Filed 8/1/18 Sanchez v. Superior Court CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

MICHAEL T. SANCHEZ,

Petitioner,

v.

THE SUPERIOR COURT OF SOLANO COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

A154904

(Solano County

Super. Ct. No. FCR282738)

THE COURT:*

A jury convicted petitioner Michael T. Sanchez of inflicting corporal injury on the parent of his child (Pen. Code, § 273.5, subd. (a); count one) and misdemeanor resisting arrest (id., § 148, subd. (a)(1); count two). The superior court found true a prior prison term allegation (id., § 667.5, subd. (b); hereafter section 667.5(b)). On March 9, 2017, Sanchez was sentenced to the middle term of three years in state prison on count one, a one-year term for the prior prison term enhancement, and, on the misdemeanor, a consecutive term of 164 days to be served in the county jail with 164 days credited for time served. Sanchez received no custody credit on the four-year prison sentence. Sanchez’s appeal from his conviction and a petition for writ of habeas corpus, which raise additional issues distinct from those asserted in this writ proceeding, are presently pending in this court in case Nos. A150886 and A152414.

On August 21, 2017, Sanchez’s appellate counsel filed his opening brief in appeal No. A150886. Among other things, Sanchez argued the prior prison term finding was unsupported by substantial evidence because Sanchez was “never found in violation of his parole and was not returned to state prison.” (See People v. Fielder (2004) 114 Cal.App.4th 1221, 1232; In re Preston (2009) 176 Cal.App.4th 1109, 1117.) On February 22, 2018, the People filed a respondent’s brief, in which they conceded the superior court erred in imposing the prior prison term enhancement because “nothing in the record supports the finding.”

On September 19, 2017, Sanchez’s appellate counsel filed a petition for writ of habeas corpus, asserting, inter alia, a related but different claim that the prosecutor had presented false evidence with respect to the section 667.5(b) prior. The People, in their informal response, did not concede that the evidence the prosecutor presented was false. However, the People did concede Sanchez had, in his exhibits to the petition for habeas corpus, “showed that the prior conviction was not, in fact, a prior prison term conviction.” Although ordinarily the remedy would be remand for retrial (People v. Scott (2000) 85 Cal.App.4th 905, 914–915), the People also conceded “in this instance this court may reverse and remand for resentencing without the need for a retrial.”

On July 25, 2018, the court received a letter from Sanchez’s appellate counsel, concerning the conceded error with respect to the imposition of the section 667.5(b) prior. Sanchez’s counsel represented that Sanchez’s release date on his four-year sentence is October 30, 2018. Sanchez’s counsel sought immediate relief with respect to the conceded error, on the basis Sanchez should have been released from prison custody before the date of his letter. In recognition of the urgency of the issue and because oral argument on Sanchez’s appeal would not occur before September 2018 at the earliest, we asked the parties to meet and confer to attempt to propose an expedited disposition of the issue, and suggested that one possibility would be for Sanchez to file a petition for writ of mandate seeking immediate relief by way of peremptory writ in the first instance. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–180; Ng v. Superior Court (1992) 4 Cal.4th 29, 35). We also suggested that, if the People agreed to the granting of relief by peremptory writ in the first instance, the parties could stipulate to immediate issuance of the remittitur (Cal. Rules of Court, rules 8.272(c)(1), 8.490(d)).

Sanchez filed a verified petition for writ of mandate on July 30, 2018, in which he asserts the prior prison term allegation could not be found true because Sanchez, “in fact, remained free from custody for a period of more than five years from the prior imprisonment and the commission of a new felony offense. (See [citation]; In re Preston[, supra, 176 Cal.App.4th at p.] 1117.)” Sanchez also maintains that, absent “the improperly imposed one-year enhancement,” he would have already been released. On this basis, Sanchez asserts his appellate remedy in case No. A150886 is inadequate. Sanchez asked this court to issue a peremptory writ of mandate in the first instance (Ng v. Superior Court, supra, 4 Cal.4th at p. 35), to direct the superior court to strike his prior prison term enhancement (§ 667.5(b)), and to order the superior court to file an amended abstract of judgment “reflecting the striking of the prior conviction.”

In response to his petition for writ of mandate, Sanchez and the People filed a signed stipulation agreeing that, with respect to the sole issue of the validity of the prior prison term enhancement, this Court “should grant the relief requested in the Petition for Writ of Mandate.” The parties also indicated they were amenable to immediate issuance of the remittitur as to this issue only.

Given that the superior court imposed an invalid sentence and appellate relief will be inadequate, we find it appropriate to proceed by way of writ of mandate. (Code Civ. Proc., § 1085, subd. (a).) And because, as discussed below, we find Sanchez is entitled to relief, the petition’s unusual urgency renders this case appropriate for issuance of a peremptory writ in the first instance. (Ng v. Superior Court, supra, 4 Cal.4th at p. 35.)

Penal Code section 667.5 reads, in pertinent part: “Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [¶] . . . [¶] (b) . . . where the new offense is any felony for which a prison sentence . . . 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 . . . ; provided that no additional term shall be imposed under this subdivision for any prison term . . . 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 . . . .” (Italics added.)

Accordingly, section 667.5(b) “requires a convicted felon to remain free of prison custody for ‘a single, continuous five-year period’ to avoid additional punishment if he reoffends.” (In re Preston, supra, 176 Cal.App.4th at p. 1116.) “[W]hether a parolee has remained free of prison custody depends on whether he has either remained on parole without revocation during, or been discharged from custody preceding, the required continuous five-year period.” (Id. at p. 1117.) The People concede Sanchez was free of prison custody for a single and continuous five-year period before his current offense. Thus, the petition for writ of mandate, which the Attorney General agrees should be granted, demonstrates Sanchez cannot be subjected to the enhanced punishment of section 667.5(b). Consequently, we hold Sanchez is entitled to an order striking the section 667.5(b) enhancement.

As stipulated by the parties, let a peremptory writ of mandate issue directing the superior court to forthwith strike the section 667.5(b) prior prison term enhancement and immediately thereafter “file an amended abstract of judgment reflecting the striking of the prior [enhancement]” and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. This decision shall be final as to this court on the second calendar day after the filing of this opinion. (Cal. Rules of Court, rule 8.490(b)(2)(A).) Pursuant to the parties’ stipulation, the remittitur shall issue immediately upon finality of the opinion as to this court. (Id., rules 8.272(c)(1), 8.490(d)).)