Langston

In this sentencing case, we resolve a conflict that has arisen among the Courts of Appeal regarding the proper interpretation of Penal Code section 667.5, subdivision (b) (hereafter section 667.5(b)), imposing (with exceptions not pertinent here) a consecutive one-year enhancement of the term imposed for conviction of a felony offense “for each prior separate prison term served for any felony.” (All further undesignated statutory references are to the Penal Code.) Does the enhancement provision include and apply to a completed, separate prior prison term served for an escape (§ 4530, subd. (b))? In other words, if the defendant is reimprisoned on the term he was serving at the time of the escape, and given an additional, consecutive term for the escape itself, is the entire term of imprisonment, interrupted by the escape, considered one separate prison term or two!

Consistent with several other cases that have considered this question, we conclude that a prior separate prison term for escape should be treated no differently than any other prior prison term served for a felony offense, and thus should qualify for the one-year enhancement under section 667.5(b). We will…

A defendant who is convicted of a felony and who has previously served time in prison is subject to a one-year sentence enhancement. (Pen. Code, § 667.5.) 1 Irrespective of the number of prior convictions, only one enhancement can be imposed if the defendant was in prison for the prior felonies during a single “continuous completed period of prison incarceration.” (§ 667.5, subd. (g).) That period includes “any reimprisonment after an escape from incarceration.” (Ibid.)

*1247 Here, while in prison for a felony conviction (petty theft with a prior theft-related conviction), defendant escaped. He was caught, was convicted of felonious escape, and was returned to prison to complete his sentence for theft and to serve his sentence for escape. After his release he was convicted of yet another felony. The majority holds that two one-year enhancements under section 667.5 can be imposed: One for the theft, the other for the escape.

I disagree. Defendant served his prison sentence for theft and his sentence for escape at the same time. Consequently, under this court’s decision in In re Kelly (1983) 33 Cal.3d 267 [ 188 Cal.Rptr. 447 , 655 P.2d 1282 ] (Kelly), defendant was subject to only…

In this sentencing case, we resolve a conflict that has arisen among the Courts of Appeal regarding the proper interpretation of Penal Code section 667.5, subdivision (b) (hereafter section 667.5(b)), imposing (with exceptions not pertinent here) a consecutive one-year enhancement of the term imposed for conviction of a felony offense "for each prior separate prison term served for any felony." (All further undesignated statutory references are to the Penal Code.) Does the enhancement provision include and apply to a completed, separate prior prison term served for an escape (§ 4530, subd. (b))? In other words, if the defendant is reimprisoned on the term he was serving at the time of the escape, and given an additional, consecutive term for the escape itself, is the entire term of imprisonment, interrupted by the escape, considered one separate prison term or two?

Consistent with several other cases that have considered this question, we conclude that a prior separate prison term for escape should be treated no differently than any other prior prison term served for a felony offense, and thus should qualify for the one-year enhancement under section 667.5(b). We will…