*1 July No. 10580. Third Dist. 1980.] [Crim. Corpus; on Habeas

In re JACK JESSUP July Third Dist. No. 10583. 1980.]

[Crim. Corpus; In re ALFONSO VITELA on Habeas July No. 10610. Third Dist. 1980.] [Crim. Habeas Corpus.

In re SIDNI ALFRED MOORE on *2 Counsel Denvir, Defender, the Court Public under

Quin appointment by State Defender, Cutler, for State Public Deputy Mark E. Appeal, Petitioners. Philibosian, General, Chief Robert H.

George Deukmejian, Attorney General, Arnold O. Assistant Overoye, Attorney Attorney Assistant Rouzan, General, and Wanda Hill Attor- Deputy W. Gregory Baugher General, Respondent. neys

Opinion a writ of PARAS, J. each proceedings, seeking These threeoriginal they present habeas were consolidated for Because corpus, hearing. issues, motion consolidated them for identical we have on our own (2d 1971) (See Witkin, Appeal, decision. Cal. Procedure ed. en- must be sentence is whether presented The question crime is when the subject of a prior prison hanced because and there is during committed Petitioners, each of violation. concurrent *3 Code section enhanced, contend Penal has had his sentence so whom District, Two Division the First by as interpreted subdivision (g), 892], Cal.Rptr. 854 Cal.App.3d 94 court in v. Cole People [155 when were not “completed” their terms prior bars enhancement because were imposed. the new sentences and enhancements of a mandates enhancement Penal Code section 667.51 violent felonies terms. Sentences for specified because of prior prison (subd. term was also (c)) three when years are enhanced by custody defendant has been free of prison for a violent and the so (subd. (a)). had his sentence Jessup for less than ten Petitioner years if five enhancements enhanced. Other felonies about bring one-year (Subd. (b).) was served. have not since a years passed terms and pe- Petitioner was so enhanced for two prior Yitela’s sentence titioner Moore’s sentence for one. “a term” as: continu- separate prison

Subdivision defines a (g) “prior particular ous or consecutive sen- alone or in combination with concurrent crimes, on revocation of tences for other including any reimprisonment and which is a new commitment parole prison, not accompanied incarceration.” after from such including any reimprisonment escape of Appeal opin- The subdivision has been considered in other Court Cole, sentence for ions. In v. the defendant’s People of a arson assault with a was enhanced because weapon deadly The conviction and a later and conviction. prior conspiracy pimping ap- the arson court ordered the enhancement for conviction pellate one-year stricken on that con- reimprisoned on the that defendant was grounds revocation, viction after sentenced for parole concurrently (Id., 865-866.) pp. offenses. conspiracy pimping The court read subdivision to exclude from the enhancement (g) provi- sions terms in which violation a new commitment for another crime. accompanied section 667.5 unless otherwise statutory 1 All references henceforth are to Penal Code indicated. The Cole court’s of the statute was interpretation rejected by District, Fourth Division Cal. Two People Espinoza App.3d 1980). den. Feb. (hg. Espinoza [159 894] court read subdivision as an of two attempt prevent imposition enhancements when reimprisonment follows a violation. Thus one enhancement where the proper violation is also prosecuted newa offense. whole,

Viewing scheme as a we with the statutory agree (99 court as to the meaning As noted in (g). 70), Cole court not have been with dealing the question event, In presented here. we any adopt *4 and decline to follow The Espinoza holding Cole. construction for which petitioners under Cole would result in enhancement for argue prior terms within the limits when has been statutory only probation This absurd result successfully completed. to our under- contrary of the standing legislative intent. v. (People Espinoza, 73-74.) pp.

The petitions are denied and the to show cause orders discharged. J., Regan, P. concurred. Acting

BLEASE, J. I dissent. (1979)

The v. 99 Cal. majority opinion, following People 59,1 (1979) 854 App.3d Cal.App.3d v. Cole 94 rejecting People holds, of Penal Code Cal.Rptr. 892], despite express language [155 1170, (a)(2), sections 667.5 and that a term is 667.5, of the en- “complete” purposes subd. for (g)), § offense, hancement of a term for a subsequent notwithstanding Code, 667.5, (Pen. defendant is still subd. “serving” (h), added). italics whether, here, of Penal

The issue Espinoza, a “sentence” for a pri- a defendant has “completed” Code upon been recommitted to “prison custody” or offense when he has 1 868, (1980) Cal.App.3d Cal.Rptr. 913]; 882-885 People v. Butler 104 Accord [162 (1980) 615]; Cal.App.3d Cal.Rptr. 710-713 and see People v. Mathews [162 Cal.Rptr. 548]; People 732-734 People v. James [162 4], 942-944 Burke [163 sentence” for the offense. “as of the part revocation of parole imposed (Italics added.) shown, offense is complete term for a prior felony

As will be a prison which custody parole, during when the period, including has terminated. imposed, the result disre- Espinoza, follows opinion blindly majority five fails to consider four of the the fact garding This dissent fo- which the issue. provisions expressly govern statutory ignores. cuses which upon provisions I (cid:127) that, (a) (b), require upon

