P. v. McKenzie

Filed 9/13/17 P. v. McKenzie CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
DOUGLAS EDWARD MCKENZIE,
Defendant and Appellant.
F073942
(Super. Ct. Nos. MCR047554,
MCR047692, MCR047982)
OPINION
THE COURT*
APPEAL from a judgment of the Superior Court of Madera County. Ernest J.
LiCalsi, Judge.
Alex Green, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and
Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P.J., Smith, J. and Meehan, J.

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2.
Defendant Douglas Edward McKenzie was convicted by guilty plea of several
drug-related charges in three cases. On appeal, he contends (1) he was entitled to
three more days of custody credit, and (2) the trial court erred in staying prior felony drug
conviction enhancements and prior prison term enhancements. We modify the judgment
and affirm as so modified.
BACKGROUND
On November 4, 2014, defendant pled guilty to charges in three cases and
admitted the special allegations, as follows.
In case No. MCR047554, defendant pled guilty to transportation or sale of
methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and misdemeanor possession
of narcotics paraphernalia (Health & Saf. Code, § 11364.1). He admitted having suffered
four prior felony drug convictions (Health & Saf. Code, § 11370.2, subd. (c)) and having
served three prior prison terms (Pen. Code, § 667.5, subd. (b)).1
In case No. MCR047692, defendant pled guilty to possession for sale of
methamphetamine (Health & Saf. Code, § 11378) and transportation or sale of
methamphetamine (Health & Saf. Code, § 11379, subd. (a)). He admitted committing
these offenses while on bail or release (§ 12022.1).
In case No. MCR047982, defendant pled guilty to possession for sale of
methamphetamine (Health & Saf. Code, § 11378). He admitted having suffered the same
four prior felony drug convictions (Health & Saf. Code, § 11370.2, subd. (c)) and having
served the same three prior prison terms (§ 667.5, subd. (b)), as admitted in case
No. MCR047554.
The same day, the trial court granted defendant probation in all three cases and
ordered him to attend drug court.
1 All statutory references are to the Penal Code unless otherwise noted.

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3.
On March 3, 2016, the Madera County Probation Department filed a first amended
petition for revocation of probation in all three cases.
On April 1, 2016, defendant admitted the probation violations.
On June 1, 2016, the trial court denied probation and sentenced defendant to a split
term of 22 years—10 years to be served in county jail and 12 years on mandatory
supervision (§ 1170, subd. (h)(5)(A)).
On June 16, 2016, defendant filed a notice of appeal in all three cases.
DISCUSSION
I. Presentence Custody Credits
Defendant contends he is entitled to three more days of conduct credit in case
No. MCR047554, and thus his current sentence is unauthorized.2 The People counter
that defendant was actually granted one extra day. Defendant replies that the People’s
contention is based on the incorrect presumption that credits are not calculated
cumulatively. We agree with defendant.
For purposes of calculating presentence conduct credit, time is cumulative.
(People v. Culp (2002) 100 Cal.App.4th 1278, 1284.) Therefore, a defendant’s
noncontinuous periods of presentence custody must be aggregated to calculate the
conduct credit earned. (Id. at p. 1283.) Section 4019 provides that a person confined
prior to sentencing may earn two days of conduct credit for every two days served.
(People v. Chilelli (2014) 225 Cal.App.4th 581, 588.) Here, because defendant was
confined for an aggregate of 118 actual days for noncontinuous periods prior to
sentencing, he earned 118 days of conduct credit, for a total of 236 days of credit.
2 Defendant attempted to resolve this issue in the trial court by sending a letter to
the court.

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4.
II. Status Enhancements
The parties agree that the trial court imposed the same seven status
enhancements—four prior felony drug conviction enhancements and three prior prison
term enhancements—in both case No. MCR047554 and case No. MCR047982. In the
latter case, the trial court orally imposed the enhancements and then stayed them pursuant
to section 654.3 We agree the enhancements should have been imposed only once, were
improperly stayed, and must be stricken.
Status enhancements go to the nature or status of the defendant in general, such as
his criminal history of prior convictions and prior prison terms. (People v. Gokey (1998)
62 Cal.App.4th 932, 936 [“Sentence enhancements for prior prison terms are based on the
defendant’s status as a recidivist, and not on the underlying criminal conduct, or the act
or omission, giving rise to the current conviction.”]; People v. Edwards (2011) 195
Cal.App.4th 1051, 1058 [“The enhancements provided for in section 11370.2 are status
enhancements, in that they pertain to defendant’s status as a drug conviction
recidivist.”].) Status enhancements are not specifically attached to certain offenses, but
are instead added one time only to the total aggregate sentence for determinate terms,
regardless of the number of counts. (People v. Williams (2004) 34 Cal.4th 397, 402
[status enhancements “ ‘have nothing to do with particular counts but, since they are
related to the offender, are added only once as a step in arriving at the aggregate
sentence’ ”]; People v. Acosta (2016) 247 Cal.App.4th 1072, 1074 [status enhancements
“attach to the aggregate sentence irrespective of whether that sentence is pronounced for
multiple convictions in the same case or in multiple cases” and “can be imposed only
once on the aggregate sentence”].) A status enhancement is not subject to the one-third
term limitation of section 1170.1, subdivision (a), and must be imposed at full term.
3 The sentencing minute orders state that the enhancements were stricken, not
stayed.

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5.
(§ 1170.1, subd. (a) [“the aggregate term of imprisonment for all these convictions shall
be the sum of the principal term, the subordinate term, and any additional term imposed
for applicable enhancements for prior convictions, prior prison terms, and
Section 12022.1… [t]he subordinate term for each consecutive offense shall consist of
one-third of the middle term of imprisonment prescribed for each other felony conviction
for which a consecutive term of imprisonment is imposed, and shall include one-third of
the term imposed for any specific enhancements applicable to those subordinate
offenses”], italics added; § 1170.11 [“[a]s used in Section 1170.1, the term ‘specific
enhancement’ means an enhancement that relates to the circumstances of the crime”];
People v. Beard (2012) 207 Cal.App.4th 936, 941-942 [section 1170.1’s reference to
specific enhancements is not a reference to status enhancements; “[s]ection 1170.1,
subdivision (a) applies the one-third limit to ‘specific enhancements applicable to those
subordinate offenses’ ”].)
Here, the status enhancements should have been imposed only once to the
five-year aggregate term in the three cases. The second set of status enhancements
should not have been imposed or stayed (as the trial court orally stated), and we will
order them stricken.
DISPOSITION
The judgment is modified as follows: In case No. MCR047554, the number of
conduct credits is increased to 118, for a total of 236 days of credits. In case
No. MCR047982, the four prior felony drug conviction enhancements
(Health & Saf. Code, § 11370.2, subd. (c)) and the three prior prison term enhancements
(Pen. Code, § 667.5, subd. (b)) are stricken. The trial court is directed to modify the
sentencing minute orders to reflect (1) that the total number of credits is 236 days and (2)
that the status enhancements are imposed only once on the aggregate term. The court
shall forward certified copies of the amended orders to the appropriate entities. As so
modified, the judgment is affirmed.

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