Filed 9/6/18 P. v. Bouchereau CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY BOUCHEREAU, Defendant and Appellant.

H044551 (Monterey County Super. Ct. No. SS151129A)

I. Introduction

Defendant Anthony Bouchereau appeals after a jury convicted him of vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1)) and hit and run resulting in death (Veh. Code, § 20001, subd. (b)(2)). The jury found true an allegation that defendant fled the scene of the crime (Veh. Code, § 20001, subd. (c)), and the trial court found true an allegation that defendant had served a prior prison term (Pen. Code, § 667.5, subd. (b)). The trial court sentenced defendant to 12 years in prison: a six-year term for the gross vehicular manslaughter conviction, a five-year term for the flight allegation, and a one-year term for the prior prison term allegation.

On appeal, defendant contends the trial court erred by (1) failing to instruct the jury to consider “all surrounding circumstances” when determining if he violated the prima facie speed law and (2) admitting “gruesome” autopsy photographs of the victim. Defendant also contends, and the Attorney General concedes, that there was insufficient evidence to support the trial court’s true finding as to the prior prison term allegation. We find no instructional error, and we find no error with respect to the admission of the photographs, but we agree the prior prison term enhancement must be stricken.

II. Background

On July 5, 2015, defendant was driving through Salinas. Yesenia Romero was defendant’s girlfriend and front seat passenger. Defendant’s vehicle[1] was traveling 50 miles per hour in a 25 mile-per-hour zone. His vehicle entered an intersection against a red light, where it collided with a van. Romero was ejected from the vehicle, causing her left leg to become detached from her body, and resulting in her subsequent death. At trial, the defense theory was that an unopened iced tea can had become wedged under the vehicle’s brake pedal, so that defendant could not apply the brakes prior to the collision.

A. The Collision

On July 5, 2015, several witnesses saw a black vehicle going “really fast” towards the intersection of Madeira and Market Street, where the speed limit was 25 miles per hour. Defendant was driving the vehicle, and Romero, his girlfriend, was the front seat passenger. As defendant’s vehicle approached the intersection, which had a red light, the engine was “going vroom,” as if the driver had stepped on the gas pedal.

Defendant’s vehicle collided with a van that had entered the intersection on a green light. The collision caused the van to spin around. Defendant’s vehicle struck a light pole and ended up on a grassy area in front of an apartment complex.

After the collision, Romero was lying on the ground. Her left leg was severed at the hip and was some distance away from the rest of her body. A witness heard Romero say, “[H]elp,” and told defendant to help her. Defendant went up to Romero and said, “Yessie, Yessie. Oh, no. Oh, my God.” Defendant kissed Romero and said, “I’m sorry, baby,” then ran off.

When first responders arrived, Romero was alert and responsive, but “obviously in a state of shock.” She was taken to the hospital by ambulance. Her leg was collected and brought to the hospital also. By the time she reached the hospital, Romero was no longer breathing and had no pulse. After attempts to resuscitate her failed, Romero was pronounced dead.

B. Defendant’s Arrest

At about midnight on the night of the collision, a California Highway Patrol (CHP) officer contacted defendant, who was walking on the freeway. Defendant said he was “walking out of town” and had no “other means” of traveling. Defendant did not mention that he had been in a vehicle collision. The CHP officer told defendant he could not walk on the freeway, and defendant headed towards a surface street. The CHP officer did not learn that defendant was a person of interest in the collision investigation until the following morning.

Two days after the collision, Romero’s best friend sent a text message to Romero’s phone, explaining that the phone’s owner had died and asking for the phone back. The response was, “Yes, I found it. But I don’t want to give it back.” Romero’s friend requested the photos from Romero’s phone, and she received a number of photos. When Romero’s friend received a message saying that the phone was going to be sold for $250, Romero’s friend offered to pay $500 for the phone. Romero’s friend arranged a meeting for the next day. When she arrived at the meeting spot along with Romero’s brother and cousin, she saw defendant, who then tried to run, saying, “I don’t want to go to jail.” Romero’s friend and brother grabbed defendant and held him until the police arrived.

C. Collision Site and Vehicle Inspections

CHP investigators watched surveillance videos showing the collision and inspected the collision site. They found no tire or wheel friction marks before the location where defendant’s vehicle collided with the van, which indicated that defendant’s vehicle had not braked. They saw no evidence that defendant’s vehicle had swerved or decelerated prior to colliding with the van. The investigators were able to determine that defendant’s vehicle had been traveling at a speed of 50 miles per hour.

