Filed 8/7/15 P. v. Prado CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A141490
v.
SATURNINO PRADO,                                                     (Solano County Super. Ct.
                                                                     Nos. FCR298555 & FCR297743)
         Defendant and Appellant.


         Saturnino Prado appeals from convictions of two counts of battery on a non-
confined person. He contends the trial court erred in imposing consecutive sentences on
the two counts without considering that it had discretion to run the sentences
concurrently. We disagree that the trial court had such discretion and therefore affirm the
judgment.
                                       STATEMENT OF THE CASE
         On December 31, 2013, the Solano County District Attorney filed two
informations, each charging appellant with one count of battery by a prisoner on a non-
confined person (Pen. Code, § 4501.5).1 After a court trial on February 21, 2014, the
court sentenced appellant to a total of three years in prison, the low term of two years in
case No. FCR298555, plus a consecutive one-third middle term of one year in case No.
FCR297743. The court ordered these terms to run consecutively to appellant’s existing
prison term. At the time of the present offenses, appellant was serving the sentence


         1
             Further statutory references are to the Penal Code unless otherwise indicated.


                                                             1
imposed in Los Angeles County case No. BA195408; while serving that sentence, he was
convicted of an in-prison offense in Del Norte County case No. CR-PB-02-5184.
       On February 27, 2014, appellant filed motions for resentencing, arguing that
because appellant had a previous conviction for an in-prison offense, he should have been
sentenced to a one-third middle term on each of the new offenses. At a hearing on March
19, 2014, the court vacated the sentence in case No. FCR298555 and imposed the one-
third middle term of one year, and confirmed the one-year sentence in case No.
FCR297743.
       Appellant filed a timely notice of appeal on April 2, 2014.
                                STATEMENT OF FACTS
       Case No. FCR297743 concerns nurse Gairlie Zamora. On September 21, 2012,
while Zamora was in appellant’s cell at the California Medical Facility to administer an
injectable medication, appellant kicked her twice in the back.
       Case No. FCR298555 concerns medical technical assistant Jeannie Anati. On
January 4, 2013, Anati was removing appellant’s wrist restraints as he held his hands out
through the open food port of his cell. After she removed one of the restraints, appellant
turned around, grabbed her wrists and pulled her arms in through the food port. Another
medical technical assistant had to help free Anati from appellant’s grasp, and Anati
suffered redness, swelling and welts on her wrist.
                                       DISCUSSION
       Appellant contends that the trial court sentenced him consecutively on the two
counts of battery on a non-confined person without recognizing that it had discretion to
impose concurrent sentences. Appellant acknowledges that the overall term imposed for
the current offenses is statutorily required to run consecutively to the prison term he is
already serving, but maintains the court had discretion to run the two current offenses
concurrently to each other.
       Section 4501.5 provides: “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



                                              2
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.”
       The procedure for sentencing on felonies committed in prison is described in
section 1170.1, subdivision (c): “In the case of any person convicted of one or more
felonies committed while the person is confined in the state prison or is subject to
reimprisonment for escape from custody 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 that 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). This subdivision shall be applicable in cases of
convictions of more than one offense in the same or different proceedings.”
       Subdivision (a) of section 1170.1 details the general procedure governing
consecutive sentencing on multiple felonies, under which the aggregate term consists of
the sum of the principal term (the greatest term of punishment imposed for any of the
crimes), the subordinate term (one-third of the middle term for each other felony being
consecutively sentenced, including one-third of the middle term for any enhancements
applicable to the subordinate offenses) and any additional term imposed for specific
enhancements.2

       2
           Section 1170.1, subdivision (a), provides:
        “Except as otherwise provided by law, 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 for
applicable enhancements for prior convictions, prior prison terms, and Section 12022.1.
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

