Violent Felony with Prior Pris. Term (PC 667.5)
Category > Violent Felony with Prior Pris. Term (PC 667.5)
Updated 7/12/2024Section 1172.75 applies to prior prison term enhancements that were imposed and stayed.The trial court erred in finding defendant was ineligible for resentencing because the Penal Code section 667.5(b) enhancements were imposed, but stayed.id: 28320
Updated 3/6/2024SB 136 applies retroactively to all cases not yet final as of it’s January 1, 2020 effective date.Senate Bill 136, which eliminates Penal Code section 667.5, subd. (b) prior prison term enhancements for crimes other than sexually violent offenses applies retroactively to all cases not yet final as of its January 1, 2020 effective date.id: 26532
Updated 3/6/2024SB 136, which invalidates the one-year prior prison term enhancement applies to cases not final on appeal as of its effective date.SB 136, which invalidates the one year prior prison term enhancement under Penal Code section 667.5 (b), effective Jan. 1, 2020 was applied retroactively to defendant’s case that would not be final on appeal by the effective date. The matter was remanded with directions to strike the enhancement.id: 26593
Updated 3/6/2024Defendant’s prior prison term enhancement was stricken pursuant to SB 136.Defendant’s prior prison term enhancement under Penal Code section 667.5, subd. (b) was stricken due to the recent legislation (SB 136) which applied to defendant’s case that was not final on the date the law became effective.id: 26652
Updated 3/6/2024SB 136, which limits the prior prison term enhancement to sexually violent offenses, applies to case not yet final on appeal.SB 136 amended Penal Code section 667.5, subd. (b) to limit the one-year prior prison term enhancement to sexually violent offenses. It applied to defendant’s case that was not yet final on appeal. Because defendant’s prior prison term was for spousal abuse, not a sexually violent offense, the one-year enhancement could not be imposed, and it was stricken.id: 26672
Updated 3/4/2024SB 136, which eliminates the prior prison term enhancement in most cases applies retroactively to non-final judgments.Senate Bill 136, which eliminated the Penal Code section 667.5 (b) enhancement for all prior prison terms except those based on sexually violent offenses, applies retroactively to non-final judgments. On remand, the enhancement must be stricken, and the prosecution must be given an opportunity to withdraw from the plea agreement. The trial court may not impose a longer sentence than the original term if a new plea agreement is entered.id: 27120
Updated 3/4/2024Section 1172.75 requires a full resentencing for every defendant serving time on an abstract of judgment that includes a now invalid section 667.5(b) enhancement regardless of whether the enhancement was stayed or executed.The CDCR identified defendant as a candidate for resentencing under Penal Code section 1172.75, but the trial court corrected the original sentence by striking a section 667.5(b) enhancement that had been stayed originally, and thus concluding resentencing was unnecessary. Section 1172.75 applies in cases like this where the abstract on which an inmate is correctly serving time includes one or more section 667.5(b) enhancements that were previously imposed but stayed. Resentencing was required.id: 28133
Updated 3/4/2024The CDCR’s request for resentencing under section 1172.75 gave the trial court jurisdiction even though defendant had earlier filed an unauthorized request.Defendant wrote directly to the trial court requesting a resentencing. The court had no legal authority to entertain such a request. Thereafter, the CDCR identified defendant as an appropriate candidate for resentencing pursuant to Penal Code section 1172.75. The court had jurisdiction to resentence defendant even though he had earlier filed the improper request.id: 28135
Updated 3/4/2024The trial court had jurisdiction to resentence defendant under section 1172.75 even after he filed a notice of appeal.The trial court resentenced defendant and dismissed the prior prison term pursuant to Penal Code section 1172.75. The defense had requested a full resentencing and filed a notice of appeal. Section 1172.75 provides an exception to the general rule and vests the trial court with jurisdiction to conduct a resentencing hearing while an appeal is pending. The case had to be remanded for a new sentencing hearing anyway because defendant was not present at the sentencing hearing and did not validly waive his presence.id: 28153
Updated 3/4/2024The trial court was required to conduct a full resentencing under section 1172.75 despite the terms of the plea agreement and the prosecution could not withdraw the plea if the court further reduced the term.The trial court recalled defendant’s sentence pursuant to Penal Code section 1172.75 and struck his one year prison prior. It declined to conduct a full resentencing because defendant was sentenced pursuant to a plea agreement. However, section 1172.75 required the court to conduct a full resentencing, and the prosecution was not entitled to withdraw its assent to the plea bargain if the court further reduced the term.id: 28159
Updated 3/4/2024The trial court erred in failing to conduct a full resentencing after striking the previously stayed prior prison term enhancements.Defendant moved to strike four prior prison term enhancements under Penal Code section 1172.75, and requested a full resentencing from the 2013 case. The trial court struck the previously stayed enhancements but erred in failing to conduct a full resentencing.id: 28174
Updated 2/26/2024SB 136 applies retroactively and rendered defendant’s plea bargain unenforceable. Defendant entered into a guilty plea that provided for a six year prison sentence. The term included two prior prison terms under Penal Code section 667.5 (b). Senate Bill 136 later amended section 667.5 (b) in a way that prevented its application to the current charges. The provision is retroactive and rendered the plea bargain unenforceable. The parties may enter into a new bargain, but if they do, the prison term may not exceed six years.id: 27320
Updated 2/23/2024The trial court struck the four one-year enhancements following SB 136, leaving the remaining sentence intact, and defendant was not required to obtain a certificate of probable cause to challenge the sentence.Defendant entered into a plea deal in 2018 that included a stipulated term of 10 years in prison. However, the court struck four one-year terms imposed under Penal Code section 667.5 (b), following SB 136, which limited the imposition of the prior prison term enhancement to prison terms resulting from convictions for sexually violent offenses. No certificate of probable cause was required to appeal the enhancements since the new law eliminated application of the enhancement. On remand, the trial court had to strike the four one-year terms and could not rework the sentence to impose a new term close to the original sentence.id: 26775
Updated 2/22/2024SB 136, which eliminates the prior prison term enhancement in most cases, rendered defendant’s plea agreement unenforceable.Defendant pled no contest and admitted the use of a firearm, and that he previously served a prison term. The plea agreement was unenforceable following the passage of SB 136 eliminating the Penal Code section 667.5 (b) prior term enhancement for most purposes. The parties may enter into a new plea agreement, but if they do, the court may not impose a longer sentence than it did in the original agreement.id: 27122
