PEOPLE v. PEREZ (1993)

Appellant, an inmate at Pelican Bay State Prison, was convicted after a jury trial of attempted battery on a nonprisoner (Pen.Code, §§ 4501.5, 664.1); ¹  the jury also found true a special allegation that appellant had served a prior prison term (§ 667.5, subd. (b)).  He was sentenced to an aggravated term of two years, “to be served consecutively to any and all sentences” presently being served by appellant for his other convictions.   The nature of the issues he has raised on appeal do not require that we recite the facts upon which his conviction is based.

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Appellant's final contention is that the sentence imposed upon him violates statutory guidelines.   He was sentenced to a consecutive upper term of two years for attempted battery upon a nonprisoner—one-half of the upper term of four years (§§ 664, 4501.5).   He maintains that the maximum permissible sentence under section 1170.1 is one-third of the middle term, or six months.

Appellant was convicted of a violation of section 4501.5, which states:  “Every person confined in a state prison of this state who commits a battery upon the person of any individual who is not himself a person confined therein shall be guilty of a felony and shall be imprisoned in the state prison for two, three, or four years, to be served consecutively.”   Section 4501.5 thus mandates imposition of a defined consecutive term for battery upon a nonprisoner by a prisoner.   The dispute before us focuses upon the manner in which appellant's present consecutive term may be added to his existing sentence for offenses previously committed in prison.

Appellant submits that his sentence must be calculated pursuant to section 1170.1, subdivision (c) (hereafter subdivision (c)), which provides:  “In the case of any person convicted of one or more felonies committed while the person is confined in a 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 which the person is required to serve consecutively shall commence from the time the 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.   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.”  (Emphasis added.)   In pertinent part, subdivision (a) of section 1170.1 (hereafter subdivision (a)) specifies:  “Except as provided in subdivision (c) and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed․”  “The subordinate term for each consecutive offense ․ shall consist of one-third of the middle term of imprisonment prescribed for each other such felony conviction for which a consecutive term of imprisonment is imposed․”  Thus, “subdivision (a) provides certain limitations on subordinate terms including limitation to one-third the base term.”  (In re Luis H. (1986) 187 Cal.App.3d 546, 549, 231 Cal.Rptr. 722;  see also In re Prentiss C. (1993) 14 Cal.App.4th 1484, 1486, 18 Cal.Rptr.2d 541.)

Appellant insists that the provision in subdivision (a) limiting consecutive subordinate terms to one-third of the middle term applies to sentencing under subdivision (c) for felonies committed in prison—including violations of section 4501.5—for which a term is imposed to be served consecutively to terms previously imposed for other in-prison offenses.   The Attorney General responds that the intent of the Legislature is to protect nonprisoners from assaults by imposing full consecutive terms for violations of section 4501.5, without the limitation placed upon subordinate terms generally by subdivision (a).

 Our task is to construe subdivision (c) to effectuate the intent of the Legislature.  (People v. Woodhead (1987) 43 Cal.3d 1002, 1007, 239 Cal.Rptr. 656, 741 P.2d 154;  People v. Arant (1988) 199 Cal.App.3d 294, 296, 244 Cal.Rptr. 645.)  “Penal statutes must be interpreted in light of the objective sought to be achieved, as well as the evil sought to be averted.   [Citations.]”  (People v. Hernandez (1991) 231 Cal.App.3d 1376, 1384, 283 Cal.Rptr. 81.)   To ascertain the legislative intent, “we look first to the words themselves.”  (People v. Woodhead, supra, 43 Cal.3d at p. 1007, 239 Cal.Rptr. 656, 741 P.2d 154;  People v. Overstreet (1986) 42 Cal.3d 891, 895, 231 Cal.Rptr. 213, 726 P.2d 1288.)   Where possible, significance must be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose.  (People v. McCart (1982) 32 Cal.3d 338, 342, 185 Cal.Rptr. 284, 649 P.2d 926.)   A statute must also be construed in the context of the entire statutory scheme of which it is a part, in order to achieve harmony among the parts.  (People v. Woodhead, supra, 43 Cal.3d at p. 1009, 239 Cal.Rptr. 656, 741 P.2d 154;  Seidler v. Municipal Court (1993) 12 Cal.App.4th 1229, 1234, 16 Cal.Rptr.2d 90.)

