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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

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 following his conviction by a jury of unlawfully 

taking or driving a motor vehicle (Veh. Code, § 10851, subd. (a)). He contends the trial 

court erred in imposing two one-year prison term enhancements under Penal Code 

section 667.5, subdivision (b) because there was insufficient evidence to support 

imposition of the enhancements. Respondent concedes the error. 

BACKGROUND 

 In November 2011, the Contra Costa County District Attorney filed an 

information charging appellant with unlawfully driving a motor vehicle (Veh. Code, 

§ 10851, subd. (a); count 1) and receiving stolen property (Pen. Code, § 496d; count 2). 

Among other things, the information alleged appellant served two prior prison terms for 

convictions in 1987 and 1994 (Pen. Code, § 667.5, subd. (b)).1

 

1 All undesignated section references are to the Penal Code. 
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 A jury found appellant guilty on count 1. The trial court found true the prison 

term and other enhancement allegations. Subsequently, 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 court erred in imposing the two one-year 

enhancements under section 667.5, subdivision (b), because the prosecution failed to 

prove he failed to remain free of custody and a felony conviction for five years. 

Respondent concedes the error. 

 Section 667.5, subdivision (b) provides, in pertinent part, that in any felony case 

where prison is imposed, “the court shall impose 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 commission 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 conviction and prison term can be ‘washed out’ or 

nullified for the purposes of section 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 custody 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 enhancement, including the fact of no five-year 

‘washout’ period.” (Fielder, at p. 1232.) 

 On appeal, respondent concedes the prosecution failed to prove beyond a 

reasonable doubt that the prison terms resulting from the 1987 and 1994 convictions did 

not “washout.” The parties agree 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 the 
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prosecution did not present evidence that appellant was returned to prison or suffered a 

new felony conviction in the five years between 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 for 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 opportunity to prove on remand the washout 

rule does not apply. Appellant does not object to that request. 

DISPOSITION 

 Appellant’s conviction is affirmed, but the sentence imposed by the trial court is 

reversed. The matter is remanded for further proceedings consistent with this decision, 

including an opportunity for respondent to present evidence supporting the imposition of 

the section 667.5, subdivision (b) enhancements. 
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 SIMONS, Acting P.J. 

We concur. 

 

NEEDHAM, J. 

 

BRUINIERS, J.