People v. Fielder

INTRODUCTION

An information charged appellant Robert Fielder with assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1))^[1] and petty theft with a prior conviction for grand theft (§ 666). To enhance his sentence pursuant to section 667.5, subdivision (b), the information alleged appellant had suffered five prior felony convictions for which he had served prison terms.

Appellant, exercising the election found in Faretta v. California (1975) 422 U.S. 806 [ 45 L.Ed.2d 562 , 95 S.Ct. 2525 ], represented himself at trial. After the prosecution had presented its case, the trial court granted appellant’s motion for a judgment of acquittal (§ 1118.1) in regard to the charge of felonious assault. The jury convicted appellant of petty theft.

In a court trial,the court found appellant had been previously convicted of grand theft within the meaning of section 666. The court also found that three of the five prior convictions were true within the meaning of section 667.5, subdivision (b). The court imposed the upper term of three years for the conviction of petty theft with a prior and three one-year enhancements for the prior convictions. Appellant therefore received a six-year sentence.

On this appeal, appellant does not contest the sufficiency of the evidence to sustain his conviction for petty theft with a prior. Instead, he raises two unrelated contentions.

He first contends “[t]he evidence is insufficient to sustain two of the three prior prison term enhancements.” In the published portion of this opinion, we hold that in order for the prosecution to avoid application of the five-year “washout” provision of section 667.5, subdivision (b), it is only required to prove beyond a reasonable doubt that appellant either committed a new offense resulting in a felony conviction or was in prison custody. We reject appellant’s argument that the prosecution must prove both elements to preclude application of the “washout” provision. However, we conclude there is merit to appellant’s argument there is insufficient evidence to support the trial court’s finding that the prosecutor established beyond a reasonable doubt facts sufficient to preclude application of the “washout” provision to two of the three prior prison term enhancements. Because double

Secondly, appellant contends the trial court improperly denied his request that counsel be appointed to file a new trial motion on his behalf. In the nonpublished portion of this opinion, we find no prejudicial error.

PROCEDURAL AND FACTUAL BACKGROUND

A. Evidence About Appellant’s Commission of Petty Theft^[8]

B. Evidence About the Prior Convictions

The information alleged appellant had been convicted of five prior felonies. According to the information, he did not remain free of prison custody and did commit an offense resulting in a felony conviction during a period of five years after the conclusion of each term served as described in section 667.5, subdivision (b). These five felonies were: (1) case number A567959, a June 5, 1985 conviction of grand theft auto (§487); (2) case number A570651, a June 23, 1986 conviction of transportation, sale, or giving away of controlled substances (Health & Saf. Code, § 11352, subd. (a)); (3) case number GA003914, an August 31, 1990 conviction of transportation, sale, or giving away of controlled substances (Health & Saf. Code, § 11352, subd. (a)); (4) case number GA016184, an October 8, 1993 conviction of possession of cocaine base for sale (Health & Saf. Code, § 11351.5); and (5) case number RIF76202, a November 14, 1997 conviction of the manufacture, import, sale, supply, or possession of certain weapons and explosives (§ 12020, subd. (a)).

During the court trial on the section 667.5, subdivision (b) enhancements, the prosecution introduced into evidence, without any objection from appellant, two prison packets. (§ 969b.) In addition, the court considered the evidence offered to prove appellant had previously been convicted of grand theft within the meaning of “petty theft with a prior.” Taken together, these documents established the following facts about appellant’s prior convictions.

First, appellant was convicted of grand theft on June 5, 1985. Appellant served time in prison from June 28, 1985, until his parole on January 22,

Second, appellant was convicted of transportation or sale of controlled substances on June 23, 1986. He served prison time for this conviction from July 7, 1986, until he was paroled on February 10, 1988. On October 25, 1988, appellant’s parole was revoked and he was returned to custody. Parole was reinstated on December 22, 1988, and appellant was ultimately discharged from prison on January 21, 1990.

Third, appellant was convicted of sale and possession of controlled substances in August of 1990. Instead of being sent to prison after the third conviction he was committed on October 29, 1990, to the California Rehabilitation Center (CRC).

Fourth, appellant was convicted of possession of cocaine base for sale on October 8, 1993. He was again committed to CRC where he remained until August 3, 1994.

