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Court of Appeal, Second District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Russell Flores RAMIREZ, Defendant and Appellant.

Cr. 32575.

Decided: January 26, 1979

Quin Denvir, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, and Richard Lennon, Deputy State Public Defender, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Andrew D. Amerson, Deputy Attys. Gen., for plaintiff and respondent.

This is an appeal from a judgment after conviction of grand theft and second degree burglary. At time of sentence an additional year was added for an alleged prior conviction.

The facts are that on December 14, 1977, defendant entered a clothing store, went to a rack holding coats, removed seven coats worth $307 and left the store with them without having paid for them.

Defendant's sole contention on appeal is that the court's implied finding that defendant had not been free from prison custody and the commission of an offense which resulted in a felony conviction for a five-year period is not supported by any evidence. The contention is meritless.

There is no question but that defendant had been convicted of a prior felony as alleged in the information. The only question is whether defendant had remained free from incarceration for five years prior to the commission of the offense herein involved. As pertinent here, Penal Code section 667.5 provides:

“Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows:


(b) Except where subdivision (a) 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 defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”

At the time of sentence, the probation report was before the trial judge. This report established that defendant had been incarcerated within the last five years specified in Penal Code section 667.5. The time of sentence was the appropriate time to ascertain whether an enhancement penalty was to be imposed. Assuming it was the burden of the People to establish the fact requiring enhancement, they met that burden.

There being no question of insufficiency here of the proof of the prior charged offense and, at the time of sentencing there being proof of the fact that defendant was in custody for that offense within five years of the instant offense, the record amply supports the sentence imposed.1

The judgment is affirmed.


1.  There was no evidence contrary to the facts set forth in the probation report showing incarceration within the five-year period. (See Witkin, Cal.Evidence (2d ed. 1966) Introduction of Evidence at Trial, §§ 1305-1306, pp. 1207-1208.)

STEPHENS, Associate Justice.

KAUS, P. J., and HASTINGS, J., concur.