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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Sammy Edward McCART, Defendant and Appellant.

Cr. 12643.

Decided: December 23, 1981

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Adrian K. Panton, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., and Steven H. Zeigen, Deputy Atty. Gen., for plaintiff and respondent.


Defendant was found guilty of possession of a deadly weapon by a prisoner. (Penal Code s 4502.) He received an aggravated term of 4 years which was ordered to run consecutively to any other term currently being served.

Defendant contends that the imposition of a full consecutive term was improper since he had previously received a 6 year consecutive term for a prior prison offense. He contends that, under Penal Code s 1170.1(b), any subsequent crimes committed in prison regardless of time frame can result only in an additional one-third of the midterm rather than the full base term applicable. He bottoms this on what he contends to be an ambiguous last sentence in Penal Code s 1170.1(b). That section provides as follows:

“In the case of any person convicted of one or more felonies committed while such person is confined in a state prison, or is subject to reimprisonment for escape from such custody and the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all such convictions which such person is required to serve consecutively shall commence from the time such person would otherwise have been released from prison. If the new offenses are consecutive with each other, the principal and subordinate terms shall be calculated as provided in subdivision (a), except that the total of subordinate terms may exceed five years. The provisions of this subdivision shall be applicable in cases of convictions of more than one offense in different proceedings, and convictions of more than one offense in the same or different proceedings.”

It is true that when language which is reasonably susceptible of two conclusions is used in a penal law, ordinarily that conclusion which is most favorable to the offender will be adopted. (In re Tartar, 52 Cal.2d 250, 339 P.2d 553.) This rule only applies if there is such an ambiguity. However, there is a fundamental rule of statutory construction that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. Every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect. (Select Base Materials v. Board of Equalization, 51 Cal.2d 640, 335 P.2d 672.)

Defendant relies on an article entitled “Determinate Sentencing in California: The New Numbers Game”, by Cassou and Taugher, which appears in 9 Pacific L.J. 1, 61. This article concludes that the last sentence of the above section is construed to mean that subsequent consecutive prison offense sentences are to be computed as principal or subordinate terms to the earlier offenses. Thus, a consecutive in these circumstances is to be treated as a subordinate term as defined in section 1170.1(a) and, therefore, computed by the one-third of the midterm formula.

The Legislature has made it clear that the purpose of incarceration is punishment. (Penal Code s 1170(a)(1).) Penal Code s 4502 mandates that the prisoner convicted under that section receive a consecutive term of two, three or four years. Title 15 of the Calif.Administrative Code s 2151, provides that if a prisoner is sentenced in different proceedings for two or more prison crimes which occurred at different times, the term for such crimes in each proceeding is computed separately. Thus, the term for the original commitment and the entire term for each series of prison crimes are added together. The administrative application of the language of a law is entitled to respect by the courts and unless clearly erroneous is a significant factor to be considered in ascertaining the meaning of a statute. (People v. Espinoza, 99 Cal.App.3d 59, 76, 159 Cal.Rptr. 894.)

In People v. Galliher, 120 Cal.App.3d 149, 174 Cal.Rptr. 467, the court concluded that individuals convicted of escape from a state prison may properly be sentenced to full consecutive terms under the mandate of section 1170.1(b). In analyzing the language of that section as it refers to calculated principal and subordinate terms, that court found that limitation was only applicable where the inmate had committed multiple new offenses. (See also In re Sims, 117 Cal.App.3d 309, 172 Cal.Rptr. 608 which came to that same conclusion.)

Here, defendant had already received a consecutive term for prior in-prison crimes. That sentence had already been imposed. It was separate and distinct from this offense and had already given the defendant a new term upon which to base any subsequent in-prison criminality. Here, the defendant had been charged with two counts of Penal Code s 4502. Had he been convicted of both counts, then the principal and subordinate calculation language of section 1170.1(b) would come into play. This would result in a full consecutive plus a one-third subordinate.

However, where an inmate commits a single new offense, the language of 1170.1(b) mandates the full consecutive term. This is a common sense approach to the implementation of Penal Code s 1170.1(b). We decline to read into this law a rule that prison inmates are some kind of privileged citizens in the sentencing process and that for crimes committed in prison, they may receive only one-third of the midterm sentence, whereas, those who are unfortunate enough to commit crimes outside of prison may receive the full base term.

Judgment affirmed.

GARDNER, Presiding Justice.

MORRIS and TAMURA,* JJ., concur.