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Filed 3/14/14 P. v. Worthington CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DONAVIN EUGENE WORTHINGTON,

Defendant and Appellant.

E058112

(Super.Ct.Nos. FVI1102084 &

 RIF10004465)

OPINION

APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, 

Judge. Affirmed.

Jennifer Gambale, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lynne G. McGinnis and Eric A. Swenson, Deputy Attorneys General, for 

Plaintiff and Respondent.
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Defendant and appellant Donovin Eugene Worthington appeals from a judgment 

following a jury verdict of guilty of first degree burglary. (Pen. Code, § 459.)1 He 

claims that his post-verdict admission that he had suffered three prior prison term 

convictions under section 667.5, subdivision (b), was defective and failed to establish 

that he was subject to the enhancements.2 We disagree, and affirm the judgment. 

STATEMENT OF THE CASE

Due to the nature of defendant’s contention, no detailed recitation of the facts is 

necessary, and we rely on the summary in defendant’s opening brief. 

The victim was arriving home after a brief absence when she noticed that her 

garage door was open and an unfamiliar car was in her driveway. When she honked her 

horn a male ran out of the garage, threw what looked like items of the victim’s property 

into the car, jumped in, and the car drove off. After police arrived, the victim led the 

deputy through the home, which had been ransacked. The door to the garage had been 

kicked in and there was blood on the door leading from the house to the interior of the 

home. This blood was DNA tested and led the authorities to defendant. When contacted 

by police, defendant pretended to cooperate but then fled. When finally apprehended, a 

new sample of his DNA matched the blood. 

 

1

 All subsequent statutory references are to the Penal Code. 

2

 Subdivision (b) of the statute imposes a one-year enhancement “for each prior 

separate prison term . . . provided that no additional term shall be imposed . . . for any 

prison term . . . prior to a period of five years in which the defendant remained free of 

both the commission of an offense which results in a felony conviction, and prison 

custody . . . .”
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Following the return of the jury’s verdict, there was some discussion over whether 

defendant would admit the three alleged priors. Trial counsel told the trial court that “I 

just want to review the prior packet. I got it right before we started trial, so I would like 

to review that briefly just to make sure that there’s no issues.” 

After a recess, counsel informed the court that defendant was “prepared to admit 

his priors.” The colloquy between the court and defendant ran as follows: 

“THE COURT: Okay, Mr. Worthington, it is alleged that you have served a prior 

prison term within the meaning of Penal Code Section 667.5(b) on the following cases.

“Do you admit that you previously have been convicted of unlawful taking of a 

motor vehicle . . . on or about March the 13th, 2006 in Riverside County in case 

No. RIF127422?

“THE DEFENDANT: Yes.

“THE COURT: Do you further admit that you have been convicted of and sent to 

prison for a violation of Health & Safety Code Section 11378 . . . on or about June 6th, 

2005 in Riverside County in case No. RIF 122167?

“THE DEFENDANT: Yes.

“THE COURT: And do you further admit that you have been previously 

convicted and sent to prison in case—for a violation of evading a peace officer, felony

evading, Vehicle Code Section 2800.2, on or about September 9th, 2002 in Riverside 

Superior Court, case No. RIF104854?

“THE DEFENDANT: Yes.”
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Defendant contends that this was ineffective because he did not expressly admit 

that he had served three separate prison terms, or that he had not been free from custody 

or criminal acts for a period of five years between the convictions. (The “washout” rule; 

see People v. Fielder (2004) 114 Cal.App.4th 1221, 1229.) 

DISCUSSION

In People v. Carrasco (2012) 209 Cal.App.4th 715, 725 the defendant admitted 

two priors which had been fully described in the information as satisfying the elements 

of section 667.5, subdivision (b). At the time of the admission the trial court noted that 

the priors were “‘both state prison priors pursuant to 667.5, subdivision (b).’”3 (Ibid.) 

In dealing with a challenge identical to that raised here, the appellate court found that the 

“totality of the circumstances” in the admissions covered all elements of the 

enhancement. (Ibid.) The result in Carrasco is consistent with the holding in People v. 

