People v. Rich CA2/8

Filed 3/5/15 P. v. Rich CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B253180

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA054013)
v.

ELIJAH RICH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court for the County of Los Angeles.
Daviann L. Mitchell, Judge. Affirmed in part and reversed in part.

James Koester, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Tannaz
Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________
 SUMMARY
Defendant Elijah Rich contends his conviction of stalking must be reversed
because the trial court erroneously denied his request to act as his own attorney. He also
asserts the trial court prejudicially misinstructed the jury on the elements of prison prior
allegations, four of which the jury found true, so that a retrial is required on those
allegations.
Because the record reflects defendant was still serving his sentence on one of the
four prior convictions at the time the current crime was committed, we reverse the jury’s
finding that a term was served in prison as described in Penal Code section 667.51 for that
offense. We otherwise affirm the judgment.
FACTS
On November 21, 2013, a jury convicted defendant of the crime of stalking
J. Calapon, a correctional officer, between June 14, 2011, and May 1, 2012, while
defendant was in state prison. In a bifurcated proceeding, the jury also found true
allegations that defendant had suffered four prior convictions for which he served a prior
prison term and “did not remain free of prison custody for, and did commit an offense
resulting in a felony conviction during, a period of 5 years subsequent to the conclusion
of said term . . . .”
The court sentenced defendant to a total term of nine years, consisting of the high
term of five years on the stalking count, plus four years for the prison priors. The court
also issued a 10-year protective order, ordered custody and conduct credits consistent
with defendant’s discharge date of January 17, 2013 (on his most recent prison term), and
made other orders not at issue on appeal.
We do not describe the facts supporting defendant’s conviction of stalking, as he
makes no claim of error relating to the facts underlying that conviction. The pertinent
facts are those concerning the denial of his request to represent himself, and those

1 All statutory references are to the Penal Code unless otherwise specified.

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relating to the bifurcated proceeding on his prison priors. We relate those facts in our
legal discussion of each issue.
DISCUSSION
1. The Faretta Motion
A defendant has the constitutional right under the Sixth and Fourteenth
Amendments to represent himself, and may waive the right to counsel in a criminal case.
(Faretta v. California (1975) 422 U.S. 806, 818-820 (Faretta).) If the defendant is
mentally competent and within a reasonable time before trial makes an unequivocal
request for self-representation, knowingly and intelligently after having been advised by
the court of its dangers, the request must be granted. (Id. at p. 835; People v. Valdez
(2004) 32 Cal.4th 73, 97-98; People v. Welch (1999) 20 Cal.4th 701, 729.)
A trial court “may terminate self-representation by a defendant who deliberately
engages in serious and obstructionist misconduct.” (Faretta, supra, 422 U.S. at p. 834,
fn. 46.) “[T]he same rule applies to the denial of a motion for self-representation in the
first instance when a defendant’s conduct prior to the Faretta motion gives the trial court
a reasonable basis for believing that his self-representation will create disruption.”
(People v. Welch, supra, 20 Cal.4th at p. 734.) “Regardless of where it occurs, a court
may order termination for misconduct that seriously threatens the core integrity of the
trial.” (People v. Carson (2005) 35 Cal.4th 1, 6.)
a. The facts
In this case, on June 10, 2013, defendant asked to represent himself. After a
colloquy between the court (the Honorable Thomas R. White) and defendant about his
understanding of legal procedures and the experience of the prosecutor, the court said:
“Okay. What does concern me, Mr. Rich, and I’ll get right to what I believe to be
a very critical point here, is that on at least two occasions I have had to issue a force
extract orders for you to be removed from your cell in county jail, transported to the
facility here, and then ordered you to be removed from your cell here, and removed from
your transportation as well, if necessary, in order to require you to appear in court. [¶] I
see that on the last appearance on 5-22-2013, I received notification from county jail that

