Filed 8/14/14 P. v. Corbin CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F066891

                   v.                                                  (Super. Ct. Nos. CRM023116,
                                                                               CRM024201)
JAMES DONALD CORBIN,
                                                                                  OPINION
         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Merced County. Donald J.
Proietti, Judge.
         Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.


                                                        -ooOoo-

        Before Cornell, Acting P.J., Kane, J., and Franson, J.
        On June 27, 2012, in Merced County Superior Court case No. CRM023116 (first
case), appellant, James Donald Corbin, pleaded no contest to unlawful taking and driving
of a vehicle (Veh. Code, § 10851) and admitted enhancement allegations that he had
served two separate prison terms for prior felony convictions (Pen. Code, § 667.5, subd.
(b)).1 That same date, the court imposed a four-year sentence under section 1170,
subdivision (h)(5)(b), consisting of the two-year midterm on the substantive offense and
one year on each of the prior prison term enhancements. The court ordered that appellant
serve one year of this sentence in local custody, suspended the remaining three years of
the sentence and placed appellant on mandatory community supervision for that period.
        On August 2, 2012, the court issued a bench warrant for appellant’s failure to
appear and for violations of conditions of community supervision.
        On December 21, 2012, in Merced County Superior Court case No. CRM024201
(second case), a jury acquitted appellant on a charge of assault with a deadly weapon on a
peace officer (§ 245, subd. (c); count 1) and the lesser included offense of assault on a
peace officer (§ 241, subd. (c)), and convicted him of evading a police officer while
driving recklessly (Veh. Code, § 2800.2, subd. (a); count 2) and receiving a stolen motor
vehicle (§ 496d, subd. (a); count 3). In a separate proceeding, appellant admitted two
prior prison term enhancement allegations (§ 667.5, subd. (b)). These enhancements
were based on the same convictions and prison terms underlying the prior prison term
enhancements on which sentence was imposed in the first case.
        On January 23, 2013, the court found that appellant had violated his probation in
the first case by virtue of his conviction in the second case. On January 25, 2013, the
court imposed sentence in both cases, as follows: In the second case, five years eight


1       Except as otherwise indicated, all further statutory references are to the Penal
Code.


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months, consisting of the three-year upper term on the Vehicle Code violation, eight
months on the receiving stolen property conviction and one year on each of the two prior
prison term enhancements, and in the first case, a concurrent four-year term, consisting of
two years on the substantive offense and one year on each of the two prior prison term
enhancements.
       Appellant has appealed from the judgment of conviction in the second case and
the finding that he violated his probation in the first case.
       Appellant’s appointed appellate counsel has filed an opening brief which
summarizes the pertinent facts, with citations to the record, raises no issues, and asks that
this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.)
Appellant has not responded to this court’s invitation to submit additional briefing. We
will modify the judgment to correct sentencing errors, which we discuss below, and in all
other respects affirm.
                                           FACTS2
       On the afternoon of August 16, 2012 (August 16), John Thai reported the
following to a City of Merced police officer: He left his truck running while he walked
up to a residence and placed a “work tag” on the front door, and when he was walking
back to his truck he saw a white female get in the truck and drive away.
       Merced County Deputy Sheriff Dylan Buessing testified to the following: On the
afternoon of August 16, after having received a report of a stolen white pickup belonging
to Terminix, he was driving his patrol vehicle when he saw a white Terminix pickup,
driven by appellant. Appellant and Buessing passed each other traveling in opposite

2      Because the instant appeal is not from the judgment of conviction in the first case,
and the matters that are cognizable on appeal—the judgment of conviction in the second
case and the violation of probation in the first case—are based on the facts underlying
appellant’s convictions in the second case, our factual summary is limited to the facts of
the second case.


