Darwin

In this case, we hold a one-year sentence enhancement under Penal Code section 667.5, subdivision (b), may be imposed for a prior prison term that is the basis of a conviction for petty theft with a prior under Penal Code section 666.

A jury convicted Melvin Julio Darwin of petty theft with a prior, and he admitted having served four prior prison terms for petty theft. The court sentenced him to the middle term of two years for the underlying offense plus four consecutive one-year terms for each of the prior prison terms.

Darwin contends one of the sentence enhancements must be stricken under the rule against multiple punishment set forth in Penal Code section 654. There is a split of authority on this point.

In People v. Ancira (1985) 164 Cal.App.3d 378, 382 [ 210 Cal.Rptr. 527 ], we held that a sentence enhancement could not be imposed for a prior prison term which was the basis of a conviction for petty theft with a prior. We relied on People v. Edwards (1976) 18 Cal.3d 796, 800 [ 135 Cal.Rptr. 411 , 557 P.2d 995 ], which reiterated “the established rule that when a prior conviction constitutes an element of criminal conduct which otherwise would be noncriminal, the…