People v. Lopez

Opinion

DALSIMER, J. Frank Rojas Lopez was charged by information with grand theft of a firearm (Pen. Code, § 487, subd. 3) and with having possession of a concealable firearm after having been convicted of a felony (Pen. Code, § 12021, subd. (a)). He was also charged with having suffered a prior felony conviction of grand theft in 1979 and a prior felony conviction of rape in 1975 and with having served prior separate prison terms therefor.

Appellant was convicted by plea of grand theft and was convicted by a jury of violation of Penal Code section 12021, subdivision (a). In separate verdicts, the jury found that "... the first prior felony conviction alleged in the Information for violation of Section 484/487.1 of. the Penal Code” and "... the second prior felony conviction alleged in the Information for violation of Section 261.3 of the Penal Code” were true. At the sentencing hearing, appellant moved to strike the grand theft prior. Appellant’s motion was denied. Appellant was sentenced to state prison on the grand theft count for the middle twó-year term enhanced by one year for each of the prior separate prison terms. Sentence for possession of a concealable firearm by a convicted felon was stayed.

The uncontradicted evidence established that appellant was convicted of rape in 1975 and was sentenced to state prison. Commencing June 5, 1975 he served a term in prison therefor and was released on December 24, 1976. Appellant thereafter was convicted of grand theft and sentenced to state prison in 1979 for 16 months. He was received in prison March 1, 1979, and was paroled on January 13, 1980. During his parole, appellant committed the offenses that gave rise to the instant prosecution.

I

Appellant contends that his sentence should not have been enhanced as a result of the grand theft prior conviction because, as a [806]result of the revocation of parole, that prior prison term was not “completed,” as is required by Penal Code section 667.5, subdivision (g). (All statutory references hereinafter are to the Penal Code.) Section 667.5, subdivision (g) provides: “A prior separate prison term for the purposes of this section shall mean a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after escape from such incarceration.” (Italics added.)