Defendant’s vehicle was towed and searched. On the front passenger floorboard, there were two unopened iced tea cans. One was lemon flavored and the other was mango flavored. There was also an empty, crushed Sprite can on the front passenger floorboard. Neither of the iced tea cans had been punctured. The lemon-flavored iced tea can was “covered in biological matter,” and the mango-flavored iced tea can had “very little” biological matter in comparison. There was also “[v]ery little” biological matter on the front driver’s side floorboard, leading a CHP investigator to opine that both iced tea cans had been on the passenger side floorboard at the time of the collision.

CHP investigators performed a test with one of the cans. One investigator placed the lemon-flavored iced tea can under the brake pedal of defendant’s vehicle and pressed down on the brake pedal, while another investigator watched to see if the brake lights came on. The investigators initially oriented the can horizontally under the brake pedal. In the horizontal position, the brake pedal could be depressed before any contact with the can, such that the brakes engaged. The investigators then placed the can in “a vertical orientation,” with the top of the can facing towards the front of the car, which created more contact between the can and the brake pedal. When pressure was applied to the brake pedal, the can broke open. The brake lights also activated. The investigators concluded that one of the iced tea cans could not have prevented the full application of the brakes.

A CHP investigator performed a mechanical inspection of defendant’s vehicle. He determined that the vehicle had been in good working order prior to the collision. The throttle was in proper working order, the accelerator was not stuck, the engine had been well-maintained, the tires were not worn out, the steering had been functional, and the brakes—including the parking brake—had been working. Additionally, when the brake pedal was depressed, the rear brake lights turned on.

A CHP investigator opined that due to the divider between the front driver’s side floorboard and the front passenger-side floorboard, an item on the front driver’s side floorboard would not have been able to roll over to the front passenger-side floorboard, and vice-versa. He also opined that if an opened aluminum can had been underneath the brake pedal, the can would not have inhibited the brake pedal from being “fully applied,” because the can would collapse or crush.

D. Defense Case

A defense expert conducted a test with an iced tea can and found that, when placed in a vertical orientation under the brake pedal, the can impeded application of the brake pedal. He concluded that an iced tea can could have impeded defendant’s brakes from being applied. That conclusion was not changed by the fact that both iced tea cans in defendant’s vehicle were found on the passenger-side floorboard, even though the can impeding the brakes would have had to have traveled up and over the “transmission hump” between the two floorboards. The defense expert acknowledged that when he conducted the test, the brake pedal moved down one inch before coming into contact with the iced tea can, which likely would have caused the brake light to come on. He also acknowledged that during his test, he depressed the brake pedal only to the point where it touched the can, and that he only applied pressure to the brake pedal with his hand. He did not apply enough force to crush the can.

Defendant testified, first describing how he met Romero on a dating website in April 2015, when he was living in Texas, and how he met Romero in person for the first time in June 2015, then moved in with her a week later.

On July 5, 2015, defendant and Romero argued about defendant’s plan to return to Texas to see his two children. Romero also got upset because defendant asked to stop at a store for food, forgetting that Romero had packed food for him. They continued arguing as defendant drove the car. After defendant called Romero “a bitch,” Romero threw a can at him. The can hit defendant’s shoulder and fell to the driver’s side floorboard. Defendant called Romero “a bitch” again, and Romeo hit him on the arm. Defendant then stopped the car and indicated he did not want to argue with her. Romero said nothing in response, but she and defendant continued to argue as defendant drove the car again. During the argument, defendant saw a red light ahead and tried to brake, but something was underneath the brake pedal. He pressed the brake pedal repeatedly and tried to “slam on the brakes” when he noticed another vehicle in the intersection. He then sped up in an attempt to avoid the other vehicle. Defendant believed he had been driving at a speed of about 35 or 40 miles per hour before trying to brake.

When he “came to” after colliding with the other vehicle, defendant saw that Romero was not next to him. He started screaming her name and went over to where she was lying on the ground. He then ran away, because he was “scared” and “panicked.”

Defendant acknowledged that he was contacted by a CHP officer that night and that he did not mention the collision to the officer. Defendant did contact Romero’s brother a day or two after the collision. He also contacted the police by email a few days after the collision, claiming to be in Louisiana. Defendant admitted he wanted to sell Romero’s phone for money to help him leave the area. Defendant asserted that he did not try to run away from Romero’s best friend and brother when they met him to buy Romero’s phone.

