PEOPLE v. RIOS (1992)

Defendant was convicted of two counts of selling heroin and allegations of prior convictions and a prior prison term were found true.   He was sentenced to eight years in state prison.   On appeal, defendant asserts that the trial court erred in (1) excluding an audio tape, (2) admitting lay opinion testimony and (3) finding that defendant had served a prior prison term in the absence of sufficient evidence to show that defendant had completed the term.   For the reasons expressed below, we affirm.

FACTS

On April 3, 1990, Officer Ramirez was working undercover.   He made a phone call and spoke with a man who identified himself as “Manuel”.   Ramirez asked to purchase $40 worth of heroin.   Ramirez and Manuel arranged to meet.   Ramirez drove to the specified location and, within a few minutes, a white vehicle with a red roof pulled up.   The vehicle bore the license plate 1BFS445.   Ramirez walked over to the vehicle and leaned into the driver's window.   Ramirez was about one and a half feet from the driver's face.   The driver was defendant.   Ramirez asked him if he was Manuel and defendant nodded.   Ramirez handed defendant $40 and defendant handed him a red balloon containing heroin.

On April 4, 1990, Ramirez again phoned defendant.   Ramirez asked for $40 worth of heroin and defendant agreed to meet him.   Defendant arrived about three minutes later.   He was driving the same vehicle he had driven the previous day.   It was a “red-over-white” Oldsmobile, license plate number 1BFS445.   Ramirez walked to the driver's side window, leaned in and greeted defendant.   Ramirez handed defendant $40 and defendant handed Ramirez a piece of tinfoil containing two baggies of heroin.   Utilizing the license plate number, the name “Manuel” and a basic physical description of the man who had sold him the heroin, Ramirez was able to identify the man as defendant.   Ramirez made a positive identification of defendant from a photograph on April 4, 1990.

Defendant was charged by information with two counts of selling heroin (Health & Saf.Code, § 11352, subd. (a)) and prior convictions and a prior prison term were alleged pursuant to Health and Safety Code sections 11370, subdivision (a) and 11370.2, subdivision (c) and Penal Code sections 667.5, subdivision (b) and 1203.07.

Defendant brought an in limine motion to determine the admissibility of an audio tape which purportedly contained an audio recording of the second drug transaction.   The parties agreed that it would be necessary to lay a foundation to establish the authenticity of the tape prior to its admission.   At a subsequent evidentiary hearing, the prosecution asserted that the tape was irrelevant and excludable under Evidence Code section 352, with the exception of a small portion of the tape which appeared to represent the second drug transaction.   Defendant argued that the sequential timing of the events on the tape indicated that he had not been involved in the transaction recorded thereon.   He asserted that the tape was exculpatory because, based on the timing and sequence of events as they occurred on the tape, the transaction occurred prior to Ramirez's attempts to reach “Manuel”.   Ramirez testified that the events, as they appeared on the tape, were out of order.   Although the second transaction appeared near the beginning of the tape, it had actually occurred after all of the other sounds on the tape.   The tape did not, therefore, accurately reflect the sequence of events on the day of the second transaction.

Defendant sought admission of the tape for the purpose of showing that the sequence of sounds on the tape reflected the actual sequence of events.   The court sustained the prosecution's relevance objection to the admission of the tape.   Nevertheless, the court permitted defendant to cross-examine Ramirez about the tape and the sequence of the sounds recorded on it.

At trial, Ramirez testified on cross-examination that during the second transaction he had worn a body transmitter.   The purpose of the transmitter was to protect his safety should something go wrong.   A tape recording was made which included the second transaction.   On the tape, Ramirez testified, the transaction is recorded towards the beginning of side A.   Sounds on side B of the tape reflect that Ramirez was trying to reach “Manuel” by phone.   Thus, as recorded on the tape, the transaction precedes Ramirez's phone calls to “Manuel”.   Defendant renewed his request for admission of the tape recording asserting that it was relevant to “a factual dispute regarding the sequence of events.”   The prosecution objected on relevancy, hearsay and Evidence Code section 352 grounds.   The trial court declined to modify its ruling.

