Reset A A Font size: Print

Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Michael JONES, Defendant and Appellant.

No. F012914.

Decided: April 25, 1991

Timothy B. Rien, under appointment by the Court of Appeal, Livermore, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., W. Scott Thorpe, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.


A jury convicted Jones of robbery (Pen.Code, § 211;  all statutory references to an undesignated code are to this code).   The court found that he had been convicted of a prior serious felony (§ 667) and had served prior prison terms (§ 667.5) for petty theft with a prior (§ 666) and grand theft (§ 487).   The court sentenced him to prison for 12 years.   After the Department of Corrections informed it that Jones had not completed his prison term for the grand theft, the court set aside the true finding and prepared an amended abstract of judgment reflecting an 11–year sentence.

On this appeal, Jones contends that the evidence was insufficient to establish that he completed his prison term for the petty theft.1  Respondent disagrees.   The instant case reduces to whether we should follow our decisions in People v. Green (1982) 134 Cal.App.3d 587, 184 Cal.Rptr. 652 and People v. Jones (1988) 203 Cal.App.3d 456, 249 Cal.Rptr. 840 or a contrary line of cases, People v. Castillo (1990) 217 Cal.App.3d 1020, 266 Cal.Rptr. 271.  People v. Crockett (1990) 222 Cal.App.3d 258, 271 Cal.Rptr. 500, and People v. Elmore (1990) 225 Cal.App.3d 953, 275 Cal.Rptr. 315.   We will adhere to Green and Jones.


The instant robbery occurred May 18, 1989.   As amended, the information alleged that Jones 1) was convicted of petty theft with a prior on March 19, 1987, in action No. 32997 (the petty theft case), 2) was convicted of grand theft on February 23, 1988, in action No. 35182 (the grand theft case), and 3) served a separate prison term for each offense within the meaning of section 667.5.   To prove its case, the prosecution introduced into evidence abstracts of judgment in the two cases (Exhs. 2 and 3) and certain Department of Corrections records (Exh. 6).

The abstract in the petty theft case showed that, following his February 20, 1987, conviction, on March 19, 1987, Jones was sentenced to prison for 16 months, with 147 days presentence credits.   The abstract in the grand theft case showed that, following his January 26, 1988, conviction, on February 23, 1988, Jones was sentenced to prison for 3 years with 150 days presentence credits.   The Department of Corrections records consisted of 1) fingerprint cards reflecting where and when Jones was received at prison in the two cases, 2) copies of the abstracts of judgment, and 3) a one-page “Chronological History” containing entries dated March 22, 1989, March 27, 1989, March 30, 1989, and June 6, 1989, which did not expressly refer to any particular case.   A copy of the Chronological History is attached as an appendix to this opinion.


“A prior separate prison term for the purposes of this section shall mean a continuous completed period of prison incarceration․”  (§ 667.5, subd. (g).)  In People v. Green, supra, 134 Cal.App.3d 587, 184 Cal.Rptr. 652, the evidence consisted of an abstract of judgment reflecting a prison sentence, a jail slip showing defendant's release to a transportation officer, and a receipt and envelope addressed to defendant in prison.   We reasoned:  “The evidence does establish that appellant was convicted, sentenced to prison, and in fact imprisoned․  What it does not show is that, when he committed the instant offense, this period of prison incarceration was completed.”   (Id. at p. 592, 184 Cal.Rptr. 652.)  “Where the evidence shows only that appellant was out of custody on ․ the date of the instant offense, it may not be inferred that his release followed the expiration of his term.   Thus, the evidence was insufficient to establish his prior prison term was completed.”   (Id. at p. 597, 184 Cal.Rptr. 652.)

In People v. Jones, supra, 203 Cal.App.3d 456, 249 Cal.Rptr. 840, the court reached a similar result:  “Appellant is correct that the only proof offered by the People, consisting of the abstracts of judgment in each prior, showing the fact of a felony conviction and a sentence to the state prison, is insufficient to prove appellant served a prior completed prison term and had not been free of prison custody for five or more years since released.”   (Id. at p. 458, 249 Cal.Rptr. 840.)

Applying Green and Jones to the instant case, we find that the pertinent abstract of judgment and the Department of Correction records established that, following his conviction of felony petty theft, Jones was sentenced to and received in prison in that case.   This evidence fails to show that he had completed his period of prison incarceration.

