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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Robert FIELDER, Defendant and Appellant.

No. B163262.

Decided: November 24, 2003

Maria Morrison, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, and Stephen A. McEwen and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.


An information charged appellant Robert Fielder with assault by means likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1)) and petty theft with a prior conviction for grand theft (§ 666).1  To enhance his sentence pursuant to section 667.5, subdivision (b), the information alleged appellant had suffered five prior felony convictions for which he had served prison terms.

Appellant, exercising the election found in Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, represented himself at trial.   After the prosecution had presented its case, the trial court granted appellant's motion for a judgment of acquittal (§ 1118.1) in regard to the charge of felonious assault.   The jury convicted appellant of petty theft.

In a court trial, the court found appellant had been previously convicted of grand theft within the meaning of section 666.   The court also found that three of the five prior convictions were true within the meaning of section 667.5, subdivision (b).  The court imposed the upper term of three years for the conviction of petty theft with a prior and three one-year enhancements for the prior convictions.   Appellant therefore received a six-year sentence.

On this appeal, appellant does not contest the sufficiency of the evidence to sustain his conviction for petty theft with a prior.   Instead, he raises two unrelated contentions.

He first contends “[t]he evidence is insufficient to sustain two of the three prior prison term enhancements.”   In the published portion of this opinion, we hold that in order for the prosecution to avoid application of the five-year “washout” provision of section 667.5, subdivision (b), it is only required to prove beyond a reasonable doubt that appellant either suffered new felony convictions or was in prison custody.   We reject appellant's argument that the prosecution must prove both elements to preclude application of the “washout” provision.

Secondly, appellant contends the trial court improperly denied his request that counsel be appointed to file a new trial motion on his behalf.   In the non-published portion of this opinion, we find no prejudicial error.

We, therefore, affirm the judgment.


A. Evidence About Appellant's Commission of Petty Theft

On April 5, 2002, appellant was observed taking a package of insecticide from a shelf at a Stater Bros. Supermarket, concealing it within his coat, and walking out of the supermarket without paying for it.   He was stopped and questioned by the store manager and led back to a room inside the store where employees take their breaks.   As appellant was walking to the break room, the insecticide and a cheese grater dropped from his coat to the ground.   In response to the manager's question if he knew why he was brought back into the store, appellant stated it was because he stole a cheese grater.   Appellant physically struggled with the manager and an employee in the break room.

Appellant presented no defense to this charge.

B. Evidence About the Prior Convictions

The information alleged appellant had been convicted of five prior felonies.   According to the information, he did not remain free of prison custody and did commit an offense resulting in a felony conviction during a period of five years after the conclusion of each term served as described in section 667.5, subdivision (b).  These five felonies were:  (1) case number A567959, a June 5, 1985 conviction of grand theft auto (§ 487.3);  (2) case number A570651, a June 23, 1986 conviction of transportation, sale, or giving away of controlled substances (Health & Saf.Code, § 11352, subd. (a));  (3) case number GA003914, an August 31, 1990 conviction of transportation, sale, or giving away of controlled substances (Health & Saf.Code, § 11352, subd. (a));  (4) case number GA016184, an October 8, 1993 conviction of possession of cocaine base for sale (Health & Saf.Code, § 11351.5);  and (5) case number RIF76202, a November 14, 1997 conviction of the manufacture, import, sale, supply, or possession of certain weapons and explosives (§ 12020, subd. (a)).

During the court trial on the section 667.5, subdivision (b) enhancements, the prosecution introduced into evidence, without any objection from appellant, two prison packets. (§ 969b.)   The packets established the following facts about appellant's prior convictions.

First, appellant was convicted of grand theft on June 5, 1985.   Appellant served time in prison from June 28, 1985, until his parole on January 22, 1986.   He was arrested while on parole, his parole was revoked, and he was returned to custody on June 2, 1986.

Second, appellant was convicted of transportation or sale of controlled substances on June 23, 1986.   He served prison time for this conviction from July 7, 1986, until he was paroled on February 10, 1988.   On October 25, 1988, appellant's parole was revoked and he was returned to custody.   Parole was reinstated on December 22, 1988, and appellant was ultimately discharged from prison on January 21, 1990.

