Jones

Presented in this appeal is an issue of whether substantial evidence supports the jury finding relating to the charged prior enhancements under the provisions of Penal Code section 667.5, subdivision (b). We find neither such a jury finding nor substantial evidence to support the enhancements.

Appellant was convicted by jury of a battery on a nonprisoner by a prisoner (§ 4501.5) and in a bifurcated proceeding was found to have suffered two prior felony convictions. (§ 667.5, subd. (b).) He was sentenced to a consecutive middle term of three years on the battery. Using the one mitigating factor, the court struck punishment on the prior enhancements of one year each. (See Cal. Rules of Court, rules 423 and 425.)

Appellant is correct that the only proof offered by the People, consisting of the abstracts of judgment in each prior, showing the fact of a felony conviction and a sentence to the state prison, is insufficient to prove appellant served a prior completed prison term and had not been free of prison custody for five or more years since released.

Section 667.5 provides in pertinent part: “Enhancement of prison terms for new offenses because of prior prison terms…