Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD198457, John L. Davidson, Judge.
NARES, J.
We need not discuss the facts involved in the five bank robberies of which Harrell was convicted in this case because they are not pertinent to the two sentencing issues presented in this appeal.
In an amended information (the information), the San Diego County District Attorney charged Ricky Martin Harrell with five counts of robbery (Pen. Code, § 211). The information also contained various enhancement allegations averring that Harrell had suffered three prison priors for purposes of section 667.5, subdivision (b) (hereafter section 667.5(b)); a prior serious felony conviction for purposes of section 667, subdivision (a)(1) (hereafter section 667(a)(1)); and three strike priors for purposes of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12).
All further statutory references are to the Penal Code.
A jury convicted Harrell of all five counts of robbery. In a bifurcated bench trial on the enhancement allegations, the court found all of the allegations true beyond a reasonable doubt. The court thereafter sentenced Harrell under the Three Strikes law to an indeterminate prison term of 125 years to life, consisting of 25 years to life for each of the five robbery convictions. The court also sentenced Harrell to a 40-year consecutive determinate term, consisting of five years for each of the five current robbery convictions for the prior serious felony conviction enhancement (§ 667(a)(1)), for a total of 25 years; plus one year for each of the five current robbery convictions for the three prior prison term convictions (§ 667.5(b)), for an additional 15 years. In addition, the court gave Harrell a total of 405 days of custody credit, consisting of 353 days of actual local custody credit and 52 days of local worktime credit (§ 2933.1).
On appeal, Harrell contends (1) the true finding on the third prison prior allegation must be reversed, and the related five one-year enhancements must be stricken, because the evidence is insufficient to prove beyond a reasonable doubt that he did not remain free from prison custody or suffer a felony conviction within five years so as to support the third prison prior allegation; and (2) the court erred in calculating his presentence custody credits, and the abstract of judgment must be amended to show he is entitled to a total of 446 days of custody credits, rather than the 405 days the court gave him. We affirm the court's true finding on the third prison prior allegation and dismiss Harrell's claim of custodial credit computation error for failure to seek resolution of that claim by motion in the trial court.
Harrell has withdrawn one of the three main contentions raised in his appellant's opening brief. In his first (and now abandoned) contention, he claimed that "as it concerned the 'first prison prior' allegation alleged in the [information], i.e., the three robbery convictions (Case No. CR 60576 [citation]), the imposition of both the five-year section 667[(a)(1)] serious felony enhancement and the one-year section 667.5[(b)] enhancement for the same convictions created an unauthorized sentence violating the dual use rule." The People responded that Harrell had forfeited that contention, and the court was authorized to "case split" in this fashion under the holdings in People v. Medina (1988) 206 Cal.App.3d 986, People v. Wiley (1994) 25 Cal.App.4th 159, and People v. Brandon (1995) 32 Cal.App.4th 1033. In his reply brief, Harrell asserts the People's "second contention is correct; therefore [he] respectfully concedes on this issue" because more than one conviction for robbery was alleged under the "first prison prior cluster." Accordingly, we need not further discuss this contention.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE
Harrell contends the court's true finding on the third prison prior allegation must be reversed, and the related five one-year enhancements must be stricken, because the evidence the People presented at the bifurcated bench trial is insufficient to support that finding. We conclude the evidence is sufficient to sustain the true finding in question.
A. Applicable Legal Principles
Due process requires the prosecution to prove beyond a reasonable doubt every element of a sentencing enhancement allegation. (People v. Tenner (1993) 6 Cal.4th 559, 566 (Tenner).) In determining the sufficiency of the prosecution's evidence, "[o]ur function, as an appellate court, has been to review the record in the light most favorable to the judgment [citation] to determine whether substantial evidence supports the fact finder'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." (Id. at p. 567.)
Here, the challenged prison prior enhancement was imposed under section 667.5(b), which provides:
"Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [¶] . . . [¶] (b) [W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction." (Italics added.)