 The general “punitive purpose” of the sentencing rules is to assure that prison terms are “proportionate to the seriousness of the offense and uniform among persons committing the same offense under similar circumstances.  (§ 1170, subd. (a), par. (1).)”  (People v. McCart, supra, 32 Cal.3d at p. 340, 185 Cal.Rptr. 284, 649 P.2d 926.)   The manifest purpose of subdivision (c) is to accord different and more severe punishment to those convicted of felonies while confined in a state prison, to protect the public from recidivist offenders and promote the safety of correctional officers.  (People v. White (1988) 202 Cal.App.3d 862, 869, 249 Cal.Rptr. 165;  People v. Holdsworth (1988) 199 Cal.App.3d 253, 256–258, 244 Cal.Rptr. 782.)   Hence, subdivision (c) provides an exemption from the term reduction features of the general sentencing scheme found in subdivision (a) for felonies committed by inmates confined in state prison.  (Wasko v. Vasquez (9th Cir.1987) 820 F.2d 1090, 1093;  People v. White, supra, 202 Cal.App.3d at p. 869, 249 Cal.Rptr. 165;  People v. Galliher (1981) 120 Cal.App.3d 149, 155, 174 Cal.Rptr. 467;  In re Sims (1981) 117 Cal.App.3d 309, 313, 172 Cal.Rptr. 608.)   The language of subdivision (a) provides explicit recognition of the exemption by stating:  “ ‘Except as provided in subdivision (c) ․ [t]he subordinate term for each consecutive offense which is not a “violent felony” ․ shall consist of one-third of the middle term of imprisonment․’ ”  (People v. Mitchell (1988) 199 Cal.App.3d 300, 303, 244 Cal.Rptr. 803;  emphasis added.)   Under subdivision (c), a term for an in-prison offense is treated as a separate and additional term to be served fully consecutive to the remainder of the sentence for offense for which the person was already confined.  (Id. at pp. 303–304, 244 Cal.Rptr. 803;  see also People v. Holdsworth, supra, 199 Cal.App.3d at p. 256, 244 Cal.Rptr. 782;  People v. Galliher, supra, 120 Cal.App.3d at p. 153, 174 Cal.Rptr. 467.)  “[T]he in-prison offense is treated as a new principal term rather than as a subordinate term to the out-of-prison offense.  (People v. McCart (1982) 32 Cal.3d 338, 344 [185 Cal.Rptr. 284, 649 P.2d 926];  Sims, supra [117 Cal.App.3d], at p. 314 [172 Cal.Rptr. 608].)”  (People v. Holdsworth, supra, 199 Cal.App.3d at p. 256, 244 Cal.Rptr. 782, fn. omitted.)

 Appellant nevertheless insists that multiple offenses committed sequentially in prison must be treated differently under subdivision (c) with respect to each other and calculated according to the sentence reduction formula contained in subdivision (a).   We agree that appellant's sentence must be modified in accordance with subdivision (a).

In People v. McCart, supra, 32 Cal.3d 338, 185 Cal.Rptr. 284, 649 P.2d 926, our high court resolved the issue of computation of the sentence for multiple convictions of felonies committed in state prison resulting from separate but “largely contemporaneous” judicial proceedings.⁸  (Id. at p. 342, 185 Cal.Rptr. 284, 649 P.2d 926.)   The court read the provisions of subdivision (c)—then subdivision (b) of section 1170.1—as calling “for computation of a single term of imprisonment for all convictions of felonies committed in prison and sentenced consecutively, whether multiple convictions occur in the same court proceeding or in different proceedings.” ⁹  (Id. at p. 343, 185 Cal.Rptr. 284, 649 P.2d 926;  see also People v. Reed (1993) 17 Cal.App.4th 302, 305, 21 Cal.Rptr.2d 425.)   In so construing subdivision (c), the court was particularly concerned with the fact that the offenses of which the defendant was convicted were “contemporaneous” and “could have been joined in a single trial under section 954.”  (People v. McCart, supra, 32 Cal.3d at p. 346, 185 Cal.Rptr. 284, 649 P.2d 926.)   The court stated:  “If appellant had been convicted of both in a single proceeding he would have received the full principal term for the more serious crime and one-third the base term as a subordinate term for the less serious crime.   The overriding purpose of achieving uniformity and proportionality in the length of prison terms would not be served by allowing the length of such terms to be determined by the fortuity of joint or separate trials, or by the promptness or delay in the referral for prosecution.”  (Ibid.)

The court in McCart did not confront the issue presented to us:  a prisoner who has received a consecutive term for an in-prison offense and “ several years later ” commits a new in-prison offense, and expressed “no opinion on its proper resolution.”  (Id. at p. 345, fn. 8, 185 Cal.Rptr. 284, 649 P.2d 926.)   We believe that where, as here, in-prison offenses are not contemporaneous and prisoners need not be protected “from disparate results, based on the circumstances of prosecution rather than commission of the offense,” the language of subdivision (c) nevertheless compels the same result.  (Cf. People v. McCart, supra, 32 Cal.3d at p. 346, 185 Cal.Rptr. 284, 649 P.2d 926.)   After providing that consecutive terms imposed for “one or more felonies committed while the person is confined in a state prison ․ shall commence from the time the person would otherwise have been released from prison,” subdivision (c) specifies:  “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.”   Subdivision (c) further states:  “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.”   We read this rather clear language as mandating imposition of a single aggregate sentence for all in-prison offenses committed during the inmate's term in prison for which consecutive terms are imposed, whether resulting from the same or different proceedings.  (People v. McCart, supra, 32 Cal.3d at pp. 344–345, 185 Cal.Rptr. 284, 649 P.2d 926;  People v. Reed, supra, 17 Cal.App.4th at p. 302, 21 Cal.Rptr.2d 425.)

