Filed 4/18/16 P. v. Price CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA


THE PEOPLE,                                                         D068238

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD255280)

MICHAEL LEE PRICE,


         Defendant and Appellant.


         APPEAL from judgment of the Superior Court of San Diego County, Peter C.

Deddeh, Judge. Affirmed as modified.


         Christian C. Buckley, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Arlene A. Sevidal and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and

Respondent.
       After a bench trial, the trial court convicted Michael Lee Price (aka Michael Lee

Knighton), of four counts of a lewd act upon a child (Pen. Code, § 288, subd. (a), counts

1-4),1 and one count of contacting a minor with the intent to commit a sexual offense

(§ 288.3, subd. (a), count 5). The trial court sentenced Price to an indeterminate sentence

of 125 years to life, plus a determinate sentence of 29 years. Price contends that a one-

year term imposed for one of his prison priors under section 667.5, subdivision (b) must

be stricken because the court made impermissible dual use of the same burglary

conviction to support both a five-year serious felony prior enhancement and a one-year

prison prior enhancement. Price further contends, and the People concede, that the trial

court improperly imposed a five-year serious felony prior enhancement under section

667, subdivision (a) to the aggregate indeterminate term. We affirm the judgment, but

modify the sentence to strike the five-year serious felony prior term imposed by the trial

court to the aggregate indeterminate term.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Price created an advertisement on Craigslist seeking to have sex with young Asian

males. Price received a response to the ad and began communicating with Jeremy R.

through e-mail and Facebook messaging. Jeremy told Price he was 13 years old. Price

arranged for the two to meet at a store near his home. Price and Jeremy walked back to

Price's apartment, where they repeatedly engaged in oral and anal sex. After Jeremy's

mother discovered the communications between Jeremy and Price, she contacted



1      All further statutory references are to the Penal Code unless otherwise specified.

                                             2
Jeremy's school and the police. During the ensuing investigation, the police recorded a

call that Jeremy placed to Price, in which Price agreed to meet Jeremy again.

       Price was arrested and charged with four counts of a lewd act upon a child and one

count of contacting a minor with the intent to commit a sexual offense. Each count

included allegations under section 1203.066, subdivision (a)(3) and (8).2 The

information also alleged Price had suffered four prison priors under sections 667.5,

subdivision (b), and 668; two serious felony priors under sections 667, subdivision (a)(1),

668, and 1192.7, subdivision (c); and two strike priors under sections 667, subdivisions

(b)-(i), 668, and 1170.12.

       After the bench trial, the trial court found Price guilty of all five counts. Price

admitted four prison priors, two serious felony priors, and two strike priors. The fourth

prison prior was supported by multiple offenses based on five separate convictions: one

for forgery on September 2, 1987, in case number CR89545, two for two separate

burglaries on June 6, 1988, in case number CR94123, one for unauthorized use of

computers on June 6, 1988, in case number CR94413, and one for escape from a work

furlough facility on December 2, 1991, in case number CR127762. The trial court

sentenced Price to 125 years to life, plus a consecutive sentence of 29 years for the


2       Section 1203.066, subdivision (a)(3) provides, notwithstanding other statutory
provisions, a person convicted of "a violation of Section 288 or 288.5 and who was a
stranger to the child victim or befriended the child victim for the purpose of committing
an act in violation of Section 288 or 288.5, unless the defendant honestly and reasonably
believed the victim was 14 years of age or older," shall not be granted probation.
        Section 1203.066, subdivision (a)(8) provides, notwithstanding other statutory
provisions, a person "who, in violating Section 288 or 288.5, has substantial sexual
conduct with a victim who is under 14 years of age," shall not be granted probation.

                                              3
enhancements. The indeterminate sentence was composed of five consecutive terms of

25 years to life on counts 1 through 5. The trial court imposed four five-year

enhancements on counts 1 through 4 for Price's serious felony priors, for a total of 20

years, and imposed four one-year enhancements for four prior prison terms on count 5,

adding another four years to Price's sentence. The trial court also imposed an additional

five-year serious felony prior enhancement to the entire aggregate indeterminate term

under section 667, subdivision (a)(1).

