Opinion

A jury convicted Peter Milosavljevic of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), during which he inflicted serious bodily injury (§ 12022.7). In bifurcated proceedings, Milosavljevic admitted suffering two prior convictions, and serving a prison term for the latter. (§§ 667, subd. (a), 667.5, subd. (b).) He was sentenced to prison for 13 years and appeals, contending the term for 1 of the prior conviction enhancements should be stricken because the evidence does not support it and his admission to it is insufficient to supplement the deficiency in the evidence. We reject his first contention, which renders it unnecessary to address his second, and affirm. The facts surrounding Milosavljevic’s crime are irrelevant to this appeal.

Facts Pertaining to the Prior Conviction

After Milosavljevic had been convicted by the jury of the charged assault, he waived jury trial on the allegations that he had been convicted in 1983 of “assault with a deadly weapon with infliction of great bodily injury . . .” and another offense in 1989, for which he served a prison term. The following colloquy occurred concerning the 1983 assault conviction:

Milosavljevic’s section 969, subdivision (b), packet for the 1983 assault contained a copy of the abstract of judgment which showed that, in connection with the assault, a section 12022.7 enhancement had been charged and found and the sentencing court had “stayed, not stricken” the term for that enhancement.

Issue and Discussion

In order for Milosavljevic’s prior to justify the five-year enhancement term imposed under section 667, subdivision (a), he must have personally inflicted great bodily injury during the course of it. Milosavljevic contends that because the court that sentenced him for the 1983 assault stayed the term for the serious bodily injury enhancement, it cannot now be used as a basis for the current section 667, subdivision (a), enhancement. We disagree.

In People v. Shirley (1993) 18 Cal.App.4th 40 [ 22 Cal.Rptr.2d 340 ], the Court of Appeal was confronted with the same issue, except that the original sentencing court there had stricken, not merely stayed, the term for the section 12022.7 enhancement. Rejecting the same contention Milosavljevic advances here, the court held:

We agree with the Shirley analysis. Despite the original sentencing court’s failure to impose a term for the section 12022.7 enhancement, the enhancement was still found to be true. As Shirley held, it would defeat the clear purpose of recidivist statutes like section 667, subdivision (a), to permit what Milosavljevic himself concedes was an error by that court to work to his benefit.

However, Milosavljevic contends that People v. Pearson (1986) 42 Cal.3d 351 [ 228 Cal.Rptr. 509 , 721 P.2d 595 ] mandates a different result. We disagree.

In Pearson , the defendant had suffered two convictions each for two acts. The sentencing court stayed the terms for two of the four convictions to avoid the double punishment prohibition of section 654. The California Supreme Court commented that only two of the four convictions could later be used as recidivist enhancements, as to do otherwise would violate section 654.

Milosavljevic may speculate all he wants to about the reason the original sentencing court stayed the term for the serious bodily injury enhancement. However, the record before us does not even suggest it was done in order to avoid the double punishment prohibition contained in section 654. Thus, Pearson is completely inapplicable to this case.

Having decided that the section 969, subdivision (b), packet fully supports the enhancement, we need not address Milosavljevic’s remaining contentions about the voluntariness of his admission that he suffered the prior conviction.

Disposition

The judgment is affirmed.

McKinster J., and Richli, J., concurred.

All further statutory references are to the Penal Code. We reject Milosavljevic’s contention that the 1983 assault conviction and section 12022.7 finding were somehow rendered void because the original sentencing court lacked the authority to stay the term for the latter. Whatever errors occurred in sentencing as to the 1983 case, they did not detract from the fact that Milosavljevic suffered the conviction and a true finding under section 12022.7 was made against him.