Updated 2/22/202410-year term following plea agreement was vacated following SB 136, which precluded the imposition of the prior prison term enhancement.Defendant entered a plea negotiation in which he agreed to a 10-year term. The 10-year term included the imposition of two prior prison term enhancements (Penal Code section 667.5 (b)). The Legislature subsequently enacted SB 136, which effectively precluded the use of those enhancements in defendant’s case. The sentence was vacated and the case remanded so that the prosecution could agree to modify the bargain to reflect the reduced term, or choose to withdraw from the original plea agreement.id: 27046
Updated 2/7/2024Defendant was entitled to retroactive application of SB 136 and no remand was required.SB 136, which eliminates one year prior prison term enhancements in most cases applies retroactively to all case that were not final at the time of its enactment. The prosecution argued the proper remedy was a remand to allow it to accept the lower term or abandon the plea bargain. However, defendant was entitled to the benefit of AB 136 and no remand was necessary.id: 27139
Updated 2/4/2024Defendant’s prior prison term enhancements were stricken where the judgment was not yet final when SB 136 became operative. A convicted defendant who is placed on probation after imposition of sentence is suspended and who does not timely appeal from the order granting probation may take advantage of ameliorative statutory amendments that take effect during a later appeal from a judgment revoking probation and imposing sentence. This also applies where the court suspended the sentence’s execution on appeal to it imposition. Defendant’s one-year enhancements under SB 136 were unauthorized and stricken. id: 27264
Updated 2/4/2024Defendant was entitled to application of SB 136 to strike his prison prior where the execution of his sentence had been suspended but the court could also withdraw its approval of the plea.The trial court erred in denying defendant’s motion to strike his one-year prior prison term enhancement under SB 136. His case was not yet final because the judgment had been imposed by the court suspended execution of the sentence. The case was remanded to allow the court the opportunity to approve of the plea in light of the new law.id: 27368
Updated 2/3/2024The trial court erred in refusing to strike the prior prison term enhancement after SB 136, and the remainder of the plea could remain intact where the parties did not agree to a stipulated sentence.Defendant pled guilty to a weapons violation and admitted a prior prison term enhancement under Penal Code section 667.5(b). The court later erred in failing to strike the prior prison term enhancement following the enactment of Senate Bill 136. Striking the enhancement while maintaining the remainder of the plea agreement would not deny the prosecution the benefit of their agreement because the parties entered into an open plea agreement rather agreeing to a stipulated sentence.id: 27437
Updated 2/3/2024SB 136 applies retroactively to a defendant whose appeal was not final when the law becomes effective.SB 136 amends Penal Code section 667.5, subd. (b), and allows for a one-year prior prison term enhancement only where the defendant served a prior prison term for a sexually violent offense. The law does not become effective until Jan. 1, 2020, and applies retroactively to defendants whose sentences are not yet final on appeal. Since defendant will not have exhausted his appellate rights by that time, the new law applies to defendant and the four one-year enhancements imposed under section 667.5 (b) were stricken.id: 26517
Where two prior convictions were reduced to misdemeanors under Prop 47 before sentencing, those offenses could not be used as prior prison term enhancements, and neither could earlier priors where the Prop 47 ruling activated the 5 year “washout” provision.Two prior prison term enhancements under Penal Code section 667.5(b) were imposed erroneously because the convictions on which they were based had been reclassified as misdemeanors under Prop 47 before sentencing. Since they were to be misdemeanors for all purposes the convictions no longer met the elements required for section 667.5(b). Additional enhancements were imposed for other prior felonies that had not been reclassified. Some occurred before the felonies that were reclassified. The enhancements based on the earlier prior prison terms had to be reversed as well. The “washout” provision of section 667.5(b) applied because the reduction of the two felonies to misdemeanors resulted in a period exceeding five years during which he was free of felony convictions.id: 25940
The three prior prison term enhancements based on felonies previously reduced to misdemeanors should have been stricken.At the time defendant’s prior convictions were adjudicated as prior prison terms, the charges on which the prison terms were based had already been reduced to misdemeanors for all purposes so they were no longer prior felony convictions.id: 25044
Where the prior convictions were reduced to misdemeanors under Prop 47 before sentencing on the current case, the prior prison term enhancements could not be imposed.Even though defendant’s prior convictions were felonies when she committed the new offenses, and even though the Penal Code section 667.5, subd.(b) prior prison term allegations were adjudicated prior to the convictions being reduced to misdemeanors, the reductions occurred before her current sentencing. Since, at the time of the sentencing, the priors were no longer felonies, the prior prison term enhancements could not be imposed.id: 25160
The trial court erred by imposing a prison prior enhancement because he had not completed his prison term at the time he committed the current offense.The trial court’s finding concerning defendant’s fifth prison prior (Penal Code section 667.5, subd.(b)) was not supported by the evidence because defendant was still serving his sentence for the prior offense at the time the current offenses were committed. The trigger date for a prison prior is the date the new offense was committed.id: 23529
The trial court erred by imposing the prior prison term enhancements in both cases. The charging documents in two cases alleged the same three prior prison terms as enhancements under Penal Code section 667.5, subd.(b). Prior prison term enhancements are “status” enhancements which can be imposed only once, on the aggregate sentence. id: 22194
One year prior prison term enhancements could not be imposed where the sentencing court also used defendant’s three priors to impose the upper term.The trial court erred when it used defendant’s three prior convictions to impose the aggravated term and also to increase his sentence by three years under Penal Code section 667.5, subd.(b).id: 20702
Prior prison term enhancement is improper where the prior conviction was found to have been unconstitutional.The trial court erred when it imposed an enhancement for service of a prior prison term pursuant to Penal Code section 667.5, subdivision (b) which appellant would not have served were it not for an unconstitutional conviction. Whether appellant was or was not guilty of the underlying offense is irrelevant in determining whether the unconstitutional conviction can form the basis of the enhancement.id: 14024
The one year prior prison term enhancement that was not imposed should have been stricken rather than stayed.Appellant was convicted of burglary and admitted two prior serious felony convictions and having served two prior prison terms (Penal Code sections 667, subdivision (a), and 66.75, subdivision (b)). The court erred in staying the second prior prison term enhancement. If such an enhancement is not imposed, it must be stricken.id: 14032
