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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Willie TENNER, Jr., Defendant and Appellant.

No. B063658.

Decided: November 05, 1992

Alison M. Adams, Santa Barbara, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting, r. Asst. Atty. Gen., William T. Harter, Supervising Deputy Atty. Gen., Mitchell Keiter and David Glassman, Deputy Attys. Gen., for plaintiff and respondent.

The issue presented is whether substantial evidence supports the court's finding that appellant had served a prior prison term as defined in Penal Code section 667.5.1  We hold that insufficient evidence was introduced to support the sentence enhancement.

Willie Tenner, Jr., appeals from the judgment entered upon his plea of guilty to sale of cocaine (Health & Saf.Code, § 11352, subd. (a)), and the findings by the court of a prior felony conviction for which he served a separate prison term (Pen.Code, § 667.5, subd. (b)) and a prior narcotics-related felony conviction (Health & Saf.Code, § 11370.2, subd. (a)).

The record reflects that on July 21, 1991, appellant sold cocaine to a police informant.   Following his guilty plea, appellant waived his right to a jury trial on the prior convictions and submitted the matter to the court.   The People introduced into evidence an abstract of judgment and a state prison commitment form in People v. Tenner (Super.Ct. Ventura County, 1989, No. CR 24207), dated April 6, 1989.   The documents established that appellant entered a guilty plea to one count of sale of cocaine and admitted two prior convictions.   He was sentenced to prison for three years, plus one year for a prior conviction enhancement, and the sheriff was ordered to transport him forthwith to the correctional facility at Chino.   The trial court found true the allegations pursuant to Penal Code section 667.5, subdivision (b), and Health and Safety Code section 11370.2, subdivision (a).   Appellant was sentenced to four years for sale of cocaine, three years for the Health and Safety Code enhancement, and one year for the prior prison term enhancement, for a total term of eight years.


 The contention that the evidence did not support the finding of the prior completed prison term within the meaning of Penal Code section 667.5, subdivision (b), is well taken.   The People failed to present evidence to establish that appellant was imprisoned and completed a separate prison term for the felony conviction for which he was sentenced on April 6, 1989.   (People v. Jones (1988) 203 Cal.App.3d 456, 459–461, 249 Cal.Rptr. 840;  People v. Green (1982) 134 Cal.App.3d 587, 596–597, 184 Cal.Rptr. 652.)  People v. Elmore (1990) 225 Cal.App.3d 953, 275 Cal.Rptr. 315, People v. Crockett (1990) 222 Cal.App.3d 258, 271 Cal.Rptr. 500, and People v. Castillo (1990) 217 Cal.App.3d 1020, 266 Cal.Rptr. 271, do not compel a contrary conclusion as their reasoning is unpersuasive.

In 1982, the Fifth District Court of Appeal held in People v. Green, supra, 134 Cal.App.3d 587, 592–597, 184 Cal.Rptr. 652, that proof that a defendant was convicted, sentenced to prison and in fact imprisoned was insufficient evidence to support a section 667.5, subdivision (b), enhancement.2  This court subsequently agreed that an abstract of judgment showing a conviction and sentence is substantial evidence of the fact of a prison conviction, but is not sufficient to prove the felon actually completed a term of imprisonment under section 667.5.  (People v. Jones, supra, 203 Cal.App.3d 456, 458–459, 249 Cal.Rptr. 840.)

 Section 667.5 requires proof that a defendant (1) was previously convicted of a felony, (2) was imprisoned therefor, (3) completed the term of imprisonment, and (4) did not remain free for five years of both prison custody and the commission of a new offense which resulted in a felony conviction.  (Id., at p. 459, 249 Cal.Rptr. 840.)   We stated in Jones that imprisonment could be supported evidentially by the portion of the abstract of judgment-commitment form which remanded the defendant to the custody of the sheriff to be delivered forthwith to the custody of the director of corrections at the named facility since section 1216 imposes upon the sheriff a duty to transport the person sentenced to state prison.  “Proof of this duty, ․ plus the presumption an official duty has been regularly performed set forth at Evidence Code section 664 (see also Evid.Code, §§ 660 and 667), ․ together with the abstract information would have constituted substantial evidence of no more than that appellant was transported to commence a term of imprisonment.”  (Id., at p. 460, 249 Cal.Rptr. 840.)

