THE PEOPLE, Plaintiff and Respondent, v. WALTER SHANE LANGSTON, Defendant and Appellant, 33 Cal. 4th 1237

Opinion CHIN, J. 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 reverse the judgment of the Court of Appeal, which reached a contrary conclusion. FACTS The following facts are taken largely from the Court of Appeal opinion in this case. Defendant Walter Shane Langston was convicted by a jury of first degree burglary (§§ 459, 460, subd. (a)) and receiving stolen property (§ 496, subd. (a)). The trial court found defendant had served three prior prison terms within the meaning of

section 667.5(b). The trial court imposed the upper term of six years for the burglary, the upper term of three years for the receipt of stolen property to be stayed pursuant to

section 654, and three consecutive one-year terms for the prior prison terms with one of those terms stayed pursuant to

section 667.5, subdivisions (

d) and (g), for an aggregate prison term of eight years. Although the court imposed the one-year enhancements for defendant’s 1992 and 1999 prior prison terms, it stayed the one-year enhancement as to the prior prison term for defendant’s 1994 escape conviction “pursuant to

section 667.5 [subdivisions (

d) and (g)].” The court stayed the enhancement because, although it found the escape conviction was “a legitimate conviction in that he was convicted of the offense on the date indicated on the count,” and that he did serve the state prison sentence, it was unclear whether the term was separately served under

section 667.5(b). The Court of Appeal modified the judgment to strike the enhancement and, as modified, affirmed the judgment. We granted the Attorney General’s petition for review. As indicated, we will reverse the Court of Appeal. DISCUSSION

Section 667.5, subdivisions (b), (d), and (g), each requires that, in order to qualify for the enhancement, the prior prison terms must have been served separately. The question presented in this case is whether defendant’s completed prison term for escape from prison is a separately served prison term within the meaning of

section 667.5(b). For the reasons that follow, we conclude it is.

Section 667.5(

b) provides for an enhancement of the prison term for a new offense of one year for each “prior separate prison term served for any felony,” with an exception not applicable here involving a prior five-year commitment “washout” period of freedom from custody and further felony offenses. Once the prior prison term is found true within the meaning of

section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken. (See People v. Jones (1992) 8 Cal.App.4th 756, 758 [10 Cal.Rptr.2d 502]; People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1122-1123 [231 Cal.Rptr. 387].)

Section 667.5, subdivision (d), provides: “For the purposes of this section, the defendant shall be deemed to remain in prison custody for an offense until the official discharge from custody or until release on parole, whichever first occurs, including any time during which the defendant remains subject to reimprisonment for escape from custody or is reimprisoned on revocation of parole. The additional penalties provided for prior prison terms shall not be imposed unless they are charged and admitted or found true in the action for the new offense.” Subdivision (

g) of

section 667.5 contains the rather confusing language at issue in this case. That subdivision provides: “A prior separate prison term for the purposes of this

section shall mean a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after an escape from incarceration.” (Italics added.) Does the italicized language mean that, unlike other prior separate prison terms, a consecutive prison term served for escape does not receive an enhancement under

section 667.5(

b) because it is deemed included in the term interrupted by the escape? Believing that such an

interpretation would lead to absurd or illogical results, we conclude otherwise. In reaching its contrary conclusion, the Court of Appeal in this case reasoned that “the plain language of [section 667.5,] subdivision (

g) indicates that after a defendant is committed to state prison, additional concurrent or consecutive sentences imposed in the same or subsequent proceedings are deemed to be part of the same prison term, including any reimprisonment after an escape from incarceration. [Citation.] The statute does not distinguish between reimprisonments after escape which are and are not accompanied by a new commitment.” To the contrary, we think the Court of Appeal’s

interpretation of

section 667, subdivision (g), would fail to promote the Legislature’s clear purpose to impose a one-year enhancement for all separately served prior prison terms. As we explain below, we discern no legislative intent to include within the original prison term any additional but separate term resulting from the escape, as opposed to a continuation of the original term following reimprisonment for escape. In other words, by reason of

section 667, subdivision (g), the defendant’s original interrupted term is not deemed separate and apart from the remaining term that must be completed following his reimprisonment. But the

section would not include the consecutive time served for the escape itself, because new crimes committed while in prison are treated as separate offenses and begin a new aggregate term. (People v. Carr (1988) 204 Cal.App.3d 774, 780-781 [251 Cal.Rptr. 458] (Carr); People v. White (1988) 202 Cal.App.3d 862, 867-871 [249 Cal.Rptr. 165] (White); see People v. Walkkein (1993) 14 Cal.App.4th 1401, 1409-1410 [18 Cal.Rptr.2d 383] (Walkkein); People v. Cardenas (1987) 192 Cal.App.3d 51, 59 [237 Cal.Rptr. 249] (Cardenas).) The foregoing construction is consistent with

