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The People v. Dellonamaye Smith

October 27, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DELLONAMAYE SMITH, DEFENDANT AND APPELLANT.



(Super. Ct. No. 09F01848)

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

P. v. Smith

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 convicted defendant Dellonamaye Smith of evading a peace officer with willful and wanton disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a)) and lynching (Pen. Code, § 405a).*fn1 Following her conviction, defendant admitted four prior prison term enhancements (§ 667.5, subd. (b)), and the trial court sentenced her to six years and eight months in prison.*fn2

On appeal, defendant contends the four prior prison term enhancements must be stricken because she did not admit that she served a separate prison term for each conviction and there was no evidence that she had. Defendant also contends she is entitled to additional presentence conduct credit under the recent amendments to section 4019.

We shall conclude, based on the totality of the circumstances, that defendant admitted the allegations set forth in the first amended information, which included an allegation that she served a separate prison term for each conviction. We shall further conclude that defendant is entitled to additional presentence conduct credit. Accordingly, we shall modify the judgment to reflect those additional credits and affirm the judgment as modified.

I DISCUSSION*fn3

Prior Prison Term Enhancements

"[T]he prosecution bears the burden of proving each element of a sentence enhancement beyond a reasonable doubt; a reviewing court must review the record in the light most favorable to the judgment to determine whether substantial evidence supports the factfinder's conclusion, i.e., whether a reasonable trier of fact could have found that the prosecution had sustained its burden of proving the defendant guilty beyond a reasonable doubt." (People v. Jones (1999) 75 Cal.App.4th 616, 631.)

"Imposition of a sentence enhancement under Penal Code section 667.5 requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction." (People v. Tenner (1993) 6 Cal.4th 559, 563.)

Defendant contends there was insufficient evidence to prove the prior prison term enhancements because she "did not admit that she had served a separate prison term for each conviction and there was no evidence before the court establishing that she had." We are not persuaded. The first amended information alleged defendant had four prior felony convictions within the meaning of section 667.5, subdivision (b): (1) possession of a controlled substance for sale on November 18, 1997; (2) possession of a controlled substance on October 25, 2000; (3) receiving stolen property on November 9, 2001; and (4) possession of a weapon inside a penal institution on March 22, 2004. As to each of the prior convictions, the information further alleged that defendant "served a separate term in state prison of [one] year [or] more for the said offense, and that she did not remain free of prison custody for, or did commit an offense resulting in a felony conviction during a period of five years subsequent to the conclusion of said term . . . ."

After defendant was convicted, the trial court asked defense counsel whether defendant would be "going forward . . . with a trial on the priors." Counsel responded that he had spoken to defendant, and that she was "prepared to admit her priors at this point." After addressing issues related to her co-defendants, the court then addressed defendant directly, stating: "[Y]our lawyer has indicated to me that you want to go ahead and admit to having suffered the prior convictions that are addressed in the Information. And that would follow Count 3, and there's four prior convictions that are here in the Information. [ΒΆ] Is that what you want to do? You want to waive or give up your right to trial ...


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