Trial court erred in twice enhancing defendant's sentence on the basis of the same prior prison term served (once for each count of sale of cocaine base).The Penal Code section 667.5, subd. (b) prior prison term enhancements alleged by the People and found true and imposed by the trial court with respect to the two counts of sale of cocaine base both referred to the same prior prison term. However, since defendant served only one prior prison term, only one enhancement should have been alleged. The second enhancement should have been stricken by the trial court instead of having been imposed and then stayed.id: 14034
Court erred in imposing two prior prison term enhancements because both were the result of one continuous period of confinement.The trial court erred in sentencing defendant to two one year prior prison term enhancements because both were the result of one continuous period of confinement in state prison. Penal Code section 667.5, subdivision (b) provides that an additional one year enhancement for a prior prison sentence may only be imposed for each earlier separate prison term served for any felony.id: 14014
A period of confinement at CRC does not subject appellant to the prior prison term enhancement.Presentation of appellant's rap sheets was insufficient to prove he served a prison term for purposes of Penal Code section 667.5, subdivision (b). The booking sheets merely show arrests, not dispositions. The rap sheets attached to the probation reports showed no prison commitments, but did show that he was placed in the California Rehabilitation Center in an involuntary commitment. However, a period of confinement at CRC does not subject appellant to the section 667.5 enhancement.id: 14010
CYA commitment does not constitute a prior prison term for enhancement purposes.A direct commitment of a youthful offender to the California Youth Authority pursuant to Welfare and Institutions Code section 1731.5, subd. (a) does not constitute a prior prison term within the meaning of Penal Code section 667.5, subd. (b).id: 14018
Enhancement for prior Ohio prison term was reversed where there was no showing that defendant served a year in custody.Defendant's prior prison term under Penal Code section 667.5 based upon a 1982 Ohio conviction was not supported by substantial evidence. There was nothing in the record to show whether the Ohio court's reference to a term of "not less than " 18 months referred to a mandatory minimum term, or whether Ohio law offers custody credits or permits early parole, or whether there was any provision that might have permitted a release before completing one year of the sentence imposed.id: 14019
Only one prison term enhancement was proper where two terms were served concurrently.Defendant received two one-year prison terms served concurrently. One of the terms was imposed upon a violation of probation and the other was for the crime which constituted the probation violation. Regardless of the relationship between the two sentences, defendant served only one block of time, and thus only one enhancement under Penal Code section 667.5, subdivision (b) was proper.id: 16241
Court erred in finding true the prior prison term enhancement which was based on a federal conviction for possession of counterfeit currency.The trial court erroneously found defendant's prior federal conviction for possession of counterfeit U.S. currency supported the prior prison term enhancement under Penal Code section 667.5, since the elements did not satisfy a comparable California felony that would support the enhancement.id: 15097
Trial court committed reversible error by refusing to allow defendant to represent himself because the case was "a death penalty murder trial."The trial court denied defendant's request for self-representation because it was a capital case. The Attorney General argued on appeal that the request was equivocal. However, even if it was equivocal, the court's response foreclosed any reasonable possibility defendant would view self-representation as an available option. Moreover, the option was timely where the court had previously indicated it was going to continue the trial due to the anticipated appointment of new counsel. The conviction was reversed.id: 17275
Prior prison term enhancement was erroneously imposed where present offense took place six years after defendant's release from prison. The trial court erroneously rendered a true finding on a Penal Code section 667.5, subd.(b) prior prison allegation where the offense was committed more than five years after defendant's release from prison.id: 17232
Trial court erred by imposing a prior prison term enhancement for a term that had been stayed.The evidence did not support the finding that defendant served the prison term for the robbery conviction for purposes of the section 667.5, subd.(b) enhancement. Defendant had been convicted and sentenced for a robbery and burglary, and since the term for the robbery was stayed, it could not be used for the prior prison term enhancement.id: 18333
Prison term may not be enhanced both for a prior conviction and for a prior prison term imposed for that conviction.Penal Code section 667 prior serious felony conviction enhancements and section 667.5, subdivision (b) prior prison term enhancements cannot separately be imposed for a prior serious felony conviction and the prior prison term served therefor. When multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one will apply.id: 13976
Single prior robbery conviction cannot support a section 667 and a section 667.5, subdivision (b) enhancement.Based on a single prior conviction for robbery in 1986, defendant's sentence was enhanced under both Penal Code section 667 (5 year prior serious felony enhancement) and section 667.5, subdivision (b) (prior prison term). However, in such a case only the greater enhancement of five years under section 667 for the robbery was proper. The lesser enhancement must be stricken.id: 13980
Updated 7/12/2024The trial court did not err in rejecting a lesser sentence after dismissing defendant’s prison prior given his history as an armed robber who participated in a prison riot and didn’t appear at his sentencing.At defendant’s resentencing hearing under Penal Code section 1172.75 (invalidating prior prison term enhancements) the court found the imposition of a lesser term would endanger public safety. That finding was supported by evidence including the nature of the offense (armed robbery), multiple prior convictions of increasing seriousness, his failure to appear at sentencing and his earlier participation in a prison riot.id: 28306
Updated 6/1/2024If the trial court goes beyond dismissing the prison priors at an SB 483 resentencing, the prosecution may not withdraw from the plea.Senate Bill 483 not only invalidated defendant’s prison priors, it mandated a full resentencing hearing. If the trial court reduced the sentence beyond dismissing the prison priors the prosecutor cannot withdraw from the plea agreement due to any sentence reduction at the hearing, even one due to enactments other than SB 483.id: 28274
Updated 3/19/2024Defendant was not entitled to resentencing under the Three Strikes Reform Act as part of his resentencing under SB 483.In 2008, the trial court sentenced defendant to 25 years-to-life under the Three Strikes Law plus one year for a prison prior under Penal Code section 667.5(b). In 2022, he appeared for resentencing so the court could strike the one year enhancement under newly enacted SB 483. Contrary to defendant’s argument, the trial court did not err in failing to apply the revised penalty provisions of the Three Strikes Reform Act of 2012.id: 28213