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you had refused to transport to court, and I trailed the matter to today’s date for pretrial
with a force extract order being issued. This is, as I say, the second time that this has
occurred.”
The court then asked defendant: “[W]ith regard to your issues of nonconforming
conduct, your refusal to come to court, is there anything that you wanted to say with
regard to that issue?” Defendant responded: “I don’t – I never had a problem with
custody. They didn’t have to use any type of force on me. I am respectful of custody.
They never had a problem. I don’t have any writeups, and that is all I have to say, Your
Honor.” Defendant’s counsel then told the court that “this had to do with trying to get his
[previous] attorney to actually even communicate with him. It was never to be
disrespectful to the court.” The court responded:
“I understand. However, my job is to determine whether or not it would be
appropriate to allow [defendant] to represent himself in these cases. And, unfortunately,
it does not appear to me that he is able to do that. There is evidence of a disciplinary
pattern and history based on the fact that not once, but twice, we have had to do this, and
there may actually have been a previous incident, although I didn’t see a transcript of it,
and I haven’t had time just in this brief noticed period that I had about the motion to
review the entire docket history. But even based on the two incidents . . . , I must
determine if out-of-court disruptions would support a high likelihood of in-court
disruptions. And it certainly appears to me from the nature of the refusal that there would
be a clear indication that [defendant] would not be able to comport with the core trial
procedures. [¶] . . . I can’t imagine that anything would be more subverting of the
courtroom proceedings than just to refuse to come to court, so this tells me that
[defendant] is not going to be able to comport to court rules and structures.”
Observing that the court must preserve the record by reciting the incidents in
question, the court continued, referring to its May 22, 2013 court order “mandating that
the sheriff may use all reasonable force necessary to secure the defendant’s appearance in
court, including forced extraction from his cell at the county jail and from the local
lockup for appearance in court, and the sheriff was also required to be tasked with

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ensuring that the defendant is in court line and boards the bus for transport to court,
which causes disruption with the sheriff’s transport procedures, takes deputies away from
valued time that needs to be spent at the county facility. [¶] I also have an order dated 3-
27-2013 that is virtually identical. Again, based on information that [defendant] has
refused to transport; the fact that force did not have to be used is certainly a good thing,
but it still does not take away from the fact that he, basically, refuses to come to court
during key proceedings. Whether he’s motivated by his feeling that he needs to have
attention drawn to his issues or not, that is, as counsel pointed out, not the proper way to
proceed. . . . [¶] . . . [¶]
“To go on, the requirement is whether or not there is ability and willingness to
abide by court procedures and courtroom protocol. . . . [¶] So basically, from the pattern
of refusal that I have seen, which clearly subverts the core integrity of the proceedings,
and the direct refusal to be transported, and all of the measures and the time and the
inconvenience, not only to the court, but to counsel as well as staff and to the sheriff’s
department having to effect these procedures under their current protocols, I don’t feel
that [defendant] would be able to follow the appropriate directions and follow the policies
and practices, and there would be a risk of disrupting court proceedings if he were
allowed self-representation. [¶] Accordingly, the request for self-representation is
denied.”
Defense counsel then observed that defendant “was ill those two days and told
them that he was ill, and there was no violence, and . . . he’s never acted up in court.”
The court responded, “We have already checked. We have already determined there was
no medical excuse from transport to court. We already followed the protocol that would
be necessary to determine whether or not it was a voluntary refusal or whether he had a
medical issue or condition that would have prevented him in some way from being
transported.”
The parties then agreed to continue defendant’s trial dates until July 25, 2013, as
defense counsel had just received the case. There were subsequent changes in defense

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counsel, and a number of further continuances were granted before trial began in
November 2013.
After the court’s denial of his Faretta motion, defendant, on multiple occasions,
refused to come to court. About four months after the June 10 ruling, defense counsel on
October 2, 2013, advised the court defendant “wants to make a Faretta motion.” The
court (the Honorable Daviann L. Mitchell) responded:
“All right. I can make a record that the court is not going to allow him to go pro
per based on the nature of the charges, based on his multiple refusals to come to court
since I’ve been on this case. [¶] I have a refusal an extraction order dated 3/27/2013. I
have an extraction order dated 5/22/2013. I have the defendant not coming to court on
8/16/2013. I have on 8/20 the defendant refusing to come to court, and another extraction
order was issued by myself. I have an extraction order issued on 8/21 because he, again,
refused to come to court.” Further: “On 9/11 he refused to come to court, and I do
believe the defendant had refused to meet with defense counsel as to that date. I believe
it was on that date that counsel represented he had only gone down there one time. [¶]
On 9/12, defense counsel never showed up. The defendant did refuse to come to court on
that day. We had somebody standing and trailed it to 9/13, again the defendant refused to
come to court. An extraction order was issued for 9/20. [¶] 9/26 the defendant refused
to come to court. This morning he refused to come to court, an extraction order issued.
[¶] Under these circumstances with that record and the nature of the charges where this
defendant is charged in two separate cases for stalking correctional employees2 and that
coupled with his numerous refusals, this defendant isn’t going to be granted his Faretta
rights. He will not be granted pro per status. So his request to go pro per is denied.”

