People v. Jones

California Court of Appeal Aug 1, 1988 No. B030974Published

Before: Abbe

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Holding. The court held that abstracts of judgment showing a felony conviction and sentence are insufficient to prove a defendant served and completed a prior prison term as required for a Penal Code section 667.5, subdivision (b) enhancement. Consequently, the enhancement findings were reversed and dismissed, and retrial is prohibited due to insufficient evidence.

Issues

Whether substantial evidence supports a jury finding of prior prison term enhancements under Penal Code section 667.5, subdivision (b).
Whether an abstract of judgment alone is sufficient to prove a defendant served and completed a prior prison term.
Whether retrial is permitted when the evidence presented at trial was insufficient to support the enhancement allegations.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“No evidence was adduced, however, that appellant actually served and completed the terms imposed as required by section 667.5, subdivision (g).”

“An abstract of judgment showing a felony conviction and sentence is substantial evidence of the fact of a prior conviction. It is not, however, sufficient to prove the felon actually completed a term of imprisonment under section 667.5.”

“Consequently we must hold the evidence presented was insufficient to prove either enhancement allegation so retrial thereon is prohibited.”

Opinion

ABBE, J.

Presented in this appeal is an issue of whether substantial evidence supports the jury finding relating to the charged prior enhancements under the provisions of Penal Code section 667.5, subdivision (b).

We find neither such a jury finding nor substantial evidence to support the enhancements.

Appellant was convicted by jury of a battery on a nonprisoner by a prisoner (§ 4501.5) and in a bifurcated proceeding was found to have suffered two prior felony convictions. (§ 667.5, subd. (b).) He was sentenced to a consecutive middle term of three years on the battery. Using the one mitigating factor, the court struck punishment on the prior enhancements of one year each. (See Cal. Rules of Court, rules 423 and 425.)

Appellant is correct that the only proof offered by the People, consisting of the abstracts of judgment in each prior, showing the fact of a felony conviction and a sentence to the state prison, is insufficient to prove appellant served a prior completed prison term and had not been free of prison custody for five or more years since released.

Section 667.5 provides in pertinent part: “Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows:

“(b) . . . where the new offense is any 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 ....

“(g) A prior separate prison term . . . shall mean a continuous completed period of prison incarceration . . .

[459]

Here the jury’s findings on each of the enhancements simply state in pertinent part: “We, the jury, further find the allegation that the defendant . . . was convicted on or about [date] . . .for. . . a felony tobe true.” The jury was given no instructions relating to these bifurcated deliberations.

The jury never found that appellant had served a prior prison term for either offense, one of the statutory predicates for the enhancement. Therefore, under the provision of subdivision (d) the enhancement sentences must be reversed since they were charged but not found true.

People v. Jones

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ABBE, J.

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