NOT TO BE PUBLISHED
Defendant James Richard Banfill has a long criminal history, and has served multiple prison terms for some of those offenses, including prison terms in 2005, 2009, and 2010. Several months before defendant was convicted and sentenced for threatening a witness (Pen. Code, § 140, subd. (a))
Defendant contends the court erred by enhancing his sentence for the prior prison terms in 2005 and 2009 because each of those felonies "washed-out" after his 2010 felony conviction was redesignated a misdemeanor. In his view, the prison term he served for the now-reduced felony conviction in 2010 does not constitute "prison custody" within the meaning of section 667.5, subdivision (b).
We conclude the court did not err in imposing two prison prior enhancements under section 667.5, subdivision (b) for the 2005 and 2009 offenses because the "washout" rule did not apply to those prior prison terms; defendant did not remain free from prison custody for five years before committing the current offenses. In other words, a completed prison term previously served for a felony conviction that has been reclassified as a misdemeanor under Proposition 47 still qualifies as "prison custody" within the meaning of section 667.5, subdivision (b). We therefore affirm the judgment.
A. Defendant's Criminal History
In September 2005, defendant was convicted of receiving stolen property (§ 496, subd. (a)) and, in June 2005, of being a felon in possession of a firearm (former § 12021, subd. (a)(1)) and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). He served a prison sentence for the offenses, and was paroled in May 2006. He was returned to custody from parole on December 10, 2006, and then paroled again on December 22, 2006.
In March 2009, defendant was convicted of criminal threats (§ 422) and inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)), and was sentenced to prison the following month. He was paroled in September 2009.
A year later, in September 2010, defendant was convicted of felony possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) He was sentenced to prison, and was later discharged and released on postrelease community supervision in December 2012.
B. The Current Offenses
Nearly three years later, in November 2015, Sherry F. reported an altercation with defendant to police. He was arrested for misdemeanor domestic battery and possession of a weapon, and was served with an emergency protective order.
At his arraignment on the charges two days later, defendant stared at Sherry F. while she sat in the audience. He mouthed words to her and gestured at her with his hand. According to the courtroom deputy, defendant pulled his finger horizontally across his neck twice, as if slitting the throat, and he put his hand in the shape of a gun and pointed it towards her. He directed obscenities at her and was eventually removed from the courtroom.
C. Trial Proceedings
Based on the courtroom incident, defendant was charged with criminal threats (§ 422 — count one), threatening a witness (§ 140, subd. (a) — count two), and disobeying a domestic relations order, a misdemeanor (§ 273.6, subd. (a) — count three). As to counts one and two, it was alleged defendant had a prior serious felony conviction (§ 667, subd. (a)(1)), which qualified as a strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that he had three prison priors within the meaning of section 667.5, subdivision (b). The prison priors were based on the 2005, 2009, and 2010 felony convictions described above.
Before defendant was tried, a different court granted his petition under Proposition 47 to reduce his 2010 felony conviction for possessing a controlled substance (Health & Saf. Code, § 11377) to a misdemeanor. (§ 1170.18.) Thus, at the time of trial, defendant's prior drug possession conviction had been redesignated a misdemeanor for all purposes. (§ 1170.18, subds. (f), (g) & (k).)
At the close of the People's case, defendant moved for acquittal on the criminal threats charge. (§ 1118.1.) The court granted the motion, and the jury convicted defendant of the remaining charges. In a bifurcated proceeding, the trial court found defendant had served three prior prison terms, one of which was based on the 2010 drug possession conviction that had already been reduced to a misdemeanor.
The court sentenced defendant to six years in prison: two years for threatening a witness, doubled to four years for the prior strike, plus one year each for two prior prison term enhancements under section 667.5, subdivision (b), and a concurrent six months for the disobeying a domestic relations court order conviction. The court struck the prison prior based on defendant's 2010 drug possession conviction, noting that at the time of sentencing the conviction had been reduced to a misdemeanor. Defendant timely appealed.
Defendant contends the court erred in imposing two one-year prior prison term enhancements under section 667.5, subdivision (b) for prison terms he served in 2005 and 2009 because the prison term he served for his 2010 felony drug possession conviction no longer qualified as "prison custody" once it was reduced to a misdemeanor under Proposition 47. Citing what is known as the "washout" rule under section 667.5, defendant asserts he neither committed a crime leading to a felony conviction nor served time in prison within five years of the 2005 and 2009 prior prison terms.
