P. v. Gibson
Filed 11/14/13 P. v. Gibson CA1/5
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE
DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and
Respondent,
v.
TERRELL GIBSON,
Defendant and Appellant.
A135199
(
Super. Ct. No. 05-111827-2)
Terrell
Gibson (appellant) appeals following his conviction by a jury of
(Veh. Code, § 10851, subd. (a)). He
contends the trial court erred in imposing two one-year prison term
enhancements under Penal Code section 667.5, subdivision (b) because there was
insufficient evidence to support imposition of the enhancements. Respondent concedes the error.
Background
In
November 2011, the
County District Attorney filed an information charging appellant with
unlawfully driving a motor vehicle (Veh. Code, § 10851, subd. (a); count 1)
and receiving stolen property (Pen. Code, § 496d; count 2). Among other things, the information alleged
appellant served two prior prison terms for convictions in 1987 and 1994 (Pen.
Code, § 667.5, subd. (b)).
name="_ftnref1" title="">[1]
A
jury found appellant guilty on count 1.
The trial court found true the prison term and other enhancement
allegations. Subsequently, the court
sentenced appellant to a prison term of four years on count 1, plus two
one-year terms under section 667.5, subdivision (b), for a total of six
years. This appeal followed.
Discussion
Appellant
contends the trial court erred in imposing the two one-year enhancements under
section 667.5, subdivision (b), because the prosecution failed to prove he
failed to remain free of custody and a felony conviction for five years. Respondent concedes the error.
Section
667.5, subdivision (b) provides, in pertinent part, that in any felony case
where prison is imposed, “the court shall impose a one-year term for each prior
separate prison term . . . for any felony; provided that no
additional term shall be imposed under this subdivision for any prison term
. . . prior to a period of five years in which the defendant remained
free of both the commission of an offense which results in a felony conviction,
and prison custody . . . .â€
“The last phrase is commonly referred to as the ‘washout rule’ where a
prior felony conviction and prison term can be ‘washed out’ or nullified for
the purposes of section 667.5. [¶] According
to the ‘washout’ rule, if a defendant is free from both prison custody
from custody or release on parole, the enhancement does not apply.†(People
v. Fielder (2004) 114 Cal.App.4th 1221, 1229 (Fielder).) “The prosecution
has the burden of proving beyond a reasonable doubt each element of the section
667.5, subdivision (b) sentence enhancement, including the fact of no five-year
‘washout’ period.†(Fielder, at p. 1232.)
On
appeal, respondent concedes the prosecution failed to prove beyond a reasonable
doubt that the prison terms resulting from the 1987 and 1994 convictions did
not “washout.†The parties agree the
evidence showed the last date of prison custody was September 23, 2002. Appellant admitted at trial to a 2007 felony
conviction for petty theft with priors, but he did not testify as to the
precise date of the conviction. Neither
did the prosecution present evidence of the date of the conviction. Because the prosecution did not present
evidence that appellant was returned to prison or suffered a new felony
conviction in the five years between September 23, 2002 and September 23, 2007,
the trial court erred in imposing two one-year sentence enhancements under
section 667.5, subdivision (b).
Respondent
points out there is no double jeopardy
bar to proving enhancements following an appellate court reversal of an
enhancement finding for insufficient evidence (Monge v. California (1998) 524 U.S. 721, 734; People v. Barragan (2004) 32 Cal.4th 236, 241-242), and respondent
requests an opportunity to prove on remand the washout rule does not
apply. Appellant does not object to that
request.
Disposition
Appellant’s
conviction is affirmed, but the sentence imposed by the trial court is
reversed. The matter is remanded for
further proceedings consistent with this decision, including an opportunity for
respondent to present evidence supporting the imposition of the section 667.5,
subdivision (b) enhancements.
SIMONS,
Acting P.J.
We concur.
NEEDHAM, J.
BRUINIERS, J.
the Penal Code.
