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The People v. Yuriy Penkov


January 28, 2013


(Super. Ct. No. 09F02289)

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

P. v. Penkov



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


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


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.] . . . . [¶] However, section 1170.1, subdivision (a) represents a statutory exception to the general rule . . . ." (People v. Bozeman (1984) 152 Cal.App.3d 504, 507 (Bozeman).)

Section 1170.1, subdivision (a), provides in pertinent part that when a person is convicted of two or more felonies, "whether in the same proceeding or court or in different proceedings or courts," and a consecutive term of imprisonment is imposed, "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 . . . . 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 . . . ."

California Rules of Court,*fn4 rule 4.452, provides, in relevant part, as follows:

"If a determinate sentence is imposed under section 1170.1(a) consecutive to one or more determinate sentences imposed previously in the same court or in other courts, the court in the current case must pronounce a single aggregate term, as defined in section 1170.1(a), stating the result of combining the previous and current sentences. In those situations:

" . . .

"(3) Discretionary decisions of the judges in the previous cases may not be changed by the judge in the current case. Such decisions include the decision to impose one of the three authorized prison terms referred to in section 1170(b), making counts in prior cases concurrent with or consecutive to each other, or the decision that circumstances in mitigation or in the furtherance of justice justified striking the punishment for an enhancement." (Italics added.)

B. Analysis

The law required the Sacramento County court to impose a single aggregate sentence, combining all counts in both cases, and make a new determination of which count represented the principal term. (Rule 4.452(1), (2).) The Yolo County court's discretionary decision to impose the upper term of four years on the drug offense was the "greatest term of imprisonment" for any of the crimes. (§ 1170.1, subd. (a).) Rule 4.452(3) prohibited the Sacramento County court from deviating from the Yolo County court's discretionary decision to impose the upper term. (See In re Reeves (2005) 35 Cal.4th 765, 773.) The Sacramento County court properly recognized it lacked discretion to select any term other than the upper term of four years for the drug offense when resentencing defendant.

Nonetheless, citing People v. Miller (2006) 145 Cal.App.4th 206 (Miller), defendant argues that the Sacramento County court "had the discretion to fashion an overall aggregate sentence that was not controlled by the greatest triad." Defendant's reliance upon Miller is misplaced. Miller did not involve resentencing on one or more determinate sentences imposed previously in another court which had already exercised its sentencing discretion. In Miller, defendant's multiple convictions, from which the trial court chose a term to designate as the principal term, were current convictions. (Miller, supra, 145 Cal.App.4th at pp. 210, 217.) The trial court's error in Miller was its assumption that the law required it to designate the principal term from the highest sentencing triad available under defendant's plea agreement (see Miller, supra, at p. 218), which is not at all on point to the situation in the instant case. Here, the Sacramento County court did not merely look to the triad, it properly looked to the longest term of years previously imposed.*fn5

Defendant relies on Bozeman for the proposition that a trial court may reduce a previous court's upper term sentence to a subordinate one-third the midterm. However, Bozeman was decided prior to the 1991 adoption of rule 4.452 [previously rule 452]. Citing an Advisory Committee comment to rule 4.452, defendant argues that the Sacramento County court was not restricted by law from "deviating from certain specifics of Yolo County's sentence."*fn6 The comment, construed in context, clarifies only that if a previous discretionary choice becomes a subordinate consecutive term through application of a consecutive sentencing structure, the term is one-third the midterm. The change described by the comment is by operation of law, and does not bestow on a sentencing court the ability to change a discretionary decision previously made by an earlier sentencing court in order to lower an aggregate sentence--the situation in this case.

Here, the trial court properly recognized it had no authority to lower the upper term sentence previously imposed. There was no error.


The judgment is affirmed.

We concur: BLEASE , Acting P. J. HOCH , J.

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