1 Filed 11/14/13 P. v. Gibson CA1/5



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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent,

v. TERRELL GIBSON, Defendant and Appellant. A135199

(Contra Costa County Super. Ct. No. 05-111827-2)

Terrell Gibson (appellant) appeals followi ng his conviction by a jury of unlawfully taking or driving a moto r vehicle (Veh. Code, § 10851, subd . (a)). He contends the trial court erred in imposing two one-year pr ison term enhancements under Penal Code section 667.5, subdivision (b) because th ere was insufficient ev idence to support imposition of the enhancements. Respondent concedes the error.

BACKGROUND In November 2011, the Contra Cost a County District Attorney filed an information charging appellant with unlawfully driving a motor vehicle (Veh. Code, § 10851, subd. (a); count 1) and receiving stol en property (Pen. Code , § 496d; count 2). Among other things, the inform ation alleged appellant served two prior prison terms for convictions in 1987 and 1994 (P en. Code, § 667.5, subd. (b)). 1

1 All undesignated section references are to the Penal Code.2 A jury found appellant guilty on count 1. The trial c ourt found true the prison term and other enhancement allegations. Subs equently, the court sentenced appellant to a prison term of four years on count 1, plus two one-year terms under section 667.5, subdivision (b), for a total of six years. This appeal followed.

DISCUSSION Appellant contends the trial cour t erred in imposing the two one-year enhancements under section 667.5, subdiv ision (b), because the prosecution failed to prove he failed to remain free of custody and a felony conviction for five years. Respondent conced es the error. Section 667.5, subdivision (b) provides, in pertinent part, that in any felony case where prison is imposed, “the court shall im pose a one-year term for each prior separate prison term . . . for any felony; provided that no additional term shall be imposed under this subdivision for any prison term . . . prior to a period of five years in which the

defendant remained free of both the commissi on of an offense which results in a felony conviction, and prison custody . . . .” “The last phrase is commonly referred to as the ‘washout rule’ where a prior felony convicti on and prison term can be ‘washed out’ or nullified for the purposes of s ection 667.5. [¶] According to the ‘washout’ rule, if a defendant is free from both prison custody and the commission of a new felony for any five-year period following discharge from cust ody or release on parole, the enhancement does not apply.” ( People v. Fielder (2004) 114 Cal.App.4th 1221, 1229 ( Fielder ).) “The prosecution has the burden of proving beyond a reasonable doubt each element of the section 667.5, subdivision (b) sentence enha ncement, including the fact of no five-year ‘washout’ period.” ( Fielder , at p. 1232.) On appeal, respondent concedes th e prosecution failed to prove beyond a reasonable doubt that the pris on terms resulting from the 1 987 and 1994 convictions did not “washout.” The parties agr ee the evidence showed the last date of prison custody was September 23, 2002. Appellant admitted at trial to a 2007 felony conviction for petty theft with priors, but he did not testify as to the precise date of the conviction. Neither did the prosecution present evidence of the date of the conviction. Because the3 prosecution did not present ev idence that appellant was retu rned to prison or suffered a new felony conviction in the five years betw een September 23, 2002 and September 23, 2007, the trial court erred in imposing two one-year sentence enhancements under section 667.5, subdivision (b). Respondent points out there is no double jeopardy bar to proving enhancements following an appellate court reversal of an enhancement finding fo r insufficient evidence ( Monge v. California (1998) 524 U.S. 721, 734; People v. Barragan (2004) 32 Cal.4th 236, 241-242), and respondent requests an op portunity to prove on remand the washout rule does not apply. Appellant do es not object to that request.

DISPOSITION Appellant’s conviction is a ffirmed, but the sentence imposed by the trial court is

reversed. The matter is remande d for further proceedings consistent with this decision, including an opportunity for respondent to present evidence suppor ting the imposition of the section 667.5, subdivision (b) enhancements.4 SIMONS, Acting P.J.

We concur.

NEEDHAM, J.

BRUINIERS, J.