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People v. Brantley

California Court of Appeals, Third District, Lassen

December 24, 2019

THE PEOPLE, Plaintiff and Respondent,
MARKEESE MONDALE BRANTLEY, Defendant and Appellant.

          APPEAL from a judgment of the Superior Court of Lassen County No. CC034312, Mark R. Nareau, Judge. Vacate and remand for resentencing.

          Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier 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.

          HULL, Acting P. J.

         Penal Code section 1170.1, subdivision (c) (statutory section references that follow are to the Penal Code) provides, in part:

         “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 prison.”

         If a 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 prison?

         In this 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).

         On 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.

         Finding 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.

         Facts and Proceedings

         On May 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.

         Following 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, subd. (c).)

         In 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 ...

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