Opinion
E068544
05-25-2018
THE PEOPLE, Plaintiff and Respondent, v. THOMAS HUNTER, Defendant and Appellant.
Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB17000253) OPINION APPEAL from the Superior Court of San Bernardino County. J. David Mazurek, Judge. Affirmed in part, affirmed as modified in part, remanded with directions in part. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury found defendant and appellant Thomas Hunter guilty of driving or taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a)). In a bifurcated proceeding, the trial court found that defendant had suffered one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), to wit, a 1980 robbery, and two prior prison terms (§ 667.5, subd. (b)), to wit, a 1988 robbery conviction and a 2010 criminal threat conviction. Defendant was sentenced to a total term of seven years in state prison with 256 days of credit for time served as follows: the upper term of three years, doubled to six years due to the prior strike for the vehicle theft conviction, plus one year for "one of the [] prior prison enhancements," and a concurrent one year for the other prior prison term allegation.
All future statutory references are to the Penal Code unless otherwise stated. --------
On appeal, defendant contends (1) the trial court erred in finding true his first prior prison term allegation for his 1988 robbery conviction; (2) the trial court erred in finding true his second prior prison term allegation for his 2010 criminal threat conviction; and (3) the trial court erred in ordering one of his prior prison terms to be served concurrently. The People agree the court erred in finding true defendant's second prior prison term allegation and ordering one of the prior prison terms to be served concurrently. We reject defendant's first claim of error and agree with the parties as to defendant's last two claims of errors. Accordingly, we order stricken the trial court's true finding as to defendant's second prior prison term for his 2010 criminal threat conviction, and remand the matter for a resentencing hearing. In all other respects, we affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
On January 16, 2017, defendant stole a car from an 81-year-old man who was walking his dogs nearby. The victim's car was located approximately 30 minutes later in a grocery store parking lot. Defendant was observed taking items out of the car's trunk when law enforcement arrived. The keys to the car were found in defendant's pocket. Defendant was later identified by the victim as the person who stole his car.
On February 14, 2017, an information was filed charging defendant with driving or taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a)). The information also alleged that defendant had suffered one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) for a 1980 robbery, and two prior prison terms (§ 667.5, subd. (b)) for a 1988 robbery conviction and a 2010 criminal threat conviction.
On April 19, 2017, a jury convicted defendant as charged of vehicle theft.
A bifurcated proceeding as to defendant's prior conviction allegations was held on April 24, 2017. After the presentation of evidence and admission into evidence of a certified section 969b packet, the court found the prior conviction allegations true as charged. In pertinent part, the court found as follows: "And then with respect to the prison priors, [defendant] was sentenced to a total of 12 years, 8 months in January of 1988. He was discharged—he violated parole numerous times up through and including 1997. So—and then the next conviction was from August 23rd of 2010. [Defendant] was sentenced to 2 years and 8 months in that case. He was discharged from—he was released—discharged from parole November 19, 2012. [¶] And the new offense was January 16, 2017. So he has not remained free from prison custody and committed a new offense within five years of each of those prior offenses. So the Court will find all the priors as alleged are true."
On May 23, 2017, the trial court sentenced defendant to a total term of seven years in state prison with credit for time served as follows: six years for the substantive offense, plus a consecutive one-year term for "one of the [] prior prison enhancements." The trial court imposed two one-year sentence enhancements for both prior prison term allegations—one consecutively and one concurrently. The trial court, however, did not specify which prior prison allegation was imposed concurrently or which one was imposed consecutively.
On June 14, 2017, defendant filed a timely notice of appeal.
III
DISCUSSION
A. True Finding on Prior Prison Term Allegations
Defendant argues the trial court erred in finding true his prior prison term allegations for his 1988 robbery conviction (first prior prison term) and his 2010 criminal threat conviction (second prior prison term) because those prior prison terms were subject to the " 'washout' " provision of section 667.5, subdivision (b). The People agree defendant's second prior prison term conviction was subject to the " 'washout' " provision, but disagree as to defendant's first prior prison term conviction. We agree with the People.