Penal Code section subdivisions the term conviction for a there must be added to felony, for “each an additional term of years2 prior separate prison served” the defendant. term” is defined in Penal Code sec-

The phrase “prior separate *5 667.5, as a “continuous meaning completed period tion subdivision (g), of incarceration” because of a offense or offenses. imposed and its subdivision of section progeny, considering only Espinoza Cole,4 that a “prior.. 667.53 and the of hold rejecting reasoning .prison (italics 667.5, added) complete, term” is of section at the purposes time the defendant is on the word “term” in the sense placed parole, using used in Penal Code section 3000 which a “sentence” separates (italics added) into a “term of and a of imprisonment” “period parole.” years felony statutorily 2 Thenumber of turns the new is added on whether classified (three (one as years) year). “violent” additional or not additional 667.5, (g), provides: prior separate prison A 3 Penal Code section subdivision “[A] completed period of term for the of this section shall mean a continuous [B] particular offense alone or in combination [C] crimes, including any reimpri- with concurrent or consecutive sentences for other [D] accompanied by new parole sonment on revocation of which is not commitment including any escape incarceration.” prison, and after from such [E] breaks. capital The letters are inserted to mark the critical clause marking in Penal Code section subdivi capital 4 The letters the clause breaks (g) (ante, 3), following analysis. sion fn. are used in the (revoca argues that since that is a member of class and Cole assumes [D] [A] [D] commitment) (prior separate prison new is a member of parole tion of without a [A] commitment), (revocation term), us, with a new the case then the converse not [D] before [A], prior separate prison not a term. is not a member of and is therefore logic nonsequitur argues event or not faults the Cole as a that “[e]ither [[D] [D]] “The is states: truth that section 667.5 does not define ‘a continuous of incarceration.’ The best indica- found, tion of what meant we Legislature by expression believe, in section 3000 in which the of the Legislature speaks ‘expira- tion of a term of release imprisonment’ contradistinction to on and ‘completion parole, of or.. .the end of the maximum statutory peri- od of of section 3000 makes parole.’ language plain legislative that a term assumption imprisonment expires of to release on pa- role. A term of which has has been imprisonment expired, ‘completed.’ conclude, therefore, We that a term of imprisonment ‘completed’ of the stated term undoubted expiration notwithstanding legal truism that additional on imprisonment revocation of is referable ” to and in (People Espin- of an term. .. . legal theory part original oza, here goes wrong failing provisions consider the of sub- (d), (e) (h)

divisions of section and the of Penal provisions (a)(2), Code section which include a expressly period of or under Penal Code section within (expired discharged) parole term.” These phrase “prior separate prison provi- sions use “term” to mean “sentence” and thus include the of period parole. (DSL)

The determinate sentence law establishes a “sentence” for each “term followed imprisonment” of a of consisting of the sen- period part under Penal Code section 3000 “as (a)(2) (c); 3000.) The word tence.” subds. §§ (term (1)) “term” in this sense is to be from the “sen- distinguished tence,” includes, well, which parole. *6 (1), the provisions uses “term” to mean term ignoring “sentence,” the the measure of including parole period,

which make the (term (2)). the separate prison (People term.’” v. presupposes ‘prior the existence of a 894].) Cal.App.3d 70 [159 assumption, assumption given as but the Cole Espinoza here makes the same Cole is, [A], by implica reasoning is If is a member of then not clear its correct. [D] [D]

tion, argument expressio obviously stronger than unius member of This is not a [A]. est exclusio alterius. goes wrong adopting wrong, in assumption which is But it is the Cole designed which is to ex of but modifies clause it. Clause is not a member [C] [A] [D] (Italics added.) (People v. “prior separate in offense.” plicate “separate” the term words, Burke, 943-944.) property other is a of an Cal.App.3d pp. In supra, 102 [D] example or member of it. of and not an [separate] element [A] (a)(2), Penal Code makes the expressly “sentence,” and with of cov- period, it the the measure the parole period (2), as “In ered used in section 667.5. It provides part: any case in which the of credit under Section preimprisonment amount 2900.5 or other of law is to or exceeds sentence any provision any equal sentence, imposed to this the pursuant chapter, including any pe- entire to riod under shall be deemed have been served parole Section of and the defendant not be delivered to the of the custody shall actually However, any Director of Corrections. such sentence shall be deemed 667.5, and a of the separate judg- term under Section copy ment and other shall be forwarded to documentation necessary Director of Corrections.” (is at least

It is clear from that term ends complete) this provision an if the may when the sentence ends and that enhancement be imposed prior sentence is terminated at time to the of sentence any imposition “Prior,” term,” new offense. thus means “prior new imposition of the new sentence and not mean to the does offense. It it problem. failures lead to a fictitious policy

Espinoza’s reading term, that, of the part claims if the considered parole has faith- for a felon who necessarily “harsher treatment [would occur] has than for felon who his or her successfully served fully su- v. (People Espinoza, while on parole.” committed another yet Butler, 74; see People also pra, 868, 884-885.) an of- An enhancement necessity No such arises. of parole portion provided fense committed during parole, imposition discharged prior has or been expired “sentence” within discretion from Since discharge enhancement. (other crite- option enhancement is a an governmental the government, a defendant committed met) felony offense any ria been as to having both punish- is to preclude policy on The apparent legislative parole. of the out arising an enhancement revocation ment upon to make. is for the government The choice new offense. same *7 II But oth- limits term. prison outer of the prior