The three cases cited by respondent would yield a different result.   In essence, absent affirmative evidence that the defendant “escaped from prison or was otherwise released before his sentence had been served” (People v. Castillo, supra, 217 Cal.App.3d 1020, 1024, 266 Cal.Rptr. 271), these cases permit an inference that he completed his prison term where he commits a new crime after a time lapse exceeding the length of his initial sentence.   (Ibid.;  People v. Elmore, supra, 225 Cal.App.3d 953, 958, 275 Cal.Rptr. 315.)2

Although Castillo summarily rejects defendant's argument, People v. Crockett, supra, 222 Cal.App.3d 258, 266–267, 271 Cal.Rptr. 500, and People v. Elmore, supra, 225 Cal.App.3d 953, 958–959, 275 Cal.Rptr. 315, rely heavily on the presumption that official duty is regularly performed (Evid.Code, § 664).   However, as People v. Jones, supra, 203 Cal.App.3d 456, 459–460, 249 Cal.Rptr. 840, explains, this presumption does not take the prosecution quite as far as it needs to go:

“Factor two, imprisonment, could have been supported evidentially by the portion of the abstract of judgment-commitment form which remanded the appellant to the custody of the sheriff to be delivered forthwith to the custody of the directors of corrections at the named facility.   Section 1216 imposes upon the sheriff a duty to transport the person sentenced to the state prison.   Proof of this duty, not here supplied, plus the presumption an official duty has been regularly performed set forth at Evidence Code section 664 (see also Evid.Code, §§ 660 and 667), had the jury been so instructed, together with the abstract information would have constituted substantial evidence of no more than that appellant was transported to commence a term of imprisonment.”

A state prisoner certainly has a “duty” to serve his prison term without escaping;  however, he is not an official whose devotion to duty supports a presumption of due performance.   Moreover, we are unwilling to speculate on the other events that might cause a defendant to be on the streets while in fact his term has not been completed.

The instant case might give pause to the critics of Green and Jones.   Based on the documentary evidence summarized above, the court found that Jones had served a completed prison term on the grand theft case, only to learn later that in fact he had not completed his prison term and was staying at a halfway house when he committed his new robbery.

Presumably, respondent would argue that the court should have realized as much because the “Chronological History” showed Jones's release to the halfway house and gave an “EPRD” of July 4, 1989, i.e., an expected parole release date six weeks after the instant robbery occurred.   As also noted above, however, the “Chronological History” entries do not indicate the case to which they pertain.   Such an argument misses the real point:  a state prisoner may be on the streets for reasons other than escape and still not have completed his prison term.

Respondent might also argue that the time lag between initial sentence and instant crime was too short to permit the inference that Jones completed his term on the grand theft.   But this simply raises the question of how great a margin of error a court should find constitutionally acceptable.

Crockett critiques Green and Jones because they “merely establish an unintended loophole which protects rather than punishes the career criminal.”   (People v. Crockett, supra, 222 Cal.App.3d 258, 265, 271 Cal.Rptr. 500.)   This statement overlooks the genesis of the problem, i.e., non-compliance with section 969b's simplified procedure for proving recidivism allegations.

Section 969b provides:  “For the purpose of establishing prima facie evidence of the fact that a person being tried for a crime or public offense under the laws of this State has been convicted of an act punishable by imprisonment in a state prison, county jail or city jail of this State, and has served a term therefor in any penal institution ․ the records or copies of records of any state penitentiary, reformatory, county jail, city jail, of federal penitentiary in which such person has been imprisoned, when such records or copies thereof have been certified by the official custodian of such records, may be introduced as such evidence.”

Cases like the instant one occur when the prosecution fails to procure or introduce (People v. Jones, supra, 203 Cal.App.3d 456, 460, fn. 6, 249 Cal.Rptr. 840) the section 969 packet or when it introduces a packet which omits critical information.   The “Chronological History,” relayed to the prosecutor under cover of a letter dated more than two months before the trial date, was glaringly incomplete.   In this context, we decline to dilute the simplified procedure of section 969b by a rule that an abstract of judgment plus the passage of some arbitrarily determined amount of time plus the defendant's failure to incriminate himself fills the evidentiary void.

The finding of the court related to the prior prison term allegation pertaining to Kern County Superior Court action No. 32997 is reversed and the allegation is dismissed.   The judgment is modified to delete reference to this allegation.   The trial court is directed to prepare an amended abstract of judgment which reflects defendant's sentence as modified and to forward a certified copy of same to the appropriate authorities.   In all other respects the judgment is affirmed.


STONE, (WM. A.).

DIBIASO and Harris, JJ., concur.