Opinion
C084529
07-11-2018
THE PEOPLE, Plaintiff and Respondent, v. URBERTO DOTSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F07701)
A jury found defendant Urberto Dotson guilty of willful infliction of corporal injury resulting in a traumatic condition upon the parent of his child or children. (Pen. Code, § 273.5, subd. (a).) In a bifurcated proceeding, the trial court found true the allegation he had served a prior prison term. (§ 667.5, subd. (b).) The court sentenced him to three years in prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant's sole contention is that the one-year sentence imposed for the prior prison term enhancement must be stricken. He argues that the five-year "washout" provision precludes imposition of the enhancement. The People concede the point, and we agree. Accordingly, we will strike the sentence imposed on the prior prison term enhancement. As modified, we affirm.
BACKGROUND
A recitation of the facts underlying defendant's conviction is unnecessary to the resolution of the instant appeal. Below, we summarize the procedural history relevant to the claim raised on appeal.
In March 2017, defendant was charged with willful infliction of corporal injury resulting in a traumatic condition upon the parent of his child or children (§ 273.5, subd. (a)) and false imprisonment by violence, menace, fraud, and deceit (§ 236). The information also alleged that defendant had been convicted of violating Health and Safety Code section 11378 (possession of a controlled substance for sale) in July 2007, and had served a prior prison term for that offense within the meaning of section 667.5, subdivision (b).
After a jury trial, defendant was found guilty of the corporal injury offense but not guilty of the false imprisonment offense. During the court trial on the prior prison term enhancement, the prosecutor introduced into evidence, without any objection from defendant, a prison packet. (§ 969b.) The packet showed that defendant was convicted of possessing a controlled substance for sale on July 3, 2007, and sentenced to six years in prison on August 24, 2007, consisting of two years on the substantive offense, plus four years for being personally armed with a firearm (§ 12022, subd. (c)). The packet also showed that defendant was paroled on July 31, 2010, and discharged from parole on August 30, 2011. The trial court correctly noted that the corporal injury offense in this case occurred on October 5, 2015. When asked by defense counsel, the court said defendant was released from parole on August 30, 2011. Thereafter, the court and defense counsel agreed that the corporal injury offense occurred within five years of August 30, 2011. The matter was then submitted without further discussion.
At the hearing, the prosecutor asserted that defendant was "released from parole, which means released from custody[,] in 2011." --------
After finding the prior prison term enhancement allegation true, the trial court sentenced defendant to three years in prison, consisting of the low term of two years on the corporal injury offense, plus one year for the prior prison term enhancement.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the one-year prior prison term enhancement must be stricken because the five-year "washout" provision precludes imposition of the enhancement. The People concede the point, and we agree.
As relevant here, section 667.5 provides: "Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [¶] . . . [¶] (b) Except where subdivision (a) [concerning violent felonies] applies, where the new offense is any felony for which a prison sentence . . . is imposed . . . , in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term [served] . . . for any felony; provided that no additional term shall be imposed under this subdivision for any prison term [served] . . . 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.) "The last phrase is commonly referred to as the 'washout rule' where a prior felony conviction and prison term can be 'washed out' or nullified for the purposes of section 667.5." (People v. Fielder (2004) 114 Cal.App.4th 1221, 1229.)
In determining whether the "washout rule" applies, a defendant is "deemed to remain in prison custody for an offense until the official discharge from custody, including . . . release on parole . . . ." (§ 667.5, subd. (d).) "According to the 'washout' rule, if a defendant is free from both prison custody and the commission of a new felony for any five-year period following discharge from custody or release on parole, the enhancement does not apply. [Citations.] Both prongs of the rule, lack of prison time and no commission of a crime leading to a felony conviction for a five-year period, are needed for the 'washout' rule to apply. This means that for the prosecution to prevent application of the 'washout' rule, it must show a defendant either served time in prison or committed a crime leading to a felony conviction within the pertinent five-year period. [Citations.] This construction furthers the legislative intent behind enactment of section 667.5, subdivision (b) of 'increasing the punishment incurred by repeat offenders and thereby deterring recidivism.' " (People v. Fielder, supra, 114 Cal.App.4th at p. 1229.)
"The prosecution has the burden of proving beyond a reasonable doubt each element of the section 667.5, subdivision (b) sentence enhancement, including the fact of no five-year 'washout' period." (People v. Fielder, supra, 114 Cal.App.4th at p. 1232.)
We agree with the parties that defendant's 2007 felony conviction for possession of a controlled substance for sale was "washed out" for purposes of applying the prior prison term enhancement. The record discloses that defendant was released on parole for that offense on July 31, 2010. He committed the corporal injury offense more than five years later on October 5, 2015. Accordingly, we will strike the sentence imposed on the prior prison term enhancement.
DISPOSITION
The one-year sentence imposed pursuant to section 667.5, subdivision (b) is stricken. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Hoch, J.