                                               3
       Section 1170.1, subdivision (c), calls 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.” (People v. McCart (1982) 32 Cal.3d 338, 343.) This new
aggregate term is calculated for all consecutively sentenced in-prison offenses, even if
committed years apart. (People v. Venegas (1994) 25 Cal.App.4th 1731, 1743-1744.)
The term consists of the greatest term of imprisonment for any one of the in-prison
offenses (the principal term) plus one-third middle terms for each of the additional in-
prison offenses (the subordinate terms). (Id. at p. 1744; § 1170.1, subd. (a).) The
aggregate term for in-prison offenses runs fully consecutive to the prisoner’s existing
term, commencing “at the end of the longest of the prisoner’s previously imposed terms.”
(McCart, at p. 343.)
       Here, the trial court appears to have followed the prescribed procedure, viewing
the previously imposed sentence for the Del Norte County in-prison offense as the
primary term and therefore imposing one-third middle term sentences of one year for
each of the new in-prison offenses.
       Appellant urges that although the sentence imposed on his new offenses was
required to be consecutive to the term he was already serving, the trial court could have
ordered the sentences on the two new offenses to run concurrently to each other. His
argument is based on the provision in section 1170.1, subdivision (c), that “[i]f the new
offenses are consecutive with each other, the principal and subordinate terms shall be
calculated as provided in subdivision (a).” The “if” in this provision, according to
appellant, demonstrates that sentences for new in-prison offenses may be concurrent.




term imposed for any specific enhancements applicable to those subordinate offenses.
Whenever a court imposes a term of imprisonment in the state prison, whether the term is
a principal or subordinate term, the aggregate term shall be served in the state prison,
regardless as to whether or not one of the terms specifies imprisonment in a county jail
pursuant to subdivision (h) of Section 1170.”


                                             4
Further, appellant argues that section 6693 provides general authority for ordering
concurrent terms and “it is not necessary for statutes to specify that the trial court’s
authority exists.”
       People v. Hojnowski (2014) 228 Cal.App.4th 794 rejected the contention that
concurrent rather than consecutive sentences could be imposed for multiple in-prison
offenses under section 4501.5.4 The court explained, “As with many other statutes
concerning in-prison offenses, section 4501.5 requires the imposition of consecutive
sentences. Nothing in that provision distinguishes between single and multiple in-prison
offenses or allows concurrent terms for multiple in-prison offenses, although consecutive
sentences are subject to the one-third-the-middle-term limitation for subordinate counts
established by section 1170.1, subdivisions (a) and (c). (See People v. Mosley (2007) 155
Cal.App.4th 313, 328 [§ 4502, mandating that terms for possession of certain weapons
and devices in a penal institution ‘be served consecutively,’ required consecutive
sentencing on multiple counts but did not permit imposition of full-strength terms];
People v. Washington (1994) 27 Cal.App.4th 940, 945, [defendant convicted of two
violations of § 4501.5; second count should have been subject to one-third-the-middle-
term requirement].)” (Hojnowski, at p. 799.)
       Appellant’s attempt to distinguish Hojnowski is not persuasive. As appellant
points out, the defendant in Hojnowski argued that because he was sentenced under the
Three Strikes law, the mandatory consecutive sentencing provisions of section 4501.5
were supplanted by section 667, subdivision (c)(6), which, in his view, permitted

       3
         Section 669, subdivision (a), provides in pertinent part, “When a person is
convicted of two or more crimes, whether in the same proceeding or court or in different
proceedings or courts, and whether by judgment rendered by the same judge or by
different judges, the second or other subsequent judgment upon which sentence is
ordered to be executed shall direct whether the terms of imprisonment or any of them to
which he or she is sentenced shall run concurrently or consecutively.”
       4
         Hojnowski concerned violations of section 4501.1, aggravated battery by
“gassing.” Section 4501.1 incorporates the penalty provisions of section 4501.5, stating
that every state prison inmate who violates section 4501.1 “shall serve his or her term of
imprisonment as prescribed in Section 4501.5.” (§ 4501.1, subd. (a).)


