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People v. Moustirats1/12/2005
hat recidivist felons ought to be incapacitated. (Id. at p. 30.) Considering Moustirats's history of repeatedly committing residential burglaries and his demonstrated intent to continue to engage in this criminal conduct, there is nothing grossly disproportionate about his sentence. Moustirats's sentence does not "shock the conscience," and is therefore not cruel or unusual punishment. (In re Lynch, supra, 8 Cal.3d at p. 424.)
III. Dual Enhancement for Identical Priors
Moustirats argues, and the Attorney General agrees, that the trial court erred in imposing sentence enhancements for the two prior convictions as prior serious felonies under section 667, subdivision (a)(1) and as prior prison terms under section 667.5, subdivision (b). In People v. Jones (1993) 5 Cal.4th 1142, 1150, the Supreme Court held that when allegations of prior serious felonies and prior prison terms are both found true, only the former may be imposed as sentence enhancements. We agree that the two one-year enhancements under section 667.5, subdivision (b) must be vacated.
CONCLUSION
The sentence is modified to strike the two one-year prior prison term enhancements under section 667.5, subdivision (b). The trial court is directed to prepare an amended abstract of judgment reflecting this modification and forward it to the Department of Corrections. In all other respects, the judgment is affirmed.
WE CONCUR:
McDONALD, J.
McINTYRE, J.
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