
    [No. A135616.
    First Dist., Div. Five.
    Mar. 27, 2014.]
    THE PEOPLE, Plaintiff and Respondent, v. ANTHONY BREWER, Defendant and Appellant.
    [CERTIFIED FOR PARTIAL PUBLICATION]
    
      Counsel
    Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant.
    Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Catherine A. Rivlin, Deputy Attorneys General, for Plaintiff and Respondent.
    
      
       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified' for publication with the exception of parts I, III., and IV.
    
   Opinion

SIMONS, Acting P. J.

Appellant Anthony Brewer was convicted, after a jury trial, of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a); count one); assault with intent to commit forcible sodomy, sexual penetration, and/or oral copulation during the course of a burglary (id., § 220, subd. (b); count two); and false imprisonment by means of violence, menace, fraud, or deceit (id., §§ 236, 237, subd. (a); count three). He argues on appeal his conviction on count two lacks substantial evidence; he also asserts certain errors in his sentence.

In the published portion of this opinion, we address the following issue: Where a defendant has served a prison term for a felony conviction and that term is alleged and proved as an enhancement under section 667.5, subdivisions (a) and (b) (hereafter sections 667.5(a) and 667.5(b)), after imposing the former, should the trial court stay the latter or strike it? We conclude the court must stay the section 667.5(b) enhancement and affirm the decision to do so by the trial court, though we rely on different reasoning. In the unpublished portion of the opinion, we reject appellant’s other contentions, save for correcting one minor sentencing error and, as so modified, affirm.

BACKGROUND

A. Charged Offenses

The counts arose from an incident on February 20, 2011. The victim, John Doe, was casually acquainted with appellant through a former college classmate of Doe’s. The relationship between Doe and appellant had never been romantic or sexual. At the time of the incident, Doe had neither seen nor had phone contact with appellant in seven months.

In the early morning hours on the date in question, Doe was in bed watching television. Appellant broke into Doe’s house through the back door, entered Doe’s bedroom, closed the door, and began to remove his own clothes. Doe asked appellant to leave, but appellant continued removing his clothes. Doe tried to push appellant out of the room but appellant, stronger' and bigger than Doe, pushed Doe back onto the bed. Appellant finished removing his clothes and climbed on top of Doe. Doe told appellant to get off of him and to get out; appellant told Doe, “I have to do this,” “I’m going to get you tonight,” and “Don’t move.” Doe was able to push appellant off of him, but appellant kept trying to climb back on top of Doe and to kiss him, touch him, and put his hand under Doe’s shorts.

Appellant smelled of alcohol and eventually started to pass out on Doe’s bed. Doe did not leave the room because appellant kept waking up. Eventually, Doe was able to text a friend who called the police. Shortly thereafter, Doe escaped. The police encountered appellant as he was leaving Doe’s bedroom.

In appellant’s testimony at trial, he admitted entering Doe’s bedroom, removing his clothes, and trying to kiss Doe. However, he claimed he wanted only a consensual encounter with Doe.

B. Prior Incident

S.Y. testified to an incident taking place in January 1989, when she was 15 years old. About 4:00 a.m., she was alone in a bedroom of her house. Appellant, whom she did not know and who had broken into her house through a window, entered the bedroom, naked and carrying a kitchen knife. Appellant told her he was not there to hurt her, but told her multiple times to remove her clothes. Her little brother knocked on the bedroom door and appellant told her, “If you don’t want your brother hurt, you better tell him to get away.” S.Y. told her brother to leave. Appellant told her again he was not there to hurt her and gave her the knife. He then tried to retrieve the knife and they wrestled. S.Y. broke free, left the bedroom, and woke her mother. Appellant ran out of the house and the police apprehended him shortly thereafter.

In appellant’s testimony about the 1989 incident, he admitted having the intent to rape S.Y.

DISCUSSION

I. Substantial Evidence Supports the Conviction on Count Two.

II. Sentencing on Section 667.5(b) Enhancements

The information alleged two enhancements pursuant to section 667.5(a) based on prior prison terms imposed after violent felony convictions in 1989 and 2002, respectively. Section 667.5(a) authorizes a three-year enhancement “for each prior separate” term of imprisonment served, if one of the current offenses and an offense for which that prior separate term of imprisonment was served are enumerated violent felonies, unless a certain “washout” period applies. The information also alleged two enhancements pursuant to section 667.5(b) based on prior prison terms imposed after the 1989 and 2002 felony convictions. Section 667.5(b) similarly authorizes, “[e]xcept where subdivision (a) applies,” a one-year enhancement “for each prior separate” term of imprisonment served, if one of the current offenses and an offense for which that prior separate term of imprisonment was served are felonies. One of these felonies may but need not be a violent felony covered by section 667.5(a).

