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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Frank Joseph RAMOS, Defendant and Appellant.

No. E010783.

Decided: May 02, 1994

Jerry Shuford, Indio, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Garrett Beaumont, Supervising Deputy Atty. Gen., and Kyle Niki Cox, Deputy Atty. Gen., for plaintiff and respondent.


In this case we decide that a prior conviction and resulting prison term may not be used both to (1) convert petty theft to petty theft with a prior (Pen.Code, § 666) 1 and (2) impose a prison term enhancement (§ 667.5, subd. (b)—hereafter § 667.5(b)).   In doing so, we reluctantly follow the holding in People v. Jones (1993) 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163 that a prison term enhancement (§ 667.5(b)) is based on the prior conviction.   The Supreme Court in Jones directed the trial court to strike a one-year prison term enhancement based on the same prior conviction as was a prior serious felony enhancement (§ 667) that was also imposed.   The Supreme Court found that the superior court in Jones had impermissibly twice used the prior conviction for both the prior serious felony enhancement and the prison term enhancement.   We find the analogy to this case unavoidable and hold that the use of the same prior conviction under section 666 and section 667.5(b) is no different from the use of the prior conviction in Jones as both section 667 and section 667.5(b) enhancements.   Therefore, contrary to the great majority of the courts of appeal who dealt with this issue before Jones, we are compelled by Jones to hold that the sentence in this case involved a prohibited dual use and direct the trial court to strike the section 667.5(b) enhancement.

Before trial defendant admitted having been incarcerated for a prior petty theft conviction, and after trial the jury found defendant committed another petty theft, resulting in a conviction for petty theft with a prior.   (Pen.Code, § 666.)   Then defendant admitted serving two separate prior prison terms for non-violent felonies, one of which was the same prior conviction defendant admitted before trial.  (§ 667.5, subd. (b).)  The trial court sentenced appellant to the upper term of three years for the petty theft with a prior and one year for each of the two prior prison term enhancements for a total of 5 years.

In addition to defendant's prevailing contention that the trial court erred by using the same prior conviction both as the basis for a conviction of petty theft with a prior and as one of the prior prison term enhancements, defendant also contends that the trial court (1) imposed the upper term based on improper aggravating factors and (2) failed to adequately advise the defendant of his constitutional rights prior to accepting his admissions of the two prior prison term enhancement allegations.   We reject defendant's remaining contentions in the unpublished parts of the opinion.2


Before trial defendant admitted that he had been convicted of petty theft with a prior conviction on May 21, 1990, for which he served a separate term.   Based on that admission, a copy of the felony case, and a section 969b package, the court found the allegation true that defendant pleaded guilty to that offense and served the lower term.   This admission supplied the prior conviction necessary for defendant's conviction, from which he now appeals, of committing petty theft with a prior conviction.  (§ 666.)

After trial defendant admitted two nonviolent felony prison term enhancement allegations.  (§ 667.5, subd. (b).)  The first of these allegations in the information realleged the same May 21, 1990, conviction for petty theft with a prior that had been alleged and admitted before trial as a basis for the petty theft with a prior count.   The second enhancement allegation was of a prison term served for a conviction on March 23, 1984, for burglary.

Defendant contends that the trial court may not use the same prior conviction to elevate petty theft to a felony under section 666 and to enhance the sentence under section 667.5(b).   The contention is incorrect according to a long line of pre-Jones appellate cases which the Jones majority did not discuss.   We first discuss these impliedly disapproved cases and then Jones.

1. Court of Appeal Cases

Numerous Court of Appeal cases have held that the different punishments provided by sections 666 and 667.5 may be used in the same case because each is based on a different fact.  Section 666 makes additional punishment possible for a petty theft conviction if the defendant has previously been convicted of a specified felony for which he or she served a term in “any penal institution.” 3  In contrast, section 667.5(b) requires an additional year of prison for the more serious recidivist who commits a nonviolent felony despite having served a “term in state prison.” 4  Because each status is different, these cases conclude, the Legislature plainly intended to impose more punishment (the punishment for a § 666 violation plus a § 667.5 enhancement) for committing petty theft with a prior conviction that resulted in a prison term than for petty theft with a prior conviction that only resulted in a jail term (only the § 666 punishment).  (See People v. Bruno (1987) 191 Cal.App.3d 1102, 1104–1105, 237 Cal.Rptr. 31;  People v. Vega (1990) 224 Cal.App.3d 506, 511–513, 273 Cal.Rptr. 684.   See also People v. Price (1992) 4 Cal.App.4th 1272, 1277–1278, 6 Cal.Rptr.2d 263, and cases cited.)