2 Defendant was charged with one count of stalking and one count of assault by a
state prisoner. (The court dismissed the assault count at the conclusion of the
prosecution’s evidence.) At trial, the parties stipulated that in June 2010 defendant had
been convicted of stalking, and the prosecution presented testimony under Evidence Code
section 1101, subdivision (b) that defendant had harassed another correctional officer.

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 Two days later, when the case was sent to the courtroom of the Honorable
Kathleen Blanchard, the court had this to say, in connection with a discussion of
defendant’s competency to stand trial (of which the court expressed no doubt): “It does
appear to me that this defendant has a pattern of not coming to court, of refusing to come
to court, willfully refusing to come to court, and when he does comes to court, I also
believe he has a pattern with giving the sheriff’s department a hard time. [¶] None of
this makes me doubt his competency to stand trial. All of this to me is very indicative of
someone who wants to control the proceedings and wants to come to court on his terms.
[¶] . . . [¶] [The attitude of defendant] may be fairly seen, again, as simply a refusal to
either accept responsibility or accept the authority of the court, and that is really what I
see as a behavior pattern here of unwillingness to comply and comport oneself
appropriately in court as opposed to a mental health issue.”
b. The claim on appeal
On appeal, defendant argues the trial court abused its discretion when it denied his
Faretta motion. We find no merit in his contention.
We take our direction from People v. Welch. The trial court’s decision “ ‘will not
be disturbed in the absence of a strong showing of clear abuse.’ [Citation.]” (People v.
Welch, supra, 20 Cal.4th at p. 735 [“a trial court must undertake the task of deciding
whether a defendant is and will remain so disruptive, obstreperous, disobedient,
disrespectful or obstructionist in his or her actions or words as to preclude the exercise of
the right to self-representation”; the reviewing court applies “the same deference [as it
does to a decision to terminate the defendant’s right to self-representation] when it comes
to deciding whether a defendant’s motion for self-representation should be granted in the
first instance”].)
There was no abuse of discretion here. The trial court cogently noted that nothing
could be “more subverting of the courtroom proceedings than just to refuse to come to
court . . . .” The fact that two prior court extraction orders were required in order to
obtain defendant’s presence in court constituted “a reasonable basis for the trial court’s

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conclusion that defendant could not or would not conform his conduct to the rules of
procedure and courtroom protocol . . . .” (People v. Welch, supra, 20 Cal.4th at p. 734.)
Defendant points out that he did not “exhibit[] any disruptive behavior while he
was in court . . . prior to the June 10, 2013 hearing” and there was no evidence he
forcibly resisted the two extraction orders. He complains that the court did not consider a
less onerous sanction “such as warning [defendant] that if he thereafter engaged in any
obstructive behavior . . . his pro per status would be terminated.” (See People v. Carson,
supra, 35 Cal.4th at p. 10 [when determining whether termination of self-representation
is necessary, “the trial court should consider several factors in addition to the nature of
the misconduct and its impact on the trial proceedings,” including “the availability and
suitability of alternative sanctions”; “whether the defendant has been warned that
particular misconduct will result in termination of in propria persona status”; and whether
the defendant has intentionally tried to disrupt and delay trial; “[t]he likely, not the actual,
effect of the misconduct should be the primary consideration”].)
Defendant misses the point. The fact that he did not disrupt proceedings when he
actually appeared in court, or did not forcibly resist after the court issued an extraction
order, is not pertinent to the conduct underlying the trial court’s order: his refusal to
come to court in the first place, demonstrating his failure to abide by rules of procedure
and courtroom protocol, causing repeated inconvenience and unnecessary consumption of
time by the court, court staff, counsel and the sheriff’s department. When the court
solicited defendant’s comments about his nonconforming conduct, defendant offered no
suggestion that his future conduct would be different, merely saying that “[t]hey didn’t
have to use any type of force on me,” and “I don’t have any writeups, and that is all I
have to say, Your Honor.” Under the circumstances, the court acted within its discretion
in refusing the request for self-representation, rather than the “less onerous alternative[]”
of granting it with a warning that it would be terminated if defendant’s refusals to
conform continued.
Indeed, the propriety of the court’s denial was confirmed by the defendant’s
behavior after the court’s decision, as defendant repeatedly refused to come to court (after