Subdivision (b) of section 667.5 provides that "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 . . . provided that no additional term shall be imposed under this subdivision for any prison term . . . imposed . . . 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." (§ 667.5, subd. (b).) Subdivision (d) of section 667.5, in pertinent part, provides: "For the purposes of this section, the defendant shall be deemed to remain in prison custody for an offense until the official discharge from custody . . . or until release on parole . . . , whichever first occurs . . . ." (§ 667.5, subd. (d), italics added.)
Thus, to be subject to a prior prison term enhancement, the defendant must be previously convicted of a felony, imprisoned as a result of that conviction, have completed that term of imprisonment, and remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. (People v. Tenner (1993) 6 Cal.4th 559, 563.) "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. [¶] 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." (People v. Fielder (2004) 114 Cal.App.4th 1221, 1229 (Fielder).)
"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." (Fielder, supra, 114 Cal.App.4th at p. 1229.) 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." (Ibid.; see People v. Elmore (1990) 225 Cal.App.3d 953, 957 ["washout" period does not apply if defendant committed a new offense resulting in a felony conviction within five years, even without a showing he was incarcerated in state prison as a result thereof]; People v. Young (1987) 192 Cal.App.3d 812, 816 ["We hold that the statute requires a convicted felon to remain free from prison custody and the commission of an offense resulting in a felony conviction for a single, continuous five-year period in order to avoid the enhancement provided in section 667.5, subdivision (b)"].)
"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. [Citation.] When, as here, a defendant challenges on appeal the sufficiency of the evidence to sustain the trial court's finding that the prosecution has proven all elements of the enhancement, we must determine whether substantial evidence supports that finding. The test on appeal is simply whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the enhancement beyond a reasonable doubt. In that regard, in conformity with the traditional rule governing appellate review, we must review the record in the light most favorable to the trial court's finding(s). [Citation.]" (Fielder, supra, 114 Cal.App.4th at p. 1232.)
"[T]emporary detention or confinement can ripen into reimprisonment for parole revocation only upon findings justifying revocation following a formal hearing consistent with federal constitutional due process requirements. [Citation.]" (In re Panos (1981) 125 Cal.App.3d 1038, 1043.) "[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. [Citation.]" (In re Preston (2009) 176 Cal.App.4th 1109, 1117, italics omitted.)
1. First Prior Prison Term for 1988 Robbery Conviction
Here, the first prior prison allegation alleged that defendant was convicted of robbery on March 17, 1988, served a prison term as a result of that conviction, and that he did not remain free from prison custody or another felony conviction for five years after being released from prison custody. The section 969b certified packet introduced into evidence during defendant's bifurcated trial on the prior conviction allegations supports the trial court's true finding that defendant failed to remain free from custody for five years, within the meaning of section 667.5, before committing another offense. After defendant went into the custody of the California Department of Corrections and Rehabilitation on March 17, 1988, he was paroled approximately seven years later on February 8, 1995. Between April 1995 through December 1997, defendant violated parole numerous times, and his sentence was discharged on February 8, 1999, because he had already reached his statutory maximum period of confinement. On August 2, 1999, approximately six months later, defendant was convicted of felony child endangerment, and was sentenced to state prison on August 9, 1999, for four years. The evidence clearly shows that defendant did not remain free from prison custody or a felony conviction for five years after he was released from custody for his 1988 robbery conviction. Therefore, sufficient evidence supports the trial court's true finding as to defendant's first prior prison term allegation.
