Filed 4/16/14 P. v. Faulkner CA5

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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,
                                                                                           F066190
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MF010070A)
                   v.

THOMAS FAULKNER,                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
         Jean Marinovich, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, and Eric L. Christoffersen,
Deputy Attorney General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Cornell, J. and Peña, J.
       Defendant Thomas Faulkner was convicted of attempted murder (Pen. Code,
§§ 664, 187, subd. (a);1 count 1) and assault with a deadly weapon in a correctional
institution (§ 4501; count 2). Various allegations, including two prior prison term
allegations pursuant to section 667.5, subdivision (b), which were connected to both
counts. The trial court sentenced defendant on count 1 to 25 years to life, plus six years
in enhancements, including 2 one-year prior prison term enhancements. On count 2, the
court imposed an identical term, then stayed it pursuant to section 654. On appeal,
defendant contends the prior prison term enhancements may be applied only once per
case. The People concede and we agree.
       It is settled that sentencing enhancements for prior prison terms do not attach to
particular counts. (People v. Smith (1992) 10 Cal.App.4th 178, 182.) In Smith, the trial
court erred in sentencing the defendant to a one-year enhancement for a prior prison term
on each of two counts. On appeal, the court explained that the prior prison terms were
“one and the same.” (Ibid.) Enhancements that relate to the nature of the offender, not to
the nature of the offense, “‘have nothing to do with particular counts [and] … are added
only once as a step in arriving at the aggregate sentence.’” (Ibid.)
       Accordingly, in this case, the two section 667.5, subdivision (b) enhancements on
count 2 must be stricken, not stayed.
                                        DISPOSITION
       The two stayed Penal Code section 667.5, subdivision (b) enhancements on count
2 are stricken. As so modified, the judgment is affirmed. The trial court is directed to
prepare an amended abstract of judgment and forward copies to the appropriate entities.




1      All further statutory references are to the Penal Code.


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