Fifth, appellant was convicted of the manufacture and sale of weapons and explosives on November 14, 1997. He entered state prison on April 8, 1998, and was paroled on September 8, 1998. In the following years, his parole was revoked and he was returned to prison on two occasions. He remained in prison until August 16, 2001, when he was again paroled. While on parole, he committed the instant offense (petty theft with a prior) on April 5, 2002.

For purposes of section 667.5, subdivision (b), the court found three of the five alleged prior convictions were tme: the 1985 conviction for grand theft, the 1986 conviction for the transportation or sale of a controlled substance, and the 1997 conviction for the manufacture and sale of weapons. The trial court held that although appellant was convicted of drug offenses in, respectively, 1990 and 1993, those convictions could not be used to enhance his sentence under section 667.5, subdivision (b) because appellant had not served prison terms for either of those two offenses since on each occasion he had been committed to CRC instead of being sent to state prison. However, the court also ruled that those two drag convictions meant there was never a five-year period in which appellant did not commit and was not convicted of a new felony.^[3] The court therefore ruled that the 1985, 1986, and 1997

Appellant cites authorities which have held that “[a] period of commitment at CRC is not ‘confinement imposed “as punishment for commission of an offense” ’ [citation], and does not subject [a defendant] to having his present sentence enhanced under the provisions of Penal Code section 667.5.” (People v. Shoals (1992) 8 Cal.App.4th 475 , 501 [ 10 Cal.Rptr.2d 296 ], citing People v. Lara (1979) 95 Cal.App.3d 247 [ 158 Cal.Rptr. 847 ]; see also People v. Valdez (1994) 24 Cal.App.4th 238 , 243 [ 30 Cal.Rptr.2d 102 ].) The legal principle is correct but inapplicable to this case. By relying upon those cases to argue his commitments to CRC should govern determination of whether he committed a new offense resulting in a felony conviction, appellant is mixing the proverbial “apples and oranges.” Those cases addressed whether a conviction that resulted in a commitment to CRC could later serve as an enhancement under section 667.5, subdivision (b). Those decisions held such a conviction could not serve as an enhancement under that statute because one of the required elements was missing: imprisonment as a result of the conviction. The decisions recognized that section 667.5, subdivision (b) imposed a sentencing enhancement based upon “the service of prior prison terms rather than the sustaining of prior convictions.”^[4] (People v. Lara, supra, 95 Cal.App.3d at p. 249.) That, in fact, was the conclusion the trial court reached in finding the 1990 and 1993 convictions, did not qualify as section 667.5, subdivision (b) enhancements. (See fn. 2, ante.) That conclusion, however, does not assist us in determining whether a conviction resulting in CRC commitment means a defendant can or cannot qualify for the “washout” period in regard to an unrelated conviction for which he did serve a prison term.

As set forth above, section 667.5, subdivision (b) specifically provides that for the “washout” period to apply, the defendant must be free from both prison custody and commission of an offense that results in a felony conviction. Here, while appellant was free from prison custody because his commitments to CRC do not constitute prison terms, he was not free from committing new offenses that resulted in felony convictions. He committed two drug-related felonies that led to his convictions in 1990 and 1993 that, in

Appellant cites People v. Shoals, supra, 8 Cal.App.4th 475 , which held that in order to avoid the application of the “washout” provision, the prosecution had to prove both prison custody and conviction of a felony. We decline to follow that decision because it is based upon a misreading of the pertinent statutory language. There, the prior in issue was a 1984 second degree burglary conviction for which the defendant was sentenced to state prison. (Id. at pp. 484 & 499.) In 1985, the defendant was discharged from parole for that offense. (Id. at pp. 500 & 501.) In 1987, he pled guilty to several drug offenses and was committed to CRC. (Id. at p. 500.) In 1990, he committed another drug offense. (Id. at p. 481.) In the prosecution of the 1990 offense, the People alleged the 1984 conviction offense pursuant to section 667.5, subdivision (b). After conducting a bench trial, the court found the prosecutor had proved the 1984 conviction met the requirements of a section 667.5, subdivision (b) enhancement. (Id. at p. 499.)

