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Name: In re Preston
Case #: A122583
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 08/18/2009

Prison prior term enhancements (Pen. Code, § 667.5, subd. (b)) were properly imposed where appellant did not remain free from custody as a result of parole violations. Petitioner alleged the court improperly sentenced him on three of five prior prison term enhancements because he had been paroled in 1981 and remained free from prison custody until he was sent to prison for a new crime committed in 1989. The trial court had rejected the claim that the wash out period was satisfied because petitioner had spent time in county jail for two parole revocations in 1985. Petitioner argued that confinement in the county jail did not qualify because the statute refers to “prison custody.” (See Pen. Code, sec. 667.5, subd. (d).) The Court of Appeal affirmed. What the Legislature intended by this requirement was a single, continuous, crime-free period of rehabilitation. For purposes of the washout period, custody is a broadly defined term that simply refers to control of the felon by the Department of Corrections which retains legal custody until either official discharge from custody, or parole release. The reason for a parole revocation or the place of confinement is immaterial. Here, petitioner was returned to the custody of the department when parole was revoked in 1985. As such, the time for computing the washout period was stopped until he was released from parole again.