Filed 7/28/16 P. v. Alvarez CA2/6

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B263561
                                                                            (Super. Ct. No. 1452773)
     Plaintiff and Respondent,                                               (Santa Barbara County)

v.

MARCELLO TEOFILO ALVAREZ,

     Defendant and Appellant.



                   Here the sole question is whether the trial court erred in imposing two of
three prior prison term enhancements pursuant to Penal Code section 667.5, subdivision
(b).1 The defendant contends the enhancements do not apply because he reoffended
while he was on mandatory supervision. (§ 1170, subd. (h)(5)(B).) We affirm.
                   A jury convicted Marcello Teofilo Alvarez of assault with a deadly weapon
(count 1; § 245, subd. (c)); felony resisting an officer (count 3; § 69); felony evading an
officer (count 4; Veh. Code § 2800.2, subd. (a)); possession of a firearm by a felon (count
5; § 29800, subd. (a)(1)); misdemeanor possession of a controlled substance (count 6;
Health & Saf. Code § 11377, subd. (a)); and felony possession of ammunition (count 7;
§ 30305, subd. (a)(1)). The jury also found that count 1 is a serious felony. (§ 1192.7,
subd. (c)(11).)

1
    All statutory references are to the Penal Code unless otherwise stated.
              The trial court found Alvarez suffered a prior conviction of a serious
violent felony. (§§ 667, subds. (d)(1) & (e)(1), 1170.12, subds. (b)(1) & (c)(1); 1192.7,
subd. (c).) The court also found Alvarez served three prior prison commitments.
(§ 667.5, subd. (b).)
              The trial court sentenced Alvarez to a total of 17 years 4 months, including
a consecutive one-year term for each of his prior prison commitments.
                                            FACTS
              The facts of the underlying offenses are not relevant. The only question is
whether two of the prior prison term enhancements imposed pursuant to section 667.5,
subdivision (b) apply.
              Alvarez’s prior prison terms were as follows:
              On February 24, 2011, Alvarez was sentenced to 16 months for evading an
officer. (Veh. Code § 2800.2, subd. (a).)
              On July 3, 2013, Alvarez was sentenced to two years for taking a vehicle
without the owner’s consent. (Veh. Code § 10851.)
              On March 20, 2014, Alvarez was sentenced to two years for receiving
stolen property. (§ 496, subd. (a).)
              Alvarez committed the third offense while he was still serving a period of
mandatory supervision on the second offense. Alvarez committed the present offenses
while he was still serving a period of mandatory supervision on the third offense.
                                       DISCUSSION
              Alvarez contends two of his prison priors do not qualify for one-year
enhancements under section 667.5, subdivision (b) because he committed the offenses
while he was on mandatory supervision.
              Section 667.5, subdivision (b) provides for a one-year sentence
enhancement for a new offense for which a prison sentence or a county jail sentence,
pursuant to section 1170, subdivision (h), is imposed prior to a period of five years in
which the defendant remained free of both the commission of a felony offense and prison
custody or jail custody imposed under section 1170, subdivision (h).

                                              2
              Subdivision (d) of section 667.5 provides in part: “For the purposes of this
section, the defendant shall be deemed to remain in prison custody for an offense until the
official discharge from custody, including any period of mandatory supervision, or until
release on parole or postrelease community supervision, whichever first occurs, including
any time during which the defendant remains subject to reimprisonment or custody in
county jail for escape from custody or is reimprisoned on revocation of parole or
postrelease community supervision.”
              Subdivision (e) of Section 667.5 provides: “The additional penalties
provided for prior prison terms shall not be imposed for any felony for which the
defendant did not serve a prior separate term in state prison or in county jail under
subdivision (h) of Section 1170.”
              Subdivision (g) of Section 667.5 provides: “A prior separate prison term
for the purposes of this section shall mean a continuous completed period of prison
incarceration imposed for the particular offense alone or in combination with concurrent
or consecutive sentences for other crimes, including any reimprisonment on revocation of
parole which is not accompanied by a new commitment to prison, and including any
reimprisonment after an escape from incarceration.”
              Alvarez argues that Subdivision (e) of section 667.5 requires that the
defendant serve a “prior separate term” in state prison or county jail. Subdivision (g)
defines a prior separate prison term as “a continuous completed period of prison
incarceration.” Subdivision (d) includes “any period of mandatory supervision” as prison
custody. Alvarez concludes that in order for a section 667.5 enhancement to apply, the
defendant must have completed his period of mandatory supervision. He believes that
where, as here, a defendant reoffends while still on mandatory supervision, he has not
“completed” a period of prison incarceration as required by subdivision (g).
              Our Supreme Court rejected a similar interpretation of section 667.5 in
In re Kelly (1983) 33 Cal.3d 267 (disapproved on other grounds in People v. Langston
(2004) 33 Cal.4th 1237). In Kelly, the defendant was committed to state prison and
paroled. He committed a second offense while on parole from the first offense; a third

