In Re Jessup

These three original proceedings, each seeking a writ of habeas corpus, were consolidated for hearing. Because they present identical issues, we have on our own motion consolidated them for decision. (See 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 482, p. 4437.)

*163 The question presented is whether a felony sentence must be enhanced because of a prior prison term when the subject crime is committed during the parole period of the prior offense and there is a concurrent reimprisonment for the parole violation. Petitioners, each of whom has had his sentence so enhanced, contend Penal Code section 667.5, subdivision (g), as interpreted by the First District, Division Two court in People v. Cole (1979) 94 Cal.App.3d 854 [ 155 Cal.Rptr. 892 ], bars enhancement because their prior terms were not “completed” when the new sentences and enhancements were imposed.

Penal Code section 667.5 1 mandates enhancement of a prison term because of prior prison terms. Sentences for specified violent felonies (subd. (c)) are enhanced by three years when the prior term was also for a violent felony and the defendant has been free of prison custody for less than ten years (subd. (a)).…

I dissent.

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

The issue here, as in Espinoza , is whether, for purposes of Penal Code section 667.5, a defendant has “completed” a “sentence” for a pri- or offense when he has been recommitted to “prison custody” upon *165 revocation of parole imposed “as part of the sentence” for the offense. (Italics added.)

As will be shown, a prison term for a prior felony offense is complete when the period, including parole, during which prison custody for the offense may be imposed, has terminated.

The majority opinion blindly follows the result in Espinoza , disregarding the fact that Espinoza fails to consider four of the five statutory provisions which expressly govern the issue. This…

These three original proceedings, each seeking a writ of habeas corpus, were consolidated for hearing. Because they present identical issues, we have on our own motion consolidated them for decision. (See 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 482, p. 4437.)

(1) The question presented is whether a felony sentence must be enhanced because of a prior prison term when the subject crime is committed during the parole period of the prior offense and there is a concurrent reimprisonment for the parole violation. Petitioners, each of whom has had his sentence so enhanced, contend Penal Code section 667.5, subdivision (g), as interpreted by the First District, Division Two court in People v. Cole (1979) 94 Cal. App.3d 854 [ 155 Cal. Rptr. 892 ], bars enhancement because their prior terms were not "completed" when the new sentences and enhancements were imposed.

Penal Code section 667.5 [1] mandates enhancement of a prison term because of prior prison terms. Sentences for specified violent felonies (subd. (c)) are enhanced by three years when the prior term was also for a violent felony and the defendant has been free of prison custody for less than ten…