Third, appellant was convicted of sale and possession of controlled substances in August of 1990.   Instead of being sent to prison after the third conviction he was committed on October 29, 1990, to the California Rehabilitation Center (CRC).

Fourth, appellant was convicted of possession of cocaine base for sale on October 8, 1993.   He was again committed to CRC where he remained until August 3, 1994.

Fifth, appellant was convicted of the manufacture and sale of weapons and explosives on November 14, 1997.   He entered state prison on April 8, 1998, and was paroled on September 8, 1998.   In the following years, his parole was revoked and he was returned to prison on two occasions.   He remained in prison until August 16, 2001, when he was again paroled.   While on parole, he committed the instant offense (petty theft with a prior) on April 5, 2002.

For purposes of section 667.5, subdivision (b), the court found three of the five alleged prior convictions were true:  the 1985 conviction for grand theft, the 1986 conviction for the transportation or sale of a controlled substance, and the 1997 conviction for the manufacture and sale of weapons.   The trial court held that although appellant was convicted of drug offenses in, respectively, 1990 and 1993, those convictions could not be used to enhance his sentence under section 667.5, subdivision (b) because appellant had not served prison terms for either of those two offenses since on each occasion he was committed to CRC instead of being sent to state prison.   However, the court also ruled that those two drug convictions meant there was never a five-year period in which appellant did not commit and was not convicted of a new felony.2 The court therefore ruled that the 1985, 1986, and 1997 convictions could be used to enhance appellant's sentence pursuant to section 667.5, subdivision (b).



Appellant does not contest that the trial court properly imposed a one-year section 667.5, subdivision (b) enhancement for his 1997 conviction.   Instead, he contends the court erred in imposing additional enhancements for his 1985 and 1986 convictions.   He has two separate arguments.   The first is that the five-year “washout” provision precludes imposition of those two one-year enhancements.   The second is that the evidence is insufficient to show he was convicted of new felony offenses within five years after completing his terms on the 1985 and 1986 convictions.   Neither argument has merit.   We discuss each one separately.

A. The “Washout” Period

Section 667.5 provides in relevant part:  “Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows:  ․ [¶] (b) Except where subdivision (a) [concerning violent felonies] applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony;  provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction․” (Italics added.)   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 and the commission of a new felony within five years of discharge from custody or release on parole, the enhancement does not apply. (§ 667.5, subd. (b);  see also 3 Witkin & Epstein, Cal.Criminal Law (3d ed.  2000) Punishment, § 335, p. 433.)   Both prongs of the rule, lack of prison time and no commission of a crime leading to a felony conviction within five years, are needed for the “washout” rule to apply.   This means that for the prosecution to prevent application of the “washout” rule, it must show a defendant either served time in prison or committed a crime leading to a felony conviction within the five-year period after the prison term for the prior conviction was completed.  (People v. Elmore (1990) 225 Cal.App.3d 953, 957, 275 Cal.Rptr. 315.)   This construction furthers the legislative intent behind enactment of section 667.5, subdivision (b) of “increasing the punishment incurred by repeat offenders and thereby deterring recidivism.  [Citations.]”   (People v. Walkkein (1993) 14 Cal.App.4th 1401, 1410, 18 Cal.Rptr.2d 383.)

 In this case, the prosecution sustained that burden by establishing that within five years of completing his prison terms for the 1985 and 1986 convictions, appellant was convicted of new felonies in, respectively, 1986 and 1990.   The court properly imposed two one-year enhancements for the 1985 and 1986 convictions.

Appellant's arguments to the contrary are not persuasive.   He first asserts that since he was committed to the CRC instead of being sent to state prison following his 1990 and 1993 drug offenses, the first two felonies-the 1985 and 1986 convictions-were “washed out.”   Appellant's interpretation of the “washout” rule is incorrect on two separate grounds.

In regard to the 1985 conviction, the assertion is completely groundless because the 1990 and 1993 offenses are irrelevant to computing the “washout” period for that conviction.   Within seven months of being paroled in January 1986 for his 1985 conviction, appellant was convicted of the transportation or sale of controlled substances and sent to state prison.   It is therefore patent the “washout” period cannot apply to preclude use of the 1985 conviction as an enhancement pursuant to section 667.5, subdivision (b).