                                         DISCUSSION

       Price contends that the trial court impermissibly made dual use of the same serious

felony burglary convictions to support both the fourth one-year prior prison term

enhancement under section 667.5, subdivision (a) and the serious felony enhancement

under section 667.5, subdivision (b).

                                    A. Legal Standard

       Price's claim requires us to construe section 667.5, subdivisions (b) and (a), and

thus raise issues of statutory interpretation. We apply a de novo standard of review.

(Doe v. Brown (2009) 177 Cal.App.4th 408, 417.) The provisions of the Penal Code "are

to be construed according to the fair import of their terms, with a view to effect its objects

and to promote justice." (§ 4.) In construing a statute that was part of an initiative, "our

primary purpose is to ascertain and effectuate the intent of the voters who passed the

initiative measure." (In re Littlefield (1993) 5 Cal.4th 122, 130.) To do that, we first

examine the language of the statute. (Ibid.) If the statutory language is clear and




                                              4
unambiguous, we generally must apply the statute according to its terms without resort to

other indicia of the voters' intent. (People v. Jones (1993) 5 Cal.4th 1142, 1146 (Jones).)

       Section 667.5, subdision (b) authorizes the court to impose a one-year term for

"each prior separate prison term or county jail term imposed under subdivision (h) of

Section 1170 or when sentence is not suspended for any felony." Under section 667.5,

subdivision (g), a "prior separate prison term . . . shall mean a continuous completed

period of prison incarceration imposed for the particular offense alone or in combination

with concurrent or consecutive sentences for other crimes."

       Under section 667, subdivision (a)(1), "any person convicted of a serious felony

who previously has been convicted of a serious felony in this state . . . shall receive, in

addition to the sentence imposed by the court for the present offense, a five-year

enhancement for each such prior conviction on charges brought and tried separately. The

terms of the present offense and each enhancement shall run consecutively."

Furthermore, "[a]s used in this subdivision, 'serious felony' means a serious felony listed

in subdivision (c) of Section 1192.7." (§ 667, subd. (a)(4).)

       The underlying purposes of sections 667.5, subdivision (b) and 667, subdivision

(a) are different. (People v. Ruiz (1996) 44 Cal.App.4th 1653, 1668 (Ruiz).) "The

purpose of section 667, subdivision (a) is to visit greater punishment on recidivists who

commit serious felonies, while section 667.5, subdivision (b) was intended to provide for

additional punishment of the felon whose prior prison term failed to deter him or her

from future criminal conduct." (Ruiz, at p. 1668, citing People v. Medina (1988) 206

Cal.App.3d 986, 991.) When a five-year serious prior felony and a one-year prior prison


                                              5
term enhancement are supported by the same prior offense, only the greatest

enhancement applies. (Jones, supra, 5 Cal.4th at p. 1150.) However, an enhancement

under section 667.5, subdivision (b) does not prevent the court from also imposing an

enhancement under section 667, subdivision (a), if the enhancements are based on

different underlying convictions. (Ruiz, at p. 1671; see also People v. Irvin (1991) 230

Cal.App.3d 180, 189-190 ["A defendant may be sentenced for a prior serious felony

conviction and then also sentenced for a prior prison term for a different prior offense

even though the convictions occurred at the same time and the sentences were served

together."].)

   B. The court properly imposed sections 667, subdivisions (a) and (b) enhancements
                  because they were supported by multiple convictions

       Price relies on Jones, supra, 5 Cal.4th at p. 1150, where the trial court improperly

used the same felony conviction to support both a serious felony enhancement for a prior

serious felony under section 667.5, subdivision (b) and a prison prior under section 667.5,

subdivision (a). Use of a single serious felony conviction to support two enhancements

constituted an impermissible dual use because one serious felony conviction may

properly support only one recidivist enhancement. (3 Witkin & Epstein, Cal. Criminal

Law (4th ed. 2012) Punishment, § 413, p. 639.) In cases such as Jones, where one prior

is used to support multiple enhancements, only the greatest will apply. (Ibid.) However

multiple enhancements can be imposed under both section 667, subdivisions (a) and (b),

based on multiple convictions that are part of the same prison term. (See, e.g. Ruiz,

supra, 44 Cal.App.4th at pp. 1666-1660.)