Using the sentence reduction formula of subdivision (a) to calculate the aggregate term for a series of in-prison offenses is also consistent with the statutory scheme.   A full consecutive term—with no subdivision (a) subordinate term reduction—is imposed under subdivision (c) only for commission of a single offense in prison.  (People v. Galliher, supra, 120 Cal.App.3d at p. 149, 174 Cal.Rptr. 467.)   In such a case, “ ‘the in-prison offense is treated as a new principal term rather than as a subordinate term to the out-of-prison offense.’  (People v. Holdsworth (1988) 199 Cal.App.3d 253, 256 [244 Cal.Rptr. 782];  see People v. McCart, supra, 32 Cal.3d 338, 344 [185 Cal.Rptr. 284, 649 P.2d 926];  In re Sims, supra [117 Cal.App.3d], at p. 314 [172 Cal.Rptr. 608].)  [¶]  Viewed schematically, the term for an in-prison offense does not become part of the aggregate prison term imposed for those offenses which were committed ‘on the outside.’   Instead the defendant is imprisoned for a total term consisting of the sum of his aggregate sentence computed under section 1170.1(a) plus the new aggregate term imposed under section 1170.1(c).  (People v. McCart, supra, 32 Cal.3d at p. 340 [185 Cal.Rptr. 284, 649 P.2d 926].)   The latter term starts to run at the end of the prison term imposed for the defendant's original ‘outside’ offense.   (Ibid.)  Under a ‘box theory’ the outside offense and attending enhancements are computed under section 1170.1(a) within the confines of one box.   Under section 1170.1(c) the in-prison offenses and enhancements are computed according to section 1170.1(a) in a separate box.   The total term is computed by adding the totals of the two boxes together.  (See People v. Reeder (1984) 152 Cal.App.3d 900, 924 [200 Cal.Rptr. 479] (computation of sentences for sex offenses under §§ 1170.1 and 667.6).)”  (People v. White, supra, 202 Cal.App.3d at pp. 869–870, 249 Cal.Rptr. 165.)   When multiple new offenses have been committed by a defendant confined in state prison, “the court sets a ‘principal’ term consisting of the greatest term for any of the new offenses of which defendant was convicted, and any other new offenses which are to be served as consecutive sentences are reduced to subordinate terms as provided in ․ subdivision (a).”  (People v. Galliher, supra, 120 Cal.App.3d at p. 154, 174 Cal.Rptr. 467;  see also People v. McCart, supra, 32 Cal.3d at pp. 345–346, 185 Cal.Rptr. 284, 649 P.2d 926;  People v. Reed, supra, 17 Cal.App.4th at pp. 302–303, 21 Cal.Rptr.2d 425.)

 We recognize that under section 4501.5 a conviction of battery by a prisoner upon a nonprisoner results in imposition of a consecutive term of two, three or four years, and would dictate appellant's sentence had he been convicted of a single in-prison offense.   Subdivision (c) has the more specific application to aggregation of terms for multiple in-prison offenses, however, and must prevail.  (People v. Auer (1991) 1 Cal.App.4th 1664, 1669, 2 Cal.Rptr.2d 823;  People v. Powell (1991) 230 Cal.App.3d 438, 441, 281 Cal.Rptr. 568.)  “The statutory scheme makes clear that ․ those felonies committed in prison, are exempt from the general sentencing scheme.   [Citation.]”  (People v. White, supra, 202 Cal.App.3d at p. 869, 249 Cal.Rptr. 165.)

We believe our interpretation of section 1170.1 properly harmonizes subdivisions (a) and (c), comports with the statutory language, and achieves uniformity in sentencing by treating all repeat in-prison offenders similarly, regardless of the temporal proximity of their offenses.   We also opine that imposing a single aggregate prison term for all in-prison offenses, with the subordinate term calculated in accordance with subdivision (a), does not disserve the policy of according more severe punishment to in-prison offenders.   Under subdivision (c), as we have construed it, punishment imposed upon repeat in-prison offenders still exceeds that received by nonprisoners in that:  (1) the total of the subordinate term for consecutively sentenced in-prison offenders may be greater than five years;  and (2) the consecutive term for the initial or most serious in-prison offense is a full term, not reduced according to the one-third the middle base term formula applied to outside offenses, and may be aggravated.  (Cf. People v. McCart, supra, 32 Cal.3d at p. 344, 185 Cal.Rptr. 284, 649 P.2d 926.)

Accordingly, the trial court erred by sentencing appellant to a full consecutive term, rather than following the formula specified in subdivision (a), which requires the consecutive sentence for the present offense to be treated as a subordinate term—that is, subordinate to any prior term for an in-prison offense—and calculated at one-third of the middle term for the offense.   The case is remanded to the trial court for resentencing of appellant in accordance with the views expressed herein.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code.

8.   The defendant's convictions for in-prison offenses in McCart occurred barely two months apart.  (Id. at p. 341, 185 Cal.Rptr. 284, 649 P.2d 926.)

9.   The court particularly focused upon the following language in then subdivision (b):  “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.”  (Ibid.)

NEWSOM, Associate Justice.

STRANKMAN, P.J., and DOSSEE, J., concur.