In regard to the 1986 conviction, appellant urges the 1990 and 1993 offenses “washout” that conviction as a sentencing enhancement.

 Appellant first cites authorities which have held that “[a] period of commitment at CRC is not ‘confinement imposed “as punishment for commission of an offense” ’ [citation], and does not subject [a defendant] to having his present sentence enhanced under the provisions of Penal Code section 667.5.”  (People v. Shoals (1992) 8 Cal.App.4th 475, 501, 10 Cal.Rptr.2d 296, citing People v. Lara (1979) 95 Cal.App.3d 247, 158 Cal.Rptr. 847;  see also People v. Valdez (1994) 24 Cal.App.4th 238, 243, 30 Cal.Rptr.2d 102.)   The legal principle is correct but inapplicable to this case.   By relying upon those cases to argue his commitments to CRC should govern determination of whether he committed a new offense resulting in a felony conviction, appellant is mixing the proverbial “apples and oranges.”   Those cases addressed whether a conviction that resulted in a commitment to CRC could later serve as an enhancement under section 667.5, subdivision (b).  Those decisions held such a conviction could not serve as an enhancement under that statute because one of the required elements was missing:  imprisonment as a result of the conviction.   The decisions recognized that section 667.5, subdivision (b) imposed a sentencing enhancement based upon “the service of prior prison terms rather than the sustaining of prior convictions.” 3  (People v. Lara, supra, 95 Cal.App.3d at p. 249, 158 Cal.Rptr. 847.)   That, in fact, was the conclusion the trial court reached in finding the 1990 and 1993 convictions did not qualify as section 667.5, subdivision (b) enhancements.  (See fn. 2, ante.)   That conclusion, however, does not assist us in determining whether a conviction resulting in CRC commitment means a defendant can or cannot qualify for the “washout” period in regard to an unrelated conviction for which he did serve a prison term.

As set forth above, section 667.5, subdivision (b) specifically provides that for the “washout” period to apply, the defendant must be free from both prison custody and commission of an offense that results in a felony conviction.   Here, while appellant was free from prison custody because his commitments to CRC do not constitute prison terms, he was not free from committing new offenses that resulted in felony convictions.   He committed two drug-related felonies that led to his convictions in 1990 and 1993 that, in turn, led to the two separate CRC commitments.   He therefore was not entitled to the benefit of the “washout” rule.

Appellant cites People v. Shoals, supra, 8 Cal.App.4th 475, 10 Cal.Rptr.2d 296, which held that in order to avoid the application of the “washout” provision, the prosecution had to prove both prison custody and conviction of a felony.   We decline to follow that decision because it is based upon a misreading of the pertinent statutory language.   There, the prior in issue was a 1984 second degree burglary conviction for which the defendant was sentenced to state prison.  (Id. at pp. 484 & 499, 10 Cal.Rptr.2d 296.)   In 1985, the defendant was discharged from parole for that offense.  (Id. at pp. 500 & 501, 10 Cal.Rptr.2d 296.)   In 1987, he pled guilty to several drug offenses and was committed to CRC. (Id. at p. 500, 10 Cal.Rptr.2d 296.)   In 1990, he committed another drug offense.  (Id. at p. 481, 10 Cal.Rptr.2d 296.)   In the prosecution of the 1990 offense, the People alleged the 1984 conviction offense pursuant to section 667.5, subdivision (b).  After conducting a bench trial, the court found the prosecutor had proved the 1984 conviction met the requirements of a section 667.5, subdivision (b) enhancement.  (Id. at p. 499, 10 Cal.Rptr.2d 296.)