Updated 3/4/2024The trial court erred in refusing to strike the prior prison term enhancement after SB 136, and the remainder of the plea could remain intact where the parties did not agree to a stipulated sentence. Defendant pled guilty to a weapons violation and admitted a prior prison term enhancement under Penal Code section 667.5(b). The court later erred in failing to strike the prior prison term enhancement following the enactment of Senate Bill 136. Striking the enhancement while maintaining the remainder of the plea agreement would not deny the prosecution the benefit of their agreement because the parties entered into an open plea agreement rather agreeing to a stipulated sentence.id: 27489
Updated 3/4/2024The new provision that finds enhancements imposed for prior prison terms are invalid applies only where the priors were imposed and executed.Penal Code section 1172.75 provides that enhancements imposed under section 667.5(b) for offenses other than sex offenses are invalid. This applies only to sentences that were imposed and executed, and doesn’t apply to enhancements that were imposed and stayed.id: 28125
Updated 3/4/2024Section 1172.75 resentencing provision could not help three strike offenders (even those whose current offense was not serious) whose petitions under the Reform Act were denied.Defendant serving a life sentence under the three strikes law petitioned for relief under the Three Strikes Reform Act in 2015. However, his petition filed under Penal Code section 1170.126 was denied after the court found resentencing would pose an unreasonable risk to public safety. In 2023, he moved to have his prior prison term struck under section 1172.75. However, section 1172.75’s ameliorative provisions could not amend the Reform Act because they were not passed by a two-thirds majority.id: 28160
Updated 2/26/2024Defendant was entitled to seek the retroactive benefit of an ameliorative statute on appeal from an order revoking supervision.The trial court imposed a split sentence on defendant who was convicted of various offenses. He violated the terms of his supervision, the court revoked supervision and ordered him to spend the rest of his term in jail. He was entitled to have the two one-year prison priors stricken from his sentence due to a change in the law (SB 136) that occurred after his sentencing.id: 27005
Updated 2/24/2024Defendant was entitled to retroactive application of SB 136.SB 136 amended Penal Code section 667.5(b) to allow the imposition of a one year enhancement for a prior prison term only if the prior conviction involved a sexually violent offense. The new law applied to defendant’s case since it was not yet final when the new law became effective.id: 26634
Updated 2/1/2024The CDCR, and not defendants, must initiate the action to resentence a defendant under SB 483.Years after defendant’s case became final the Legislature changed the enhancement laws invalidating the one year Penal Code section 667.5(b) prison priors and giving the courts discretion to dismiss the five year serious felony priors under section 667(a). Defendant filed a pro per petition for resentencing under SB 483. However, his petition was properly denied as the law requires that the action be initiated by the CDCR.id: 27909
Updated 1/31/2024A defendant may not directly petition a court to dismiss a prior prison term enhancement.Penal Code section 1172.75 invalidated defendant’s prior prison term enhancement. However, that provision did not authorize defendant to petition the court directly and the proper procedure is to await a referral of the case by the CDCR. Moreover, the trial court did not err in denying the petition on its merits as defendant was not serving a current term that included a Penal Code section 667.5(b) enhancement. Rather, that term had expired and he was serving additional time for an offense committed while in prison.id: 28045
Section 667.5, subd.(b) enhancement should only have been imposed once on the aggregate term. Defendant pled guilty to several drug charges in three cases. The Penal Code section 667.5, subd.(b) prior prison term enhancement was a status enhancement that should only have been imposed once on the aggregate term. The second set of enhancements should not have been imposed and were stricken.id: 25825
The trial court properly imposed the prior prison term enhancements to both the determinate and indeterminate sentences. A trial court may impose prior prison term sentence enhancements under Penal Code section 667.5, subd.(b), separately to an indeterminate term and a determinate term of imprisonment as part of the defendant’s aggregate sentence.id: 25639
Prop 47 applies to prior prison term enhancements in cases that have not yet become final.Defendant argued that he improperly received a one year Penal Code section 667.5, subd.(b) enhancement for an offense the trial court designated a misdemeanor shortly after imposing the enhancement. Under the rule set forth in In re Estrada (1965) 63 Cal.2d 740, Prop 47 applies to section 667.5, subd.(b) enhancements in judgments that have not yet become final.id: 25024
The trial court did not err by refusing to strike the prior prison term enhancement after reclassifying a felony as a misdemeanor under Prop 47.A previously imposed sentence enhanced by a Penal Code section 667.5 subd.(b) prior prison term is not altered by the granting of a Prop 47 petition to reduce the felony that gave rise to that prior prison term to a misdemeanor.id: 25100
Once the court resentenced defendant’s 2011 conviction as a misdemeanor under Prop 47, he no longer qualified for the one year prior prison term enhancement for that conviction.Before sentencing, the trial court recalled defendant’s 2011 felony sentence and resententenced him to a misdemeanor. Since he no longer had the prior felony when sentenced in the present case, the court erred by imposing a one year prior prison term enhancement for the earlier prior.id: 24660
Defendant who was on sheriff’s parole at the time of his arrest for a new offense was subject to a prior prison term enhancement. Defendant was arrested while on sheriff’s parole as part of a split sentence. The trial court properly applied the Penal Code section 667.5, subd.(b) prison prior enhancement based on the earlier conviction.id: 24584
The redesignation of a felony as a misdemeanor under Prop 47 did not affect the validity of the prior prison term enhancement attached to the offense. The Penal Code section 667.5, subd.(b) prior prison term enhancement remained valid even though the felony that produced the prison term was later redesignated as a misdemeanor under Prop 47.id: 24577
Section 1170.18 does not provide for retroactive redesignation, dismissal or striking of final pre-Prop 47 sentence enhancements based on priors that were reduced to misdemeanors under Prop 47. Defendant moved to dismiss a one year prison prior enhancement imposed at his 2013 sentencing. He argued that because, after his sentencing, he obtained a Prop 47 order reducing his 2004 conviction on which the prison prior enhancement was based from a felony to a misdemeanor, the trial court should have stricken or dismissed the enhancement. However, Penal Code section 1170.18 doesn’t provide for retroactive redesignation, dismissal, or striking of final pre-Prop 47 sentence enhancements based on prior convictions that are subsequently reduced from felonies to misdemeanors under section 1170.18.id: 24526