On redirect, Ramirez testified that other sounds recorded on the same audio tape as the transaction were not recorded in the sequence in which they actually occurred.   The entire tape had been recorded and then, after sounds were recorded on side B, the tape was flipped over and more sounds were recorded on side A.   These last recorded sounds were the transaction with defendant.   Defendant's objection to this testimony as speculative was overruled.

Defendant's girlfriend testified at trial that she owned a white Oldsmobile, license plate number 1BFS445.   The only person she loaned her car to was defendant.   She testified that the roof of her car was white and she identified photographs of a white car with a red interior, a white roof and license plate number 1BFS445 as her vehicle.   She said that the roof had always been white.   She had never had any painting or body work done on the car and she had not removed a vinyl roof from it.   She identified a dark colored area at the edge of the roof as rust.

On rebuttal, Ramirez testified that, on the basis of the photographs identified by defendant's girlfriend, he could determine that a red vinyl roof had been removed from the white car.   Defendant's objection that this testimony lacked foundation was overruled.   On cross-examination, Ramirez testified that he had personally removed a vinyl roof from a car ten years earlier.

After jury trial, defendant was convicted of both counts.   He waived his right to a jury trial on the priors.   The prosecution submitted certified documents including an abstract of judgment to prove the priors.   Defense counsel argued that the documents did not sufficiently identify defendant.   The court found that defendant had suffered the prior convictions and the prior prison term.   On the two heroin counts, defendant received concurrent four year terms.   He received a three year enhancement pursuant to Health and Safety Code section 11370.2, subdivision (c) for a prior conviction and an additional one year enhancement pursuant to Penal Code section 667.5, subdivision (b) for the prior prison term.   A third enhancement was stricken.   Defendant was committed to state prison for a total term of eight years.

DISCUSSION

Defendant asserts that the trial court prejudicially erred when it (1) refused to admit the audio recording and (2) permitted Ramirez to testify that (a) the recording anomaly resulted from the tape having been flipped over and (b) the vehicle shown in the photographs had been altered.   In addition, defendant claims that there was insufficient evidence to support the trial court's determination that he had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).

A. EXCLUSION OF THE TAPE RECORDING

Defendant asserts that the trial court prejudicially erred when it excluded the tape recording offered by the defense.   He claims that the tape, in its entirety, was admissible to prove that the sequence of events on the day of the second transaction was not as Ramirez testified and to impeach Ramirez's testimony.   We conclude that the trial court properly excluded the tape as irrelevant.

 Recordings are properly rejected where an insufficient foundation has been laid or the fact sought to be shown is not relevant to the issues of the case.  (People v. Dabb (1948) 32 Cal.2d 491, 498, 197 P.2d 1.)  “No evidence is admissible except relevant evidence.”  (Evid.Code, § 350.)   A tape recording is a writing which must be authenticated before it can be received in evidence.  (Evid.Code, §§ 250 and 1401, subd. (a);  O'Laskey v. Sortino (1990) 224 Cal.App.3d 241, 249, 273 Cal.Rptr. 674.)   “Before any tangible object may be admitted into evidence, the party seeking to introduce the object must make a preliminary showing that the object is in some way relevant to the issues to be decided in the action.   When the object sought to be introduced is a writing, this preliminary showing of relevancy usually entails some proof that the writing is authentic ․ normally referred to as ‘authentication’ of the writing.”  (Law Rev.Comm. Comment to Evid.Code, § 1400, emphasis added.)  “The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when ․ [t]he preliminary fact is the authenticity of a writing.”  (Evid.Code, § 403.)   Hence, a writing is not relevant evidence unless it is authenticated.

 Defendant originally brought an in limine motion to establish the authenticity of the tape.   Although the prosecution did not expressly enter an objection to admission of the tape on grounds that it had not been authenticated, we deem this unnecessary as both parties acknowledged before the trial court that the authenticity of the tape was required to be established prior to its admission.   Furthermore, the prosecution doggedly maintained its relevancy objection to the admission of the tape.   A relevancy objection to the admission of a writing impliedly includes an authenticity objection as a writing is not relevant unless it can be shown that it “is the writing that the proponent of the evidence claims it is ․” (Evid.Code, § 1400.)