On appeal, the defendant contended there was insufficient evidence to support that finding because the prosecution had failed to prove the defendant “did not remain free for five years from both prison custody and the commission of an offense which resulted in a felony conviction.”  (Id. at p. 499, 10 Cal.Rptr.2d 296, italics added.)   The appellate court agreed.   After canvassing the evidence, it held:  “[P]roof of felony convictions and prison custody during the five-year washout period after appellant's discharge from parole [in 1985] is not established.”  (Id. at p. 500, 10 Cal.Rptr.2d 296.)   The Shoals court found there was no evidence the defendant had “served a term of prison custody between his [1985] discharge from parole” for the 1984 burglary and the commission of the present offense in 1990 because in the intervening period he had been committed to CRC following his 1987 guilty pleas to various drug offenses.  (Id. at p. 501, 10 Cal.Rptr.2d 296.)   While the Shoals court correctly concluded the defendant's 1987 commitment to CRC was not “prison custody,” it incorrectly assumed that the prosecution had to show both prison custody and proof of a felony conviction to avoid application of the “washout” provision.   As explained above, that approach is incorrect.   Application of the “washout” provision requires the presence of two elements:  no prison custody and no new felony conviction during the five-year period.   Therefore, for the prosecution to avoid application of the “washout” provision, it need only show one of those elements has occurred.   To the extent People v. Shoals holds to the contrary, we respectfully disagree with its holding.4

 Lastly, appellant urges convictions of offenses leading to CRC commitments are not felony convictions for the purposes of the “washout” rule because the purpose of CRC commitment is to treat and rehabilitate narcotics addicts.   We disagree.   Pursuant to Welfare and Institutions Code section 3051, the predicates of appellant's commitments to CRC were his convictions of felonies.  (See also 2 Witkin & Epstein, Cal.Criminal Law (3d ed.  2000) Crimes Against Public Peace and Welfare, §§ 129-130, pp. 646-651.)   These convictions are sufficient to show appellant did not fulfill the requirement of the “washout” period of remaining “felony free”;  he committed new offenses resulting in felony convictions.   In sum, we conclude commission and conviction of an offense that leads to CRC commitment is a felony conviction for the purposes of the “washout” rule.   Our conclusion furthers the legislative intent behind section 667.5, subdivision (b) “to impose additional punishment upon a felon whose prior prison term failed to deter him or her from future criminal conduct.”  (People v. Medina (1988) 206 Cal.App.3d 986, 991, 254 Cal.Rptr. 89;  see also In re Panos (1981) 125 Cal.App.3d 1038, 1041, 178 Cal.Rptr. 483 [the purpose of the statute “is to provide an additional punishment component ‘for prior imprisoned recidivist offenders.’ ”].)

B. Insufficient Evidence

Appellant next urges “the 1985 and 1986 convictions were ‘washed out’ because there is insufficient evidence that the 1990 and 1993 cases involved the ‘commission of an offense’ that took place within the requisite five-year period.”

As set forth earlier, subdivision (b) of section 667.5 provides the sentence enhancement cannot be imposed “for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction․” Subdivision (d) of section 667.5 provides:  “For the purposes of this section, the defendant shall be deemed to remain in prison custody for an offense until the official discharge from custody or until release on parole, whichever first occurs.”  (See People v. Nobleton (1995) 38 Cal.App.4th 76, 84-85, 44 Cal.Rptr.2d 611 [five-year “washout” period begins when defendant is first paroled, not when he is later discharged from parole].)

In regard to the 1985 grand theft conviction, appellant's contention misses the point.   Based upon that conviction, he was imprisoned from June of 1985 until he was paroled in January of 1986. He was arrested for the transportation or sale of controlled substances while he was on parole and was convicted of this second felony on June 23, 1986, and served prison time for that offense from July 1986 to February 1988.   Logically, appellant committed the second felony sometime between January and June of 1986, or well within five years of his January 1986 release on parole for the 1985 conviction.   Thus, the first felony is not “washed out” and can be used to enhance his present sentence.

In regard to the 1986 conviction, appellant commenced his prison term in July of 1986 and was paroled in February of 1988.   He was convicted of his third felony offense in August of 1990.   While it is true, as appellant notes, that the record does not indicate when he committed the offense that led to his 1990 conviction and commitment to CRC, that omission does not render the trial court's implied finding of no five-year “washout” period deficient.

 In that regard, the prosecution had 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.  (People v. Elmore, supra, 225 Cal.App.3d 953, 959-960, 275 Cal.Rptr. 315.)   When, as here, a defendant challenges on appeal the sufficiency of the evidence to sustain the trial court's finding that the prosecution has proven all elements of the enhancement, we must determine whether substantial evidence supports that conclusion. The test on appeal is simply whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the enhancement beyond a reasonable doubt.   In that regard, in conformity with the traditional rule governing appellate review, we must review the record in the light most favorable to the trial court's finding(s).  (Id. at pp. 959-960, 275 Cal.Rptr. 315.)

