Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA081363, Daniel J. Buckley, Judge.
Alan Mason, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Stephen Lovell Murphy appeals the judgment entered following his conviction by jury of corporal injury to a spouse or cohabitant. (Pen. Code, § 273.5, subd. (a).) The trial court found Murphy had a prior conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and that he had served two prior prison terms within the meaning of section 667.5, subdivision (b).
Subsequent unspecified statutory references are to the Penal Code.
Murphy contends the evidence does not support the true finding on one of the prior conviction allegations. We agree and reverse the true finding on the prior prison term allegation related to case No. KA013376 and remand for retrial of that allegation. We otherwise affirm the judgment.
BACKGROUND
The evidence adduced at trial indicated that on December 4, 2007, Murphy assaulted his cohabitant, punching her in the face with a closed fist and smashing her face into a steering wheel. After he was convicted by a jury, Murphy waived jury trial on the prior conviction allegations.
Fingerprint evidence connected Murphy to three prior convictions including a violation of Health and Safety Code section 11352, subdivision (a), in case No. KA013376 in June of 1992 in Los Angeles County, and a violation of section 459 in case No. 01NF1244 in May of 2001 in Orange County.
The trial court sentenced Murphy to the upper term of four years, doubled to eight years on account of the strike, and added two one-year prior prison term enhancements, including one attributable to case No. KA013376, for a total term of 10 years in prison.
CONTENTION
Murphy contends the prison term he served in connection with case No. KA013376 does not qualify as a prior prison term within the meaning of section 667.5, subdivision (b), because he remained free of custody for five years after release from prison before being convicted of burglary in 2001.
DISCUSSION
1. The five-year washout rule.
Section 667.5, subdivision (b) provides for a one-year enhancement, in addition and consecutive to any other prison term imposed, “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....” (§ 667.5, subd. (b), italics added.) The last portion of the subdivision is commonly referred to as the “washout rule.”
The prosecution has the burden of proving each element of a sentence enhancement under section 667.5, subdivision (b) beyond a reasonable doubt, including the inapplicability of the “washout” period. (People v. Elmore (1990) 225 Cal.App.3d 953, 956-957.)
Subdivision (d) of section 667.5 provides: “For the purposes of this section, the defendant 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....” (See People v. Nobleton (1995) 38 Cal.App.4th 76, 84-85 [five-year “washout” period begins when defendant is first paroled, not when he is later discharged from parole].) “Consequently, a defendant will gain the benefit of the ‘washout’ period if for any five-year period following discharge from prison custody or release on parole, he remains free of both prison custody and the commission of an offense resulting in a felony conviction. [Citations.]” (People v. Fielder (2004) 114 Cal.App.4th 1221, 1233.)
On appeal, we review the record in the light most favorable to the trial court’s findings. (People v. Fielder, supra, 114 Cal.App.4th at p. 1232.)
2. Murphy’s contention.
Murphy argues the section 969b prison packet associated with the conviction in case No. KA013376 shows he was last in custody on that case when he was sent to prison on March 15, 1996 and released on April 5, 1996. Thus, the five-year washout period ended on April 5, 2001. However, Murphy’s next felony conviction did not occur until May of 2001, when he was convicted of first degree burglary. There was no proof of the date of the offense. Thus, the People failed to prove the washout provision of section 667.5, subdivision (b) did not apply. (People v. Fielder, supra, 114 Cal.App.4th at p. 1232.)
Murphy concludes the case must be remanded for retrial on the prior prison term allegation. (People v. Barragan (2004) 32 Cal.4th 236, 240-259; People v. Fielder, supra, 114 Cal.App.4th at p. 1234.)
3. Resolution.
Four entries appear in the chronological history after Murphy’s release from prison on April 5, 1996. These entries are as follows: (1) on August 23, 1996, parole was suspended effective June 4, 1996; (2) on December 3, 1996, parole was reinstated with time loss effective September 27, 1996, and a warrant for Murphy’s arrest was cancelled; (3) on June 26, 1997, Murphy was discharged from parole effective May 8, 1997; and (4) on February 14, 1997, Murphy was continued on parole to Pomona.
The first three of these entries appear on the lines immediately below the release from prison noted on April 5, 1996. The last of these entries, the February 14, 1997 entry, appears by itself on a separate page of the chronological history. It is out of chronological order and it is not preceded by any entry indicating Murphy was received into prison custody.
The People contend the February 14, 1997 notation suggests a release from prison. Thus, the washout period would have ended on February 14, 2002, and, as Murphy concedes, he was convicted of first degree burglary in 2001.
However, as indicated above, the notation of February 14, 1997, is not preceded by a notation indicating Murphy was received in prison, as is the release from prison noted on April 5, 1996. Also, the entry the People rely on is found on a separate page of the chronological history and it is out of chronological order. Thus, the People’s argument the February 14, 1997 entry indicates a release from prison amounts to speculation, not substantial evidence. (People v. Waidla (2000) 22 Cal.4th 690, 735.)
We therefore conclude the People failed to prove the five-year washout rule did not apply. Had the People presented evidence of the date of the offense underlying the May 2001 conviction, this problem likely would not exist. We therefore vacate the true finding on the prior prison term enhancement and remand for retrial of the allegation.
DISPOSITION
The judgment is affirmed except the sentence is vacated, the true finding on the prior prison term enhancement (§ 667.5, subd. (b)) based on the prior conviction in case No. KA013376 is reversed, and the matter is remanded for a retrial in accordance with the views expressed herein.
We concur: CROSKEY, J., ALDRICH, J.