After granting Prop 36 relief, the trial court was not limited to resentencing on the base offense, and properly imposed a sentence for the previously stricken prison term enhancement.The trial court granted defendant relief under the Three Strikes Law Reform Act, but resentenced him on other charges and the prior prison term enhancement, which had been stricken during the original sentencing proceeding in light of the third strike life sentence. Contrary to defendant’s claim, the trial court was not limited to resentencing defendant on the base offense.id: 24530
The prior prison term enhancement under section 667.5, subd. (b) was properly applied where defendant had been sentenced before Prop 47 became effective.Defendant was convicted of receiving stolen property in 2012 and served a prison term for the offense. In the present case, her sentence was enhanced under Penal Code section 667.5, subd.(b) because of that prison prior. Contrary to defendant’s claim, the enactment of Prop 47 (making receipt of certain stolen property a misdemeanor) after the sentencing did not require the trial court to strike the prison prior. The offense was a felony at the time she was sentenced and she had served a prison sentence for that offense, so the prior prison enhancement was properly applied.id: 24510
The case was remanded back to the trial court after it forgot to conduct a trial on the prior prison term allegation. Defendant waived his right to a jury trial on a prior prison term enhancement allegation, but no court trial was held after the conviction. The matter was remanded for a court trial on the allegation.id: 23999
Recidivism enhancements were properly added to each count for a second strike offender under the three strikes law. Defendant was convicted of several counts stemming from a shooting incident including possession of a firearm by a felon and attempting to elude a pursuing officer. He argued the trial court erred by adding enhancements for prior prison terms (Penal Code section 667.5) and prior serious felony (section 667, subd.(a)) for both of those counts because the enhancements should only have been added once - to the base term. However defendant was convicted and sentenced under the three strikes law and the intent of the law was to impose recidivism enhancements for every qualifying offense for both second and third strikers.id: 24006
The trial court should stay the section 667.5, subd.(b) enhancement after imposing the term under section 667, subd.(a) where both enhancements were based on a single prior prison term. Where a defendant has served a prior prison term for a felony conviction and that term is alleged and proved as an enhancement under Penal Code section 667.5, subds. (a) and (b), after imposing the enhancement under subdivision (a), the court should stay (rather than strike) the enhancement under subdivision (b).id: 23534
The trial court erred by imposing a five year enhancement for a prior that gave rise to a prison term. The trial court erred by imposing both a consecutive five year enhancement under Penal Code section 667, subd.(a)(1) for the felony conviction which gave rise to the prior prison term, and the one year enhancement under section 667.6, subd.(b) for that prior prison term. The court should have stricken rather than stayed the one-year enhancement.id: 22187
Defendant needed a certificate of probable cause to challenge his admission to a prior prison term allegation.Defendant argued that he did not knowingly and intelligently waive his constitutional rights when he admitted a prior prison term allegation after the jury convicted him on the underlying offense. However, his failure to obtain a certificate of probable cause rendered the claim noncognizable on appeal.id: 21281
Defendant’s confinement in county jail after parole revocation qualified a “prison custody” for purposes of the section 667.5, subd.(b) prior prison term enhancement. Defendant argued that his three earliest prior prison terms could not be used to enhance his current sentence because he had remained free of prison custody for a continuous five year period as required by Penal Code section 667.5, subd.(b). He claimed that a parolee who is not in state prison or a DCR facility after parole revocation is not in “prison custody” under section 667.5, subd.(b). However, whether a parolee has remained free of prison custody depends on whether he has either remained on parole without revocation or has been discharged from custody, preceding the required continuous five year period. Defendant was permitted to raise this challenge in a habeas petition without having raised it in the previous appeal since it involved a possible act in excess of the court’s jurisdiction.id: 21243
The sentencing court was required to impose the section 667.5, subd.(b) prior prison term enhancements as to each count or strike them under section 1385. The sentencing court had a duty to either impose or strike the Penal Code section 667.5, subd.(b) one year prior prison term enhancements. The number of possible one year enhancements will depend on whether the current offense is a serious felony. If so, the one year term should not be imposed because the section 667, subd.(a) five year enhancement must instead be imposed.id: 20655
The trial court did not violate Blakely by imposing the upper term based on a prior prison term where defendant waived jury trial on the priors and the court made the finding beyond a reasonable doubt.The trial court sentenced defendant to the upper term for a drug possession charge based on a number of factors, including the court's finding beyond a reasonable doubt, that he suffered a prior prison term. Imposition of the upper term did not violate Blakely v. Washington (2004) 124 S. Ct. 2531, since defendant waived his right to a jury trial, and the issue was decided beyond a reasonable doubt. Nor was there a problem with an overlap between the aggravating factor used to impose four one-year prior prison term enhancements, after finding that five such enhancement allegations were true. One prison term alone was a sufficient aggravating circumstance to allow the court to impose the upper term.id: 18109
The trial court can properly impose two section 667.5, subd.(b) enhancements where defendant escapes while serving one term and is later convicted of and sentenced for the escape.While in prison for a felony conviction, defendant escaped. He was caught and convicted of the felony escape. He was returned to prison to complete his sentence on the original crime and to serve his sentence for escape. After his release he was convicted of yet another felony. For purposes of the Penal Code section 667.5, subd.(b) prior prison term enhancement, the defendant served two terms - one for the original crime and the second for the escape.id: 18034
To avoid the washout provision of the prior prison term enhancement the prosecution need prove either defendant committed a new offense or was in prison custody within five years of the new offense.In order for the prosecution to avoid application of the five year "washout" provision of the Penal Code section 667.5, subd.(b) prior prison term enhancement, it is only required to prove beyond a reasonable doubt that defendant either committed a new offense resulting in a felony conviction or was in prison custody. It need not prove both elements. However, the evidence did not support the trial court's finding that the prosecutor proved facts sufficient to preclude application of the washout provision as to a prison prior where there was no evidence in the record to show the offense resulting in the 1993 conviction was committed during the five year period prior to the 1997 conviction. Double jeopardy did not bar retrial of the enhancement.id: 17708