 Because appellant had been paroled for the second conviction in 1988 and had been convicted in 1990 of the drug offense, the court, as trier of fact, could reasonably infer he committed the third offense sometime between 1988 and 1990.   As such, the second felony was not “washed out.”

In his reply brief, appellant advances a completely different argument.   He claims “[t]he issue here is whether the evidence showed that prior to appellant's 1997 conviction, there was a five year period during which appellant was not free of both prison custody and the commission of an offense resulting in a felony conviction.   If there was a five year period free of both prison custody and commission of such an offense, prior convictions arising prior to that period would ‘wash out’ and could not be used to enhance appellant's sentence.  [¶] ․ There is simply no evidence in the record to support an inference that the offense was committed during the five year period prior to appellant's 1997 conviction.”  (Fn.omitted.) This argument is based upon a misunderstanding of how and when the “washout” period occurs.   The relevant point is the five-year period following a defendant's release from custody for an offense for which he served a prison term.   If in that five-year period, a defendant did not commit a crime resulting in a felony conviction and remained free of prison custody, application of the prior prison term as a sentence enhancement is “washed out.”   As explained above, no “washout” period occurred in regard to the 1984 and 1985 convictions for which he served prison terms.   Appellant therefore errs in focusing on the “five year period prior to [his] 1997 conviction.”



The judgment is affirmed.


1.   All subsequent undesignated statutory references are to the Penal Code.

2.   The court stated:  “There is no five year period where he is felony free.   There may be two of these priors [the 1990 and 1993 drug convictions] that he does not go to the joint or to state prison.  [¶] ․ But in terms of the wash out period, there is no five year wash out between priors unless two things occur.   He has to be free of the commission of a new felony offense resulting in a conviction and he has to be free of prison custody.   He may have been free of a new prison commitment [because he was committed instead to CRC], but it appears to me there was no five year period where he was free of a felony conviction.   So it looks to me like you have three one year priors.”Later in the hearing, the court explained:  “[T]he question [is] whether those two CRC matters can qualify as felony convictions so as to forestall the washout period.   And my belief is that they are still quote-unquote felony convictions.   The underlying conduct was felony charged, and one was a 11352, I think, one, a 11351.5.   They are felonies.   It's felony conduct that brought you before the court.   You were found guilty beyond a reasonable doubt or pled guilty to those charges.   And the fact that there was a civil commitment thereafter, as opposed to punishment, to me doesn't take away from the fact that they are felony convictions.   For example, they are still felony convictions for purpose of impeachment at trial.   The law is clear on that point.   They are felonies for purposes having to do with immigration and things of that nature.   So they forestall the washout period, in my view, at least, although they are not, at any rate, useable as one-year priors in their own right.  [¶] ․ So my ruling, just so you understand it, is that you have got three.   I'm going to find three of those priors true.   And the reason is because on each of those cases, the three I'm going to find true, you were convicted of a felony.   You went to state prison. And there was no five-year period where you remained free of both prison custody and the commission of a new felony offense and the conviction, in fact, of a new felony offense.”

3.   “ ‘The distinction between a prior felony conviction and a separate prison term served for such felony is obvious.   A prior felony conviction could well have resulted in something less than confinement in the state prison, in which event no enhancement would be called for under section 667.5, subdivision (b).’  [Citations.]”  (People v. Maki (1984) 161 Cal.App.3d 697, 700, 207 Cal.Rptr. 777.)

4.   Appellant's reliance on People v. Tenner (1993) 6 Cal.4th 559, 24 Cal.Rptr.2d 840, 862 P.2d 840 and People v. Jones (1988) 203 Cal.App.3d 456, 249 Cal.Rptr. 840 is misplaced.   The issue at bench was not addressed in either of those decisions.

FOOTNOTE.   See footnote *, ante.

VOGEL (C.S.), P.J.

We concur:  EPSTEIN and CURRY, JJ.

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