People v. Gonzales (1993) 20 Cal.App.4th 1607, which held Jones does not apply when the prison term is served for two separate crimes, only one of which is a serious felony supporting the prior conviction enhancement. The People argue that here defendant's prior prison term was served for the 1999 assault (§ 245) plus a section 12022.5, subdivision (a) enhancement for personal use of a deadly weapon in the 1999 assault. The People assert that there was no duplication, because defendant's prison term was the result of two separate penalties.

Defendant argues in reply that the Gonzales exception to Jones is inapplicable, because Gonzales involved a concurrent prior prison sentence imposed in two separate, differently numbered cases for different crimes. People v. Ruiz (1996) 44 Cal.App.4th 1653, 1666-1671, also found Jones inapposite where the prior prison term was served for two separately numbered cases for which a concurrent term was served. People v. Brandon (1995) 32 Cal.App.4th 1033, similarly found Jones inapposite where both the prior prison term enhancement and the prior serious felony enhancement referred to multiple offenses. "Although they each referred to the same armed kidnapping and armed robbery offenses, either one would provide a sufficient basis in and of itself to support either enhancement." (People v. Brandon, supra, 32 Cal.App.4th at p. 1055.)

We agree with defendant that these Jones exceptions do not apply here. The exceptions apply when one or both of the enhancements refer to multiple offenses, not multiple penalties. The 1999 weapon use enhancement would not provide a sufficient basis in and of itself to support the current prior serious felony conviction (because the 1999 enhancement was not a felony conviction) or the current prior prison term enhancement (because the 1999 enhancement would not have resulted in defendant's imprisonment but for the 1999 assault).

There is no evidence that the prison term was based in part on any offense other than the assault. The records of the 1999 case submitted by the People in this case (the section 969(b) packet) show the 1999 prison term was for one count of assault only, and all other counts were dismissed.

We have considered whether the prior prison term enhancement could be appropriate on the basis that defendant served multiple periods of incarceration as a result of committing new offenses while on parole for the 1999 assault. The trial court, in imposing the prior prison term enhancement, noted defendant's multiple instances of re-incarceration for parole violations following the 1999 conviction.*fn8 In re Kelly (1983) 33 Cal.3d 267 (overruled on other grounds in People v. Langston (2004) 33 Cal.4th 1237, 1245-1246), interpreted section 667.5, subdivision (g)'s definition of prior prison term to mean: "[A] prior separate prison term is defined as that time period a defendant has spent actually incarcerated for his offense prior to release on parole. In addition, if the defendant has violated his parole and has been sent back to prison, but has not received a new commitment, that time block is deemed to be continuing. If defendant has been returned with the addition of a new commitment, however, the time block is not continued, and only that portion of prison time spent prior to release on parole constitutes the prior separate prison term." (In re Kelly, supra, 33 Cal.3d at pp. 270-271.)

Here, it does not appear that defendant received new commitments for new felonies constituting parole violations. Additionally, penalties for prior prison terms will not be imposed "unless they are charged and admitted or found true in the action for the new offense." (§ 667.5, subd. (d).) In the instant case, the pleading charged defendant with a prior prison term for the 1999 assault only. Moreover, section 667.5 authorizes a one-year prior prison term enhancement for nonviolent felonies and a three-year prior prison term enhancement for violent felonies. It does not appear a three-year enhancement would be appropriate in this case based on a new violent felony which also constituted a parole violation. We invited supplemental briefing on this issue, and the People concede that defendant's incarceration on parole violations would not authorize the prior prison term enhancement.

We disagree with the People's reading of People v. Jones and accept the People's concession as to In re Kelly and will strike the lesser enhancement, i.e., the section 667.5 prior prison term enhancement of three years.

DISPOSITION

The section 667.5 enhancement is ordered stricken. The trial court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

We concur: BLEASE , Acting P. J. ROBIE , J.


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