 Defendant asserted that the tape was an accurate record of the sequence of events on April 4, 1990.   However, defendant failed to offer any evidence that the tape accurately recorded the sequence of the events of that day.   Ramirez testified at the evidentiary hearing that the tape did not accurately reflect the sequence of events on April 4, 1990.   Defendant therefore failed to make the requisite preliminary showing that there was sufficient evidence from which the jury could have found that the tape was the accurate record which he claimed it was.   Since there was insufficient evidence to support a jury finding of the preliminary fact necessary to the tape's relevance, the trial court correctly excluded the tape as irrelevant.

B. ADMISSIBILITY OF OPINION TESTIMONY

 Defendant asserts that the trial court should have excluded Ramirez's testimony that (1) the audio tape had been flipped over after side B was recorded and (2) defendant's girlfriend's vehicle had been altered.   As to both items of testimony, we must determine whether Ramirez's nonexpert opinion testimony was admissible.   Lay opinion testimony is admissible where no particular scientific knowledge is necessary for the witness to draw an inference and the witness's conclusion is helpful to the jury.  (People v. Williams (1988) 44 Cal.3d 883, 915, 245 Cal.Rptr. 336, 751 P.2d 395;  Evid.Code, § 800.)   Appellate review is limited to determining whether the trial court abused its discretion in admitting the evidence.  (People v. Mixon (1982) 129 Cal.App.3d 118, 127, 180 Cal.Rptr. 772.)

 “[T]he testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter.”  (Evid.Code, § 702, subd. (a).)  Nevertheless, nonexpert witnesses may testify to their inferences and conclusionsso long as no special expertise is necessary to the expression of these opinions, the opinions are rationally based on the witnesses' perceptions and the opinions will be helpful to the jury's understanding of the evidence.  (People v. Mixon, supra, 129 Cal.App.3d at pp. 127–128, 180 Cal.Rptr. 772;  People v. McAlpin (1991) 53 Cal.3d 1289, 1307, 283 Cal.Rptr. 382, 812 P.2d 563;  Evid.Code, § 800.)

 Thus, on the basis of personal observations, a nonexpert may, for instance, testify that an individual was drunk or under the influence of narcotics.  (Stuart v. Dotts (1949) 89 Cal.App.2d 683, 686–687, 201 P.2d 820;  People v. Williams (1988) 44 Cal.3d 883, 914–915, 245 Cal.Rptr. 336, 751 P.2d 395.)   While a lay witness who personally observes an apparently intoxicated person may not, strictly, have personal knowledge that the person is drunk, as the witness has neither seen the person drinking nor tested the person's blood alcohol level, the witness may testify that the person was drunk based on the witness's personal knowledge of other facts from which intoxication can be inferred.  (Cf. People v. Williams, supra, 44 Cal.3d at pp. 914–915, 245 Cal.Rptr. 336, 751 P.2d 395.)   Nonexpert testimony which draws rational inferences from facts personally observed by the witness may therefore be admitted under Evidence Code section 800, subdivision (a).

 Nonexpert opinion testimony must, however, also be helpful to the jury.  (Evid.Code, § 800;  Manney v. Housing Authority (1947) 79 Cal.App.2d 453, 459–460, 180 P.2d 69.)   This requirement is essentially the same as that applicable to expert opinion testimony.   Expert opinion testimony is admissible only where it will assist the jury.  (Evid.Code, § 801.)  “It will be excluded only when it would add nothing at all to the jury's common fund of information.”  (People v. McAlpin, supra, 53 Cal.3d 1289, 1300, 812 P.2d 563.)   Though, unlike expert opinion testimony, lay opinion testimony is limited to subject matter which requires no particular scientific knowledge, nonexpert opinion testimony is nevertheless admissible where the jury's consideration of the nonexpert witness's conclusion will enhance the jury's understanding of the witness's testimony.  (Ibid.)

 Properly understood, expert and nonexpert opinion testimony are not subject to different standards.   While, because of their expert status, experts are not limited to expressing opinions based only on facts personally observed, both expert and nonexpert opinion testimony must be rationally based and must be helpful to the jury.   With respect to experts, the province of the jury is protected by the requirement that the subject matter of the expert's opinion testimony be beyond common knowledge.   As to nonexperts, opinion testimony is restricted to those opinions which will assist the jury in understanding the evidence.   Implicitly, these standards exclude opinion testimony which does not enhance the jury's ability to draw inferences but merely draws inferences which should properly be drawn by the jury.