The sentence marks the further condition within er statutory provisions, of imprisonment. enhanced terms of application an term must have been served in order to justify enhancement. (a) (b)

Subdivisions of section 667.5 that an enhance- provide ment term served for” prison be for a may imposed only “prior separate (Italics added.) (e) a states that enhancements “shall felony. Subdivision not be for which the defendant did not serve a imposed any felony (Italics (See added.) in In re term state Hawkins separate prison.” de- 201].) “Served” is [163 (h) fined in such that term includes “[s]erving prison any subdivision (italics added), inclusive prison” phrase time state any confinement Hawkins, (In of re confinement for revocation of parole. 625.) p.

This provision means that an enhancement not be if the may imposed It prior prison term did not result confinement. also means (term (2)) ended, in- whether or not the sentence has if the prison carceration virtue of the sentence has been an imposed by completed, added, enhancement be of may notwithstanding period not have ended. Penal Code section defines (g), “prior separate term” as “a continuous incarcer- of (Italics added.) ation” for a offense or offenses. where, here, argues that a defendant has been for revo- reimprisoned cation of term must have been completed because term followed on fol- imprisonment period parole, “[a] lowed a revocation of for an additional period can be said to constitute ‘continuous’ service of a sen- hardly tence.” (People Espinoza, supra,

Even what is not that a z/z'scontinuous assuming apparent, prison incarceration can count as a term of completed imprisonment, (d) under subdivision counts as parole period upon reimprisonment for revocation of parole. (d) states,

Subdivision of Penal Code section 667.5 in relevant part: “For the of this section the defendant shall be deemed to re- main in for an offense he or prison custody reimprisoned [when she] on revocation of parole.”5 might argued (d) 5 It apply (g) (d) that subdivision does not to subdivision because incarceration,” phrase “prison custody,” “prison

uses the while uses and subdivi- *8 is to address. claims that one last argument There its conclusion is the administrative of section supported by application Board, in Ad- 667.5 the Release contained California Community (b)(2).6 Code, 15, 2154, title subdivision But an ministrative of the administrative shows that it is inspection provision exclusively term, separate concerned with what counts as a not what counts as a term. be-

The distinction in subdivision of Penal Code section 667.5 tween revocation with and revocation without a new commitment is to that, out, make it clear the “if re- person as the was regulation points term, turned to with a new the new term will as a count second (Cal. Code, (b)(2)); term” Admin. tit. subd. prior prison § i.e., the new commitment separate form the basis of a term as to a future offense. followers, to and its conclusion is

Contrary compelled the defendant, here, that a as reimprisoned upon revocation of parole, (Pen. Code, (h); 1170, (a)(2)) still subd. subd. his “serving” §§ (a)(2)) “sentence” and subd. has been § (a) (b) specifically “prison custody,” thereby implying sions and refer to (d) only (a) (b). subdivision application has to subdivisions and There are two answers First, argument. (d) (italics added), applies to the subdivision of the on “for of this section” not a Second, upon “pris- section. the classification of revocation as custody” (d) (a) (b). (a) (b) has no Subdivisions create function exceptions (in requirements. They preclude part) ap- to the section 667.5 enhancement plication prison custody of an enhanced term if the defendant has been for a free of specified period. single only prison custody nullify exception, Since a instance would (d)’s prison custody, triggered by single classification of when instance of words, reimprisonment upon since the act gained parole, revocation of would serve no function. In other giving nullify exception, nothing rise to the revocation would itself deeming parole additionally prison custody. Moreover, (d) incarceration”) (h) (“prison custody”), (g) (“prison subdivisions words, (“confinement prison”), although using time in...state different contain an in- terchangeable meaning. (See core of custodial In re Hawkins Cal.Rptr. 201].) 621 [163 which in a continuous prior felony 6 ““‘Prior term" is a conviction resulted particular crime or in [alone] (whether concurrent or combination with sentences for other crimes or commitments consecutive) person was parole. received before release on returned to If term, escape, violation or with new commitment finish However, prison with single prison person will a new incidentally as a term. was returned to count if term, term, parole was the new will count as a second even if Code, 15, 2154, (b)(2); (Cal. Admin. tit. subd. italics add- revoked.. . .’ (Fn. omitted.) ed.)” (People Espinoza, supra, Cal.App.3d at *9 (d) (g)) incarcerated subds. “continuously” § such a defendant cannot Accordingly, prison during parole period. (Pen. his have continuous completed Code, offense, and an enhancement not subd. (g)) be imposed. but, than rather reasoning demonstrably wrong demonstration, of er- with the take the my colleagues easy path

grapple ror sanctified by precedent.

I would petitioners. relief grant sought by Blease, J., A 1980. for a was denied petition rehearing August was should be Petitioners’ granted. ap- opinion petition September for a Court was denied plication Supreme hearing Bird, J., should be 1980. C. was of the opinion application granted.