People v. McCarthy

Opinion

ELKINGTON, Acting P. J.

Defendant McCarthy pleaded guilty to three charges of burglary and admitted suffering a prior conviction and prison term within the meaning of Penal Code section 667.5, subdivision (b). On his appeal from the judgment he urges only sentencing error. He has also

[595]

filed an application for a writ of habeas corpus, charging additional sentencing error. We have consolidated the two proceedings for disposition by this court.

Having read and considered the entire record and briefs of the parties, we shall affirm the judgment and dismiss without prejudice the habeas corpus petition. Our reasons follow.

The trial court had sentenced McCarthy to a four-year midterm on one of his burglary convictions, consecutive sentences on the other two totalling two and two-thirds years, and a

one-year enhancement

for the prior conviction and prison term.

The Appeal

It is here contended that: “The one-year enhancement of appellant’s sentence denied him the equal protection of the law.”

The contention is founded on the provisions of

Penal Code section 667.5.

Penal Code section 667.5,

subdivision (b)

as in effect at here relevant times and otherwise as relevant, provided that where one was convicted of a “felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate

prison term

served for any felony.” (Our italics.)

On the other hand, section 667.5,

subdivision (f)

provided that subdivision (b)’s prior conviction of a felony shall: “include a conviction in another jurisdiction for an offense which if committed in California is punishable by imprisonment in state prison provided the defendant served