On appeal, the defendant contended there was insufficient evidence to support that finding because the prosecution had failed to prove the defendant “did not remain free for five years from both prison custody and the commission of an offense which resulted in a felony conviction.” (People v. Shoals, supra, 8 Cal.App.4th at p. 499, italics added.) The appellate court agreed. After canvassing the evidence, it held: “[P]roof of felony convictions and prison custody during the five-year washout period after appellant’s discharge from parole [in 1985] is not established.” (Id. at p. 500.) The Shoals court found there was no evidence the defendant had “served a term of prison custody between his [1985] discharge from parole” for the 1984 burglary and the commission of the present offense in 1990 because in the intervening period he had been committed to CRC following his 1987 guilty pleas to various drug offenses. (Id. at p. 501.) While the Shoals court correctly concluded the defendant’s 1987 commitment to CRC was not “prison custody,” it incorrectly assumed that the prosecution had to show both prison custody and proof of a felony conviction to avoid application of the “washout” provision. As explained above, that approach is incorrect. Application of the “washout” provision requires the presence of two elements: no prison custody and no commission of an offense resulting in a new felony conviction for a five-year period. Therefore, for the prosecution to avoid application of the “washout” provision, it need only show one of those elements has occurred. To the extent People v. Shoals holds to the contrary, we respectfully disagree with its holding.^[5]

The bone of contention on this appeal is whether there is substantial evidence to support the trial court’s finding that there was no five-year period in which appellant did not commit a new offense resulting in a felony conviction after he was released on parole for the 1985 and 1986 convictions.^[6] In that regard, the pertinent chronology is the following.

In 1985, appellant was convicted of grand theft. He was imprisoned from June of 1985 until he was paroled in January of 1986. He was arrested for the transportation or sale of controlled substances while he was on parole and was convicted of this second felony on June 23, 1986, and served prison time for that offense from July 1986 to February 1988. In December 1988, parole was revoked on the 1986 conviction and then reinstated. In January 1990, appellant was discharged from parole.

In August of 1990, appellant was convicted of his third felony offense. While it is true, as appellant notes, that the record does not indicate when he committed the offense that led to his 1990 conviction and commitment to CRC, that omission is not fatal. Appellant had been paroled in, respectively, 1986 and 1988, for the 1985 and 1986 convictions. Because he was convicted in August 1990 of the drug offense, the court, as trier of fact, could reasonably infer he committed the drug offense sometime between 1988 and 1990, well short of five years of his releases on parole for the 1985 and 1986 convictions. Consequently, at that point there was no “washout” period.

The more problematic issue is the date of appellant’s commission of the offense that led to his 1993 CRC commitment. While the documentary evidence presented to the trial court established he was convicted on October 8, 1993, it did not establish when he committed the offense. Given that his next felony conviction was on November 14, 1997, appellant urges that “[i]f

Both parties have overlooked the fact that were the trial prosecutor to seek punishment for additional enhancements, he or she would first have to seek leave of court to amend the information to include the new sentencing allegations. Section 969a provides that “[w]henever it shall be discovered that a pending . . . information does not charge all prior felonies of which the defendant has been convicted, . . . said . . . information may be forthwith amended to charge such prior conviction or convictions, and if such amendment is made it shall be made upon order of the court . . . .” Because the parties have not acknowledged this principle, neither has briefed its application to this fact pattern. We note that case law has held that an amendment to allege new prior convictions is permitted after the grant of a mistrial (Levy v. Superior Court (1973) 31 Cal.App.3d 427 [ 107 Cal.Rptr. 384 ]), after the jury has returned its verdict and before the jury was discharged (People v. Valladoli (1996) 13 Cal.4th 590 [ 54 Cal.Rptr.2d 695 , 918 P.2d 999 ]), but not after the jury has returned its verdict and been discharged (People v. Tindall (2000) 24 Cal.4th 767 [ 102 Cal.Rptr.2d 533 , 14 P.3d 207 ]). We have not found any case permitting use of section 969a following remand from an appellate court for a retrial. And the procedural posture of this case—remand after a successful defense appeal—potentially implicates two constitutional principles: the due process protection against prosecutorial vindictiveness (see, in general, 1 Witkin & Epstein, Cal. Criminal Law, supra,

II.^[8]

DISPOSITION

The judgment is affirmed except that appellant’s sentence is vacated, the findings that the prior convictions alleged in cases A567959 and A570651 were true within the meaning of section 667.5, subdivision (b) are reversed, and the matter is remanded for a retrial in accordance with the views expressed herein.

Epstein, J., and Curry, J., concurred.

Appellant’s petition for review by the Supreme Court was denied March 30, 2004.