Section 667.5 provides in relevant part: "Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: . . . [¶] (b) Except where subdivision (a) [concerning violent felonies] applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony; provided that no additional term shall be imposed under this subdivision for any prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended 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 or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended." (§ 667.5, subd. (b), italics added.) "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." (People v. Fielder (2004) 114 Cal.App.4th 1221, 1229 (Fielder).)
"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." (Fielder, supra, 114 Cal.App.4th at p. 1229.) "Both prongs of the rule, lack of prison time and no commission of a crime leading to a felony conviction for a five-year period, are needed for the `washout' rule to apply." (Ibid.) For the prosecution to prevent application of the "washout" rule, "it must show a defendant either served time in prison or committed a crime leading to a felony conviction within the pertinent five-year period." (Ibid.; see also People v. Tenner (1993) 6 Cal.4th 559, 563) ["Imposition of a sentence enhancement under [section] 667.5 requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction"], italics added; People v. Elmore (1990) 225 Cal.App.3d 953, 956-957 ["washout" period does not apply if defendant committed a new offense resulting in a felony conviction within five years even without a showing he was incarcerated in state prison as a result of the conviction].)
Seeking to avoid the above principles, defendant urges us to follow People v. Shoals (1992) 8 Cal.App.4th 475 (Shoals), which held that in order to avoid application of the "washout" provision, the prosecution had to prove both prison custody and conviction of a felony. Like the court in Fielder, however, we decline to do so because Shoals is based upon a misreading of the pertinent statutory language. (Fielder, supra, 114 Cal.App.4th at p. 1231.) We discern nothing in section 667.5, subdivision (b) that requires the prosecution to prove both prison custody and a felony conviction within the requisite five-year period. Rather, under a fair reading of the statute's plain language, a prosecutor need only prove one or the other to avoid application of the washout rule.
In this case, the record shows that on September 22, 2005, defendant was sentenced to prison for three felony convictions. He began his prison sentence for those offenses on October 7, 2005, and he was paroled on May 10, 2006. After violating parole, he was returned to custody and then was paroled again on December 22, 2006. Less than three years later, in March 2009, defendant was convicted of two additional felonies and sentenced to prison. He returned to prison for those offenses on April 3, 2009, and was paroled on September 2, 2009. A little over a year later, on September 22, 2010, defendant was convicted and sentenced to prison for felony drug possession, the offense eventually reduced to a misdemeanor under Proposition 47. Defendant was returned to prison custody for that offense on September 24, 2010, and was discharged to postrelease community supervision on December 22, 2012. Nearly three years later, in November 2015, he committed the current felony offense of threatening a witness, was convicted of that crime in March 2016, and was sentenced to six years in prison in July 2016.
While it is true that the prosecution could not show defendant committed a new felony in 2010 once his drug possession offense was reduced to a misdemeanor under Proposition 47 (People v. Kindall (2016) 6 Cal.App.5th 1199, 1203 [felony convictions that had been reduced to misdemeanors prior to adjudication of prior prison enhancements were "no longer previous felony convictions"], italics added), it did prove that defendant served time in prison from 2010 to 2012 for that offense. The prosecutor introduced a section 969b "`prison packet' (i.e., records maintained by the institution where the defendant was incarcerated, or certified copies thereof)[,]" which constitutes "prima facie evidence that the defendant served a term of imprisonment." (People v. Tenner, supra, 6 Cal.4th at p. 563; see § 969b.) If that term of imprisonment constitutes "prison custody" within the meaning of section 667.5, subdivision (b), then the "washout" rule would not apply to nullify the 2005 and 2009 felony convictions for which defendant had served separate prison sentences. We turn to that question now.