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which the court denied his renewed Faretta motion). Giving the trial court’s decision the
considerable weight it is due (People v. Welch, supra, 20 Cal.4th at p. 735), denial of the
motion was well within the trial court’s discretion.
2. The Prison Priors
Defendant contends the trial court prejudicially misinstructed the jury on the
elements of prison prior allegations, and that a retrial is required on those allegations.
The court did not give the standardized CALCRIM instruction No. 3102 on prison priors,
but the instruction the court gave (CALCRIM No. 3103) informed the jury of the
elements of a prison prior enhancement. Defendant did not object to the court’s proposed
instruction during the conference to settle the instructions, and did not request any
modification, so ordinarily his claim would be forfeited. However, there is insufficient
evidence to support a finding that defendant had completed his sentence on one of the
prior convictions at the time he committed the current stalking offense. Consequently,
we will reverse the true finding on that one prison prior allegation.
a. The facts
After the jury found defendant guilty of the charged stalking offense, the court
conducted a jury trial on the prior conviction allegations.
The court told the jury that the prosecution alleged defendant had suffered these
prior convictions:
(1) Case No. RIF108680, a felony violation of section 273.5, spousal battery,
conviction date of “6/17/03” in Riverside County;
(2) Case No. RIF123944, a felony violation of section 69, “commonly known
as threatening an executive officer in the performance of his or her duty,”
conviction date of “8/23/06” in Riverside County;
(3) Case No. 08CR13992, a felony violation of section 69, conviction date of
“2/27/09” in Jackson County;
(4) Case No. SWF025029, a felony violation of section 646.9, subdivision (c),
stalking, conviction date of “6/22/2010 [sic]” in Riverside County; and

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 (5) Case No. RIF120279, a violation of Health and Safety Code section 11379,
sales of a controlled substance, conviction date of “4/21/2005” in Riverside
County.
The court further told the jury the prosecution alleged “that those terms were
served, and the defendant did not remain free of prison custody and for and did commit
an offense resulting in a felony conviction during a period of five years subsequent to the
conclusion of said term.”
An investigator for the California Department of Corrections and Rehabilitation
then testified about the “969b packet”3 being used to prove the convictions, describing
the packet as including certified documents that “tell[] what the individual has been
convicted of and what his time or what his sentence is,” including fingerprints, photos,
and so on.
The certified records – including abstracts of judgment; a log of defendant’s
“External Movements” from the time he was committed to prison on June 20, 2003,
through his “jurisdictional discharge” on January 17, 2013; and other documents – were
admitted into evidence. The court then instructed the jury.
In addition to instructing the jury to decide whether the evidence proved that
defendant was convicted of each of the five alleged crimes (CALCRIM No. 3101), the
trial court gave the jury an instruction based on CALCRIM No. 3103, as follows: “If you
find that the defendant was previously convicted of the crime of Spousal Battery, Sales of
Controlled Substance, Threatening an Executive Officer, Stalking, you must also decide
whether the People have proved that in the commission of that prior crime Defendant
suffered prior conviction and that term was served in state prison and that the defendant
did not remain free of prison custody for, and did commit an offense resulting in felony
conviction during, a period of five years subsequent to the conclusion of said term. [¶]

3 “Section 969b permits the prosecution to prove that a defendant served a prior
prison term by introducing into evidence a packet of certified prison records.” (People v.
McGee (2006) 38 Cal.4th 682, 702, fn. 8.)

