P. v. Hunter

Filed 1/9/09 P. v. Hunter CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Craig Phillips, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted appellant, Frank Dale Hunter, of assault by means of force likely to cause great bodily injury in violation of Penal Code^[1]section 245, subdivision (a)(1), and felony child endangerment in violation of section 273, subdivision (e). Appellant had thrown and kicked his 11-year-old nephew following an argument. Thereafter, in a bifurcated bench trial, the court found true the allegation that appellant had served four prior prison terms within the meaning of section 667.5, subdivision (b). The court sentenced appellant to the upper term of six years for child abuse, the upper term of four years for assault, which was stayed pursuant to section 654, and imposed four one-year prior prison term enhancements for a total term of ten years.

Appellant challenges the sufficiency of proof to support three of the four prior prison term enhancements. According to appellant, the California Law Enforcement Telecommunications System (CLETS) computer printout (rap sheet) admitted to prove the prior prison term enhancements did not establish that he had not remained free of prison custody for five years between the third and fourth prison terms.

Appellant is correct. Accordingly, three of the four one-year prior prison term enhancements will be ordered stricken.

DISCUSSION

Section 667.5, subdivision (b), provides:

[W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction. (Emphasis added.)

Appellant suffered felony convictions and served state prison terms on those convictions in 1987, 1989, 1994, and 2001. The current offense was committed on November 29, 2007. The court imposed four one-year term enhancements based on these prior prison terms.

At issue is the period of time between the 1994 and the 2001 convictions. As noted above, appellants rap sheet was presented to prove that appellant had not remained free of prison custody for five years prior to the 2001 offense. A properly authenticated rap sheet is admissible for this purpose. (People v. Martinez (2000) 22 Cal.4th 106, 112.)

The entries on appellants rap sheet that were relied on by the prosecution to prove that the five-year washout provision did not apply to the 1994 conviction show that appellant violated his parole on multiple occasions after his release for that offense. These entries reference dates in 1995, 1996, 1997, 1999 and 2000. However, these entries only state violation of parole-to finish term.

Temporary prison confinement following a suspension of parole ripens into prison custody under section 667.5 only upon a formal parole revocation hearing and findings justifying revocation. (In re Panos (1981) 125 Cal.App.3d 1038, 1042-1043.) The cryptic notations in the rap sheet do not establish that the requisite hearing was held and that appellants parole was revoked. According to the rap sheet, appellant was paroled no later than December 28, 1995, on the 1994 conviction and committed the next felony offense for which he was imprisoned in 2001, a period greater than five years. Thus, the prosecution did not prove that the five-year washout provision did not apply to the prior prison terms served before 2001. Consequently, the prior prison term enhancements imposed for the 1987, 1989, and 1994 convictions cannot stand.

DISPOSITION

The judgment is modified to strike three of the four section 667.5, subdivision (b), one-year enhancements. The superior court is directed to prepare an amended abstract of judgment and to transmit it to the Department of Corrections and Rehabilitation.

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^* Before Vartabedian, Acting P.J.; Levy, J.; and Kane, J.

^[1] All further statutory references are to the Penal Code.