According to defendant, regardless of whether we apply the "washout" rule under Fielder or Shoals, a prison term previously served for a felony conviction that has been reclassified as a misdemeanor under Proposition 47 does not qualify as "prison custody" under section 667.5, subdivision (b). He relies on In re Acker (1984) 158 Cal.App.3d 888 (Acker) to support his argument. In Acker, the defendant was sentenced to prison, but before completing the sentence it was recalled under section 1170, subdivision (d). (Acker, supra, at pp. 889-890.) When he was convicted later of a new offense, the prosecution alleged a prison prior under section 667.5. (Acker, supra, at p. 890.) The court ruled the prison prior was not proper because he never completed his term, and a completed term was required to prove the enhancement. (Id. at p. 891; see § 667.5, subd. (g) [defining "prior separate prison term" as "a continuous completed period of prison incarceration imposed for the particular offense"], italics added.) The court in Acker simply considered the terms of the enhancement and found they had not been proved. (Acker, supra, at pp. 891-892.)
The procedural posture of this case differs from Acker. The evidence shows that defendant did complete his prison term for the 2010 felony offense before it was redesignated a misdemeanor.
Defendant began serving his prison term for his felony drug possession conviction on September 24, 2010, and he was discharged to postrelease community supervision on December 22, 2012. Because he was released from prison to postrelease community supervision, defendant's prison term for the 2010 offense was complete. (§ 667.5, subd. (d) [for the purpose of section 667.5, a 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"].)
In the wake of the Criminal Justice Realignment Act of 2011 (Stats. 2011, ch. 15, § 1), "a person released from prison is subject to a period of either parole (§ 3000 et seq.) or postrelease community supervision (§ 3450 et seq.)." (People v. Armogeda (2015) 233 Cal.App.4th 428, 434.) Parole applies to certain high level offenders (§ 3451, subd. (b)), and postrelease community supervision applies to all other persons released from prison (§ 3451, subd. (a)). (Armogeda, supra, at pp. 434-435.) Postrelease community supervision "is similar to parole." (People v. Jones (2014) 231 Cal.App.4th 1257, 1266.) It "does not change any terms of a defendant's sentence, but merely modifies the agency that will supervise the defendant after release from prison." (Id. at p. 1267.)
Our Supreme Court has recognized that while "a period of parole . . . is mandatory from the offender's perspective, [it] is not part of the offender's prison term; it follows the prison term, which ends on the day of release on parole." (People v. Guzman (2005) 35 Cal.4th 577, 590.) Because parole and postrelease community supervision are similar (People v. Jones, supra, 231 Cal.App.4th at pp. 1266), the same logic applies.
Once defendant was discharged to postrelease community supervision in 2012, he had completed his prison term for the 2010 felony drug possession offense. These facts differ significantly from those in Acker where the court found the prior prison enhancement had not been proved because defendant had not completed a prior prison term. (Acker, supra, 158 Cal.App.3d at pp. 891-892.)
For the same reason, defendant's reliance on People v. Abdallah (2016) 246 Cal.App.4th 736 (Abdallah) is misplaced. In Abdallah, the trial court sentenced the defendant in 2014 for several drug possession and firearm convictions, and imposed a one-year enhancement for a prior prison term under section 667.5, subdivision (b). (Abdallah, supra, at p. 739-740.) The court imposed the prison prior enhancement because the defendant had been released on parole in 2005 from a conviction he suffered in 2002, and then had been arrested less than five years later in 2009 for a new felony, for which he was convicted in 2011 and placed on probation. (Id. at p. 740.) Prior to being sentenced for the 2014 offenses, the trial court reduced his 2011 conviction to a misdemeanor under Proposition 47. (Ibid.) Once the 2011 felony had been reduced to a misdemeanor, the court found he no longer qualified for the one-year sentence enhancement for the 2002 conviction because the 2011 conviction was no longer a felony and he never served any time in prison for that conviction. (Id. at pp. 740-741.)
Defendant, by contrast, did complete a prison term for his now-reduced 2010 drug possession conviction. Abdallah, then, does not dictate a different result.
Defendant's completed term of imprisonment for the 2010 felony offense, which was later redesignated a misdemeanor under Proposition 47, brings him within the purview of section 667.5, subdivision (b), and renders the "washout" rule inapplicable to his 2005 and 2009 prison terms. The court, therefore, properly enhanced defendant's sentence for those two prior prison terms.
The judgment is affirmed.
MAURO, Acting P. J., and HOCH, J., concurs.