E. Rebuttal Evidence

One of the CHP investigators testified that a can could not have moved from the driver’s side floorboard to the passenger side floorboard during the collision because of the “transmission hump” and because the car did not roll.

F. Charges, Verdicts, and Sentence

Defendant was charged with vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1); count 1) and hit and run resulting in death (Veh. Code, § 20001, subd. (b)(2); count 2). The People alleged that defendant fled the scene of the crime (Veh. Code, § 20001, subd. (c)) and that defendant had served a prior prison term (Pen. Code, § 667.5, subd. (b)).

A jury convicted defendant of both counts and found true the flight allegation. The trial court found true the prior prison term allegation, and it imposed an aggregate 12-year prison sentence, comprised of a six-year term for the gross vehicular manslaughter conviction (count 1), a five-year term for the flight allegation, and a one-year term for the prior prison term allegation. The term for the hit and run conviction (count 2) was stayed.

III. Discussion

A. Jury Instruction (CALCRIM No. 595)

Defendant contends the trial court’s instructions on gross vehicular manslaughter were erroneous because they did not tell the jury to consider “all surrounding circumstances” when determining if defendant violated the prima facie speed law. According to defendant, the error violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the federal constitution, as well as his right to due process under the California Constitution.

In determining whether CALCRIM No. 595 correctly stated the law, we apply the independent or de novo standard of review. (See People v. Posey (2004) 32 Cal.4th 193, 218.)

1. Proceedings Below

During the jury instruction conference, defendant’s trial counsel objected to the prosecution’s request to include theory C of CALCRIM No. 595, which specifies that a violation of the prima facie speed law can be a predicate act for gross vehicular manslaughter. Defendant’s trial counsel argued that the instruction took away the jury’s role of finding “what the speed limit was” and that the trial court should include “a mens rea element” if it did give the instruction. The trial court ruled that it would give the pattern instruction.

The jury was instructed on the elements of gross vehicular manslaughter pursuant to CALCRIM No. 592. The four elements were identified as: “one, the defendant drove a vehicle; two, while driving that vehicle the defendant committed an infraction or otherwise lawful act that might cause death; three, the defendant committed the infraction or otherwise lawful act that might cause death with gross negligence; and, four, the defendant’s grossly negligent conduct caused the death of another person.”

CALCRIM No. 592 also defined gross negligence: “Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment. [¶] A person acts with gross negligence when, one, he or she acts in a reckless way that creates a high risk of death or great bodily injury; and, two, a reasonable person would have known that acting in that way would create such a risk. [¶] In other words, a person acts with gross negligence when the way he or she acts is so different from how an ordinarily careful person would act in the same situation. His or her act amounts to disregard for human life or indifference to the consequences of that act.”

CALCRIM No. 592 specified: “A person facing a sudden and unexpected emergency situation not caused by that person’s own negligence is required only to use the same care and judgment that an ordinarily careful person would use in the same situation even if it appears later that a different course of action would have been safer.”

CALCRIM No. 592 also told the jury that the People were alleging that defendant committed three infractions: “Violation of basic speed law, violation of prima facie speed law, and violation of the red signal law.” The instruction referred the jury to CALCRIM No. 595 for “what the People must prove in order to prove that the defendant committed a violation of basic speed law, violation of prima facie speed law, or violation of the red signal law.”

CALCRIM No. 595 defined the three infractions that were being alleged. Part A of CALCRIM No. 595 told the jury that a violation of the basic speed law required proof that “one, the defendant drove a vehicle on a highway; and, two, the defendant drove faster than a reasonable person would have driven considering the weather, visibility, traffic and conditions of the highway, or at a speed that endangered the safety of other people or property.” Part A further told the jury: “The speed of travel alone does not establish whether a person did or did not violate the basic speed law. When determining whether the defendant violated the basic speed law consider not only the speed, but also all the surrounding conditions known by the defendant and also what a reasonable person would have considered a safe rate of travel given those conditions.”

Part B of CALCRIM No. 595 told the jury that a violation of the prima facie speed law required proof that: “one, the defendant drove a vehicle on a highway; two, the defendant drove faster than 25 miles per hour; and, three, the defendant drove on a highway other than a state highway in any business or residential district.”