Subsequently, People v. Castillo, supra, 217 Cal.App.3d 1020, 266 Cal.Rptr. 271 followed Justice Andreen's dissent in People v. Green, supra, that since the evidence did not indicate the defendant had escaped or in any other way failed to complete his term, an abstract of judgment of the defendant's prior conviction provided substantial evidence from which the trial court could reasonably infer that the defendant had completed his prison term.  (People v. Castillo, supra, at pp. 1024–1025, 266 Cal.Rptr. 271.)

In People v. Crockett, supra, 222 Cal.App.3d 258, 265, 271 Cal.Rptr. 500, another division of Second District, following Castillo and declining to follow Green and Jones, stated that “[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.”  (Id., at p. 265, 271 Cal.Rptr. 500.)   Thus, absent evidence of such an unusual occurrence, reasonable inferences can be drawn to support a finding that the defendant served and completed the term of imprisonment.   (Id., at pp. 266–267, 271 Cal.Rptr. 500.)

In People v. Elmore, supra, 225 Cal.App.3d 953, 275 Cal.Rptr. 315, which endorsed Castillo and Crockett, the court noted that since the defendant did not suggest any facts that might lead to the conclusion that he did not serve and complete the period of incarceration (and since his own testimony that he was released from parole supports an inference that this period of incarceration had been completed before his parole period began), the court was satisfied that the trial court had evidence before it from which it could find that Elmore served and completed each term of imprisonment underlying the enhancements.  (Id., at p. 958, 275 Cal.Rptr. 315.)   The court stated that even without considering the possibility of credit against this term, Elmore “would ordinarily have been released from prison” before he committed the instant offense.  (Ibid.)

The reviewing court in Elmore deflected Elmore's challenge that Castillo and Crockett allowed an evidentiary presumption to take the place of proof beyond a reasonable doubt, by restating the holdings of Crockett and Castillo and concluding that if there is no evidence to the contrary to rebut the statutory presumption, the court may consider the appropriate abstract of judgment and the facts of the particular case, and may use the official duty presumption to find that a defendant served and completed a term of imprisonment.  (Id., at p. 959, 275 Cal.Rptr. 315.)   Additionally, the court rejected Elmore's assertion that such evidence was insufficient to prove each element beyond a reasonable doubt by relying on the rule of appellate review that the reviewing court only looks for substantial evidence to support the trial court.  (Id., at pp. 959–960, 275 Cal.Rptr. 315.)

 Elmore, like Castillo and Crockett, simply begs the question rather than answers it.   It is constitutional to place the burden of proof on the defendant to show an affirmative defense and constitutional requirements are satisfied if the prosecution is required to prove all of the essential elements of the offense.  (People v. Frye (1992) 7 Cal.App.4th 1148, 1157, 10 Cal.Rptr.2d 217;  Patterson v. New York (1977) 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281.)   Similarly, certain presumptions are permissible so long as the fact finder is not required to find the existence of the ultimate fact from certain predicate facts and so long as the “presumed” fact is necessarily established by the existence of the predicate facts.  (People v. Frye, supra, 7 Cal.App.4th 1148, 1157, 10 Cal.Rptr.2d 217;   Francis v. Franklin (1985) 471 U.S. 307, 316–317, 105 S.Ct. 1965, 1972–1973, 85 L.Ed.2d 344, 354–355.)   However, the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.  (People v. Vann (1974) 12 Cal.3d 220, 227–228, 115 Cal.Rptr. 352, 524 P.2d 824.)

As explained in People v. Green, supra, 134 Cal.App.3d 587, 596–597, 184 Cal.Rptr. 652, “[t]he inclusion of subdivision (g)'s special definition, which for the first time required that the defendant have served a completed term on the prior, could only mean the Legislature did not intend the new enhancements to apply where a defendant served only a portion of his term․  [¶] 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.”

 Castillo and its progeny assume too much.  Castillo assumed that since the defendant committed a burglary three years after his previous conviction and that his previous prison sentence was for two years, he was necessarily out of custody and, inferentially, had completed his term.  (217 Cal.App.3d 1020, 1024, 266 Cal.Rptr. 271.)   However, there are reasons why a defendant might not have served a completed term other than escape.   For example, where a prior sentence is recalled pursuant to section 1170, subdivision (d) or (f), and the defendant is resentenced, the initial commitment does not constitute a “prior separate prison term” to enhance a later offense.  (See In re Acker (1984) 158 Cal.App.3d 888, 205 Cal.Rptr. 82.)