Defendant argues that applying both section 666 and section 667.5 to the punishment arising out of the same prior conviction is a prohibited dual use of a single fact—the prior conviction—citing People v. Ancira (1985) 164 Cal.App.3d 378, 210 Cal.Rptr. 527.   This argument is founded on an application of People v. Edwards (1976) 18 Cal.3d 796, 135 Cal.Rptr. 411, 557 P.2d 995 that has been rejected by a line of cases commencing with Bruno.   In Edwards the defendant was convicted of being an ex-felon in possession of a firearm (§ 12021, subd. (a)), and a prior conviction was used both as the basis for the ex-felon element and to increase the sentence.   (18 Cal.3d at pp. 798, 800, 135 Cal.Rptr. 411, 557 P.2d 995.)   Stating the rule that a prior conviction should not be used to supply both an element of an offense and the basis for increasing the sentence for the offense, the Supreme Court struck the additional punishment.  (18 Cal.3d at pp. 800, 807, 135 Cal.Rptr. 411, 557 P.2d 995.)   Twenty years later and after the advent of determinate sentencing, the court in Ancira, with no discussion, applied the Edwards holding to strike a one-year enhancement under section 667.5 because it was based on a prior burglary conviction that also supplied the prior conviction needed for a section 666 conviction.  (People v. Ancira, supra, 164 Cal.App.3d at p. 382, 210 Cal.Rptr. 527.   See also People v. Holding (1987) 197 Cal.App.3d 981, 984–985, 243 Cal.Rptr. 512, disapproved on other grounds People v. Rodriguez (1988) 206 Cal.App.3d 517, 519, 253 Cal.Rptr. 633 [citing Ancira with approval but distinguishing it].)

Ancira 's application of Edwards is fallacious according to Bruno.  (191 Cal.App.3d at pp. 1106–1107, 237 Cal.Rptr. 31.)   When first passed as part of the Uniform Determinate Sentencing Act in 1976, section 1170, subdivision (b), codified the Edwards holding in the sentence, “In no event shall any fact be used twice to determine, aggravate, or enhance a sentence.”   (Id., at p. 1106, 237 Cal.Rptr. 31.)   However, prior to the Act's operative date, July 1, 1977, an amendment deleted that sentence.   The Legislature thereby abrogated the holding in Edwards on which Ancira relied, according to Bruno.

More recently, other cases have repudiated Ancira while asserting, or allowing for the possibility of, the continuing validity of Edwards.   In People v. Darwin (1993) 12 Cal.App.4th 1101, 15 Cal.Rptr.2d 894, the court that decided Ancira (First District, Division Five) attacked Bruno 's conclusion that the Edwards holding had been abrogated, but repudiated the Ancira holding on the ground that the prior conviction requirement in section 666 is not an element of petty theft with a prior, but merely “a sentencing factor.”  (12 Cal.App.4th at p. 1104, 15 Cal.Rptr.2d 894, rev. den. April 15, 1993.)   The court in Darwin relied on the holding in People v. Bouzas (1991) 53 Cal.3d 467, at pages 478–480, 279 Cal.Rptr. 847, 807 P.2d 1076, that the prior conviction and incarceration requirement of section 666 was not an element that had to be tried by the jury under article I, section 28, subdivision (f), of the California Constitution.

Either way, Ancira is no longer viable authority (unless it can be considered to have been revived by Jones ), and using the same conviction as the basis of both a petty theft with a prior conviction and a prior prison term enhancement is not an impermissible dual use according to the now unanimous published opinions of the Court of Appeal.   We concur with these opinions and would reject the Ancira holding and appellant's argument if it were not for Jones.

Appellant also argues that he was twice punished for the 1990 petty theft with a prior conviction in violation of section 654.   However, the Court of Appeal has also rejected this argument, holding that section 654 only prohibits double punishment of an act or omission, and neither section 666 nor section 667.5 punishes an act or omission.   Instead, these two sections are keyed on a defendant's status as having been convicted of one of a group of specified crimes resulting in incarceration.  (People v. Price, supra, 4 Cal.App.4th at p. 1277, 6 Cal.Rptr.2d 263.)   For the same reason—the focus on status instead of act—these two sections also do not run afoul of any application of section 654 to act-based enhancements.  (See ibid., rejecting Attorney General argument that section 654 did not apply to enhancements.5 )

2. Recent Supreme Court Cases

On this court's own motion, the parties were asked to brief the applicability of the recent Supreme Court case, People v. Jones, supra, 5 Cal.4th 1142, 22 Cal.Rptr.2d 753.   To understand Jones, a prior Supreme Court case must first be discussed.

