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The People v. Yuriy Penkov

January 28, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
YURIY PENKOV, DEFENDANT AND APPELLANT.



(Super. Ct. No. 09F02289)

The opinion of the court was delivered by: Duarte , J.

P. v. Penkov

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury in Sacramento County found defendant Yuriy Penkov guilty of unlawfully possessing ammunition.*fn1 The trial court (Sacramento County) sentenced him to state prison for one-third the midterm (eight months) to run consecutive to a four-year term for a previous drug conviction from Yolo County, denying defendant's request to impose a lower term on the drug offense or designate the ammunition offense as the principal term. Defendant appeals, contending the trial court incorrectly found it lacked jurisdiction to designate defendant's ammunition offense the principal term at the time of sentencing. As we will explain, we conclude that the trial court properly sentenced defendant.

PROCEDURAL BACKGROUND*fn2

On July 13, 2010, the trial court in Yolo County sentenced defendant to state prison for an aggregate term of six years--the upper term of four years for transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)), a stayed sentence of an unspecified duration for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and a consecutive term of two years for an on-bail enhancement (§ 12022.1, subd. (b); two years consecutive).

On June 2, 2011, when sentencing defendant on his current ammunition possession offense, the trial court in Sacramento County resentenced on the Yolo County offenses as well. Defense counsel requested that the court either impose the low-term sentence of two years for the drug offense, or designate the current ammunition offense the principal term, imposing the upper term of three years, and the drug offense a subordinate term, imposing one-third the midterm or one year.

Noting that it "cannot change the sentence that was previously imposed by another county judge," the trial court added that it had no "authority to supersede or intercede in another judge's findings or sentencings or determination." It imposed the upper term of four years for the transportation offense, stayed sentence on the possession offense, and imposed a consecutive one-third the midterm or eight months for defendant's current ammunition possession offense. The court also imposed the two-year term for the on-bail enhancement.*fn3

DISCUSSION

A. The Law

"[W]hen a defendant is sentenced consecutively for multiple convictions, whether in the same proceeding or in different proceedings, the judgment or aggregate determinate term is to be viewed as interlocking pieces consisting of a principal term and one or more subordinate terms. (§ 1170.1, subd. (a).)" (People v. Begnaud (1991) 235 Cal.App.3d 1548, 1552.)

"As a general rule, a sentence lawfully imposed may not be modified once a defendant is committed and execution of his sentence has begun. [Citations.] . . . . [ΒΆ] However, section 1170.1, subdivision (a) represents a statutory exception to the general rule . ...


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