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To prove this allegation, the People must prove that: [¶] One, prior felony conviction;
[¶] Two, term served in prison; [¶] Three, committed new felony offense; [¶] Four,
during period of five years subsequent to conclusion of prior term. [¶] The People have
the burden of proving this allegation beyond a reasonable doubt. If the People have not
met this burden, you must find that this allegation has not been proved.”
Defense counsel did not object to the instruction or the prosecutor’s argument
based on the prior prison term instruction.
The jury found true the allegations that defendant suffered four of the five alleged
prior convictions: (1) the June 17, 2003 conviction for spousal battery; (2) the
August 23, 2006 conviction for threatening an executive officer in the performance of
duty; (3) the February 27, 2009 conviction for threatening an executive officer in the
performance of duty; and (4) the June 2, 2010 conviction for stalking.
With respect to each of these four convictions, the jury’s verdict stated “that a
term was served as described in . . . Section 667.5 for said offense, and that the defendant
did not remain free of prison custody for, and did commit an offense resulting in a felony
conviction during, a period of 5 years subsequent to the conclusion of said term . . . .”
b. The law
Section 667.5 provides for imposition of a one-year term “for each prior separate
prison term . . . imposed” (unless the term was imposed before a period of five years
during which defendant “remained free of both the commission of an offense which
results in a felony conviction, and prison custody . . . .”). (§ 667.5, subd. (b).) “A prior
separate prison term” means “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 . . . .” (§ 667.5, subd. (g).)
“Imposition of a sentence enhancement under . . . section 667.5 requires proof that
the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result
of that conviction; (3) completed that term of imprisonment; and (4) did not remain free
for five years of both prison custody and the commission of a new offense resulting in a

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felony conviction.” (People v. Tenner (1993) 6 Cal.4th 559, 563 (Tenner).) It is
reasonable to infer from an abstract of judgment and commitment form, considered in
light of the official duty presumption, that officials performed their duty to convey
defendant to prison and see that his or her sentence was carried out. (Id. at p. 566.)
“These reasonable inferences, together with evidence indicating that defendant was out of
custody when he committed the later offense, support a finding that defendant completed
a prior prison term.” (Ibid.)
If the trial court fails to instruct the jury on the elements of a prison prior
enhancement, “[t]he question then becomes whether the inadequacy of the instructions
concerning these priors resulted in a miscarriage of justice, i.e., whether [the defendant]
suffered prejudice with respect to the increased punishment for the priors.” (People v.
Winslow (1995) 40 Cal.App.4th 680, 688 (Winslow).) A harmless error standard applies
to wrongly omitted instructions dealing with enhancements. (Ibid. [no prejudice because
sentence on the prior prison term enhancements was stayed, so “[t]he jury’s
determination that he suffered these prior prison terms does not result in any adverse
consequences”].)
c. The claim on appeal
Defendant contends the court “misinstructed the jurors on the elements of the
prison prior allegations” and that the error was prejudicial. Specifically, defendant says
the instruction was “incomplete” because “it did not reference the requirement that the
defendant serve separate and completed prison commitments for each of the alleged prior
convictions and likewise did not define the legal term ‘separate prison terms.’ ” He
asserts the court should have given CALCRIM No. 3102, on prison priors, rather than the
instruction it gave based on CALCRIM No. 3103 (on factual issues for the jury
concerning prior convictions).
We reject defendant’s generalized assertion that the court failed to instruct on all
the elements of a prison prior enhancement, requiring a retrial on all the allegations. The
court’s instruction covered all the elements of a prison prior, telling the jury that the
People had to prove, beyond a reasonable doubt, “One, prior felony conviction; [¶] Two,