In Tenner, the California Supreme Court explained that imposition of a sentence enhancement under section 667.5(b) requires proof beyond a reasonable doubt of four elements (hereafter referred to as the Tenner elements): (1) The defendant was previously convicted of a felony; (2) he was imprisoned as a result of that conviction; (3) he completed that term of imprisonment; and (4) he did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. (Tenner, supra, 6 Cal.4th at pp. 563, 566.) The Tenner court also explained that "[a]lthough . . . the abstract of judgment and commitment form can suffice as proof under [section 667.5], . . . [w]hen the prison packet is available [citation], the better practice is to introduce it in evidence." (Tenner, supra, at p. 567.)
A prison packet consists of "records maintained by the institution where the defendant was incarcerated, or certified copies thereof." (Tenner, supra, 6 Cal.4th at p. 563.)
B. Analysis
Harrell challenges the court's true finding on the third prison prior allegation on the ground the People's evidence was insufficient to support the fourth Tenner element (discussed, ante) required for the imposition of a prison prior sentence enhancement under section 667.5(b). Specifically, he contends the People's evidence, particularly the prison packet introduced into evidence as court exhibit No. 5, was insufficient to prove beyond a reasonable doubt under section 667.5(b) that he did not remain free of both prison custody and the commission of a felony offense for a continuous five-year period between October 6, 1992, when he paroled for his 1988 drug conviction and released to the custody of the United States Marshal, and his return to custody on April 5, 1999, when he was convicted of possessing narcotics (Health & Saf. Code, § 11350, subd. (a)). Harrell maintains the People's evidence was insufficient because this time frame between October 6, 1992 and April 5, 1999 "covers a period of over six years," which exceeds the five-year period set forth in section 667.5(b).
Exhibit No. 5 was a prison packet from the then-California Department of Corrections (now California Department of Corrections and Rehabilitation) (CDC) that consisted of a certified copy of (1) the chronological and movement history of Harrell's incarceration from May 19, 1983 to January 12, 1995; (2) a 1983 abstract of judgment showing he was convicted on December 7, 1982 of three 1982 robberies; (3) a 1989 abstract of judgment showing he was convicted on December 27, 1988 of two counts of transporting narcotics for sale (Health & Saf. Code, § 11379) and one count of possessing narcotics for sale (Health & Saf. Code, § 11378); two sets of Harrell's fingerprints; and a CDC booking photograph of Harrell.
Harrell 's contentions are unavailing. Exhibit No. 5 does show Harrell was paroled and released to the custody of the United States Marshal on October 6, 1992, and he was discharged effective January 26, 1993 "TO ALLOW Federal EXCLUSIVE JURISDICTION." Reviewing the record in the light most favorable to the judgment, as we must (Tenner, supra, 6 Cal.4th at p. 567), we conclude these facts support a reasonable inference that Harrell was incarcerated in federal prison when he was released on parole in October 1992 and subsequently discharged from the custody of the CDC in January 1993. Moreover, under section 3000, subdivision (b)(1), Harrell was subject to a three-year period of parole that was not subject to waiver absent good cause, as the People point out, and thus the court could reasonably infer the CDC would not forgo three years of parole supervision unless Harrell was being incarcerated in federal custody for at least that long.
Section 3000, subdivision (b)(1) provides in part: "At the expiration of a term of imprisonment of one year and one day, or a term of imprisonment imposed pursuant to Section 1170 or at the expiration of a term reduced pursuant to Section 2931 or 2933, if applicable, the inmate shall be released on parole for a period not exceeding three years, except that any inmate sentenced for an offense specified in paragraph (3), (4), (5), (6), (11), (16), or (18) of subdivision (c) of Section 667.5 shall be released on parole for a period not exceeding five years, unless in either case the parole authority for good cause waives parole and discharges the inmate from the custody of the department."
Citing section 667.5, subdivision (f) (hereafter section 667.5(f)) and People v. Gamble (1996) 48 Cal.App.4th 576 (Gamble), Harrell asserts that "even though there is some evidence that indicates [he] was released to the custody of the United States Marshal[] and arguably the state discharged [him] from parole in deference to federal jurisdiction," the People "did not plead a foreign prior, nor allege that any federal prior was a felony under California law, or that [he] served at least one year on any foreign conviction thus depriving [him] of notice consistent with due process." Citing Gamble, Harrell also maintains there was no evidence to show he actually "served" at least a year in federal prison as required by section 667.5(f).