Nonetheless, citing the trial court's recitation of some of the facts contained in the section 969b certified packet, defendant argues that his 1988 conviction "washed out," because the trial court, in making its findings, stated that after defendant was discharged in 1997, his " 'next conviction was from August 23rd of 2010.' " Based on these comments, defendant asserts, "[s]ince according to the court's findings, 'the next conviction was from August 23rd of 2010,' [defendant] had more than 12 years of being free from prison." Defendant appears to argue that because the trial court did not specifically note his 1999 felony child endangerment conviction and the resulting return to prison custody, his 1988 conviction "washed out." Defendant's argument lacks merit. The trial court's comments were nothing more than a brief, abridged recitation of what the uncontroverted evidence established. Defendant does not dispute that he suffered a felony conviction in 1999 that resulted in him returning to prison custody. Indeed, defendant fails to address this 1999 conviction altogether.
Accordingly, we find sufficient evidence supports the trial court's finding that defendant did not remain free from custody or a felony conviction for five years after being released from custody.
2. Second Prior Prison Term for 2010 Criminal Threat Conviction
Defendant also argues that the "washout" provision of section 667.5, subdivision (b), applies to his second prior prison term allegation for his 2010 criminal threat conviction. The People concede that insufficient evidence supports the trial court's true finding as to defendant's second prior prison term allegation because this prior conviction " 'washed out' " under section 667.5, subdivision (b). We also agree.
Here, the section 969b packet introduced into evidence fails to support the trial court's finding that, as to his second prior prison term allegation, defendant did not remain free from custody for five years, within the meaning of section 667.5, before committing the instant offense.
Defendant was convicted of criminal threats on August 23, 2010, and went into the custody of the California Department of Corrections and Rehabilitation on August 31, 2010. Defendant was paroled on October 20, 2011. He committed the present offense on January 16, 2017, which resulted in a felony conviction, more than five years after his most recent release from prison custody.
Thus, as defendant correctly notes, his second prior prison term allegation had "washed out." (See People v. Nobleton (1995) 38 Cal.App.4th 76, 84-85.) Defendant had remained free from custody, within the meaning of the statute, for a period exceeding five years. Accordingly, insufficient evidence supports the trial court's true finding on defendant's second prior prison term allegation, and it must be stricken. (Ibid.)
B. Sentence on Prior Prison Term Allegations
Lastly, defendant contends the trial court erred in sentencing him to a concurrent one-year term for one of the two prior prison term enhancements. The People agree the court erred in imposing a concurrent term for " 'one of the prior prison' " term allegations. We also agree with the parties.
As the parties point out, a trial court may not impose a concurrent one-year term under section 667.5, subdivision (b). (People v. Campbell (1999) 76 Cal.App.4th 305, 311; People v. Savedra (1993) 15 Cal.App.4th 738, 747 ["The trial court, contrary to section 667.5, subdivision (b), imposed a concurrent one-year sentence for each prior. To do so was error."].) Rather, once the enhancement under section 667.5, subdivision (b), is found true, the trial court must strike the enhancement or impose consecutively a one-year prison term. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) The failure to impose or strike an enhancement under section 667.5, subdivision (b), is a jurisdictional error that may be addressed for the first time on appeal. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1562.) In order to strike the enhancement, the trial court must comply with section 1385, subdivision (a), which requires that the court state its reason for that decision. (Garcia, at p. 1561.)
In this case, the trial court erred in imposing a concurrent one-year term under section 667.5, subdivision (b), rather than striking the enhancement or imposing a consecutive one-year term. Since the trial court did not specify which of the two prison prior allegations corresponded with the one-year concurrent prison term, the matter must be remanded to the trial court for clarification and resentencing, with directions to either impose the first prior prison term enhancement or strike it in accordance with section 1385, subdivision (a).
IV
DISPOSITION
The judgment is modified by striking defendant's second prior prison term allegation (the 2010 criminal threat conviction). The matter is remanded for the trial court to either impose or strike the first prior prison term enhancement (the 1988 robbery conviction). The trial court is directed to prepare an amended abstract of judgment reflecting the modifications and its disposition of the first prior prison term enhancement under subdivision (b) of section 667.5, and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.