The Supreme Court held in People v. Prather (1990) 50 Cal.3d 428, at page 439, 267 Cal.Rptr. 605, 787 P.2d 1012, that article I, section 28, subdivision (f), of the California Constitution bars application of the double-the-base-term limitation for enhancements for prior convictions.   In other words, enhancements for prior convictions may be imposed “without [the] limitation” imposed by the double-the-base-term restriction in section 1170.1, subdivision (g).   The Supreme Court further held that the constitutional prohibition against limiting enhancements for prior felony convictions included enhancements for prior prison terms.  (50 Cal.3d at pp. 439–440, 267 Cal.Rptr. 605, 787 P.2d 1012.)   The Supreme Court reasoned “that section 667.5(b) is aimed primarily at the underlying felony conviction, and only secondarily, and as an indicium of the felony's seriousness, at the prior prison term.   That is, we believe section 667.5(b), fairly read, merely provides a special sentence enhancement for that particular subset of ‘prior felony convictions' that were deemed serious enough by earlier sentencing courts to warrant actual imprisonment.  (Citations.)  Accordingly, we hold that the broad mandate of article I, section 28, subdivision (f), concerning the use of any ‘prior felony conviction[s ]’ for enhancement purposes, necessarily includes the lesser category of enhancements based on prior felony convictions for which imprisonment was imposed.”  (50 Cal.3d at p. 440, 267 Cal.Rptr. 605, 787 P.2d 1012.)

In Jones the Supreme Court applied the Prather holding to strike a one-year section 667.5(b), nonviolent felony prison term enhancement as dual use of a kidnapping prior offense also used for a five-year section 667 serious felony conviction enhancement.   Defendant's contention in Jones was “that both enhancements may not apply to his prior offense.”  (5 Cal.4th at p. 1147, 22 Cal.Rptr.2d 753, 857 P.2d 1163.)   The Court of Appeal (First District, Division Three) rejected the appellant's contention reasoning “in part that the two statutes were meant to punish individuals according to two different statuses, and that defendant suffered from both.  ‘Prior felony convictions indicate a habitual offender;  a prior prison term indicates a hardened criminal who is undeterred by the fear of prison.’ ”  (Id., at p. 1148, 22 Cal.Rptr.2d 753, 857 P.2d 1163.)   The Supreme Court in Jones in turn rejected this reasoning “because its premise—that sections 667 and 667.5 identify and punish differently situated individuals—runs afoul of Prather.”  (Ibid.)

The Supreme Court held in Jones that “the electorate [did not] intend, when it enacted Proposition 8, for a sentence to prison to be enhanced both for a prior conviction and for a prison term imposed for that conviction [.]”  (Id., at pp. 1144–45, 22 Cal.Rptr.2d 753, 857 P.2d 1163.)   The Supreme Court also stated its holding “that both enhancements apply to the same facts—the prior conviction of a felony—․”  (Id., at p. 1149, 22 Cal.Rptr.2d 753, 857 P.2d 1163.)

We could not ignore the question of how the Jones holding applies to the use in this case of a prior conviction under both sections 666 and 667.5, although neither the majority in Jones nor the court in Prather mentions the previously discussed appellate cases on this issue.  (Compare discussion in part II of dissent by Lucas, C.J., in Jones, 5 Cal.4th at pp. 1163–1167, 22 Cal.Rptr.2d 753, 857 P.2d 1163 re:  application of § 654.)   The Supreme Court in Bouzas noted section 666's juxtaposition to the enhancement statutes, section 667 et seq., and characterized section 666 as “a sentence-enhancing statute” as well as a “sentencing factor.”  (53 Cal.3d at pp. 478, 479, 480, 279 Cal.Rptr. 847, 807 P.2d 1076.   See also People v. Weatherington (1991) 231 Cal.App.3d 69, 86, 282 Cal.Rptr. 170 [“section 666 is a crime for which the prior is an enhancement”].)

Just as a prior prison enhancement is essentially based on the prior conviction according to Jones, so is the employment of section 666 also essentially based on the prior conviction.   Just as according to Jones the section 667 prior conviction enhancement uses the same “facts”—i.e., the prior conviction—as a section 667.5(b), prior felony imprisonment enhancement, so does the section 666 sentencing factor of a prior conviction with any incarceration use the same “facts”—i.e., the prior conviction and incarceration—as the section 667.5(b), enhancement.   Thus, we must address the application of the holding in Jones to this case.