All four section 667.5 enhancement allegations were found true. The trial court imposed sentence on the two section 667.5(a) enhancements and stayed sentence on the two section 667.5(b) enhancements pursuant to section 654. Initially, appellant argued on appeal the section 667.5(b) enhancements should have been struck because the trial court had no authority to stay them under section 654, and the People conceded the section 667.5(b) enhancements should be struck. Because we were hesitant to accept the concession, we ordered supplemental briefing. In that briefing, both appellant and the People concluded the trial court’s decision to stay the enhancements should be affirmed. We agree with this conclusion.

It is clear that the section 667.5(b) enhancements in this case are prohibited by law. First, these enhancements were imposed for the same prison terms that served as the basis for the enhancements alleged under section 667.5(a). Section 667.5, subdivision (g), “indicates after a defendant is committed to state prison, additional concurrent or consecutive sentences imposed in the same or subsequent proceedings are deemed to be part of the same prison term. [Citations.] Generally, the number of separate prison terms available for enhancement is determined by identifying the ‘continuous completed’ terms of prison incarceration served. [Citations.] For example, multiple prior convictions served concurrently constitute one separate prison term for which only one sentence enhancement can be imposed. [Citations.]” (People v. Cardenas (1987) 192 Cal.App.3d 51, 56 [237 Cal.Rptr. 249].) Here, the two section 667.5(a) enhancements were based on prison terms served after convictions on May 15, 1989, and June 17, 2002, respectively. The two section 667.5(b) enhancements were based on prison terms served after convictions on the same dates. The conviction records show only two continuous prison terms imposed in 1989 and 2002, respectively.

Second, under the express language of section 667.5(b), because the trial court imposed sentence for the section 667.5(a) enhancements based on these prison terms, sentence for the section 667.5(b) enhancements based on the same prison terms was not allowed. (§ 667.5(b) [enhancement pursuant to subd. (b) authorized “[e]xcept where subdivision (a) applies”].)

The trial court erroneously stayed the section 667.5(b) enhancements pursuant to section 654 because section 654 does not apply to prior prison term enhancements that focus on a defendant’s status as a repeat offender rather than on the acts underlying the convictions. (People v. Coronado (1995) 12 Cal.4th 145, 157-158 [48 Cal.Rptr.2d 77, 906 P.2d 1232].) Further, “[t]he trial court has no authority to stay an enhancement, rather than strike it . . . when the only basis for doing either is its own discretionary sense of justice. [Citations.]” (People v. Lopez (2004) 119 Cal.App.4th 355, 364 [14 Cal.Rptr.3d 202] (Lopez).) However, California Rules of Court, rule 4.447 (rule 4.447) expressly authorizes a stay of an enhancement when “an enhancement that otherwise would have to be either imposed or stricken is barred by an overriding statutory prohibition. In that situation—and that situation only—the trial court can and should stay the enhancement.” (Lopez, supra, at p. 365.) “This rule is intended ‘to avoid violating a statutory prohibition or exceeding a statutory limitation, while preserving the possibility of imposition of the stayed portion should a reversal on appeal reduce the unstayed portion of the sentence. [Citation.]’ [Citation.]” (Lopez, at p. 364.) As the section 667.5(b) enhancements were precluded by statute, rule 4.447 authorizes the trial court’s stay. This approach serves the purpose of rule 4.447 by allowing for the imposition of the stayed sentence if, for example, the qualifying section 667.5(a) felonies are reversed on appeal.(Lopez, supra, at p. 365 [“it is the possibility that the actual sentence may be invalidated that requires the trial court to stay, rather than dismiss, the prohibited portion of the sentence”]; People v. Walker (2006) 139 Cal.App.4th 782, 794, fn. 9 [43 Cal.Rptr.3d 257]; Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2013) f 12:5, pp. 12-17 to 12-18 [“If a defendant is found to have both a prior prison term under section 667.5(b) and a prior serious felony enhancement under section 667(a) for the same offense, . . . likely the better practice is to impose, then stay, any lesser enhancement.”].)

People v. Gonzalez (2008) 43 Cal.4th 1118 [77 Cal.Rptr.3d 569, 184 P.3d 702] (Gonzalez) is instructive. In Gonzalez, the defendant was convicted of attempted premeditated murder (§§ 187, 664), and the jury found true the firearm enhancement in former section 12022.5, subdivision (a)(1) and the firearm enhancements of subdivisions (b), (c), and (d) of former section 12022.53. (Gonzalez, supra, at p. 1123.) The statutory scheme regulating firearm enhancements, like section 667.5, anticipates that multiple enhancements may be found true in circumstances where only one may be imposed. Section 12022.53, subdivision (f) provides, in part, that “[o]nly one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section . . . 12022.5 . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to this section.”

