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Name: People v. Brewer
Case #: A135616
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 03/27/2014
Summary

Where a defendant is convicted of a violent felony and prior prison term enhancements under Penal Code section 667.5, subdivisions (b) and (a) are found true, the enhancement alleged under subdivision (b) is stayed. Appellant was convicted of residential burglary and assault with intent to commit a forcible sex offense during the course of a burglary; enhancements under section 667.5, subdivisions (a) and (b) were found true. The court ordered the subdivision (b) enhancements stayed pursuant to Penal Code section 654. Held: Affirmed. When a defendant is convicted of a violent felony, section 667.5, subdivision (a) authorizes a three-year enhancement “for each prior separate prison term served by the defendant where the prior offense was one of the violent felonies specified in subdivision (c) . . . .” Subdivision (b) authorizes a one-year enhancement for each prior separate prison term served for a felony when the current offense is a felony, except where subdivision (a) applies. Here, the section 667.5, subdivision (b) enhancements were prohibited by law and the express language of the statute. However, the trial court erred by staying the section 667.5, subdivision (b) enhancements pursuant to section 654 because section 654 does not apply to prior prison term enhancements that deal with a defendant’s status as a repeat offender. Instead, the proper approach is to stay the enhancements pursuant to California Rules of Court, rule 4.447, which states that the sentencing judge must impose sentence for an enhancement term that is prohibited by law, “and must thereupon stay execution of” the prohibited term. This procedure serves the legislative goals of section 667.5 by making the prohibited enhancement readily available should the subdivision (a) enhancement be found invalid on appeal.