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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Westley Deon CLARK, Defendant and Appellant.

No. E008978.

Decided: November 06, 1992

Patricia O'Neill Mitchell, Newport Beach, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Robert M. Foster, Supervising Deputy Atty. Gen., and Joyce N. Burnett, Deputy Atty. Gen., for plaintiff and respondent.



A jury convicted defendant Clark of robbery (Pen.Code, § 211), assault with a deadly weapon (Pen.Code § 245, subd. (a)(1)), and two counts of exhibiting a deadly weapon (Pen.Code, § 417, subd. (a)(1)).   The jury also separately found that defendant had sustained two prior felony convictions.   Defendant was sentenced to the upper term of five years on the robbery conviction, and one year on one of the prior convictions, for a total term of six years.   He appeals.



On August 7, 1990, at about 3:30 a.m., defendant Clark covered his face with a mask and entered an AM–PM mini-market near the Ontario airport.   Holding a large knife against the clerk's back, defendant emptied the cash register.   As defendant attempted to flee, he encountered four customers.   One customer knocked the knife from defendant's hand with a broom handle, and all four pursued defendant into a nearby field where he was subdued and arrested.




Defendant next argues that the trial court should have granted his motion for a directed verdict on the prior convictions because the prosecution failed to prove that he had completed his prior term of imprisonment.   He relies on People v. Jones (1988) 203 Cal.App.3d 456, 249 Cal.Rptr. 840, in which the court held that an abstract of judgment is insufficient to prove that he actually served and completed the imposed term, as required by Penal Code section 667.5, subdivision (g).

Respondent urges us to disregard Jones and follow People v. Castillo (1990) 217 Cal.App.3d 1020, 266 Cal.Rptr. 271 and People v. Crockett (1990) 222 Cal.App.3d 258, 271 Cal.Rptr. 500.   In Castillo, the court disagreed with Jones.   The evidence introduced included an abstract of judgment and a subsequent conviction three years later.   Even though the so-called “prison packet” showing service of the term on the prior conviction was unavailable, the court held that the trial court could infer that Castillo served his prison term on the prior conviction.   Nothing in the record indicated that he had escaped from prison or was otherwise released before his sentence had been served.

In Crockett, the court also disagreed with Jones, saying “We hold ․ that in an appropriate case an abstract of judgment, along with reasonable inferences from the facts, can provide substantial evidence sufficient to prove defendants served and completed prison terms.”  (People v. Crockett, supra 222 Cal.App.3d 258, 263, 271 Cal.Rptr. 500.)   The court rested on legislative intent, finding that “[t]he conclusions of Jones and [People v.] Green [134 Cal.App.3d 587, 184 Cal.Rptr. 652 (1982) ] obscure the legislative intent and if applied without attention to a practical reading of the statute, and to the ordinary rules of evidence, merely establish an unintended loophole which protects rather than punishes the career criminal.”   (Id., 222 Cal.App.3d at p. 265, 271 Cal.Rptr. 500.)   The court held that since, “[a]s a practical matter, a defendant properly sentenced and delivered to a prison would always complete a prison term unless something unusual occurs, e.g., the defendant escapes” (ibid.) the court could rely on the presumption that official duty was regularly performed (Evid.Code, §§ 660, 664) and consider the abstracts of judgment to be sufficient proof of the prior conviction.  (Id., at pp. 265–266, 271 Cal.Rptr. 500.)   Accordingly, the court held that “[i]f there is no evidence to the contrary, the court may consider the appropriate abstract of judgment and the facts of the particular case, and utilizing the official duty presumption, find a defendant served and completed the term of imprisonment.”  (Id., at p. 266, 271 Cal.Rptr. 500.)

We agree with respondent that Castillo and Crockett state the better rule, and that the opinion in Jones creates a legislatively unintended loophole.   The later case of People v. Elmore (1990) 225 Cal.App.3d 953, 959, 275 Cal.Rptr. 315, also rejects defendant's argument and finds the logic of Crockett more persuasive than that of Jones and Green.

Accordingly, we agree that the introduction of the court file on the prior conviction, including the abstract of judgment, was sufficient to allow the trial court and the jury to infer that defendant did complete a state prison term in accordance with the abstract of judgment.



The judgment is affirmed.


FOOTNOTE.   See footnote *, ante.

HOLLENHORST, Associate Justice.

RAMIREZ, P.J., and TIMLIM, J., concur.