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term served in prison; [¶] Three, committed new felony offense; [¶] Four, during
period of five years subsequent to conclusion of prior term.” This language plainly
conveys that a true finding on a prison prior requires a “term served in prison” and a new
felony offense during the five-year period “subsequent to conclusion of prior term.”
(Italics added.) These elements are no different in substance from those described in
Tenner, supra, 6 Cal.4th at page 563, quoted above. And defendant’s reliance on
Winslow (where the court found error because the jury “was not instructed that it had to
find that appellant served prison terms and that they were separate”) is misplaced,
because in Winslow, the court gave no instruction at all on the elements of a prison prior.
(Winslow, supra, 40 Cal.App.4th at pp. 687-688 & fn. 5.)
Further, defendant forfeited his claim that the trial court’s instruction was
“incomplete.” “ ‘ “Generally, a party may not complain on appeal that an instruction
correct in law and responsive to the evidence was too general or incomplete unless the
party has requested appropriate clarifying or amplifying language.” ’ [Citation.]”
(People v. Catlin (2001) 26 Cal.4th 81, 149.) Here, the instruction given was “correct in
law,” and defendant did not object to it, or complain that it was “too general,” or ask the
trial court to instruct (in addition or instead) with CALCRIM No. 3102.
Nonetheless, we reverse the true finding on the allegation that defendant served a
term “as described in . . . Section 667.5” on his June 2, 2010 conviction. Entirely aside
from the question of instructional error, we do not find sufficient evidence to support a
finding that defendant had completed his sentence on that conviction at the time he
committed the current stalking offense. While defendant has couched his argument in
terms of instructional error and resulting prejudice, he also argues that “there was not
substantial, let alone overwhelming, evidence that [defendant] served separate and
complete prison terms for each of the alleged prison priors the jury found true,” and he
points out that an inmate who is convicted of a crime he committed in prison “would not
be subject to a prison prior enhancement for the term he or she was serving at the time of
the trial because the prisoner had failed to complete the current prison term.” With
respect to defendant’s June 2, 2010 conviction, we agree.

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 Under section 667.5, “a continuous completed period of prison incarceration” is
required in order to use a prior prison term to enhance a sentence on the current
conviction, and this period includes “any reimprisonment on revocation of parole which
is not accompanied by a new commitment to prison . . . .” (§ 667.5, subd. (g), italics
added; see People v. Johnson (2006) 145 Cal.App.4th 895, 907 [“A prior separate prison
term is defined as that time period a defendant has spent actually incarcerated for his
offense prior to release on parole”; because the defendant had not yet completed his
prison term, the additional one-year term imposed on the basis of that conviction had to
be stricken].)
In this case, so far as the prison packet shows, defendant was in prison, serving the
sentence on his June 2, 2010 conviction, when he committed the current stalking offense.
The prison packet shows his sentence was imposed on June 2, 2010, the same date as his
conviction, and he was remanded to the custody of the sheriff “forthwith.” While the
“External Movements” log shows defendant was then paroled and returned from parole
numerous times before his jurisdictional discharge on January 17, 2013, it does not show
any commitment for a new offense during this time. And defendant committed the
offense for which he was convicted in this case between June 14, 2011, and May 1, 2012,
while he was in prison custody. Consequently, the evidence did not show that defendant
had served “a continuous completed period of prison incarceration” when he committed
the new offense, so the June 2, 2010 conviction may not be used to enhance his sentence
for the new offense.
Defendant’s contentions as they apply to the other three prison priors the jury
found true are without merit. Even if we were to find instructional error, the error would
be harmless under any standard, because the priors package demonstrates as a matter of
law that the jury properly found true each element of the other three prison prior
enhancements.
The abstracts of judgment establish defendant was sentenced to state prison on
each of the four convictions the jury found true. The “External Movements” log shows
that defendant was first committed to prison because of a new felony commitment on

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June 20, 2003 (the first prior conviction the jury found true), and that he was paroled and
then returned from parole with a new term on three subsequent occasions: on April 13,
2007, on April 7, 2009, and on June 2, 2010. That evidence establishes separate and
completed terms for the first three convictions found true by the jury. (In re Kelly (1983)
33 Cal.3d 267, 270, overruled in part on other grounds in People v. Langston (2004)
33 Cal.4th 1237, 1245-1246 [“[A] prisoner who is incarcerated on both a parole
revocation and a new commitment is subject to an enhancement for the offense for which
he was on parole.”].)
DISPOSITION
The jury’s finding on the allegation that defendant served a prior prison term as
described in section 667.5 for stalking (conviction date June 2, 2010, in Riverside
County) is reversed. The trial court is directed to issue an amended abstract of judgment
showing three years, instead of four years, imposed for prison priors (§ 667.5, subd. (b)),
and reflecting defendant’s total prison term is eight years. The trial court is directed to
forward the amended abstract of judgment to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.

GRIMES, J.
We concur:

BIGELOW, P. J.

FLIER, J.

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