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The People v. Olivia Stephanie Torres

February 15, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
OLIVIA STEPHANIE TORRES, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Fresno County. Don Penner, Judge. (Super. Ct. Nos. F10900198 & F11902076)

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

CERTIFIED FOR PUBLICATION

OPINION

Defendant Olivia Stephanie Torres contends she should have been sentenced to county jail pursuant to Penal Code section 1170, subdivision (h), rather than to state prison.*fn1 The Attorney General agrees. We do not. Instead, we hold that when a sentence that otherwise would have been served in county jail pursuant to section 1170, subdivision (h) is ordered to run concurrently to a sentence already being served in state prison, the entire sentence must be served in state prison. This is so even though the sentence that was imposed first would have been served in county jail had it been imposed on or after October 1, 2011.

PROCEDURAL HISTORY*fn2

On January 12, 2010, defendant was charged, by complaint filed in Fresno County Superior Court case No. F10900198, with receiving stolen property (§ 496, subd. (a); counts 1 & 2), possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 3), and possessing a smoking device (id., § 11364; count 4). In addition, it was alleged defendant had served a prior prison term (§ 667.5, subd. (b)) following her convictions, on July 17, 2006, for false personation (§ 529) and transportation or sale of methamphetamine (Health & Saf. Code, § 11379). On February 19, 2010, she pled guilty to possession of methamphetamine and admitted the enhancement. The remaining counts were dismissed, and she was placed on probation, on various terms and conditions, pursuant to section 1210.1.

On April 27, 2011, defendant was charged, by first amended complaint filed in Fresno County Superior Court case No. F11902076, with residential burglary (§§ 459, 460, subd. (a); count 1), receiving a stolen motor vehicle (§ 496d, subd. (a); count 2), possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 3), and possessing cocaine (id., § 11350, subd. (a); count 4). In addition, it was alleged defendant had served a prior prison term (§ 667.5, subd. (b)).

On or about May 4, 2011, defendant was sentenced to two years in state prison, in Tulare County Superior Court case No. VCF251855, following her conviction of commercial burglary (§ 459) and forgery (§ 476).

On October 20, 2011, defendant pled no contest, in Fresno County Superior Court case No. F11902076, to receiving a stolen motor vehicle. It was stipulated she would receive a term of two years, to run concurrently to the term she was already serving in the Tulare County case. The remaining counts and allegations were dismissed, although, as a result of the plea, defendant was found in violation of probation in Fresno County Superior Court case No. F10900198. The trial court and both counsel expressed uncertainty about whether, upon defendant's completion of her sentence in the Tulare County case, she would be sent back to the Fresno County jail to complete her term in the Fresno County cases, or be kept in prison. The trial court confirmed that, in the Tulare County case, defendant was sentenced prior to October 1, 2011, for an offense that, had she been sentenced on or after that date, would have been sentenced pursuant to section 1170, subdivision (h).

On November 18, 2011, defendant was sentenced in both Fresno County cases. The trial court imposed the stipulated two-year term in each, and ordered the sentence in case No. F10900198 to run concurrently to the sentence imposed in case No. F11902076, and the sentence in those cases to run concurrently to the Tulare County term.

The following colloquy took place during the sentencing hearing:

"[PROSECUTOR]: ... This case would be AB 109 case.[*fn3 ] She is

serving the time at CDC[*fn4 ] because it was pre AB 109 so we're sentencing her to two years. I believe she's going to serve the remainder of her Tulare [C]county case at CDC. I think we're ...


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