Note that the rationale of the Court of Appeal in Jones that was rejected by the Supreme Court is the same rationale used in People v. Bruno, supra, in which the appellant's “status as a recidivist within section 666” was held to be based on his “prior ․ probationary incarceration․”  (191 Cal.App.3d at p. 1105, 237 Cal.Rptr. 31.)  “The ‘prior separate prison term served’ for the burglary [when he violated probation] was a discrete incident for which the court ‘shall impose a one-year term.’  (§ 667.5, subd. (b).)”  (Ibid.)   The entire analysis presumed that neither the section 666 nor section 667.5 use was of the prior conviction.   Even in the more recent case of People v. Darwin, supra, 12 Cal.App.4th 1101, 1104, 15 Cal.Rptr.2d 894, which disagreed with part of the rationale in the Bruno cases (but not with the result), the same reasoning appears:  “there is no improper dual use of facts in this context because petty theft with a prior merely requires incarceration in any penal institution, while the sentence enhancement requires a prior prison term.”   In other words, the section 666 conviction rested on one “fact” and the section 667.5 enhancement on a different “fact,” neither of which was the prior conviction.

However, Jones is perfectly clear that this analysis is incorrect under Prather, and that a prior prison term enhancement is based on the prior conviction, not on the prior prison term.   The same analysis must inevitably apply to the possibility of increased punishment for a prior incarceration for specified crimes—it rests fundamentally on the fact of the prior conviction, not the prior incarceration.

Thus, the characterization of section 666 as an enhancement-like statute using the prior conviction, not the prior incarceration, is required by Bouzas, Prather, and Jones, and the section 667.5(b) enhancement based on the same prior conviction as the petty theft with a prior conviction must be stricken.6

II & III.***


The case is remanded to the trial court with directions to strike the one-year enhancement of defendant's sentence for his prior offense of petty theft with a prior under section 667.5(b), and to send a corrected abstract of judgment to the Department of Corrections.   In all other respects, judgment is affirmed.


1.   All section references are to the Penal Code.   All rule references are to the California Rules of Court.

2.   A recitation of the facts of the case is not necessary to a resolution of the appeal, so we proceed immediately to the discussion.

3.   Section 666 provides:  “Every person who, having been convicted of petit theft, grand theft, auto theft under Section 10851 of the Vehicle Code, burglary, robbery, or a felony violation of Section 496 and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petit theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison.”  (Emphasis added.)

4.   Section 667.5 provides in relevant part:  “Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows:  ․ [¶] (b) Except where subdivision (a) [for specified violent felonies] applies, where 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;  ․”  (Emphasis added.)

5.   Although People v. King (1993) 5 Cal.4th 59, 19 Cal.Rptr.2d 233, 851 P.2d 27 overruled the holding in In re Culbreth (1976) 17 Cal.3d 330, 130 Cal.Rptr. 719, 551 P.2d 23 that a firearm use enhancement (§ 12022.5) could be imposed only once if several charged offenses were an indivisible transaction, the Supreme Court expressly declined to address appellant's related argument that section 654 applies to all enhancements.  (See 5 Cal.4th at p. 79, 19 Cal.Rptr.2d 233, 851 P.2d 27.)

6.   We believe that the Supreme Court majority in Jones misapplied the holding in Prather.   The issue in Prather was whether article I, section 28, subdivision (f), of the California Constitution bars application of the double-the-base-term limitation for prison term enhancements as well as for prior conviction enhancements.   The resolution of this issue depended on whether the intent of the electorate as expressed in the approval of the ballot proposition could be construed to apply to both types of enhancements.   The Supreme Court held that the intent did include both kinds of enhancements because a prior conviction for which a prison term was served was a prior felony conviction “deemed serious enough by earlier sentencing courts to warrant actual imprisonment.”  (50 Cal.3d at p. 440, 267 Cal.Rptr. 605, 787 P.2d 1012.)   Thus, prison term enhancements are a more serious subset of prior conviction enhancements.In contrast, the issue in Jones was whether using a prior serious felony conviction for a prior serious felony enhancement and using the prison term resulting from the prior conviction for a prison term enhancement was a dual use of the same fact.   The holding in Prather provides no assistance in answering this question.   While a prison term enhancement is a subset of prior conviction enhancements in general, it is based on facts other than the prior conviction.   Those facts are what marked the prior conviction as “serious enough ․ to warrant actual imprisonment.”   Thus, that prison term enhancements should be considered a kind of enhancement for a special subset of prior convictions does not imply that prison term enhancements are based on the same facts as prior conviction enhancements.The two types of enhancements do not apply to the same fact;  rather, the prison term enhancement is based on the other facts that made the prior conviction worthy of a term in prison.   Imposing both a prior conviction enhancement and a prison term enhancement provides the intended increase in punishment for both having committed the prior conviction and for having committed it in such a way as to warrant imprisonment.   Not imposing both enhancements prevents either the prior conviction or the manner of committing it from increasing the punishment for the present offense, when the electorate intended both to be a cause of additional punishment.

FOOTNOTE.   See footnote *, ante.

RAMIREZ, Presiding Justice.

HOLLENHORST, J., concurs. TIMLIN, J., concurs only in the judgment.

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