Filed 3/28/16 P. v. Cooper CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----




THE PEOPLE,                                                                             C078205

                   Plaintiff and Respondent,                                (Super. Ct. No. 13F03880)

         v.

BILLIE LEE COOPER,

                   Defendant and Appellant.




         Defendant Billie Lee Cooper was sentenced to an aggregate term of 84 years to
life for offenses that included throwing a Molotov cocktail into the bedroom of his ex-
girlfriend. On appeal, he contends the trial court erred in imposing certain one-year prior
prison term enhancements, arguing three of the enhancements must be struck because
they arose from prior prison terms that were served consecutively. The People concede
the error because multiple sentences of incarceration served consecutively or



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concurrently give rise to only a single prior prison term enhancement, under Penal Code
section 667.5, subdivision (b);1 we will strike the enhancements as improper.

                           PROCEDURAL BACKGROUND

       A jury convicted defendant of arson (§ 451, subd. (b)—count one); possessing an
explosive device (§ 18715, subd. (a)(3)—count two); attempted criminal threats
(§ 664/422—count three); attempted oral copulation (§ 664/288a, subd. (c)(2)—count
four); and misdemeanor battery (§ 243, subd. (e)(1)—count five). The trial court found
that defendant had three prior strikes: convictions for burglary and assault with a deadly
weapon with great bodily injury in 1999 and a conviction for second degree robbery in
2008. Defendant served the two terms for the 1999 convictions consecutively.

       For each felony count, the trial court imposed an indeterminate term of 25 years to
life plus three one-year enhancements, under section 667.5, subdivision (b), for
defendant’s three prior prison terms. The court then stayed imposition of sentence for
count two, possession of a destructive device, under section 654. For the misdemeanor
battery count, the court imposed a one-year term to run concurrently. In total, the court
imposed an aggregate term of 84 years to life (28 years to life, each, for counts one, three,
and four).

                                      DISCUSSION

       On appeal, defendant contends the trial court erred in imposing three of the nine
one-year enhancements, under section 667.5, subdivision (b). He reasons that the court
erroneously imposed, on each felony count, two one-year enhancements for the two prior
terms that were served consecutively. Accordingly, one one-year enhancement must be
struck for each count. The People concede error, and we agree.




1 Undesignated statutory references are to the Penal Code.

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         Section 667.5, subdivision (b) imposes a one-year enhancement “for each prior
separate prison term . . . imposed . . . for any felony.” A prior separate prison term is “a
continuous completed period of prison incarceration imposed for the particular offense
alone or in combination with concurrent or consecutive sentences for other crimes . . . .”
(§ 667.5, subd. (g), italics added.) Accordingly, only one one-year enhancement may be
imposed for a sentence comprised of consecutive or concurrent terms. (People v. Carr
(1988) 204 Cal.App.3d 774, 779 [“a defendant serves a single term in state prison
notwithstanding that the term consists of several separate sentences attributable to
different convictions”]; People v. James (1985) 170 Cal.App.3d 164, 167 [two prior
commitments served consecutively constituted a single prison term under § 667.5, subd.
(g)].)

         Here, defendant served his terms for the two 1999 convictions—for burglary and
assault with a deadly weapon—consecutively. Accordingly, that sentence gives rise to a
single one-year enhancement under section 667.5, subdivision (b). Thus, the trial court
erred in imposing two one-year enhancements on each felony count, for that prison
sentence.

         Finally, although defendant challenges only the enhancements imposed on the
nonstayed felony counts (counts one, three, and four), the erroneous enhancement
imposed on the stayed count (count two) must also be struck. Accordingly, we strike one
one-year enhancement on each felony count, yielding an aggregate term of 81 years to
life.

                                      DISPOSITION

         The judgment is modified to strike one one-year enhancement on each felony
count—counts one through four (including the count stayed under § 654). The trial court
is directed to prepare an amended abstract of judgment and to forward a certified copy to



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the Department of Corrections and Rehabilitation. As modified, the judgment is
affirmed.




                                                        BUTZ             , J.



We concur:



      HULL                , Acting P. J.



      DUARTE              , J.




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