People v. Langston
| Decision Date | 09 April 2003 |
| Docket Number | No. C037845.,C037845. |
| Citation | 132 Cal.Rptr.2d 617,107 Cal.App.4th 959 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Walter Shane LANGSTON, Defendant and Appellant. |
Robert D.McGhie, under appointment by the Court of Appeal, Forest Ranch, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General and Janis Shank McClean, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Walter Shane Langston was convicted by a jury of first degree burglary (Pen.Code, §§ 459, 460, subd. (a); further undesignated statutory references are to the Penal Code) and receiving stolen property (§ 496, subd. (a)). The trial court found defendant had served three prior prison terms within the meaning of section 667.5, subdivision (b). The trial court imposed the upper term of six years for the burglary, the upper term of three years for the receipt of stolen property to be stayed pursuant to section 654, and three consecutive one-year terms for the prior prison terms with one of those terms stayed pursuant to section 667.5, subdivisions (d) and (g), for an aggregate prison term of eight years.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071.) After a review of the record, we directed counsel to submit briefing on whether defendant's prior prison term served for conviction of section 4530, subdivision (b) [escape] constitutes a separately served prison term within the meaning of section 667.5, subdivision (b), and if so, whether the trial court had the authority to stay the one-year enhancement after having found the prior prison term allegation true.
Defendant also filed a supplemental brief contending the trial court: (1) violated his due process rights by allowing the information to be amended to add allegations of prior felony convictions; (2) improperly made dual use of his prior convictions to impose both upper term and consecutive sentences; (3) failed to instruct the jury on perjury; (4) did not find his 1999 prior conviction true and based its finding of his 1992 prior conviction true on insufficient evidence.
We find the issues raised in defendant's supplemental brief lack merit. We conclude, however, that the trial court improperly found true the one-year prior prison term enhancement for defendant's 1994 escape conviction. Therefore, we shall modify the judgment to strike the enhancement.
The record indicates that the trial court found defendant had served three prior prison terms within the meaning of section 667.5, subdivision (b). Although the court imposed the one-year enhancements for defendant's 1992 and 1999 prior prison terms, it stayed the one-year enhancement as to the prior prison term for defendant's 1994 section 4530, subdivision (b) [escape], conviction "pursuant to section 667.5 [subdivisions (d) and (g) ]." It stayed the enhancement because, while it found it was "a legitimate conviction in that he was convicted of the offense on the date indicated on the count ... indicated" and that he did serve the state prison sentence, it was unclear whether the term was "separately served."
Section 667.5, subdivision (b) provides for an enhancement of the prison term for a new offense of one year for each prior separate prison term served for any felony, except those previous prison terms unavailable for enhancement by operation of the five-year "washout" period. Once the prior prison term is found true, the imposition of the additional one-year term is mandatory unless stricken. (See People v. Jones (1992) 8 Cal.App.4th 756, 758, 10 Cal.Rptr.2d 502; People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1122-1123, 231 Cal.Rptr. 387.) Thus, once the prior prison term is found true within the meaning of section 667.5, subdivision (b), the trial court may not stay the one-year enhancement.
The question presented in this case is whether defendant's prison term for nonviolent escape from prison is a separate prison term within the meaning of section 667.5, subdivision (b). For the reasons that follow, we conclude it is not.
Subdivisions (b), (d) and (g) of section 667.5 require that, in order to qualify for the enhancement, the prison terms must be served separately. Specifically, section 667.5, subdivision (d), provides:
Subdivision (g) of section 667.5 provides: "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." (Italics added.)
The plain language of subdivision (g) indicates that after a defendant is committed to state prison, additional concurrent or consecutive sentences imposed in the same or subsequent proceedings are deemed to be part of the same prison term, including any reimprisonment after an escape from incarceration. (See People v. Burke (1980) 102 Cal.App.3d 932, 943-944, 163 Cal.Rptr. 4.) The statute does not distinguish between reimprisonments after escape which are and are not accompanied by a new commitment. The plain language of subdivision (g) is made even more clear upon consideration of its history.
As originally enacted in Statutes 1976, chapter 1139, section 268, section 667.5, subdivision (g) read as follows: "A continuous completed period of prison incarceration imposed for the particular offense alone or in combination with sentences for other counts or sentences to be served concurrently or consecutively therewith including any reimprisonment on revocation of parole or new commitment for escape from such incarceration shall be deemed a single prior separate term for the purposes of this section." (Italics added.) The Legislature then amended section 667.5, subdivision (g) in Statutes 1977, chapter 165, section 13, to its current form, to differentiate between a mere revocation of parole and the revocation of parole which is accompanied by a new commitment. (See In re Kelly (1983) 33 Cal.3d 267, 271, 188 Cal.Rptr. 447, 655 P.2d 1282.) The purpose of the amendment was to provide for an enhancement when a prisoner is returned to prison on revocation of parole and, at the same time, is incarcerated for a new offense. (Ibid.)
As noted by our Supreme Court, in contrast to the provision regarding parole revocation, (In re Kelly, supra, 33 Cal.3d at p. 271, fn. 4, 188 Cal.Rptr. 447, 655 P.2d 1282, italics added.) Thereafter, in explaining the application of subdivision (g) surrounding a parole revocation, the court commented that, "[I]f the person was returned to prison to finish term, for a parole violation or with a new commitment for escape, the period will count as a single prior prison term." (Id. at p. 276, 188 Cal.Rptr. 447, 655 P.2d 1282.) While much of the relevant language in In re Kelly is dicta, we find it well reasoned and persuasive. (See Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 297, 262 Cal.Rptr. 754 [].)1
Other courts have relied upon section 1170.1, subdivision (c), to reach the opposite conclusion. In People v. Carr (1988) 204 Cal.App.3d 774, 251 Cal.Rptr. 458, the court concluded that "[a]ny new prison sentence imposed on a new escape conviction would not constitute reimprisonment within the meaning of [section 667.5] subdivision (g)." (Id. at p. 780, fn. 8, 251 Cal.Rptr. 458.) In reaching that conclusion, the court relied on section 1170.1, subdivision (c), which provides in part: "In the case of any person convicted of one or more felonies committed while the person is confined in a state prison or is subject to reimprisonment for escape from custody and the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all the convictions that the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison." (See also People v. Carr, supra, 204 Cal.App.3d at pp. 780-781, 251 Cal.Rptr. 458.) Thus, the Carr court concluded the term is, therefore, a separate, "`continuous completed'" term, which is available for...
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