California Court of Appeals, Third District, Lassen
from a judgment of the Superior Court of Lassen County No.
CC034312, Mark R. Nareau, Judge. Vacate and remand for
Randall Conner, under appointment by the Court of Appeal, for
Defendant and Appellant.
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney
General, Daniel B. Bernstein, Jennifer M. Poe, Deputy
Attorneys General, for Plaintiff and Respondent.
Acting P. J.
Code section 1170.1, subdivision (c) (statutory section
references that follow are to the Penal Code) provides, in
the case of any person convicted of one or more felonies
committed while the person is confined in the state prison...
and the law either requires the terms to be served
consecutively or the court imposes consecutive terms, the
term of imprisonment for all the convictions that the person
is required to serve consecutively shall commence from the
time the person would otherwise have been released from
prisoner commits a felony while serving a state prison
sentence but is sentenced for the in-prison felony after
completing the prison term, does subdivision (c) of section
1170.1 apply to the sentence for the crime committed in
case, defendant Markeese Mondale Brantley committed the crime
of possession of marijuana while he was in state prison
(§ 4573.6), but both his guilty plea and sentencing for
that crime took place after he was released from prison.
Before sentencing on the possession charge, defendant was
convicted and sentenced on a domestic violence charge in
another case. Finding section 1170.1, subdivision (c) applied
to the possession charge, the trial court here imposed a full
consecutive three-year term on the possession charge, rather
than imposing one-third of the middle term for this offense
pursuant to section 1170.1, subdivision (a).
appeal, defendant contends (1) the trial court erred in
finding that section 1170.1, subdivision (c)'s exception
to the one-third the base term rule applied to his sentence,
(2) the court failed to exercise its discretion to impose a
consecutive or concurrent term, and (3) that trial
counsel's failure to object to the consecutive term
constituted ineffective assistance of counsel.
section 1170.1, subdivision (c) does not apply because
defendant completed the prison term he was serving before
being sentenced on the possession offense, we vacate the
sentence and remand for resentencing.
12, 2015, defendant's probation was terminated and he was
sentenced to a five-year state prison term for second degree
robbery (§ 211) and false imprisonment (§ 236) in
Mendocino County case No. CR1270617. While serving his term
in the California Correctional Center in Lassen County,
defendant was found possessing marijuana on November 2, 2015.
On August 26, 2016, he was charged with possession of
marijuana in prison in the case currently before us.
his parole in the Mendocino County case, on January 25, 2017,
defendant pleaded guilty to the possession of marijuana in
prison charge. The trial court released defendant on his own
recognizance pending sentencing on April 5, 2017. Defendant
appeared for sentencing on April 5, 2017, but the trial court
granted defense counsel's continuance motion and
continued sentencing to May 17, 2017. Defendant failed to
appear at the May 17, 2017 sentencing hearing. On September
14, 2017, defendant was sentenced to a four-year term
following his conviction for corporal injury to a spouse
(§ 273.5, subd. (a)) with a strike prior in an unrelated
case, Mendocino County case No. SCUK-CRCR-2017-89909-01. On
the court's own motion, we take judicial notice of the
minute order and abstract of judgment in Mendocino County
case No. SCUK-CRCR-2017-89909-01. (Evid. Code, § 452,
points and authorities filed prior to sentencing in this
case, defendant informed the court of his conviction and
sentence to state prison in another case since his release
from prison, and asserted that sentencing on the possession
term in this case was subject to the one-third the base term
provision of section 1170.1, subdivision (a). Although the
points and authorities mentioned defendant being sentenced in
another case after his release from prison, it did not
identify the crime, case number, county of sentencing, or the
prison term imposed. At sentencing, the prosecutor argued for
a three-year term for the possession offense. One of ...