Section (d) specifically provides that for 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, including any time during which the defendant remains subject to reimprisonment for escape from custody or is reimprisoned on revocation of parole.  “The additional penalties provided for prior prison terms shall not be imposed unless they are charged and admitted or found true in the action for the new offense.”  (§ 667.5, subd. (d).)

Subdivision (g) provides that “A prior separate prison term for the purposes of this section shall mean a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after an escape from incarceration.”

In defining the use of prior felony convictions from another jurisdiction as the basis of a section 667.5 enhancement, subdivision (f) requires that the defendant have served one year or more in prison for the offense in the other jurisdiction.   A similar requirement for a commitment exceeding one year in duration exists for use of a commitment to the State Department of Health as a mentally disordered sex offender.  (§ 667.5, subd. (i).)

 From the clear wording of the statute, the Legislature intended a completed term in prison to have meaning.   The statutory scheme stresses the importance of completion of the prison term as an essential element to be proved.  (Cf. former §§ 644, 666 and 667, as discussed in People v. Green, supra, 134 Cal.App.3d 587, 596, 184 Cal.Rptr. 652.)   We construe a specific provision in context, with reference to the entire statutory scheme of which it is a part, in order to harmonize the various elements of the statutory scheme.  (People v. Jimenez (1992) 8 Cal.App.4th 391, 396, 10 Cal.Rptr.2d 281;  Bowland v. Municipal Court (1976) 18 Cal.3d 479, 489, 134 Cal.Rptr. 630, 556 P.2d 1081.)

As stated in People v. Green, supra, even if the Legislature's evident purpose of providing enhanced sentences for parole violators was inartfully expressed and inadvertently provided harsher treatment for a felon who commits a crime after completing parole than for a felon who commits a crime while still on parole, we may not “run roughshod over the plain meaning of section 667.5, subdivision (g), in an effort to impose [our] own notions of fairness, equity, or consistency.   The definition of the elements of an enhancement is the exclusive prerogative of the Legislature.”  (134 Cal.App.3d 587, 595, 184 Cal.Rptr. 652.)

 Castillo and its progeny allows imposition of the enhancement solely on proof that the court imposed a prison sentence and committed the defendant to the custody of the sheriff.   To allow the People to shift the burden of proof to the defendant to show he did not serve such a continuous term of imprisonment interferes with the defendant's right to have each element of the offense proved beyond a reasonable doubt by the party who has the burden of proof, i.e., the People.   As we stated in People v. Jones, “No court would impose the burden of proof on a criminal defendant on an element of the offense or enhancement which the People must prove beyond a reasonable doubt.”  (203 Cal.App.3d 456, 460, 249 Cal.Rptr. 840.)

 Utilizing the presumption that an official duty was done (Evid.Code, § 664) to infer from an abstract of judgment and commitment order that the defendant not only was committed to prison but actually served a continuous completed period of incarceration until official discharge or release on parole compels a factual leap which is insufficient to sustain the People's burden of proving beyond a reasonable doubt the necessary elements of the statutory enhancement.

Respondent concedes that a finding of insufficient evidence to sustain the necessary elements of the statutory enhancement would bar future prosecution on the grounds of double jeopardy.   The judgment is modified by striking the prior felony conviction enhancement pursuant to section 667.5, subdivision (b), and by reflecting a total prison term of seven years.   The trial court is directed to prepare an amended abstract of judgment which makes no reference to the finding of prior prison term and to forward a copy of the same to the Department of Corrections.  (See People v. Green, supra, 134 Cal.App.3d 587, 597, 184 Cal.Rptr. 652.)   As modified, the judgment is affirmed.


1.   All statutory references hereinafter are to the Penal Code unless otherwise specified.

2.   That section provides, in pertinent part, for imposition of a one-year term for each prior separate prison term served for any felony, provided that no additional term shall 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.

STEVEN J. STONE, Presiding Justice.

GILBERT and YEGAN, JJ., concur.