Prosecution need not prove both elements to preclude application of the "washout" provision of the prior prison term enhancement. In order for the prosecution to avoid application of the five year "washout" provision of Penal Code section 667.5, subd.(b), it is only required to prove beyond a reasonable doubt that defendant either suffered new felony convictions or was in prison custody. Contrary to defendant's argument, the prosecution was not required to prove both elements to preclude application of the "washout" provision.id: 17641
Following Apprendi, the Fourteenth Amendment does not guarantee an accused the right to a jury trial on section 667.5 prior prison term allegations.Defendant argued he was denied the right to a jury trial because he never personally agreed to allow the trial judge to decide the validity of two prior prison term allegations. Defendant's failure to personally waive the right to a jury trial on the allegations did not amount to a state constitutional violation. Neither did it violate his federal constitutional jury trial right following <i>Apprendi</i>. <i>Apprendi</i> excepted from its ruling the "fact of a prior conviction." Defendant argued it applied since it was the prison term conviction at issue. However, defendant's interpretation of <i>Apprendi</i> was too narrow and taken out of context.id: 16404
Case was remanded where the sentencing judge failed to impose or strike the prior prison term enhancement.At sentencing, the judge imposed three of the four prison term enhancements found true by the jury but did not comment on the fourth. To neither strike nor impose the enhancement was a legally unauthorized sentence. The power to strike a prison term enhancement under Penal Code section 1385, subdivision (a) survived the adoption of the three strikes law. Effective January 1, 1998, there is no longer the authority to strike the enhancement under section 1170.1, subdivision (h). The case was remanded for the trial court to exercise discretion under section 1385, subdivision (a).id: 16239
Evidence supported prior prison term enhancement for Washington conviction where the distinctions in state burglary laws were irrelevant to defendant's actions.The evidence supported the finding the defendant's prior Washington burglary conviction constituted a burglary under California law for purposes of the prior prison term enhancement under Penal Code section 667.5, subd.(b). While a burglary in Washington does not require theft upon entry (instead, any crime suffices), and permits formation of the requisite intent after the entry, the distinctions were irrelevant where defendant entered the Washington liquor store intending to commit a theft. Moreover, Washington law may not require an intent to permanently deprive another person of the property. However, defendant clearly intended to permanently deprive the store of the liquor he stole.id: 16240
Prior prison term enhancement was proper where the court imposed a prison term but ordered defendant "housed" at CYA.Defendant argued the court erred in imposing a one-year prior-prison-term enhancement based on the period of time he spent at the CYA. However, in 1989, the court imposed a prison term but ordered that defendant be transferred to CYA for "housing". Thus the CYA commitment was a "prison term" within the meaning of Penal Code section 667.5, subd.(b).id: 16242
Separate enhancements for a prior conviction and a prior prison term for the same drug offense are proper.A prior conviction for a drug-related offense may serve as the basis for separate, consecutive sentence enhancements under both Penal Code section 667.5 and Health and Safety Code section 11370.2.id: 16243
Evidence supported the prior prison term enhancement notwithstanding that the file relied upon did not contain any prison records.Appellant argued the evidence was insufficient as a matter of law to support his prior prison term enhancement findings where the county clerk's files relied on by the court did not contain any prison records stating that appellant actually served and completed his prison terms. However, the evidence did support the conviction where appellant testified he had been convicted, been sent to prison and paroled.id: 14020
Failure to raise in the trial court the issue of the right to a jury trial on the prior prison term allegation constituted a waiver of the issue on appeal.Defendant's claim that he was deprived of his statutory right to a jury trial on the prior prison term allegations does not implicate the state or federal constitutional right to jury trial or the federal due process clause. He was therefore obligated to bring the alleged error to the attention of the trial court in order to preserve the claim for appellate review. Defendant failed to object to the discharge of the jury or otherwise indicate to the trial court his desire for jury trial of the prior prison term allegations. He was thus precluded from arguing for the first time on appeal that the trial court erred by conducting court trial on the truth of the prior prison term allegations without having first obtained from defendant an express, personal waiver of the jury trial.id: 14021
In pleading guilty to robbery appellant admitted force for purposes of the section 667.7 habitual offender provision.The prosecution alleged appellant had suffered two felony convictions which satisfied habitual offender (Penal Code section 667.7) requirements: murder and robbery involving the use of force. Appellant argued that he only pleaded guilty to robbery and that his plea only admitted the minimum requirements of the offense, namely fear not force. However, that appellant theoretically could have been convicted of robbery by fear but not by force did not negate the effect of the guilty plea which admits every element of the offense.id: 14022
Prior federal conviction for possession of stolen mail was properly used to enhance the sentence under section 667.5.Defendant argued that his prior federal conviction for possession of stolen mail could not be used to enhance his sentence because the elements of the former offense do not include all of the elements of a California felony. However, the possession of stolen mail, knowing it to be stolen, is no different from the concealment of stolen property, (which necessarily includes stolen mail) knowing it to be stolen pursuant to Penal Code Section 496, subdivision 1. That concealing stolen property may be charged as a misdemeanor is immaterial.id: 14023
Prior prison term enhancement requiring one year incarceration was satisfied where in addition to the eight months served in prison appellant was credited with one year for jail time served.Appellant argued the record failed to support the trial court's finding regarding his service of a prior prison term under Penal Code section 667.5, subdivision (b). He claimed the evidence established that he served only eight months and eight days in the Kentucky State Penitentiary, and the statute requires a continuous incarceration of one year. However, the record showed appellant was credited with one year for jail time served. Because the jail time was credited as service of prison time in the jurisdiction of confinement, it constitutes service of a prison term.id: 14025
Prison term enhancement was proven with abstract of judgment and a state prison commitment form.An abstract of judgment and a state prison commitment form considered in light of the unrebutted presumption that an official duty is regularly performed (Evidence Code section 664) constitute sufficient evidence to support a finding that a defendant completed a prior prison term for purposes of imposing the one year enhancement provided in Penal Code section 667.5.id: 14026