section 1170.1, subdivision (c), stating that consecutive sentences imposed for additional crimes committed in prison are deemed to commence when the prisoner would otherwise have been released. That

section provides in pertinent part: “In the case of any person convicted of one or more felonies committed while the person is confined in a state prison or is subject to reimprisonment for escape from custody and the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all the convictions that the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison.” (Ibid., italics added.) Given the language of

section 1170.1, subdivision (c), a reasonable

interpretation of the statutory scheme is that under

section 667.5, subdivision (g), the defendant’s original interrupted term is not deemed separate and apart from the remaining term that must be completed following his rearrest and reimprisonment. The Court of Appeal noted, however, that “section 1170.1 was not specifically enacted to assist in the

interpretation of separately served prison terms for purposes of

section 667.5. Moreover, since the enhancement must be found true within the meaning of

section 667.5 and subdivision (

g) specifically addresses the definition of a prior separate prison term for reimprisonment after an escape, we believe the express language in

section 667.5 must prevail.” The Court of Appeal did recognize “the apparent dichotomy between the definition of a separately served term for escape under sections 667.5 and 1170.1.” The court noted that “Escape from prison, whether or not by force or violence, results by law in the imposition of a consecutive sentence. (§ 4530, subds. (a) & (b).) Statutorily, one convicted of escape from prison in violation of

section 4530 comes within the express provisions of

section 1170.1, subdivision (c), ‘which requires the term for escape be treated as a separate and additional term to be served consecutive to the remainder of the term under which the person convicted was already confined.’ (People v. Galliher (1981) 120 Cal.App.3d 149, 153 [174 Cal.Rptr. 467], original italics [referencing former § 1170.1, subd. (

b) which was redesignated subd. (

c) by the 1982 amendment].)” As noted, prior appellate decisions support our proposed

interpretation of

section 667.5, subdivision (g). Thus, Cardenas noted that it was “inconceivable the Legislature intended a defendant’s subsequent crimes be exempt from recidivist enhancement merely because the offense was committed inside prison walls.” (Cardenas, supra, 192 Cal.App.3d at p. 60.) Accordingly, Cardenas held that, to avoid absurd results, sections 667.5(

b) and 1170.1, subdivision (c), must be construed together as providing for “similar treatment of new felony offenses whether committed in or out of prison.” (Cardenas, supra, 192 Cal.App.3d at p. 60.) Similarly, Walkkein observed that the purposes of these sections would be ignored if “persons who re-offend in prison received a lesser penalty than persons who re-offend ‘on the outside.’ ” (Walkkein, supra, 14 Cal.App.4th at p. 1410.) Carr, supra, 204 Cal.App.3d at pages 780-781, seems most apposite. There, the defendant argued that the prison sentence on his prior burglary conviction and the consecutive sentence on his later escape conviction constituted but a single prison term under

section 667.5, subdivision (g). The Carr court disagreed, observing that, “at first blush, the last clause of

section 667.5(g) . . . might seem to support Carr’s argument. Read in context, however, it is clear that language is intended to refer only to that portion of the original prison term for which the defendant is reimprisoned following the escape. Any new prison sentence imposed on a new escape conviction would not constitute reimprisonment within the meaning of subdivision (g).” (Carr, supra, 204 Cal.App.3d at p. 780, fn. 8.) Carr relied on the foregoing language of

section 1170.1, subdivision (c), and reasoned that the escape term is a separate, “ ‘continuous completed’ ” term, which is available for enhancement under

section 667.5. (Carr, supra, at p. 780.) The court in White, supra, 202 Cal.App.3d at pages 867-871, applied similar reasoning to reach the same conclusion that reimprisonment after conviction for escape fell within the provisions for enhancement under

section 667.5(b). The White court reasoned: “We believe our conclusion is consistent with the legislative intent to provide additional punishment for the recidivist, regardless of whether he commits a new felony inside prison or on the outside. Society is at a greater risk from a hardened criminal and the protection of society warrants harsher punishment for the habitual offender. [Citation.] It would indeed be an unfortunate anomaly if the defendant who escaped one day before his sentence was completed could avoid the application of

section 667.5(

b) because he was serving a prison term while his confederate who waited until his lawful release two days later before committing a new felony was subject to increased punishment for the prior convictions. To treat the in-prison recidivist more leniently than the out-of-prison recidivist is contrary to the legislative purpose underlying increased punishment for the habitual offender. [Citation.]” (White, supra, at pp. 870-871.) The present Court of Appeal disagreed with Carr and White, relying in part on legislative history showing that, as originally enacted (Stats. 1976, ch. 1139, § 268, p. 5139),

