People v. Ruiz

California Court of Appeal Apr 16, 1982 No. Crim. 4985Published

Before: Brown (g.A.)

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Holding. The court held that multiple prior prison terms may be considered "separate" for sentencing enhancement purposes under Penal Code section 667.5 even if served during a continuous period of incarceration, provided each term was completed before the next began. However, it struck one enhancement because the underlying prison term was not completed prior to the subsequent commitment.

Issues

Whether the failure to expressly allege in the information that prior prison terms were served separately is fatal to the enhancement.
Whether prior prison terms served during a continuous period of incarceration can be considered "separate" under Penal Code section 667.5, subdivision (g).

Disposition. modified and affirmed

Quotations verified verbatim against the opinion

“There appears to be nothing in the statute or in logic that requires a period of imprisonment to be interrupted before separate enhancements may be imposed for terms that are completed while in prison.”

[760]

Opinion

BROWN (G. A.), P. J.

Appellant was convicted by a jury of robbery and assault with a deadly weapon and two firearm use charges (Pen. Code, § 12022.5). He was also found to have been convicted of four pri- or felonies: on December 16, 1959, of possession of metal knuckles (Pen. Code, § 12020); on January 9, 1961, of possession of a dirk or dagger while in prison (Pen. Code, § 4502); on January 8, 1965, of voluntary manslaughter (Pen. Code, § 192, subd. 1); and on April 20, 1977, of possession of marijuana for sale (Health & Saf. Code, § 11359). No enhancement was assessed for the marijuana for sale conviction, and it is not at issue herein. The sole claims of error concern sentencing. It is therefore unnecessary to recite the facts of the current crimes or of the priors.

The amended abstract shows that appellant was sentenced in the current proceeding to thirteen years, consisting of an upper base term of five years for the robbery, a one-year consecutive term for the assault with a deadly weapon, a two-year enhancement for the firearm use, a three-year enhancement for the prior manslaughter conviction, a one-year enhancement for the prior possession of a dirk or dagger while in prison, and a one-year enhancement for the prior possession of metal knuckles conviction (Pen. Code, § 667.5, subd. (b)).

The record reflects that he was received at state prison on December 22, 1959, for the metal knuckles conviction and started serving a six months to five years sentence; on January 12, 1961, appellant commenced serving a five years to life concurrent sentence for possession of a dirk or dagger in prison; on January 8, 1965, while in prison he commenced serving a six months to ten years sentence for voluntary manslaughter. All prior sentences were concurrent. When he was granted parole on January 28, 1975, he had served continuously in prison since December 22, 1959; a period of approximately fifteen years and one month.

Appellant contends that the court erred in enhancing his base term for the prior prison terms. We agree as to the one-year enhancement for the prior possession of a dirk or dagger commitment only, and

[761]

People v. Ruiz

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BROWN (G. A.), P. J.

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