                                             6
       As we detailed ante, Price's fourth prison prior is supported by multiple offenses,

i.e., five different convictions in four separate cases including two separate burglaries in

one case, and one additional case for each of the three other felony convictions for

forgery, unauthorized use of computers, and escape from a work furlough facility. In

contrast to the situation in Jones, in addition to the two burglary convictions that

supported the serious felony prior allegation under section 667.5, subdivision (a), there

were three other offenses available for sentence enhancement under section 667.5,

subdivision (b), to support the fourth prior prison term enhancement.

       The trial court did not specify which of the five convictions it used as a basis for

the prison prior enhancement. As we have stated, enhancements can be imposed under

both section 667, subdivisions (a) and (b), based on multiple prior convictions. (Ruiz,

supra, 44 Cal.App.4th at pp. 1666-1669; see also People v. Brandon (1995) 32

Cal.App.4th 1033, 1055 [finding Jones inapposite and allowing the court to split multiple

(two) serious felonies in the same case so that one could be used to support a serious

prior felony enhancement and the other to support a one-year prison prior enhancement].)

In the absence of a showing to the contrary, the trial court is presumed to have acted to

achieve legitimate sentencing objectives. (People v. Superior Court (Alvarez) (1997) 14

Cal.4th 968, 977-978.) Thus, we must assume that the trial court relied on different

convictions to support each of the two enhancements for a serious felony prior and a prior

prison term. Accordingly, the court did not err; it properly used the serious burglary

felonies to support the section 667.5 subdivision (a) serious prior felony enhancement,

and one of the three remaining felonies to support the one-year section 667.5, subdivision


                                              7
(b) prison prior, or the court could have split the two burglary priors so that each separate

burglary conviction supported one enhancement.3

                                              II

       Price asserts, and the People concede, that the five-year enhancement added to the

indeterminate term should be stricken.

       As noted, under section 667, subdivision (a)(1), ". . . any person convicted of a

serious felony who previously has been convicted of a serious felony in this

state . . . shall receive, in addition to the sentence imposed by the court for the present

offense, a five-year enhancement for each such prior conviction on charges brought and

tried separately."

       Enhancements under section 667, subdivision (a)(1) may be added to either

individual indeterminate sentences or the aggregate term of a determinate sentence. The

statute does not authorize the trial court to do both. (People v. Sasser (2015) 61 Cal.4th

1, 12-13; People v. Williams (2004) 34 Cal.4th 397, 400, 402). Here, the trial court

imposed a five-year serious felony enhancement for each indeterminate sentence (counts

1 through 4) and a fifth five-year serious felony enhancement to the aggregate total term.

The record is clear that this fifth serious felony enhancement was not related to any



3      In his reply brief Price tacitly concedes that the trial court could have properly
elected to base the prison prior on a one of the three nonserious felonies. He contends
that we should remand the case to allow the trial judge to clarify that determination. We
decline his suggestion. Clearly the trial judge intended to impose the additional one-year
prior prison enhancement based on the fourth prison prior, and, as we stated ante, we
presume the trial court acted with legitimate sentencing objectives. (People v. Superior
Court (Alvarez), supra, 14 Cal.4th at pp. 977-978.)

                                               8
specific offense. Rather, it was imposed generally on top of the entire sentence. As the

Attorney General concedes, the imposition of this fifth serious prior felony enhancement

was not authorized. Accordingly, the judgment is modified to strike that five-year

enhancement.

                                      DISPOSITION

       We direct the trial court to modify the sentence to strike the five-year prior serious

felony enhancement imposed on the aggregate determinate term, reducing the

determinate term to 24 years. The trial court is directed to forward a certified copy of the

amended abstract of judgment to the Department of Corrections and Rehabilitation. The

judgment is otherwise affirmed.


                                                                               PRAGER, J.*

WE CONCUR:


NARES, Acting P. J.


AARON, J.




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                              9
