People v. Pinette

Opinion

KING, J.

William H. Pinette appeals from a judgment of imprisonment for four separate robberies (Pen. Code, § 211) with use of a firearm (Pen.

[1124]

Code, § 12022.5), three prior serious felony convictions (Pen. Code, § 667), and one prior prison term (Pen. Code, § 667.5). We reverse as to imposition of a one-year enhancement (Pen. Code, § 667.5) and affirm the judgment in all other respects.

I. Facts.

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IX.

Imposition of the One-year Enhancement Under Penal Code Section 667.5.

Pinette challenges the imposition of a one-year sentence enhancement under Penal Code section 667.5, subdivision (b), for a 1967 Alabama burglary conviction. Evidence presented by the prosecutor indicated only that Pinette was sentenced to state prison in Alabama for 13 months, spent 243 days in custody, and was then released to the custody of the federal marshal. Under Penal Code section 667.5, subdivision (f), the Alabama prior could be the basis for imposition of the one-year enhancement only “if the defendant

served

one year or more in prison for the offense in the other jurisdiction.” (Italics added.) Pinette contends the enhancement could not be imposed because there was no evidence that he had “served” more than 243 days for the Alabama burglary.

The Attorney General argues that the statute requires only that the imposed term of imprisonment have been for one year or more, and that the defendant need not actually have been incarcerated for that long. This argument might be plausible if section 667.5, subdivision (f), required that the defendant “served

a term of

one year or more in prison,” but the statute does not so provide. The statute’s plain language requires service of a year or more in prison. The required period of incarceration was not shown here. The judgment must be reversed as to imposition of the one-year enhancement.