Proof that defendant committed a burglary three years after being sentenced to prison supported the finding that defendant served a completed prison term for enhancement purposes.The People produced documentary evidence to prove the prior prison term allegation, including the abstract of judgment for the second prior showing defendant was convicted of burglary on February 20, 1980, and sentenced to prison for two years. Documents also showed defendant was again convicted of burglary on December 27, 1982, the burglary having been committed on December 8, 1982. In order for him to have committed this burglary almost three years later, he was necessarily out of custody following his incarceration on the 1980 burglary conviction. This evidence was sufficient to support the trial court's finding that defendant served a completed term of imprisonment for his second prior conviction.id: 14027
Proposition 8 supersedes the double-base-term limitation as applied to sentence enhancements based on prior felony convictions.Article I, section 28, subdivision (f) of the California Constitution (a provision of Proposition 8) bars application of the double-the-base-term limitation of Penal Code section 1170.1, subdivision (g), to prior prison term enhancements under section 667.5, subdivision (b).id: 14028
Provision increasing the base term for a section 10851 offense by a recidivist is not an enhancement and the imposition of a prison prior in addition to the sentence was proper.Defendant argued the court erred in sentencing him under Penal Code section 666.5 for his Vehicle Code section 10851 conviction as a result of his prior conviction under that statute, while also imposing a one-year enhancement under section 667.5 for the prison term he served for the same prior conviction. Section 666.5 increases the base term for a Vehicle Code section 10851 offense by a recidivist. Defendant claimed the prior prison term enhancement (section 667.5) was invalid in light of the enhancement already imposed under section 666.5. However, section 666.5 is not an enhancement but rather an alternative sentencing scheme which provides a greater base term for recidivists. Accordingly, a one-year enhancement under section 667.5, subdivision (b) which is added to the elevated base term under section 666.5 is proper.id: 14029
Section 667.7 does not require that defendant personally committed the violations underlying his prior prison terms.Penal Code section 667.6 applies to persons who served prior prison terms based upon their liability as aiders and abetters.id: 14030
The five-year washout period for the one-year prior prison term enhancement began when defendant was released from prison and placed on parole.Imposition of a one-year enhancement pursuant to Penal Code section 667.5, subd.(b) was improper because defendant had remained free from prison for five years. Contrary to the People's position that the five-year washout period did not commence until defendant was released from parole, the period actually commenced when defendant was released from prison and placed on parole.id: 14031
Trial court erred in imposing a concurrent one year sentence for each prior prison term.Defendant admitted three state prison prior felonies pursuant to Penal Code section 667.5, subd. (b). That provision calls for mandatory consecutive one-year terms for each prior. The trial court erred in imposing a concurrent one year sentence for each prior. Moreover, there were no mitigating circumstances justifying the striking of one or more of the priors.id: 14033
Yurko error is not reversible per se.The trial court committed Yurko error in failing to advise defendant regarding his privilege against self-incrimination before accepting his admission that he had served a prison term for burglary within the preceding five years. However, the error did not require reversal where defendant was admonished as to other rights, he was actively represented by counsel, and there was a strong factual basis for the plea.id: 13998
A CYA commitment following a felony constitutes a prior prison term pursuant to section 667.7.It was alleged and proved that in 1977 appellant was convicted of second degree murder and sentenced to the California Youth Authority. He argued that such a commitment was not a prior separate prison term within the meaning of Penal Code section 667.7. It has been held that a CYA commitment does not constitute a prior prison term within the meaning of section 667.5. However, the language of section 667.7 makes clear that a CYA commitment following a felony constitutes a prior prison term for purposes of the habitual offender allegation.id: 14009
A prior used to establish the ex-felon status under section 12021 may also be used to impose the prior prison term enhancement.When a prior felony conviction is used against a defendant to establish the ex-felon element of a charge under Penal Code section 12021 (possession of a firearm by an ex-felon), the prison term resulting from that prior conviction may be used to enhance the defendant's sentence under section 667.5, subdivision (b).id: 14011
Admission of CLETS rap sheet as evidence appellant served prior prison terms was proper.The trial court properly admitted a California Law Enforcement Telecommunications System (CLETS) computer printout of appellant's criminal information history (rap sheet) under the official records exception to the hearsay rule (Evidence Code section 1280) as evidence that appellant served two prior prison terms for which his sentence was enhanced. The trial court could properly rely on judicial notice of the pertinent statutes and consider the presumption that official duty was regularly performed to satisfy itself that the record was sufficiently trustworthy.id: 14012
An abstract of judgment along with reasonable inferences from the facts can provide substantial evidence to prove defendant served and completed prison terms.In an appropriate case an abstract of judgment, along with reasonable inference from the facts, can provide substantial evidence sufficient to prove defendants served and completed prison terms. In the instant case there was no indication appellant did anything but serve and complete his prior term in the felony matter. Nothing in the record indicated that appellant escaped. There was no indication he was not released on parole, as anticipated. Presuming the authorities carried out their duties to incarcerate appellant as ordered, that he remained in custody as sentenced and appellant was released on parole as expected, appellant's crime was served and completed prior to committing the instant crime and the enhancement under Penal Code section 667.5, subdivision (b) was proper.id: 14013
Court may look to the entire record in determining whether an out-of-state prior would have been a felony in California for purposes of the prior prison term enhancement.The trial court in determining whether an out-of-state conviction would have been a felony in California for purposes of the Penal Code section 667.5, subdivision (b) prior prison term enhancement, is not restricted to simply comparing the operative foreign statute under which the defendant was convicted to the corresponding California offense to determine if the least adjudicated elements establishes the out-of-state conviction as a felony in California. Rather, the court may look beyond the statutory definition to the defendant's conduct, and determine if such conduct constitutes a felony in California.id: 14015
