Filed 7/20/16 P. v. Fritz 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Tehama)
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THE PEOPLE, C079871
Plaintiff and Respondent, (Super. Ct. No. NCR92861)
v.
JAMAL FRITZ,
Defendant and Appellant.
Defendant Jamal Fritz contends on appeal that the trial court erroneously imposed
three enhancements for a single consecutive term of prior imprisonment. (Pen. Code,
§ 667.5, subd. (b).)1 The People agree, and we shall modify the judgment accordingly.
BACKGROUND
In 2015, defendant was convicted by court trial of annoying or molesting a child
under 18 with a prior sex crime conviction (count I, § 647.6, subd. (c)(2)), unlawful
1 Undesignated statutory references are to the Penal Code.
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sexual intercourse with a minor (count II, § 261.5, subd. (c)), and possession of obscene
matter (count III, § 311.2, subd. (a)).2 The trial court also found true three prior strikes
based on defendant’s 2001 felony convictions for attempted forcible rape, forcible oral
copulation, and sodomy by use of force. (§§ 667.5, subd. (b), 1170.12.) Defendant
served the terms for the 2001 convictions consecutively.
The trial court sentenced defendant as follows: 25 years to life plus three years for
the three prior prison terms on count I, concurrent 25 years to life plus three years for the
three prior prison terms on count II, and a concurrent six months on count III.
DISCUSSION
Section 667.5, subdivision (b) imposes an additional one year penalty “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).) “[T]his statutory language means that only one
enhancement is proper where concurrent sentences have been imposed in two or more
prior felony cases.” (People v. Jones (1998) 63 Cal.App.4th 744, 747; see also 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”].)
Because defendant served consecutive terms for the 2001 convictions, the terms
served for these offenses were not “separate” terms within the meaning of section 667.5,
subdivision (b). Accordingly, there was sufficient evidence to establish the necessary
elements for only one of the section 667.5, subdivision (b) allegations, and it was error to
find true all three such allegations. Therefore, the trial court’s true finding on two of the
2 Because of the nature of the issue on appeal, the facts underlying defendant’s
conviction are not relevant and are not recounted.
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section 667.5, subdivision (b) allegations must be set aside. In addition, defendant’s
sentence must be modified by striking the additional two one-year sentences.
DISPOSITION
The judgment is modified to vacate the trial court’s true finding on two of the
section 667.5, subdivision (b) allegations and to strike the two additional one-year
sentences on each felony count (counts I and II). The trial court is ordered to prepare an
amended abstract of judgment and to forward a certified copy to the Department of
Corrections and Rehabilitation. As modified, the judgment is affirmed.
NICHOLSON , Acting P. J.
We concur:
ROBIE , J.
HOCH , J.
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