Part C of CALCRIM No 595 told the jury that a violation of the red signal law required proof that: “one, the defendant drove a vehicle on a highway; two, the defendant faced a steady circular red signal; and, three, the defendant failed to stop at or before entering the intersection.”

2. Analysis

Defendant contends that Part B of CALCRIM No. 595 should have included additional language from the Bench Notes. According to the Bench Notes, “If the defendant presents evidence that the rate of travel was not in violation of the basic speed law even though in violation of the prima facie speed law,” the trial court should instruct the jury that it must find an additional element in order to find a violation of the prima facie speed law: that “[t]he defendant’s rate of speed was faster than a reasonable person would have driven considering the weather, visibility, traffic, and conditions of the highway.” (Judicial Council of Cal., Crim. Jury Instns. (2018) Bench Notes to CALCRIM No. 595, p. 361 (Bench Notes).) In such cases, the trial court should also instruct the jury: “When determining whether the defendant drove faster than a reasonable person would have driven, consider not only the speed, but also all the surrounding conditions known by the defendant and also what a reasonable person would have considered a safe rate of travel given those conditions. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant’s rate of travel was not reasonable given the overall conditions, even if the rate of travel was faster than the prima facie speed law. If the People have not met this burden, you must find the defendant did not violate the prima facie speed law.” (CALCRIM No. 595.)

According to defendant, the above language should have been included in Part B of CALCRIM No. 595 because he presented evidence that his rate of travel was not in violation of the basic speed law.[2] He asserts that if he was unable to depress the brake pedal due to the iced tea can lodged beneath it, he would not be in violation of the basic speed law, even if he was driving at a speed that was unreasonable or dangerous.

Defendant cites no authority for the proposition that he would not be in violation of the basic speed law if the speeding violation was unintentional. And defendant is incorrect when he claims that, without the additional language from the Bench Notes, the jury could have found him guilty based solely on his commission of one of the three infractions. As noted above, CALCRIM No. 592 specified that the infraction must be committed with gross negligence and that gross negligence required recklessness. Thus, the instructions did allow the jury to consider the evidence that an iced tea can may have affected defendant’s ability to apply the brakes.

On this record, we find no instructional error. The evidence overwhelmingly established that defendant drove in violation of the basic speed law. A number of witnesses testified that defendant’s vehicle was going “really fast” through a residential neighborhood just before the collision in the middle of a light-controlled intersection. Defendant himself admitted speeding. Defendant presented no evidence “that the rate of travel was not in violation of the basic speed law even though in violation of the prima facie speed law.” (Bench Notes, CALCRIM No. 595, supra, at p. 361.) Thus, the trial court was not required to add the additional element to Part B of the instruction. As we find no instructional error, we need not address forfeiture or prejudice.

B. Autopsy Photos

Defendant contends the trial court erred by admitting four autopsy photographs: exhibits 90, 91, 92, and 93. Defendant contends the photographs lacked “probative value to any issues in the case” and that the prejudicial effect of the “gruesome” photographs clearly outweighed any probative value.

1. Proceedings Below

Defendant’s motions in limine included a motion “to exclude gruesome photographs taken of Ms. Romero’s body after the crash.” Defendant asserted that “neither identity of the driver nor the cause of death are at issue and the sole purpose of introducing such photographs is to generate undue sympathy for the victim and inflame the jury’s prejudices against the defendant.”

The People’s motions in limine included a motion to present photographs of Romero’s injuries and the scene of the collision. The People indicated that they would seek to introduce “a limited amount of photographs of Ms. Romero’s injuries.”

During a hearing on the motions in limine, the prosecutor indicated there were about 40 photos from the autopsy, but that she was not seeking to introduce all of them. The prosecutor asked to introduce a photo showing the top of Romero’s severed leg, to show the injury and cause of death as well as to show defendant’s state of mind and consciousness of guilt. Defendant’s trial counsel argued that the photograph was not relevant because neither the cause of death nor defendant’s flight were disputed issues. He asked the trial court to exclude the photograph pursuant to Evidence Code section 352, arguing that the photograph was “highly prejudicial.” The trial court deferred ruling until after viewing more photographs.