Court properly enhanced defendant's sentence under section 667.5 for a prison term arising out of an offense committed while serving another prison term.Defendant argued he was never physically released from incarceration for his conviction of assault before his sentence for an in-prison battery commenced, and therefore, he served only one "continuous" period of incarceration, which was "completed" upon his release from incarceration after serving the sentences on both offenses. However, when a consecutive sentence is imposed under section 1170.1, subd. (c), for an offense committed in state prison, section 1170.1 requires such sentence to commence <i>after</i> the completion of the term for which the defendant was originally imprisoned. Thus, each term is a separate, "continuous completed" term, which is available for enhancement under section 667.5 if the defendant is subsequently convicted of a felony.id: 14016
Court's failure to impose or strike the prior prison term enhancement required remand.The trial court's failure to either state that it was striking the prior prison term enhancement (Penal Code section 667.5, subdivision (b)) or to impose it was analogous to a failure to pronounce sentence on all counts. The case was remanded to allow the trial court to exercise its discretion to impose the one-year enhancement or to strike it pursuant to section 1170.1, subdivision (h).id: 14017
For purposes of imposing the section 667, subdivision (a) and section 667, subdivision (b) enhancements the underlying convictions need not be based on charges brought and tried separately and defendant need not serve separate prison terms.The trial court did not err in imposing a five-year enhancement pursuant to Penal Code section 667, subdivision (a)(1) based on defendant's prior robbery conviction, and a one-year enhancement pursuant to section 667.5, subdivision (b) based on defendant's prior conviction for second degree burglary and resulting prison term. This is so because the enhancements were based on different offenses. There was no requirement that the underlying convictions be based on charges which were brought and tried separately nor that defendant served separate prison terms for those convictions.id: 13957
Imposition of enhancements for a prison prior and serious felony prior were proper where the two priors involved separate convictions resulting from a joint trial.In <i>People v. Jones,</i> (1993) 5 Cal.4th 1142, the court held Penal Code section 654 prohibited multiple enhancements where the prior prison term and the serious felony prior enhancements were based on the same conviction. However, this holding does not preclude the imposition of a prison prior enhancement for a term served when a serious felony enhancement is imposed for a conviction of a separate crime where the two convictions resulted from a joint trial.id: 13961
Intent required in the use of force . . . likely to produce great bodily injury in habitual offender statute is a general intent.Penal Code section 667.7 provides that any person convicted of a felony in which the person inflicted great bodily injury or used force likely to produce great bodily injury, who has served two or more prior separate prison terms is a habitual offender. Contrary to the holding in <i>People v. Santos</i> (1990) 222 Cal.App.3d 723, the intent required in the use of force likely to produce great bodily injury is a general intent.id: 13964
One-year prior prison term enhancement was proper notwithstanding that a portion of defendant's imprisonment was served in the California Rehabilitation Center.Defendant argued the trial court should not have imposed the one-year enhancement under Penal Code section 667.5 subdivision (b), based on the prison term served as a result of his 1982 burglary conviction because part of his term was served at the California Rehabilitation Center. It has been established that a direct commitment to the California Rehabilitation Center does not result in a prior prison term within the meaning of section 667.5, subdivision (b) because the commitment is for rehabilitation rather than punishment. However, defendant in this case was sentenced to prison to be punished and the Department of Corrections decision to transfer him to the California Rehabilitation Center did not exempt him from the enhanced sentence under section 667.5 for this period of incarceration.id: 13818
CYA commitment constitutes a prior prison term within the meaning of the habitual offender statute.Defendant argued he was improperly sentenced under Penal Code section 667.7 (the habitual offender statute) because one of his prior prison terms was a commitment to the California Youth Authority. However, a CYA commitment constitutes a prior prison term within the meaning of section 667.7.id: 13793
A single drunk driving prior conviction may be used to elevate a new DUI offense from a misdemeanor to a felony and to support a prior prison term enhancement.A single prior felony conviction for driving under the influence (Vehicle Code section 23152, subdivision (a)) may be used both to elevate a new DUI offense from a misdemeanor to a felony (section 23175) and to support a prior prison term enhancement under Penal Code section 667.5, subdivision (b). Use of the prior conviction and resulting prison term in this manner is consistent with the legislative intent underlying both provisions and does not violate Penal Code section 654's prohibition against multiple punishment.id: 13726
Court may properly use the official duty presumption to find that a defendant served and completed a prison term.If there is no evidence to the contrary to rebut the statutory presumption, the court may consider the appropriate abstract of judgment (imposing a prison sentence) and the facts of the particular case, and may use the official duty presumption (that the warden carried out the judgment) to find that a defendant served and completed his term of imprisonment.id: 12961
Boykin-Tahl advisements were not necessary where the People presented evidence regarding the prior prison term and such evidence was not refuted.A defendant who voluntarily waives his right to a jury trial on the truth of the prior prison term allegation and does not object when documentary evidence is introduced pursuant to Penal Code section 9696 has not submitted the issue within the meaning of <i>Bunnell v Superior Court</i>, (1975) 13 Cal.3d 592. He retained the right to challenge the People's evidence but decided not to because there was no basis to challenge or refute the evidence. Neither counsel's failure to object to the evidence nor failure to present evidence constituted a submission.id: 11472
A one-year enhancement may be imposed for a prior prison term that is the basis of a conviction for petty theft with a prior.A one-year sentence enhancement under Penal Code section 667.5, subd. (b) may be imposed for a prior prison term that is the basis of a conviction for petty theft with a prior under Penal Code section 666.id: 10410
Court did not err in ordering enhancements under sections 667 and 667.5 where the prior prison term was based in part on the same case that served as the basis for the prior serious felony conviction enhancements.The trial court erred in enhancing defendant's sentence for both a prior felony conviction (Penal Code section 667) and the prior prison term served for that conviction (section 667.5). However, the court also imposed another section 667 enhancement where the prison term resulted from two crimes, one of which was the serious felony underlying the section 667 enhancement. The court was not precluded from imposing a one-year enhancement under section 667.5 when the prior prison term is based in part on the same case that also is the basis for imposition of a serious prior felony conviction under section 667, subdivision (a), and based in part on a separate, independent case.id: 9888
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245