                                               5
concurrent sentences for multiple offenses committed on the same occasion.5 The court
disagreed, finding that section 667, subdivision (c)(6) “does not give a trial court the
discretion to impose concurrent terms when consecutive sentences would otherwise be
mandatory.” (Hojnowski, supra, 228 Cal.App.4th at p. 800.) Appellant maintains that
Hojnowski is inapposite because the present case does not involve the Three Strikes law.
But Hojnowski discussed the impact of the Three Strikes law only after holding that
section 4501.5 requires consecutive sentences. After so holding, the court rejected the
defendant’s argument that “a different rule applies to his case because he was sentenced
under the Three Strikes law.” (Hojnowski, at pp. 799-800.)
       The language of section 1170.1, subdivision (c), does appear to allow for the
possibility that some felonies committed in prison might not result in consecutive
sentences. But appellant was convicted under section 4501.5, and nothing in section
1170.1, subdivision (c), provides a basis for ignoring the express mandate of section
4501.5 that every person who commits the described offense “shall be imprisoned in the
state prison for two, three, or four years, to be served consecutively.” (§ 4501.5, italics
added.) Nor does the general authority to determine whether multiple sentences will run
concurrently or consecutively override the specific and express requirement of section
4501.5 that violations of that particular statute be sentenced consecutively. It is a basic
rule of statutory construction that a specific provision relating to a particular subject will




       5
            The relevant portion of section 667, subdivision (c), provides: “Notwithstanding
any other law, if a defendant has been convicted of a felony and it has been pled and
proved that the defendant has one or more prior serious and/or violent felony convictions
. . . , the court shall adhere to each of the following: [¶] . . . [¶] (6) If there is a current
conviction for more than one felony count not committed on the same occasion, and not
arising from the same set of operative facts, the court shall sentence the defendant
consecutively on each count pursuant to [this section].” (§ 667, subd. (c), italics added.)
The defendant in Hojnowski reasoned that concurrent sentences were not precluded by
section 667, subdivision (c)(6), because his offenses were committed on the “same
occasion” and arose from the same set of operative facts, and therefore could be imposed
notwithstanding section 4501.5.


                                               6
govern over a general one. (People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798,
808.)
        Appellant attempts to draw an analogy to the California Supreme Court’s decision
in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530, that the Three
Strikes law did not eliminate trial courts’ long standing power to strike prior felony
conviction allegations pursuant to section 1385. Appellant focuses on the court’s
explanation that the Legislature’s ability to eliminate courts’ statutory power to strike
sentencing allegations in further of justice “does not mean . . . that any statute defining
the punishment for a crime can be read as implicitly eliminating the court’s power to
impose a lesser punishment by dismissing, or by striking sentencing allegations, under
section 1385. This is because the statutory power to dismiss in furtherance of justice has
always coexisted with statutes defining punishment and must be reconciled with the
latter. (See Stats. 1850, ch. 119, § 629, p. 323.) For this reason, we will not interpret a
statute as eliminating courts’ power under section 1385 ‘absent a clear legislative
direction to the contrary.’ [Citations].” (Romero, at p. 518.)
        Drawing on the court’s language in Romero, appellant argues that the statutory
power to impose concurrent sentences under section 669 “ ‘has always coexisted with
statutes’ requiring consecutive terms and must be reconciled with the latter” and,
therefore, the requirement of section 4501.5 that terms for offenses under that statute be
served consecutively “cannot be read as ‘implicitly eliminating the court’s power’ ” to
impose concurrent terms “ ‘absent a clear legislative direction to the contrary.’ ” This
argument requires no more discussion than to point out that it is difficult to imagine a
clearer “legislative direction to the contrary” than the express requirement in the statute
defining the punishment for a particular offense that the term imposed is “to be served
consecutively.”
        The sentence imposed by the trial court was correct. As both the prosecutor and
defense counsel agreed in the trial court, “the law require[s] consecutive sentencing on a
4501.5.” The court had no discretion to order the sentences on appellant’s two section
4501.5 offenses to be served concurrently with each other.


                                              7
                                 DISPOSITION
     The judgment is affirmed.



                                          _________________________
                                          Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Miller, J.




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