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,                                       A135199
                   v.
TERRELL GIBSON,                                                          (Contra Costa County
                                                                         Super. Ct. No. 05-111827-2)
         Defendant and Appellant.

         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.




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