Section 667.5(f) and Gamble, supra, 48 Cal.App.4th 576, are inapposite. Section 667.5(f) governs the determination of whether a prior prison term based on a conviction in a foreign jurisdiction may be used as an enhancement in California under section 667.5. (See 3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, § 338, p. 437.) That subdivision provides:
"A prior conviction of a felony shall include a conviction in another jurisdiction for an offense which, if committed in California, is punishable by imprisonment in the state prison if the defendant served one year or more in prison for the offense in the other jurisdiction. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law if the defendant served one year or more in prison for the offense in the other jurisdiction." (§ 667.5(f).)
Noting that section 667.5(f) requires that the defendant actually have "served" at least one year in prison for the offense committed in the foreign jurisdiction, Witkin explains that "[t]here is no similar durational requirement for a California prior prison term." (3 Witkin & Epstein, Cal. Criminal Law, supra, Punishment, § 338, p. 437, italics added.)
The Court of Appeal in Gamble explained that under section 667.5(f) "a prior prison term from another jurisdiction qualifies as an enhancement only 'if the defendant served one year or more in prison for the offense in the other jurisdiction'" (Gamble, supra, 48 Cal.App.4th at p. 578, first italics added) and held that evidence the defendant was sentenced in Ohio to a term of "'not less than'" 18 months "'nor more than'" five years was insufficient to prove he actually served at least one year in prison for the Ohio offense. (Ibid.) The Gamble court also explained that "[w]hen a prior California prison term is charged as an enhancement, the duration of the term actually served is irrelevant." (Ibid., italics added.)
Here, the record shows the People did not seek to impose a sentence enhancement under section 667.5(b) based on a prior federal prison term. As Harrell acknowledges, the subject third prison prior allegation in the information is based on a prior California prison term. Thus, section 667.5(f) and Gamble do not apply here.
In sum, we conclude a reasonable trier of fact could find beyond a reasonable doubt from the evidence presented by the People at the bench trial on the third prison prior enhancement allegation that Harrell did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction for purposes of section 667.5(b), and thus we further conclude that substantial evidence supports the court's true finding as to that allegation.
II. CUSTODY CREDITS
Harrell also contends the court erred in calculating his presentence custody credits, and the abstract of judgment must be amended to show he is entitled to a total of 446 days of custody credit (388 actual custody days plus 58 good time/worktime days), rather than the 405 days (353 actual custody days plus 52 good time/worktime days) that the court gave him.
In People v. Fares (1993) 16 Cal.App.4th 954, 958, this court stated that "[t]he most expeditious and . . . appropriate method of correction of errors of this kind is to move for correction in the trial court." We explained in Fares that "[w]here a remedy is available in a lower echelon of judicial administration, recourse to such should be required before the resort to appellate review. This is particularly true in situations, such as this, in which the remedy depends upon factual findings better determined by the lower tribunal, and to which the underlying record is more readily available. Also, when the miscalculation of custody credits is clearly in error, as appears often to be the case, the remedy by way of motion in the trial court will be more timely, effective, and much less costly to the system." (Id. at p. 959.) We also admonished all counsel that this court "reserve[d] the right in the future summarily to dismiss appeals directed to correction of presentence custody calculations when it appears that prior resort to the superior court in all likelihood would have afforded an adequate remedy." (Id. at p. 960.)
Citing People v. Fares and other case authority, the Court of Appeal in People v. Wrice (1995) 38 Cal.App.4th 767, 772, stated that "a sentenced prisoner who complains that custodial credits were miscalculated by the trial court must first move to correct the alleged error in that court. The trial court is in the best position to determine the facts and correct custodial credit errors if there are any."
Harrell acknowledges he did not raise his claim of custodial credit computation error in the trial court. He does not challenge his robbery convictions in this matter or the indeterminate prison term of 125 years to life, and, for reasons discussed ante, we uphold the additional 40-year consecutive determinate term. Because Harrell maintains "the calculation error is readily ascertainable from the record," it would appear that prior resort to the superior court in all likelihood would have afforded him an adequate remedy. For the foregoing reasons, we summarily dismiss this claim. (People v. Wrice, supra, 38 Cal.App.4th at p. 773; People v. Fares, supra, 16 Cal.App.4th at p. 960.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.