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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Andre Lamont McCLAIN, Defendant and Appellant.

No. C024299.

Decided: November 26, 1997

Jerome McGuire, under appointment by the Court of Appeal, Sacramento, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Shirley A. Nelson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant of possessing cocaine base for sale (Health & Saf.Code, § 11351.5), transporting cocaine base (Health & Saf.Code, § 11352), eluding a peace officer (Veh.Code, § 2800.2), and resisting arrest (Pen.Code, § 148).1  Defendant admitted previously incurring one serious felony conviction. (§ 667, subds.(b)-(i).)   The trial court sentenced defendant to an aggregate 11-year-4-month prison term consisting of a 10-year term for possessing cocaine base for sale, a consecutive 1-year-4-month term for eluding a peace officer, and a concurrent 90-day term for resisting arrest.   A concurrent 10-year term for transporting cocaine base was stayed. (§ 654.)

On appeal, defendant raises several issues of sentencing error.   We shall affirm the judgment but remand this matter to the trial court for resentencing.


When officers attempted to stop defendant because he was driving without headlights at night, he evaded them by accelerating to 60 miles per hour in a 45-mile-per-hour zone, failing to stop at several stop signs and lights, and weaving in and out of traffic lanes.   Eventually, defendant struck a fence.   As he fled through the driver's side window, one officer attempted to grab defendant by his jacket but he struggled out of the jacket and continued his flight on foot.   Defendant also pushed another officer out of the way before he eventually slipped in wet grass and was apprehended.

Search of defendant's car revealed over 21 grams of cocaine base and $91 in cash.   Officers found another .78 grams of cocaine base in defendant's jacket, $38 in currency in defendant's pants pocket, and a pager on the ground near the driver's door of the car.


I. Upper Term

 Defendant contends the trial court erred in relying on his prior robbery conviction to aggravate his sentence for possession of cocaine base for sale and double that term under the three strikes law.   Defendant's contention lacks merit on two grounds.   First, defendant waived this issue on appeal by failing to raise it at sentencing.  (See People v. Scott (1994) 9 Cal.4th 331, 353, 36 Cal.Rptr.2d 627, 885 P.2d 1040 [defendant waives purported error in double counting sentencing factor].)   Second, the trial court did not err as neither statute nor rule prohibits relying on the same prior conviction both to invoke an alternative sentencing scheme and impose an upper term.

II. Doubled Subordinate Term

Arguing consecutive sentences are enhancements which are not doubled under the three strikes law, defendant contends the trial court erred in doubling his consecutive, subordinate term for eluding a peace officer.   We disagree.

To support his contention, defendant relies on People v. Lawson (1980) 107 Cal.App.3d 748, 754, 165 Cal.Rptr. 764.   There, the defendant was convicted of robbery with a firearm use enhancement and attempted robbery.  (Id. at p. 750, 165 Cal.Rptr. 764.)   At sentencing, the trial court imposed an upper term for robbery and a consecutive term for the attempted robbery based explicitly on the same aggravating factors.  (Id. at p. 751, 165 Cal.Rptr. 764.)   The appellate court found the trial court engaged in a prohibited dual use of facts, stating:  “The Judicial Council sentencing rules were adopted pursuant to specific legislative direction (§ 1170.3) and the sentencing courts are directed to apply those rules. (§ 1170, subd. (a)(2).)   The Sentencing Practices Advisory Committee to the Judicial Council concluded that a consecutive term is an enhancement within the dual use of facts prohibition.   Thus, the advisory committee's comment to California Rules of Court, rule 441 (dual use of facts;  prohibited use of facts) states in pertinent part:  ‘Note that under section 1170 [, subdivision](b) and rule 405 (definitions), the additional term resulting from ordering sentences to be served consecutively is an “enhancement.”   Section 1170 [, subdivision](b) therefore prohibits using the same fact to decide to impose consecutive sentences and to decide to impose the upper term.   Subdivision (c) applies to that case as well as to enhancements arising from facts charged and found.’   Further, the advisory committee's comment to rule 405 (definitions) states in pertinent part:  ‘ “Charged” and “found.”   Statutes require that the facts giving rise to most enhancements be charged and found.   See the comment to the definition of “enhancement.”   But the enhancement arising from consecutive sentences results from the sentencing judge's decision to impose them, and not from a charge or finding.”  (Lawson, supra, at pp. 752-753, 165 Cal.Rptr. 764, fn. omitted.)

