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Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Joseph Abdul SALIB, Defendant and Appellant.

No. B067682.

Decided: May 26, 1994

Joseph F. Walsh, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Roy C. Preminger and Beverly K. Falk, Deputy Attys. Gen., for plaintiff and respondent.

In consolidated appeals, defendant and appellant Joseph Abdul Salib (“Salib”) appeals the judgments entered in Los Angeles Superior Court case numbers SA009070 and GA005920.

In case number SA009070, Salib was convicted by a jury of two counts of assault with a firearm (Pen.Code, § 245, subd. (a)(2)).   The jury also found as to each count he inflicted great bodily injury upon the victim (Pen.Code, § 12022.7), and used a firearm in committing the offense (Pen.Code, § 12022.5, subds. (a), (d)), and each offense constituted a serious felony within the meaning of Penal Code section 1192.7, subd. (c)).  He was sentenced to state prison for the upper base term of four years on one count, and a consecutive term of one year on the second count, enhanced by five years for the firearm use, for a total term of 10 years.

Following his conviction in case number SA009070, the probation previously granted Salib in case number GA005920 was revoked, and the trial court imposed the upper term of six years for the first degree burglary to which he had pled guilty in that case (Pen.Code, § 459), in addition to the 10 year term imposed in case number SA009070.

In case number SA009070, we determine [in the unpublished portion of this opinion] that Salib was not denied the effective assistance of counsel, his motion for mistrial was properly denied, and the trial court did not err to his prejudice in giving the jury certain instructions.   We also determine the court properly imposed a full consecutive sentence for burglary upon revocation of Salib's probation in case number GA005920.





5. Sentence Was Properly Imposed.

Salib contends the trial court erred in imposing a full term of imprisonment following revocation of his probation in case number GA005920, to be served consecutive to the term imposed in case number SA009070.   He urges the consecutive term should be calculated at one-third of the middle base term pursuant to Penal Code section 1170.1, subdivision (a).   We disagree.

Section 1170.1 appears in Part 2, title 7, chapter 4.5, article 1, entitled “Initial Sentencing.”   Salib was sentenced pursuant to the sentencing provisions relating to probation revocation, which appear in Part 2, title 8, chapter 1, entitled “The Judgment.”

“The power to revoke probation and impose a sentence upon a probationer who has been sentenced for a subsequent crime is contained in Penal Code section 1203.2a.   That section has been interpreted ‘to prevent a defendant from inadvertently being denied the benefit of Penal Code section 669, [which provides] that sentences be concurrent unless the court exercises its discretion to order that a subsequent sentence be consecutive to a prior sentence.  [Fn. omitted.]  ․’ [Citation.]”  (People v. Ellestad (1985) 168 Cal.App.3d 663, 664, 214 Cal.Rptr. 329, fn. omitted.)  “Importantly, section 1203.2a expressly provides for a state prison term to be imposed consecutive to a term for a subsequent offense.”  (Id., at p. 665, 214 Cal.Rptr. 329, fn. omitted.)

Section 1203.2a provides in pertinent part:  “Upon imposition of sentence hereunder the commitment shall be dated as of the date upon which probation was granted.   If the defendant is then in a state prison for an offense committed subsequent to the one upon which he ․ has been on probation, the term of imprisonment of such defendant under a commitment issued hereunder shall commence upon the date upon which defendant was delivered to prison under commitment for his ․ subsequent offense.   Any terms ordered to be served consecutively shall be served as otherwise provided by law.”  (Emphasis added.)

Penal Code section 1203.2 provides, in subdivision (c):  “Upon any revocation and termination of probation the court may, if the sentence has been suspended, pronounce judgment for any time within the longest period for which the person might have been sentenced.   However, if the judgment has been pronounced and the execution thereof has been suspended, the court may revoke the suspension and order that the judgment shall be in full force and effect․”  (Emphasis added.)

In a situation such as this one, where probation is revoked following a defendant's conviction of new crimes, application of section 1170.1, subdivision (a), as urged by Salib would preclude a court from either pronouncing judgment for “any time within the longest period for which the person might have been sentenced” for the earlier offense or offenses, or ordering that “the judgment previously pronounced be in full force and effect.”

 Where a defendant's probation was based upon multiple offenses, his or her sentence for those offenses following revocation of probation must be calculated pursuant to subdivision (a) of section 1170.1.   Where the probation revocation is based upon the defendant's commission of new offenses, the term to be imposed for the new offenses must be calculated in the same fashion.   The two terms so calculated may then be ordered to run either concurrently or consecutively.   We find no error in the trial court's calculation of Salib's term of imprisonment.


The judgments are affirmed.


FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

CROSKEY, Associate Justice.

KLEIN, P.J., and KITCHING, J., concur.