P. v. McKim

 

 

 

 

 

 

 

Filed 9/16/13  P. v. McKim 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.

 

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Yolo)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   JASON McKIM,                           Defendant and Appellant.

C070228   (Super. Ct. No. 11-2230)

 

 

 

            In exchange
for a stipulated sentence of 16 years four months, defendant Jason McKim
pleaded no contest to two counts of robbery
(Pen. Code, § 211 -- counts 1 & 2),href="#_ftn1" name="_ftnref1" title="">[1]
one count of vandalism (§ 594 -- count 3) and one count of href="http://www.mcmillanlaw.com/">resisting or obstructing a peace officer
(§ 148, subd. (a)(1) -- count 4).  He
also admitted a deadly weapon enhancement as to the second robbery charge (§
12022, subd. (b)(1)), two prior serious felony enhancements (§§ 667, subds.
(a)(1), (c), (e)(1), 1192.7) and a prior prison term enhancement (§ 667.5,
subd. (b)).  Defendant contends the
imposition of a one-year term for the deadly weapon enhancement was
unauthorized because it violates the requirements of section 1170.1.  We find the court improperly designated count
1 as the principal term.  This error
requires the abstract of judgment be amended. 


BACKGROUND

            Because of
the nature of the claim on appeal a detailed recitation of the substantive
facts underlying the offenses is not necessary.

            In March
2011, defendant stole money from the cash register drawer at a pharmacy.  Approximately two months later, he went to a
sandwich shop and demanded cash from the store clerk at knife point.  After his arrest for robbery, defendant
attempted to escape from the Woodland Police Department.  In his escape efforts, he damaged doors to
the building. 

            Defendant
was charged with two counts of second degree robbery (counts 1 & 2), one
count of vandalism (count 3) and one count of misdemeanor resisting or
obstructing a peace officer (count 4). 
It was also alleged defendant used a deadly weapon in the commission of
the robbery in count 2.  It was further
alleged defendant had a prior strike conviction (§ 667, subd. (a)(1)), a prior
serious felony conviction (§ 667, subds. (c), (e)(1)), and had served two prior
prison terms (§ 667.5, subd. (b)). 

            The parties
agreed to a plea in which defendant admitted committing both robberies,
vandalism, and the deadly weapon enhancement. 
Defendant also admitted the prior conviction enhancements and one of the
prior prison term enhancements.  The
remaining charges were dismissed and defendant agreed to a stipulated sentence
of 16 years four months.  In accordance
with the plea, the trial court sentenced defendant to an aggregate term of 16
years four months.  The sentence was
reached as follows:  the trial court
designated the robbery in count 1 as the principal term and sentenced defendant
to a term of three years, doubled because of the strike to six years; a
one-year (one-third the midterm) term was imposed on the robbery in count 2, as
a subordinate term, doubled to two years because of the strike; one year for
the deadly weapon enhancement; an eight-month term was imposed on count 3
(one-third the midterm) doubled to 16 months due to the strike; five years for
the prior serious felony; and, one year for the prior prison term enhancement. 

DISCUSSION

            Defendant
contends the imposition of a full one-year term on the deadly weapon
enhancement was an unauthorized sentence, as it was a specific enhancement
attached to a subordinate term. 
Accordingly, he argues the court should have imposed one-third the term
for the enhancement, resulting in an aggregate term of 15 years eight
months.  The People agree the sentence is
unauthorized, but for a different reason. 
The People contend the sentence is unauthorized because the trial court
incorrectly selected count 1 as the principal term, not count 2.  We agree with the People.

            Section
1170.1 provides generally that if a sentencing court elects to impose
consecutive sentences when a defendant is convicted of multiple offenses, it
must impose an aggregate sentence composed of a principal term and subordinate
terms.  “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, and shall include one-third of the term imposed for
any specific enhancements applicable to those subordinate offenses. . . .”  (§ 1170.1, subd. (a).)  The term “specific enhancement,” as used in
section 1170.1, “means an enhancement that relates to the circumstances of the
crime,” and “includes . . . the enhancement[ ] provided in Section[ ]
. . . 12022 . . . .” (§ 1170.11.) 

            Here, the
court selected count 1 as the principal term and the remaining counts were
designated as subordinate terms.  Despite
the fact that the specific weapon enhancement was attached to a subordinate
term the robbery in count 2, the court imposed a full one-year term on that
enhancement.  This was error.  If
count 2 was properly designated as a subordinate term, then the specific
enhancement attached to that count could not have been sentenced as a full
term, but rather had to be reduced to one-third the term, in this case, four
months. 

            However, on
this record, it is clear count 2 was not properly designated as a subordinate
term and count 1 was not properly designated as the principal term.  Structuring aggregate sentencing for multiple
convictions is a three-step process. 
First, the trial court determines the sentence to be imposed on each of
the convictions.  Second, the trial court
designates the longest of the sentences imposed in step one as the principal
term, and the shorter sentences as subordinate terms.  Third, the trial court calculates the
sentence on each subordinate term as one-third of the middle term prescribed by
statute for each conviction.  (>People v. Miller (2006) 145 Cal.App.4th
206, 216.)  The reduction of the sentence
for the subordinate term does not occur before the court determines the
principal term by selecting the longest of the sentences to be imposed.  (Ibid.) 

            As to both
robbery counts, the court imposed the midterm of three years.  Determination of the principal term requires
the court include in its calculation “any
term imposed for applicable specific enhancements.”  (§ 1170.1, subd. (a), italics added.)  Accordingly, the sentence for the robbery in
count 2, including the term imposed for the applicable specific deadly weapon
enhancement, was four years.  Thus, the
longest of the sentences imposed was the sentence on count 2.  Since count 2 had the greatest term of
imprisonment, it had to be designated the principal term.  This determination is not a discretionary
one, but is mandated by section 1170.1. 
(See People v. Chagolla (1983)
144 Cal.App.3d 422, 433, fn. 1.)

            Here, the
court imposed a lawful sentence, but fashioned it in an unauthorized
manner.  (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311.)  Even when the trial court has erred, remand
is unnecessary except where the record clearly indicates the court probably
would have imposed a more favorable sentence in the absence of error.  (People
v. Avalos (1984) 37 Cal.3d 216, 233; People
v. Murray (1994) 23 Cal.App.4th 1783, 1792-1793.)  There is no such indication in this
record.  The parties agreed to a sentence
of 16 years four months and the record is clear that is the aggregate sentence
the court intended to impose.  The only
way to properly impose a sentence of 16 years four months is to designate count
2 as the principal term.  With count 2 as
the principal term, the full term for the section 12022 enhancement attaches to
that term and the resulting aggregate sentence for all counts is 16 years four
months.  We will, however, order the
abstract of judgment corrected to reflect designation of the robbery in count 2
as the principal term.

DISPOSITION

            The
judgment is affirmed.  The trial court is
ordered to prepare an amended abstract of judgment designating count 2 as the
principal term and to forward a certified copy of the amended abstract of
judgment to the Department of Corrections
and Rehabilitation.

 

 

 

                                                                            NICHOLSON           , Acting P. J.

 

 

 

We concur:

 

 

 

               ROBIE               , J.

 

 

 

               BUTZ                , J.