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directions, at which point Buessing turned around and activated his emergency lights.
Appellant however, failed to stop at a stop sign and kept going. Buessing activated his
“red lamp” and, after observing appellant fail to stop at another stop sign, activated his
siren. Eventually, appellant drove through a small opening in a fence and into a field,
where he came to a stop. Buessing, in his patrol car, followed appellant into the field.
       The pursuit to this point lasted 3 minutes and 21 seconds, during which time
appellant ran another stop sign and maintained “a good distance on [Buessing],” even
though the deputy reached speeds of 70 miles per hour while driving through an orchard
and 100 miles per hour on the roadway.
       After stopping in the field, appellant got out of the pickup, but when Buessing
“came up behind” the vehicle, appellant got back in, at which point, as the deputy was
driving toward the pickup, appellant, driving in reverse gear, “ramm[ed]” Buessing’s
patrol car with enough force to lift the rear end of the patrol car off the ground. Next,
appellant “put the [pickup] in drive and struck the driver’s side” of the patrol car.
Appellant then “drove off” and Buessing, his patrol car disabled, was unable to follow.
       Merced County Deputy Sheriff Clint Landrum testified to the following: On
August 16, after responding to a dispatch report of a stolen vehicle, he saw appellant and
Buessing drive into the field. He observed appellant drive the pickup into Buessing’s car
twice and then drive out of the field the same way he entered.
       Landrum and City of Merced police officers took up the vehicle pursuit, which
ended approximately one-half hour later when appellant stopped, got out of the pickup
and ran off. Landrum apprehended him a short distance away and took him into custody.
       During the portion of the pursuit in which Landrum participated, appellant drove
onto the grounds of a school, where both children and adults were present, “at a high rate
of speed”; reached a speed of 90 miles per hour on a roadway where the posted speed
limit was 55 miles per hour; and failed to stop at another stop sign.

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                                      DISCUSSION
       The court erred in imposing, as part of the concurrent term imposed in the first
case, one year on each of the two prior prison term enhancements.
       “Irrespective of whether a defendant’s various sentences on multiple convictions
are imposed so as to run consecutively or concurrently, section 667.5, subdivision (b)
enhancements ‘do not attach to particular counts.’ To the extent that defendant had
suffered only one ‘prior prison term served,’ only one section 667.5, subdivision (b)
enhancement should have been alleged by the People and found true and imposed by the
trial court.” (People v. Smith (1992) 10 Cal.App.4th 178, 182-183.) While Smith dealt
with two enhancements imposed in a single case, the analysis remains applicable when a
defendant is sentenced to a determinate sentence on convictions from multiple cases.
Under section 1170.1, “enhancements for prior convictions ... are added just once as the
final step in computing the total sentence” (People v. Tassell (1984) 36 Cal.3d 77, 90, fn.
omitted, overruled on an unrelated point in People v. Ewoldt (1994) 7 Cal.4th 380, 401),
and the sentencing procedures apply regardless of the number of proceedings, i.e., case
numbers, under which a defendant is being sentenced. (See generally, People v. Williams
(2004) 34 Cal.4th 397, 402 [“trial court must impose a sentence enhancement for a prior
felony conviction ... only once, regardless of the number of new felony offenses”].)
       Imposition of sentence on both of appellant’s prior prison term enhancements
twice, in both the first and second cases, constitutes an unauthorized sentence. (See
People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 4.) Accordingly, we will strike the
prior prison term enhancements in the first case. (People v. Scott (1994) 9 Cal.4th 331,
354, fn. 17 [unauthorized sentence will be corrected by the appellate court despite failure
to raise the issue below].) Thus, appellant’s sentence includes two one-year terms on the
prior prison term enhancements, those enhancements are not associated with any



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particular count, and the concurrent term imposed in the first case consists of only the
two-year term imposed on the substantive offense in that case.
       We also note the following. In sentencing appellant in the second case, the court
purported to impose the two prior prison term enhancements in connection with the
Vehicle Code violation count (count 2) but stay those enhancements in connection with
the count of receiving a stolen motor vehicle (count 3). This was error in that, as
demonstrated above, these enhancements may be imposed only once, without reference
to any particular count(s). Therefore, there is no basis for either imposing the
enhancements specifically as to count 2 or staying the enhancements with respect to
count 3, assuming that the staying of prior prison term enhancements is ever possible.
(See People v. Langston (2004) 33 Cal.4th 1237, 1241 [“Once the prior prison term is
found true ... the trial court may not stay the ... enhancement, which is mandatory unless
stricken”].) Accordingly, we will modify the judgment to remove any reference to
particular counts with respect to the prior prison term enhancements and to vacate the
portion of the sentence staying the prior prison term enhancement with respect to count 3.
       The amended abstract of judgment which we direct the trial court to prepare
should indicate that two prior prison term enhancements were imposed, but the abstract
should not associate the enhancements with any particular count and should not indicate
that any enhancements were stayed.
       Following independent review of the record, we have concluded that no other
reasonably arguable legal or factual issues exist.
                                      DISPOSITION
       The judgment is modified as follows: The two one-year prior prison term
enhancements imposed as part of the concurrent term in case No. CRM023116 are
stricken, the stay of those enhancements as to count 3 in case No. CRM024201 is
vacated, and those two enhancements are imposed without reference to any particular

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count(s). The trial court is directed to prepare an amended abstract of judgment and to
forward a certified copy of the amended abstract to the Department of Corrections and
Rehabilitation. As modified, the judgment is affirmed.




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