Thomas (1986) 41 Cal.3d 837, 841-843 in which the defendant admitted that he had 

been convicted of “a serious felony, burglary . . . within the meaning of sections 667 and 

1192.7 . . . .” This was held sufficient to concede that the conviction was in fact a 

“serious felony” even though the nature of the burglary, which made it a serious felony,

was not alleged in the information or described during the taking of the admission. It is 

 

3

 Defendant asserts that the court in Carrasco expressly referred to the language 

of the information. Although the opinion states that the trial court “referred back to the 

information,” there is nothing to establish that the court actually read out the elements of 

the enhancement. The only quoted portions of the admission discussion are that set out 

above and the trial court’s final recitation that the prior allegations were true “within the 

meaning of Penal Code section 667.5, subdivision (b).” (People v. Carrasco, supra, 209 

Cal.App.4th at p. 724.) 
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also consistent with recent decisions acknowledging that a plea of guilty to a substantive 

offense admits every element of the offense, and that the same rule applies to admissions 

of enhancements. (See, e.g., People v. Watts (2005) 131 Cal.App.4th 589, 595, citing 

People v. Westbrook (1996) 43 Cal.App.4th 220, 223-224.) 

Thus, here, as in Carrasco, the defendant was asked whether he had suffered 

convictions under section 667.5, subdivision (b). He did so admit. We agree with 

Carrasco and find defendant’s contrary citations unpersuasive.

Defendant relies on People v. Epperson (1985) 168 Cal.App.3d 856, 863-865, in 

which the “vice” of the admission was that the court, after clearly stating all the elements 

of the prior prison term enhancement, merely asked the defendant if he wished to admit 

the conviction. The admission given was held insufficient to constitute an admission 

that the five-year “washout” period had not elapsed. Not only is the court’s reasoning 

both strained4 and unaccompanied by cited authority, but the result was undoubtedly 

 

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 The trial court began by explaining that “[t]he first alleged prior alleges 

that you were convicted on or about September 29, 1970 . . . of a felony, to wit, 

transporting a stolen motor vehicle . . . in violation of 18 United States Code 2312, case 

No. 8877 . . . and you served a separate prison term of one year or more for such offense 

and you have not remained free of prison custody and free of the commission of an 

offense resulting in a felony conviction for five years subsequent to your release . . . .” It 

then directly asked, “Do you wish to admit you did suffer that conviction?” It could 

persuasively be argued that by admitting “that conviction,” as it had been painstakingly 

described by the court, the defendant in Epperson did admit that the “washout” period did 

not apply. Very arguably if the People had not conceded the impropriety of the 

enhancements, the result would have been different. 
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influenced by the fact that the People conceded that the “washout” period had been 

satisfied and that the enhancements had been wrongly imposed.

Defendant also relies on People v. Lopez (1985) 163 Cal.App.3d 946, 949-950

(Lopez) in which the defendant admitted that he had suffered burglary convictions which 

were “serious felonies, within the meaning of Penal Code section 667a.” Because at the 

time only residential burglaries were serious felonies, and because the record did not 

demonstrate that defendant was made aware of this,

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the court held that the potential for 

confusion required that the admissions not be given full effect and could not establish 

that the burglaries were residential. Again, Lopez seems over careful; but, in any event,

it is distinguishable because in this case the specific facts which caused the prior 

convictions to support a potential enhancement were expressly alleged in the complaint, 

and we find this sufficient. The validity of Lopez is also thrown into doubt by People v. 

Thomas, supra, 41 Cal.3d at p. 843 in which the court stated that although it is the better 

practice for the prosecutor to allege the characteristic of a burglary which makes it a 

“serious felony,” the “defect in the pleading, however, is one of uncertainty only, and is 

waived by defendant’s failure to demur.”6

 

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 The information alleged that defendant had been convicted of burglaries which 

were “serious felonies,” but did not allege why they were “serious felonies.” (People v. 

Lopez, supra, 163 Cal.App.3d at p. 950.) 

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 As noted in People v. Thomas, supra, 41 Cal.3d at page 843, any burglary may 

also become a “serious felony” if in its commission it involves, e.g., weapons use or the 

infliction of great bodily injury. (§ 1192.7, subd. (c)(8).) 
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Defendant also attempts to fit himself under Epperson by suggesting that the 

“washout” period had been satisfied as a factual matter. As suggested in People v. 

Thomas, supra, 41 Cal.3d at page 844, the appropriate way in which to bring such a 

claim is by habeas corpus, so that evidence outside the appellate record may be 

introduced in support of the petition. In any event, the claim is without apparent merit. 

The dates of defendant’s convictions are September 9, 2002; June 6, 2005; and March 

13, 2006. Although the jury returned its verdict in this case on April 24, 2012, and 

defendant was sentenced on June 13, 2012, the actual offense was committed on 

September 14, 2010. The five-year “washout” period begins with the release from 

prison custody, and is interrupted either by a return to prison custody or “the 

commission of an offense which results in a felony conviction.” (People v. Epperson, 

supra, 168 Cal.App.3d at p. 863, fn. 2.) Thus, it appears that the “washout” period after 

the 2006 conviction cannot have been satisfied.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

McKINSTER

J.

KING

J.