The Lawson court continued:  “Rule 405(c) defines ‘enhancement’ as an additional term of imprisonment added to the base term.   In turn, rule 405(b) defines ‘base term’ as the determinate prison term selected from among the three possible terms prescribed by statute or the determinate prison term prescribed by law if a range of three possible terms is not prescribed.   Since the consecutive term obviously is not part of the base term, it follows that it is added to the base term and is an enhancement.”  (107 Cal.App.3d at p. 754, 165 Cal.Rptr. 764.)

The California Rules of Court (rules) have changed slightly since Lawson.   In 1991, rule 441 was repealed.   However, the comment to the former rule quoted by the Lawson court can be found under rule 420(c).

 Furthermore, rule 425 was revised in 1991 to state in pertinent part:  “Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except (i) a fact used to impose the upper term, (ii) a fact used to otherwise enhance the defendant's prison sentence, and (iii) a fact that is an element of the crime shall not be used to impose consecutive sentences.”   As this rule does not conflict with any statute, we agree with the holding of the Lawson court that relying on the same aggravating factors to impose an aggravated and consecutive term constitutes a prohibited dual use of facts.

 We do not agree that a consecutive sentence is an enhancement.   Rather, we agree with the position espoused by the People in Lawson.  (107 Cal.App.3d at p. 754, 165 Cal.Rptr. 764.)   The base term is the term selected from one of three terms provided by statute or the single term prescribed by law.  (Rule 405(b).)   Where there is a conviction for multiple offenses and enhancements, the principal term consists of the greatest base term for any of the offenses and the enhancements applicable to that offense. (§ 1170.1, subd. (a).)  The remaining offenses receive subordinate terms which are not part of the principal term but run concurrently or consecutively with it to create an aggregate term. (§ 1170.1, subd. (a).)  Therefore, a consecutive subordinate term is not a “term of imprisonment added to the base term,” as an “enhancement” is defined by rule 405.

The Lawson court rejected the People's argument, noting that their position “contradict[s] the clearly expressed intent of the rule's draftsmen, i.e., the Sentencing Practices Advisory Committee to the Judicial Council” and arguing that section 1170.1 exists only for computational, not definitional, purposes.  (107 Cal.App.3d at p. 754, 165 Cal.Rptr. 764.)   We disagree.

 As the primary authority for computing determinate terms, section 1170.1 defines the parameters in which computations are made.   Both the advisory committee and the Lawson court ignore the Legislature's concept of a subordinate term, essentially converting into enhancements all substantive offenses which are not the principal term.   To the extent a rule of court conflicts with a statute, the rule cannot stand.  (People v. Hall (1994) 8 Cal.4th 950, 963, 35 Cal.Rptr.2d 432, 883 P.2d 974.)   A fortiori, an advisory committee's comment cannot stand when its interpretation conflicts with the underlying statutory scheme.

As a consecutive term is not an enhancement, the trial court did not err in doubling the consecutive subordinate term imposed in the present case.  (See also People v. Hill (1995) 37 Cal.App.4th 220, 227-228, 44 Cal.Rptr.2d 11.)

III. Consecutive Term

 The trial court found section 667, subdivision (e)(2)(B), and section 1170.12, subdivision (c)(2)(B) mandated imposition of a consecutive sentence for eluding a peace officer.   Defendant correctly contends the trial court erred.  (People v. Hendrix (1997) 16 Cal.4th 508, 514-515, 66 Cal.Rptr.2d 431, 941 P.2d 64.)   Furthermore, as defendant's acts of possessing cocaine base for sale and evading a police officer occurred “on the same occasion” and arose “from the same set of operative facts,” neither section 667, subdivision (c)(6) nor section 1170.12, subdivision (a)(6) mandates imposition of a consecutive term.   We will remand this case to the trial court to allow that court to exercise its discretion to impose a consecutive term.

IV. Drug Program Fee

 Defendant contends the trial court erred in imposing a $150 drug program fee because he does not have the ability to pay that fee in addition to the $1,600 restitution fine and $8,393.04 in direct restitution.   However, defendant waived this contention by failing to raise it at sentencing.   (People v. Gibson (1994) 27 Cal.App.4th 1466, 1467-1470, 33 Cal.Rptr.2d 217.)


The conviction is affirmed, the sentence is vacated and the matter is remanded for resentencing consistent with this opinion.


1.   Undesignated statutory references are to the Penal Code.

MORRISON, Associate Justice.

BLEASE, Acting P.J., and SIMS, J., concur.

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