People v. Baker CA3

Filed 7/29/15 P. v. Baker CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C076775
Plaintiff and Respondent, (Super. Ct. No. MF037024A)
v.
MICHAEL ANTHONY BAKER,
Defendant and Appellant.
Convicted by jury of attempted escape from San Joaquin County Honor Farm in
September 2013 (Pen. Code, § 4532, subd. (b)),1 defendant Michael Anthony Baker was
sentenced to the midterm of two years in state prison, to be served consecutively to the
sentence he was serving when he attempted to escape. He contends the trial court erred
by imposing a full-term consecutive sentence because he was serving a split sentence and
had not completed the mandatory supervision portion of that sentence. (§ 1170, subd.
1 Undesignated statutory references are to the Penal Code.
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(h)(5)(B).) Under that sentencing scheme, according to defendant, his new sentence must
be one-third the midterm. (§ 1170, subd. (h)(1).) The Attorney General agrees, as do we.
The parties disagree on the remedy, however. Defendant contends this court can
modify the sentence to one-third the midterm, but the Attorney General asserts that we
must remand the matter to the trial court for resentencing. We conclude defendant is
correct. We shall modify the sentence to one-third the midterm, or eight months, and
affirm as modified.
DISCUSSION
Because the sole issue raised presents a pure question of law, we need not discuss
the facts of defendant’s offense.
When defendant committed the current offense, in September 2013, he was
serving sentences imposed earlier that month for receipt of stolen property and grand
theft. His aggregate term was three years eight months (three years for grand theft, plus
eight months, one-third the midterm, for receiving stolen property). The trial court in the
prior case ordered defendant to serve 16 months of his sentence for grand theft in county
jail and the remaining 28 months on mandatory supervision. The current case came on
for trial on April 15, 2014. Defendant completed the county jail portion of his sentence
on April 24, 2014. The trial court imposed sentence in the current case on June 9, 2014.
An attempted escape from an honor farm, if not involving the use of force or
violence, is punishable by imprisonment in state prison for 16 months, two years, or three
years, to be served consecutively to the defendant’s current sentence, or by a maximum
of one year in county jail. (§ 4532, subd. (b)(1).) Although the jury was not asked to
decide whether defendant used force or violence, the trial court expressly found at
sentencing that defendant did not do so. Thus, this case falls within section 4532,
subdivision (b)(1).
“[W]hen any person is convicted of two or more felonies, whether in the same
proceeding or court or in different proceedings or courts, and whether by judgment
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rendered by the same or by a different court, and a consecutive term of imprisonment is
imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these
convictions shall be the sum of the principal term, the subordinate term, and any
additional term imposed for applicable enhancements for prior convictions, prior prison
terms, and Section 12022.1. The principal term shall consist of the greatest term of
imprisonment imposed by the court for any of the crimes, including any term imposed for
applicable specific enhancements. The subordinate term for each consecutive offense
shall consist of one-third of the middle term of imprisonment prescribed for each other
felony conviction for which a consecutive term of imprisonment is imposed, and shall
include one-third of the term imposed for any specific enhancements applicable to those
subordinate offenses.” (§ 1170.1, subd. (a).) This subdivision applies to the calculation
of terms under section 4532, subdivision (b)(1). (People v. Scott (1993) 17 Cal. App. 4th
1383, 1387; People v. Gulbrandsen (1989) 209 Cal. App. 3d 1547, 1555-1556; People v.
Mitchell (1988) 199 Cal. App. 3d 300, 303-304.)
Defendant’s prior sentence included a principal term of three years for grand theft
and a subordinate term of eight months (one-third the midterm) for receiving stolen
property. The fact that it was imposed as a split sentence, including a period of
mandatory supervision which defendant had not completed, did not make section 1170.1,
subdivision (a), inapplicable.
Section 1170, subdivision (h)(5)(B), provides in part: “The portion of a
defendant’s sentenced term that is suspended pursuant to this paragraph shall be known
as mandatory supervision.” “[T]he Legislature has decided a county jail commitment
followed by mandatory supervision imposed under section 1170, subdivision (h), is akin
to a state prison commitment; it is not a grant of probation or a conditional sentence.”
(People v. Fandinola (2013) 221 Cal. App. 4th 1415, 1422.) In other words, defendant’s
full aggregate sentence for his prior offenses is the “sentenced term” to which section
1170.1, subdivision (a), applies. Therefore, under that provision, the trial court should
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have applied the “one-third the middle term” calculation to defendant’s sentence for
attempted escape without force or violence.
Defendant asks this court to modify his sentence on the current offense to eight
months (one-third the midterm). The Attorney General asks us instead to remand the
matter for resentencing, but offers no analysis to support this proposal. Defendant replies
that there is no reason for remand because the modification he requests is the only
authorized sentence that could be imposed (§ 1170.1, subd. (a) [subordinate term “shall”
consist of one-third the midterm]; People v. Standish (2006) 38 Cal. 4th 858, 869
[statutory “shall” ordinarily interpreted as mandatory]), and this court has the power to
correct an unauthorized sentence on its own motion. (People v. Sanders (2012)
55 Cal. 4th 731, 743, fn. 13.) We agree with defendant and shall modify the sentence.
DISPOSITION
Defendant’s sentence for attempted escape is modified to eight months. As
modified, the judgment is affirmed. The trial court is directed to prepare an amended
abstract of judgment that reflects the modified sentence and shows that defendant was
convicted by jury, and to furnish a certified copy of the amended abstract of judgment to
the Department of Corrections and Rehabilitation.
RENNER , J.
We concur:
HULL , Acting P. J.
MAURO , J.
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