 It is the role of the trial court to determine whether opinion testimony is invasive of the jury's province or helpful to the jury's understanding of the evidence before it.   No great distinction need be drawn between experts and nonexperts with respect to this requirement.   The admission of both expert and nonexpert opinion testimony is committed to the sound discretion of the trial court.  (People v. Mixon, supra, 129 Cal.App.3d at p. 127, 180 Cal.Rptr. 772;  People v. McAlpin, supra, 53 Cal.3d at p. 1299, 283 Cal.Rptr. 382, 812 P.2d 563.)   With these principles in mind, we consider defendant's contentions.

1. FLIPPING OF TAPE

 Ramirez was initially asked what happened at the end of the tape.   Defendant objected asserting that Ramirez was not the recording officer and thus the question asked for mere speculation.   The prosecutor was asked to rephrase the question and the objection was overruled.   The prosecutor then asked Ramirez if he had listened to the tape.   Ramirez answered in the affirmative.   Ramirez then testified that by listening to the tape, reading the transcript and remembering the events which transpired, he could tell that the tape had been flipped over and a portion of side A recorded over.   Defendant asserts that since he was not the recording officer Ramirez lacked personal knowledge of what had happened to the tape.   Defendant therefore contends that the testimony should not have been allowed in over his objection.   The Attorney General has failed to respond to this assertion.   Nevertheless, we find no error.

Defendant brought up the issue of the sequence of events on the tape during cross-examination of Ramirez.   The tape was not mentioned on direct.   Ramirez was the only witness who had listened to the tape recording.   Neither the tape recording nor the transcript were admitted into evidence so the jury was not capable of drawing the conclusions which Ramirez's perceptions could support.   On re-direct, Ramirez testified that he was not responsible for recording the tape but that he was wearing the transmitter which was the source of the sounds recorded on the tape.   Consequently, he was the only percipient witness to the sounds which were recorded on the tape.   In addition, Ramirez had listened to the tape and read the transcript.   By comparing the sounds he had perceived at the time of the events to the sounds on the tape, he observed that a portion of side A had been recorded over.   From this he inferred that the tape had been flipped over.

Indisputably, Ramirez had personal knowledge of both the events of April 4, 1990 and the contents of the tape and transcript.   He testified that he was not the recording officer so it was clear to the jury that he had not observed the flipping over of the tape.   The substance of his testimony was not, therefore, susceptible to misinterpretation by the jury.   The jury could only have concluded from Ramirez's testimony that he based his opinion that the tape had been flipped over on his personal observations.   Having listened to the tape, Ramirez could testify from personal knowledge that later occurring sounds had been recorded over earlier occurring sounds on side A.   His opinion that the tape had been flipped over was a rational inference drawn from his personal knowledge of the facts.

Because the tape and transcript were not in evidence and Ramirez was the only witness to the events allegedly recorded thereon, he was uniquely situated to give an opinion which, as a matter of practical necessity, could not be conveyed in any other manner.   In light of Ramirez's personal knowledge of the facts and the absence of many of the nuances associated with these facts from the evidence at trial, the trial court did not abuse its discretion in determining that Ramirez's opinion that the tape had been flipped over was helpful to the jury's understanding of his testimony.   Since Ramirez's opinion was rationally based on his perceptions and helpful to the jury, the court did not err in admitting it over defendant's objection.

2. ALTERATION OF ROOF

 Defendant's girlfriend identified the vehicle shown in several photographs as the car she let defendant drive.   The vehicle pictured had the license plate number 1BFS445 and a white roof.   She insisted that the vehicle had never had a red roof.   She identified as rust a dark colored area appearing in the photographs around the edges of the roof of the vehicle.   She denied ever having removed the roof of the car.

