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People v. Evangelisti4/11/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
On a prior appeal, we reversed three counts of attempted murder, remanded for a new trial on those counts, and affirmed several other counts, including transporting drugs while armed, felony assault, evading police and causing injury, and being a felon in possession of a gun. Apparently, there was no retrial. Instead, the trial court sentenced defendant to 25 years in prison on the counts we had affirmed.
Defendant had been previously convicted on three felony counts arising out of a drunk driving accident that killed his passenger. He was convicted of gross vehicular manslaughter while intoxicated, gross vehicular manslaughter, and driving under the influence causing injury. As a result of this prior case, the trial court in the instant matter imposed a serious felony 5-year enhancement (Pen. Code, § 667, subd. (a)) and a one-year enhancement for having served a prison term (§ 667.5, subd. (b)).
The sole issue on this appeal is whether it was proper to impose both enhancements, or whether the trial court should have imposed only the greater.
Subdivision (a) of section 667 provides for a 5-year enhancement for a prior conviction of a serious felony. Subdivision (2) of that section provides, in part, that " his subdivision shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment." Interpreting this subdivision, erroneously specified in its opinion as subdivision (b), the California Supreme Court held that both sections 667, subdivision (a) and 667.5, subdivision (b) enhancements could not be imposed based on a single count prior conviction. (People v. Jones (1993) 5 Cal.4th 1142.)
In People v. Wiley (1994) 25 Cal.App.4th 159, the appellate court held that the two enhancements could be applied when there was conviction in a single proceeding on counts arising out of three separate burglaries. People v. Ruiz (1996) 44 Cal.App.4th 1653, arrived at the same conclusion with respect to different cases that were resolved at the same proceeding.
No specific authority has been brought to our attention that prohibits the imposition of both enhancements when multiple convictions have resulted from a single incident. Accordingly, we turn to section 654 to see if that general prohibition on multiple punishment applies.
" he appellate courts have disagreed on whether section 654 applies to enhancements. [Citations.]" (People v. Coronado (1995) 12 Cal.4th 145, 157.) In People v. Rodriguez (1988) 206 Cal.App.3d 517, a case from our district, the court held that section 654 does not apply to prior conviction enhancements because they "relate to the status of the recidivist offender engaging in criminal conduct, not to the conduct itself." (Id. at p. 519.) Agreeing with Rodriguez, the Coronado court observed that "there are at least two types of sentence enhancements: (1) those which go to the nature of the offender [such as prior convictions]; and (2) those which go to the nature of the offense [such as firearm or bodily injury enhancements]. [Citations.]" (People v. Coronado, supra, 12 Cal.4th at p. 156.) Leaving open the question of whether section 654 applies to the latter, the Supreme Court held it does not apply to the former. (See People v. Arndt (1999) 76 Cal.App.4th 387, 394-396.)
Having been pointed to no a
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