Gonzalez resolved a conflict in the appellate courts on an issue analogous to the one we face: After a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, should the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime be stayed or struck? (Gonzalez, supra, 43 Cal.4th at p. 1122.) The court concluded the trial court should not strike these enhancements, but, instead, should impose a sentence and then stay it. (Id. at pp. 1122-1123.) This interpretation was driven by the court’s understanding of the purpose behind section 12022.53 and the reasoning in Lopez'. “[I]t becomes apparent that section 12022.53 was enacted to ensure that defendants who use a gun remain in prison for the longest time possible and that the Legislature intended the trial court to stay, rather than strike, prohibited enhancements under section 12022.53. As noted above, staying rather than striking the prohibited firearm enhancements serves the legislative goals of section 12022.53 by making the prohibited enhancements readily available should the section 12022.53 enhancement with the longest term be found invalid on appeal and by making ‘the trial court’s intention clear—it is staying part of the sentence only because it thinks it must. If, on the other hand, the trial court were to strike or dismiss the prohibited portion of the sentence, it might be misunderstood as exercising its discretionary power under Penal Code section 1385.’ ” (Gonzalez, supra, 43 Cal.4th at p. 1129, quoting Lopez, supra, 119 Cal.App.4th at p. 365.)

We conclude the analysis in Gonzalez is compelling and affirm the trial court’s stay of the section 667.5(b) enhancements.

III., IV.

DISPOSITION

The judgment is modified to reflect the sentences on counts one and three are stayed pursuant to section 654 and, as so modified, is affirmed. The trial court is ordered to prepare and forward to California’s Department of Corrections and Rehabilitation an abstract of judgment modified accordingly.

Needham, J., and Bruiniers, J., concurred.

Appellant’s petition for review by the Supreme Court was denied June 25, 2014, S218095. 
      
       All undesignated section references are to the Penal Code.
     
      
       Appellant’s trial testimony conflicted with Doe’s in some respects. However, when reviewing for substantial evidence, we “ ‘ “review the whole record in the light most favorable to the judgment below.” ’ ” (People v. Maury (2003) 30 Cal.4th 342, 396 [133 Cal.Rptr.2d 561, 68 P.3d 1].) Our recitation of the facts reflects this standard of review.
     
      
       See footnote, ante, page 98.
     
      
       Section 667.5(a) provides: “Where one of the new offenses is one of the violent felonies specified in subdivision (c), in addition to and consecutive to any other prison terms therefor, the court shall impose a three-year term for each prior separate prison term served by the defendant where the prior offense was one of the violent felonies specified in subdivision (c). However, no additional term shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”
     
      
       Section 667.5(b) provides: “Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall 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; provided that no additional term shall be imposed under this subdivision for any prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended. A term imposed under the provisions of paragraph (5) of subdivision (h) of Section 1170, wherein a portion of the term is suspended by the court to allow mandatory supervision, shall qualify as a prior county jail term for the purposes of the one-year enhancement.”
     
      
       Rule 4.447 provides: “No finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay will become permanent on the defendant’s service of the portion of the sentence not stayed.”
     
      
       Former section 12022.5, subdivision (a)(1) provided: “Except as provided in subdivisions (b) and (c), any person who personally uses a firearm in the commission or attempted commission of a felony shall, upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of the offense of which he or she was convicted.” (Stats. 1999, ch. 129, § 5, p. 1803.)
     
      
       Subdivisions (b), (c), and (d) of section 12022.53 now provide:
      “(b) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply.
      “(c) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years.
      “(d) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 26100, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.”
      The version of section 12022.53 referred to in Gonzalez (see Gonzalez, supra, 43 Cal.4th at p. 1123, fn. 4) was subsequently repealed and the current version was enacted without substantive change (Stats. 2010, ch. 711, §§ 4, 5, operative Jan. 1, 2012).
     
      
       In the initial round of briefing, the People correctly noted that in People v. Langston (2004) 33 Cal.4th 1237 [17 Cal.Rptr.3d 596, 95 P.3d 865] the California Supreme Court, stated: “Once the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken. [Citations.]” (Id. at p. 1241.) However, the proper treatment of such an enhancement, where the defendant is sentenced under section 667.5(a) for the same prior prison term, was not at issue in Langston, and “cases are not authority for propositions not considered . . . .” (People v. Brown (2012) 54 Cal.4th 314, 330 [142 Cal.Rptr.3d 824, 278 P.3d 1182].) Moreover, Langston never mentioned rule 4.447, and the authority cited by Langston on the point involved discretionary determinations to not impose an enhancement, and therefore did not implicate the ability to stay an enhancement under rule 4.447.
     
      
       See footnote, ante, page 98.
     