People v. Gamble

Opinion

VOGEL (Miriam A.), J.

Dennis L. Gamble was convicted by jury of one count of second degree burglary, and the trial court found true allegations that he had served three prior prison terms. Gamble was sentenced to state prison for a term of five years (midterm of two years plus three consecutive one-year enhancements). He appeals, contending one of the prior prison term allegations (based on a 1982 Ohio conviction) is not supported by substantial evidence—because there is no evidence that he served one year or more of his Ohio sentence. We agree (and thus do not reach Gamble’s other attacks on the same enhancement).

[578]

Discussion

When a prior California prison term is charged as an enhancement, the duration of the term actually served is irrelevant. (Pen. Code, § 667.5, subd. (g).)

1

Under subdivision (f) of section 667.5, however, a prior prison term from another jurisdiction qualifies as an enhancement only “if the defendant

served one year or more in prison

for the offense in the other jurisdiction.” (Italics added.) Although there is evidence in the record that Gamble pled guilty in an Ohio state court to theft, a fourth degree felony, and was sentenced to a term of “not less than” eighteen months “nor more than” five years in the Ohio State Reformatory at Mansfield, there is no evidence about how much time he actually served.

2

It follows, according to Gamble, that the enhancement must be stricken.

(People

v.

Pinette

(1985) 163 Cal.App.3d 1122, 1124 [210 Cal.Rptr. 107];

People

v.

Harbolt

(1988) 206 Cal.App.3d 140, 158-159 [253 Cal.Rptr. 390] [unless the evidence proves that the defendant served one year or more in prison in a foreign jurisdiction, it is improper to impose the enhancement].)