section 667.5, subdivision (g), read as follows: “A continuous completed period of prison incarceration imposed for the particular offense alone or in combination with sentences for other counts or sentences to be served concurrently or consecutively therewith including any reimprisonment on revocation of parole or new commitment for escape from such incarceration shall be deemed a single prior separate term for the purposes of this section.” (Italics added.) As the Court of Appeal viewed it, “the Legislature then amended

section 667.5, subdivision (

g) in Statutes 1977,

chapter 165,

section 13, page 644, to its current form, to differentiate between a mere revocation of parole and the revocation of parole which is accompanied by a new commitment. (See In re Kelly (1983) 33 Cal.3d 267, 271 [188 Cal.Rptr. 447, 655 P.2d 1282] [(Kelly)].) The purpose of the amendment was to provide for an enhancement when a prisoner is returned to prison on revocation of parole and, at the same time, is incarcerated for a new offense. (Ibid.)” Dicta in our 1983 Kelly decision supports the Court of Appeal’s holding, although that decision does not appear to have recognized the full significance of the new language added by the 1977 amendment.

Kelly properly rejected the defendant’s argument that despite his parole violation and new commitment for offenses while on parole, he had not served a “prior separate prison term” within

section 667.5, subdivision (g), because he essentially had been serving one continuous prison term. (Kelly, supra, 33 Cal.3d at p. 269.) Kelly stressed the absence of language in the

section indicating that commitment for a new offense while on parole would not constitute a separate term for enhancement purposes. The court noted in dictum that, unlike the provision regarding parole revocation, “the 1977 amendment did not intrinsically change the phrase referring to reimprisonment after escape, which now reads: ‘. . . and including any reimprisonment after escape from such incarceration.’ The only difference is that this phrase is no longer interrupted by the parole revocation wording. There is no qualifying phrase such as ‘which is not accompanied by a new commitment to prison.’ ...

It is obvious . . . that the Legislature intended to differentiate between the escape and parole situations (and amend one and not the other).” (Kelly, supra, 33 Cal.3d at p. 271, fn. 4, italics added.) Thereafter, in explaining the application of

section 667.5, subdivision (g), in a parole revocation context, the Kelly court seemingly approved language in a Community Release Board regulation to the effect that, “ ‘[i]f the person was returned to prison to finish term [sic], for a parole violation or with a new commitment for escape, the period will count as a single prior prison term.’ ” (Kelly, supra, 33 Cal.3d at p. 276.) Kelly involved the application of the one-year enhancement in

section 667.5(

b) to offenses committed on parole, and accordingly its references to escapes were dicta which we now reexamine and must disapprove.

The Court of Appeal in the present case found the Kelly dicta “well reasoned and persuasive.” But as the Attorney General observes, a closer examination of the 1977 amendment leads to the conclusion that Kelley erred in suggesting this amendment “did not intrinsically change the phrase referring to reimprisonment after escape . . . .” (Kelley, supra, 33 Cal.3d at p. 271, fn. 4.) Kelly seemingly overlooked the fact that the 1977 amendment deleted the phrase “new commitment for escape from such incarceration,” and substituted the qualitatively different term “any reimprisonment after an escape.” (§ 667.5, subd. (g), as amended by Stats. 1977, ch. 165, § 13, p. 646.) As Carr and White each holds, this substitution should preclude us from construing

section 667.5, subdivision (g), as including the separate prison term served for escape within the “continuous completed period of prison incarceration” contemplated by that section. In other words, reimprisonment may result in a continuation or renewal of the term interrupted by the escape, but it does not encompass the additional separate term to be served for the escape itself. Thus, we construe the statutory phrase “including any reimprisonment after an escape from incarceration” in

section 667.5, subdivision (g), as referring to the completion of the original term of imprisonment, but not to the new term of imprisonment imposed for escape. We think this

interpretation is fully consistent with, and indeed effectuates, Kelly’s view that the term “continuous completed period of prison incarceration” in

section 667.5, subdivision (g), is equivalent to the stated prison commitment for the particular offense at issue. (Kelly, supra, 33 Cal.3d at p. 270.) Defendant relies on

section 1170.1, subdivision (a), requiring imposition of an aggregate term of imprisonment for all consecutive felony convictions, whether in the same proceeding or later, “[e]xcept as otherwise provided by law.” But as the Attorney General observes, this subdivision is inapplicable to in-prison offenses, which are governed by

section 1170.1, subdivision (c), requiring the term of imprisonment for such offenses to “commence from the time the person would otherwise have been released from prison,” i.e., after completion of the original term. DISPOSITION We conclude the Court of Appeal erred in striking the enhancement for defendant’s 1984 escape conviction. To the extent it is inconsistent with our opinion, we overrule In re Kelly, supra, 33 Cal.3d 267. The judgment of the Court of Appeal is reversed and the cause remanded for further proceedings consistent with this opinion. George, C. J., Baxter, J., Werdegar, J., Brown, J., and Moreno, J., concurring.