The prosecutor identified nine more photographs she was seeking to introduce. She then further explained her theory of why the photographs were relevant to show defendant’s consciousness of guilt. The evidence would show that defendant got out of the car, went over to Romero’s body, and fled after seeing the extent of Romero’s injuries. The prosecutor argued that defendant’s awareness that he caused “the horrific injury,” followed by his flight, showed his consciousness of guilt.

The trial court then reviewed and compared the 10 photographs offered by the prosecutor. The trial court excluded the first photograph and admitted the second photograph after determining that the first photograph was not necessary and that the second photograph was “much less prejudicial” because it did not show Romero’s upper body or head. The trial court admitted the third photograph, which depicted Romero’s unclothed body, finding that the photograph showed the severity of the injury. The trial court excluded the fourth photograph because it provided “essentially the same information” as the third photograph. The trial court excluded the fifth photograph on the ground that it was “too confusing to know what it is,” and it excluded the sixth photograph on the ground that the photograph was “about as gruesome as it gets.” The trial court excluded the seventh photograph as duplicative of the eighth photograph, which showed Romero’s clothed leg and which was admitted on the condition that the prosecutor crop the photograph so it would not show Romero’s breast. The trial court found that the eighth photograph would give the jury “a fuller sense of what actually took place.” The trial court admitted the ninth photograph, finding it was not “as gruesome as some of the others” but ordering the prosecutor to crop it so as not to show Romero’s breast. The trial court noted that although the ninth photograph was similar to some of the other photographs, it showed “sort of the clean line in the skin” and thus showed “how and where the injury actually took place.” Finally, the trial court admitted the tenth photograph, which provided “a sense of the injury on her torso,” which was not provided by any of the other photographs.

When the medical examiner testified about her autopsy of Romero’s body, the prosecutor introduced the five photographs. The medical examiner explained how Romero’s left leg, buttock, hip, and lower pelvis were all detached from her body. The medical examiner identified Romero as the person in exhibit 90, which showed Romero’s body on a table, with her detached left leg placed next to her right leg. The medical examiner identified Romero’s clothed left leg by itself in exhibit 91, which showed the damaged internal tissue at the site of the detachment. The medical examiner also identified the injuries shown in exhibits 92 and 93, which were similar photos showing a significant amount of internal tissue damage at the top of Romero’s left leg. The medical examiner also identified the injuries to Romero in exhibit 94, explaining that it showed injuries to Romero’s left leg, pelvic area, and right leg.[3]

2. Analysis

“The admissibility of victim and crime scene photographs and videotapes is governed by the same rules of evidence used to determine the admissibility of evidence generally: Only relevant evidence is admissible. [Citations.] The trial court has broad discretion in deciding the relevancy of such evidence. [Citations.]” (People v. Lewis (2001) 25 Cal.4th 610, 641.) “The court’s exercise of that discretion will not be disturbed on appeal unless the probative value of the photographs clearly is outweighed by their prejudicial effect. [Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 134 (Crittenden); see also Evid. Code, § 352.)

Defendant acknowledges that autopsy photographs of the victim “are always relevant” in a homicide trial, even when the cause of death is an undisputed issue. (See People v. Turner (1990) 50 Cal.3d 668, 706 [the prosecution need not prove cause of death “solely from the testimony of live witnesses”].) But defendant also points out that the admission of “ ‘[u]nnecessary’ ” and “ ‘gruesome’ ” autopsy photographs “ ‘can deprive a defendant of a fair trial and require reversal of a judgment,’ ” as in cases where “ ‘the only purpose of exhibiting them is to inflame the jury’s emotions against the defendant.’ [Citation.]” (See People v. Marsh (1985) 175 Cal.App.3d 987, 997-998.)

As the Attorney General points out, “ ‘knowledge of injury is an essential element’ ” of a Vehicle Code section 20001 violation (hit and run causing injury or death). (See People v. Nordberg (2010) 189 Cal.App.4th 1228, 1237.) Thus, the photographs were relevant to show an element of the hit and run charge: that defendant knew of Romero’s serious injuries but nevertheless fled the scene. The photographs also would have helped the jury understand the witness testimony describing Romero’s unique injuries and to understand her cause of death. (See People v. Pollock (2004) 32 Cal.4th 1153, 1170-1171 (Pollock).)

