Error and/or relief
(Gary note: This was not a win, but has section 654 principles of importance.)
There are some sentencing errors related to counts 2, 3 and 4. The court imposed one-third the midterm on each of counts 2 and 3, which it stayed under section 654, and it imposed a concurrent one-third the midterm on count 4.
It was error to impose and stay sentences under section 654 based on 1/3 the middle term, and it was error to impose a concurrent term at 1/3 the middle term.
First Holding:
If a court makes multiple terms concurrent, they must all be full terms, not one-third the midterm. Because concurrent terms are not part of the principal and subordinate term computation under section 1170.1(a), they are imposed at the full base term, not according to the one-third middle term formula, even though they are served at the same time.
A concurrent term begins when it is imposed and runs together with the other terms, with the latest expiring term controlling.
Authority:
PEN 669
PEN 1170.1(a)
People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3, disapproved on another ground in People v. Poisson (2016) 246 Cal.App.4th 121, 125
People v. Bruner (1995) 9 Cal.4th 1178, 1182, fn. 3
People v. Matthews (1999) 70 Cal.App.4th 164, 169, fn. 4
Second Holding:
Section 654 prohibits multiple punishment where the same act or omission or a course of conduct deemed to be indivisible in time results in multiple statutory violations. A trial court must determine whether to stay execution of a sentence under section 654, thereby avoiding multiple punishment, before deciding whether to impose concurrent or consecutive sentences.
If the court decides to stay a sentence, it must impose and stay execution of the sentence on that count with no determination made as to whether it is consecutive or concurrent. This is because a term cannot be both consecutive and stayed simultaneously because the two are mutually exclusive.
Authority:
Cal. Rules of Court, rule 4.424
People v. Harrison (1989) 48 Cal.3d 321, 335
People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164
People v. Bruner (1995) 9 Cal.4th 1178, 1182, fn. 3
Third Holding:
In addition, the one-third-the-midterm rule of section 1170.1(a) only applies to a consecutive sentence, not a sentence stayed under section 654. When a sentence is required to be stayed under section 654, the trial court should impose a full-term sentence to ensure the defendant’s punishment is commensurate with his criminal liability if the stay is lifted.
Accordingly, the trial court must impose a full term on any count that it stays under section 654. If the count for which sentence is not stayed is reversed or otherwise undone, imposition of sentence on the stayed count is preserved.
Authority:
People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164
People v. Alford (2010) 180 Cal.App.4th 1463, 1468
Fourth Holding:
Here, the transcript of the sentencing hearing, the court’s sentencing minute order and the abstract of judgment reflect the court imposed unauthorized terms of one-third the midterm for counts 2, 3 and 4. Such unauthorized sentences are subject to correction on review.
Authority:
People v. Menius (1994) 25 Cal.App.4th 1290, 1295
Gary Bonus Note:
(In the last sentence of what I have called First Holding, the court states that a concurrent term begins to run when it is imposed. But there is a special provision under Penal Code section 1203.2a (no parentheses there) that every attorney should practically memorize. It is limited to cases where a defendant has been placed on probation in one case, then later is committed to state prison on another case. Section 1203.2a can provide a benefit.
(Read it carefully. It appears to require proper steps by the defendant, though Hoddinott seems to hold otherwise. Why take the chance? Just do it right, and you won’t risk the Supreme Court changing its mind, right?
(But if events happen as described in section 1203.2a, the court has a limited time during which it has jurisdiction to act on the probation case, and failure to act within the limited time deprives the court of all jurisdiction to act on the probation case.
(Assuming the court acts timely and revokes probation and imposes a concurrent sentence, it will be deemed to have started from either the date probation was granted or from the date he was received in prison on the new offense. In other words, far earlier than the date the court imposes execution of sentence on the probation revocation. Section 1203.2a is designed to serve as an incentive for defendants to take care of outstanding cases when they are sent to prison.
(Again, read it carefully, and guide your client into fulfilling all the steps that serve to invoke section 1203.2a. Of course, if the court chooses to impose the sentence consecutively (assuming a timely action), the consecutive term will be served in a normal fashion.
(But section 1203.2a carries the possibility that untimely action by the court will deprive it of jurisdiction OR that, if the court is so inclined, a concurrent sentence starts at a much earlier time than the order revoking probation and committing the defendant to prison.
(An excellent analysis appears in In re Hoddinott (1996) 12 Cal.4th 992. Section 1202.2a requires the probation officer to report to the court whenever it learns a probationer has been committed to state prison. If the prisoner makes a request in conformity with the opening paragraph of the section, or if the probation learns about the new commitment from some other source, the probation officer must notify the court within 30 days. And here is Hoddinott’s summary of what happens if the probation officer or the court does not act timely:
(“In summary, we hold section 1203.2a’s final paragraph describes two events that will oust the court of jurisdiction: the probation officer’s failure to report the commitment to the court (in accord with paragraph two’s requirements) and the court’s failure to impose sentence within the time periods specified in the third paragraph. The probation officer’s 30-day reporting requirement is jurisdictional and applies once the defendant or other specified person has notified the probation officer in writing of the probationer’s subsequent state prison commitment, even though the written notice may not be a valid request for absentee sentencing.”)