IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Lassen)
May 3, 2011
AARON MCCOY, PETITIONER,
THE SUPERIOR COURT OF LASSEN COUNTY, RESPONDENT; THE PEOPLE, REAL PARTY IN INTEREST.
Super. Ct. No. CH021870
The opinion of the court was delivered by: Raye, P.J.
McCoy v. Superior Court
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Petitioner Aaron McCoy seeks a writ of mandate to overturn an erroneous sentence modification issued by respondent Lassen County Superior Court on February 28, 2011, at the request of the California Department of Corrections and Rehabilitation (CDCR). The superior court's order modified a 2006 sentence for violation of Penal Code section 4501.5 from a concurrent sentence to a sentence consecutive to Los Angeles County case No. KA071265. This decision effectively delayed petitioner's parole date from February 17, 2011, until June 23, 2011. Petitioner contends he is overdue for release from prison. We agree.
It is undisputed that petitioner was serving a sentence in San Bernardino County case No. FVA021264 when he committed an in-prison offense in 2004, resulting in Lassen County case No. CH021870. Petitioner paroled from prison on the San Bernardino County case before the Lassen County case was adjudicated. Respondent court released petitioner on his own recognizance. Thereafter, petitioner committed an offense resulting in a prison sentence from Los Angeles County in case No. KA071265. After petitioner was sentenced to prison in the Los Angeles County case, respondent Lassen County Superior Court, in 2006, sentenced him to a two-year middle term.
Five years later, CDCR asked the respondent court to indicate whether the Lassen County sentence should be consecutive to the Los Angeles County sentence. On February 28, 2011, the respondent court issued an order, captioned "Sentence Modification," indicating the 2006 Lassen County sentence is to be served consecutive to the Los Angeles County sentence.
Petitioner filed a petition for mandate and prohibition in this court, claiming the February 28, 2011 order is illegal. We requested the People to submit informal opposition to the petition. The People responded and stated agreement with petitioner's claim that the order is unlawful.
We issued a Palma notice, advising the parties that we were considering issuing a peremptory writ of mandate in the first instance, and indicating a tentative conclusion that respondent superior court may have erred on February 28, 2011, when it ordered the sentence rendered in Lassen County Superior Court case No. CH021870 to run consecutive to the sentence rendered in Los Angeles County Superior Court case No. KA071265.
In response, Lassen County Superior Court did vacate its sentence modification and reinstated the original two-year sentence in an order entered April 13, 2011. At the same time, that court sent a letter to this court acknowledging the error. However, appended to these documents is an unsigned minute order entered April 15, 2011, including a handwritten notation, "[J]udge states he sent letter & that consecutive sentence was appropriate" [sic].
This unsigned notation may be simply a clerical error. However, according to a signed declaration filed by the Deputy Attorney General, and supporting documents filed by petitioner and the People, CDCR staff have interpreted this unsigned and confusing minute order as a subsequent order deeming the Lassen County sentence to run consecutive to the Los Angeles County sentence, and have thus failed to release petitioner to parole.
Penal Code section 4501.5 requires a consecutive sentence only to the term a defendant was serving at the time he committed an in-prison offense. (In re Haygood (1975) 14 Cal.3d 802, 806.) At the time petitioner committed his in-prison offense, he was serving only the term from San Bernardino County, and not from Los Angeles County. Indeed, petitioner had not yet committed a crime in Los Angeles County at that point in time. Accordingly, the Lassen County sentence cannot lawfully be ordered to run consecutively to the Los Angeles County conviction.
Therefore, it is necessary for further intervention by this court and further action to be taken by respondent Lassen County Superior Court in order to immediately correct these errors and legal misinterpretations that have resulted in petitioner's continued incarceration.
Let a peremptory writ of mandate issue. The Respondent Lassen County Superior Court is directed to immediately issue an order to CDCR stating that petitioner's sentence in Lassen County case No. CH021870 is to be served concurrently to Los Angeles County case No. KA071265. Respondent Superior Court is further directed to order CDCR to recalculate petitioner's sentence immediately and to release him to parole forthwith under appropriate conditions. Respondent Superior Court shall forward the order forthwith to the Warden of the R.J. Donovan
Correctional Facility and take any action necessary to ensure immediate compliance with its order, and to notify this court in writing when petitioner has been released. This order is final forthwith. (Cal. Rules of Court, rule 8.490(b)(3).)
We concur: HULL, J. BUTZ, J.
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