Ramirez testified on rebuttal that the car in the photographs was the one defendant had been driving at the time of the heroin transactions.   However, the car had then had a red vinyl roof.   Because of this discrepancy, Ramirez concluded that the car had been altered—the red roof had been replaced with a white roof.   The prosecutor asked Ramirez if the car had had a vinyl roof on April 4, 1990.   Defendant objected on the grounds that there was no “foundation regarding this officer's expertise.”   Noting that defendant could cross-examine, the trial court overruled the objection.   Ramirez then testified that the car shown in the photographs had had a red vinyl roof at the time of the heroin transactions.   On cross-examination, Ramirez testified that, from the photographs, the vehicle's roof appeared to have been altered.   Ramirez stated that he had personally removed a vinyl roof from a vehicle about ten years earlier.

Defendant asserts that Ramirez's testimony that the roof of the vehicle had been altered was erroneously admitted over objection because Ramirez had not been shown to have any expertise with respect to vehicles.   The Attorney General argues that since Ramirez was not testifying as an expert no foundation was required and, were expertise required, Ramirez established his own expertise by testifying that he had himself made a similar roof alteration.

Ramirez's testimony that the roof of the vehicle had been altered was opinion testimony.   Ramirez did not actually observe the alteration of the vehicle shown in the photograph.   His opinion that the vehicle had been altered was an inference based on his knowledge of the vehicle's appearance at the time of the heroin transactions, the appearance of the vehicle in the photograph and his personal experience with the alteration of a similar roof.   To the extent that Ramirez's conclusion was based on the simple facts that the roof had earlier been red and was now white, admission of his opinion invaded the province of the jury because the jury had all the necessary facts to make this inference if they chose to do so.   If Ramirez was basing his opinion on his personal experience removing a similar roof, he was testifying as an expert without a sufficient basis upon which the court could have concluded that he was qualified to testify as an expert.

“The question whether or not a witness is qualified to give his opinion, as evidence upon a matter in issue, is submitted to the trial judge in the first instance, and is to be determined by him before such opinion may be given.   (Fairbanks v. Hughson [1881] 58 Cal. 314[, 315].)   It is, in itself, in the nature of a trial of a question of fact, by evidence addressed to the judge alone, and, as in other decisions on questions of fact by a trial court, his ruling thereon is a matter of discretion and will not be overturned on appeal unless there was an actual want of evidence to support it or a clear abuse of discretion․  If there is any substantial evidence to sustain the ruling, the exception thereto will be disallowed.”  (Vallejo etc. R.R. Co. v. Reed Orchard Co. (1915) 169 Cal. 545, 575, 147 P. 238.)

Defendant entered a proper objection to Ramirez's testimony based on lack of expertise.   By overruling the objection and limiting defendant to cross-examining Ramirez on his expertise, the court impliedly made a finding that Ramirez was an expert and that exploration of his credentials went only to weight—a subject properly delayed until cross-examination.   The court's implied finding that Ramirez was qualified to testify as an expert was not, however, supported by any evidence.   Although Ramirez later testified that he had personally removed a roof from a car, this evidence was insufficient to qualify him as an expert on vehicle alteration.   The trial court therefore abused its discretion in admitting Ramirez's opinion over defendant's objection.

 Nevertheless, the error was harmless.   The evidence against defendant was overwhelming.   The jury knew that Ramirez had not seen the roof altered.   He expressly stated that he was only assuming that the roof had been altered because he had originally seen the car with a red roof and the photograph of the same car showed a vehicle with a white roof.   The jury could not, therefore, have been misled by Ramirez's testimony.   Even though Ramirez stated a conclusion which, in light of his lack of expertise, the jury was equally capable of drawing, he premised this testimony on his statement that it was an assumption.

Ramirez positively identified defendant as the man who had twice sold him heroin.   The vehicle identified by defendant's girlfriend as the one defendant drove bore the same license plate number as Ramirez had noted at the time of the heroin transactions.   Ramirez's detailed descriptions fit both defendant and the vehicle.   Even had defendant shown that Ramirez was mistaken about the color of the roof of the vehicle at the time of the transactions, it is not reasonably probable that the jury would have concluded that Ramirez was mistaken in his identification of defendant as the man who had sold him narcotics.   Thus, the error was harmless.