                                             3
offense while on parole from the second offense; a fourth offense while on parole from
the third offense; and finally, a fifth offense while on parole from the fourth offense. The
defendant’s sentence on the fifth offense included four one-year enhancements imposed
pursuant to section 667.5, subdivision (b).
              There, as here, the defendant argued that the prior prison enhancements
were improperly imposed because he had not completed any of the prior prison terms
before he reoffended.
              In rejecting the argument, our Supreme Court discussed the absurd results
that would attend the defendant’s interpretation of section 667.5. The court noted that a
person who successfully completes parole would be subject to harsher punishment than a
person who reoffends while on parole. (In re Kelly, supra, 33 Cal.3d, at p. 272.) The
court stated it is “inconceivable” the Legislature so intended. (Ibid.)
              Kelly also rejected the defendant’s argument that subdivision (d) of section
667.5 governs subdivision (g) of that section. Subdivision (d) defines the time when a
defendant “shall be deemed to remain in prison custody . . . .” The court stated that
subdivision (d)’s definition of custody applies solely to subdivisions (a) and (b) in
determining whether a defendant has been free of custody for a sufficient number of
years such that an enhancement shall not be imposed. (In re Kelly, supra, 33 Cal.3d, at
p. 274.) Custody is not the equivalent of a “‘period of prison incarceration’” as used in
subdivision (g). (Kelly at p. 274) As used in subdivision (g), a “‘period of prison
incarceration’” refers to “a block of time actually spent in an incarcerating facility.”
(Kelly at p. 274.)
              Kelly summarized its interpretation of subdivision (g) as follows: “[A]
prior separate prison term is defined as that time period a defendant has spent actually
incarcerated for his offense prior to release on parole. In addition, if the defendant has
violated his parole and has been sent back to prison, but has not received a new
commitment, that time block is deemed to be continuing. If defendant has been returned
with the addition of a new commitment, however, the time block is not continued, and


                                              4
only that portion of prison time spent prior to release on parole constitutes the prior
separate prison term.” (In re Kelly, supra, 33 Cal.3d, at pp. 270-271.)
              Alvarez distinguishes Kelly on the ground the case involved parole, not
mandatory supervision. But Kelly’s interpretation of section 667.5 is applicable equally
to mandatory supervision and parole.
              Alvarez also points out that in 2012, after Kelly was decided, the
Legislature amended subdivision (d) to add the defendant shall be deemed to remain in
prison custody “including any mandatory supervision . . . .” (Stats. 2012, ch. 43, § 22.)
But the amendment does not change Kelly’s interpretation that subdivision (d)’s
definition of custody applies solely to subdivisions (a) and (b). It defines custody for
determining whether a defendant has been free from custody for a sufficient period of
time such that the enhancement shall not be imposed.
              Here, because Alvarez was returned to prison each time under a new
commitment, the enhancements imposed under section 667.5, subdivision (b) apply.
                                       DISPOSITION
              The judgment is affirmed.
              NOT TO BE PUBLISHED.



                                           GILBERT, P. J.

We concur:



              YEGAN, J.



              PERREN, J.




                                              5
                               John F. McGregor, Judge

                        Superior Court County of Santa Barbara

                         ______________________________


             Donna Ford, under appointment by the Court of Appeal, for Defendant and
Appellant.
              Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, and David F. Glassman, Deputy
Attorney General, for Plaintiff and Respondent.




                                           6