With respect to Evidence Code section 352, we observe that the trial court “carefully balanced probative value and potential prejudice for each photograph and admitted only those it found appropriate.” (See People v. Winbush (2017) 2 Cal.5th 402, 458.) The trial court excluded five of the ten photographs the prosecutor sought to introduce, and the court ordered the prosecutor to crop two of the photographs so they would not depict Romero’s breast. (Cf. id. at p. 459 [defendant argued that crime scene photographs showing murder victim’s nude body would “suggest a sexual aspect to the murder”].) The trial court also excluded a photograph that would have shown Romero’s head. (See People v. Garcia (2008) 168 Cal.App.4th 261, 294 [photographs properly admitted where none depicted “the victim’s face”].)

After independently reviewing the four challenged photographs, we find that although the photographs are disturbing and unpleasant, “as such evidence always is,” none of the exhibits is “unduly gruesome or inflammatory.” (See Pollock, supra, 32 Cal.4th at p. 1171, emphasis added.) And although two of the photographs (exhibits 92 and 93) show similar views, the trial court reasonably found that they provided the jury with a fuller understanding of the extent of Romero’s injuries. On this record, we conclude that the trial court did not abuse its discretion by determining that the prejudicial effect of the four challenged photographs did not substantially or clearly outweigh their probative value. (See Crittenden, supra, 9 Cal.4th at p. 134; Evid. Code, § 352.)

C. Prior Prison Term Allegation

Defendant contends that there was insufficient evidence to support the true finding as to the prior prison term allegation (Pen. Code, § 667.5, subd. (b)), asserting that his Texas conviction of theft did not include all the elements of a California felony. The Attorney General concedes there was insufficient evidence to support the Penal Code section 667.5, subdivision (b) finding, but for a different reason: because the record does not show that defendant actually served a year or more in prison for his Texas conviction.

1. Proceedings Below

The first amended information alleged that defendant had served a prior prison term for a violation of Texas Penal Code section 31.03, for “Theft of Property” with a value greater than $1,500 but less than $20,000.

To prove the allegation, the People submitted a number of documents. One document was an indictment alleging that on November 27, 2013, defendant “did then and there unlawfully appropriate, by acquiring or otherwise exercising control over, property, to-wit: 2006 Honda Rancher Four Wheeler, of the value of $1,500.00 or more but less than $20,000.00, from . . . the owner thereof, without the effective consent of the owner, and with intent to deprive the owner of the property.” Another document was the plea bargain agreement, showing that defendant had pleaded guilty to the offense and that he would be sentenced to a 16-month term in the state jail. Another document was entitled “Judgment of Conviction by Court—Waiver of Jury Trial,” and it showed that defendant had been sentenced to 16 months in the state jail. A document entitled “Jail Conduct Report” indicated that defendant had gone “IN” to jail on December 3, 2013 and that he was sentenced on April 29, 2014.

2. Analysis

The actual duration of a defendant’s prior prison term “is irrelevant” when “a prior California prison term is charged as an enhancement” under Penal Code section 667.5, subdivision (b). (See People v. Gamble (1996) 48 Cal.App.4th 576, 578 (Gamble); Pen. Code, § 667.5, subd. (g).) However, when the prior prison term is alleged to have been served in another jurisdiction, a different rule applies: “A 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 the state prison or in county jail under subdivision (h) of [Penal Code] Section 1170 if the defendant served one year or more in prison for the offense in the other jurisdiction.” (Pen. Code, § 667.5, subd. (f), emphasis added.)

As the Attorney General notes, none of the evidence introduced to prove the prior prison term allegation established that defendant “served one year or more in prison” for his Texas conviction. (Pen. Code, § 667.5, subd. (f).) The evidence of defendant’s 16-month sentence does not provide evidence of “how much time he actually served.” (Gamble, supra, 48 Cal.App.4th at p. 578.) Thus, the prior prison term allegation must be stricken.

As the Attorney General points out, retrial of the prior conviction allegation is not barred. (See People v. Monge (1997) 16 Cal.4th 826, 845.) We will therefore reverse the judgment and remand the matter to the trial court to provide the People with an opportunity to retry the allegation and to resentence defendant.

IV. Disposition

The judgment is reversed. On remand, the trial court is directed to strike the true finding on the allegation that defendant served a prior prison term (Pen. Code, § 667.5, subd. (b)). If the People elect to retry the prior prison term allegation, the trial court shall resentence defendant following retrial. If, within 60 days after the remittitur issues from this court, the People have not filed and served an election to retry the prior prison term allegation, the trial court shall dismiss that allegation and resentence defendant.