C. PRIOR PRISON TERM

 Defendant asserts that the abstract of judgment was insufficient evidence to prove that he had served a prior prison term under Penal Code section 667.5, subdivision (b).  “[T]he court shall impose a one-year term for each prior separate prison term served for any felony.”  (Pen.Code, § 667.5, subd. (b).)  “A prior separate prison term for the purposes of this section shall mean a continuous completed period of prison incarceration ․”  (Pen.Code, § 667.5, subd. (g).)  “[D]efendant 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 ․” (Pen.Code, § 667.5, subd. (d).)

“Section 667.5 requires proof appellant (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.”  (People v. Jones (1988) 203 Cal.App.3d 456, 459, 249 Cal.Rptr. 840.)   An abstract of judgment proves a defendant has been convicted of a felony and imprisoned.   (Ibid.)  A failure to remain free of custody for five years can be inferred from the date of the conviction and the date of the current offense.   (Ibid.)  The only issue is whether an abstract of judgment can provide sufficient evidence from which a trier of fact could conclude that the defendant has completed the term of imprisonment imposed for the prior conviction.

1. SPLIT OF AUTHORITY

In 1982, the Fifth District Court of Appeal held that proof that a defendant was convicted, sentenced to prison and in fact imprisoned was insufficient evidence to support a Penal Code section 667.5, subdivision (b) enhancement.  (People v. Green (1982) 134 Cal.App.3d 587, 592–597, 184 Cal.Rptr. 652.)   Justice Andreen, dissenting from that holding, deemed the evidence sufficient since the record did not indicate that the defendant had escaped or in any other way failed to complete his term.  (Id. at p. 600, 184 Cal.Rptr. 652.)   Subsequently, Division Six of the Second District Court of Appeal, relying on Green, held that an abstract of judgment was insufficient “to prove the felon actually completed a term of imprisonment under section 667.5.”  (People v. Jones, supra, 203 Cal.App.3d at p. 461, 249 Cal.Rptr. 840.)

In People v. Castillo (1990) 217 Cal.App.3d 1020, 266 Cal.Rptr. 271, the Fourth District disagreed with the holding in Jones.   In the absence of any evidence that the defendant had escaped from prison or otherwise been released prior to the completion of his term, the Fourth District held that the 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, 217 Cal.App.3d at pp. 1024–1025, 266 Cal.Rptr. 271.)

In 1990, Division Five of the Second District disagreed with their brethren's holding in Jones and accepted the holding in Castillo.  (People v. Crockett (1990) 222 Cal.App.3d 258, 263, 271 Cal.Rptr. 500.)  “[I]n 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.”  (Ibid.)  The court noted 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.)   The court concluded that, where there is no evidence to the contrary, the reasonable inferences which can be drawn from an abstract of judgment are sufficient evidence to support a finding that the defendant served and completed the term of imprisonment.  (Id. at pp. 266–267, 271 Cal.Rptr. 500.)   The First District thereafter endorsed the holdings in Castillo and Crockett and rejected Jones and Green.  (People v. Elmore (1990) 225 Cal.App.3d 953, 959, 275 Cal.Rptr. 315.)

2. ABSTRACT PROVIDED SUFFICIENT EVIDENCE

When the sufficiency of the evidence is challenged on appeal, “[a]n appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”  (People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649;  accord People v. Pensinger (1991) 52 Cal.3d 1210, 1237, 278 Cal.Rptr. 640, 805 P.2d 899.)  “[C]ircumstantial evidence is as sufficient as direct evidence to support a conviction.”   (People v. Bloom (1989) 48 Cal.3d 1194, 1208, 259 Cal.Rptr. 669, 774 P.2d 698.)

Herein, the prosecution introduced an abstract of judgment which reflected that defendant was committed to state prison for a sixteen month term on August 19, 1986.   This abstract established that defendant had been convicted, sentenced and imprisoned for the prior offense.   Since defendant committed the current offense in 1990, the trial court could reasonably infer that defendant had not remained free of custody for five years.   In addition, the abstract of judgment provided substantial evidence to support an inference that defendant had completed his prison term.   No conflicting inference could be deduced from the record.   We therefore conclude that substantial evidence supported the trial court's finding that defendant had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).   In doing so, we reject Jones and follow Castillo.

CONCLUSION

The judgment is affirmed.

CAPACCIOLI, Acting Presiding Justice.

PREMO and ELIA, JJ., concur.