Filed 4/5/16 P. v. Harrell CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E063802

v.                                                                      (Super.Ct.No. FVA015324)

RONNIE KEITH HARRELL,                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,

Judge. Affirmed.

         John F. Schuck, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Kristen

Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.




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         Pursuant to a plea agreement, defendant and appellant Ronnie Keith Harrell pled

guilty to home invasion robbery. (Pen. Code,1 § 212.5.) He also admitted that he had

one prior strike conviction (§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)) and that he

personally used a firearm (§ 12022.53, subd. (b)). Pursuant to the plea agreement, the

court sentenced defendant to 28 years in state prison. However, since his agreement

included a Vargas2 waiver, execution of the sentence was stayed, and defendant was

released from custody pending a further sentencing hearing. Defendant failed to appear

for the sentencing hearing. He was subsequently convicted of federal drug charges in

Hawaii and incarcerated in federal prison for over eight years. After completing his

federal sentence and being released, he appeared in court in the instant case. The court

found that defendant was in violation of the terms of his Vargas waiver and that he was

not entitled to concurrent sentencing. It then sentenced him to the previously imposed

term of 28 years in state prison.

         On appeal, defendant argues that remand is required to enable the court to exercise

its discretion whether to run the sentence in the instant case concurrent to the sentence in

the federal case. We affirm.




         1   All further statutory references will be to the Penal Code, unless otherwise
noted.

         2   People v. Vargas (1990) 223 Cal.App.3d 1107 (Vargas).


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                  FACTUAL AND PROCEDURAL BACKGROUND3

       On June 15, 2001, defendant and his cohort forced their way inside the victim’s

home. Once inside, defendant’s cohort allegedly pistol-whipped the victim and pointed a

gun at him; defendant tied his hands and feet with duct tape. They demanded to know

where the victim’s safe and money were located. He hopped over to the safe and

somehow opened it for them. They grabbed a bag from the safe and ran out of the house.

       On June 20, 2002, defendant entered a plea agreement and pled guilty to home

invasion robbery. (§ 212.5.) He also admitted that he had one prior strike conviction

(§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)) and that he personally used a firearm

(§ 12022.53, subd. (b)). The agreement included a Vargas waiver. Pursuant to the plea

agreement, the court would sentence defendant to 28 years in state prison. However,

under the Vargas waiver, if he did not violate any laws and appeared for sentencing on

August 30, 2002, he would be resentenced to 16 years in state prison. If he failed to meet

the conditions, his 28-year sentence would remain. Defendant failed to appear on August

30, 2002.

       On October 22, 2003, defendant was indicted in a federal case on one charge of

conspiracy to distribute and possess methamphetamine. On April 13, 2004, the San

Bernardino County Sheriff’s Department (the sheriff’s department) placed a detainer on

defendant with the Honolulu Federal Prison.


       3 The facts of the case are not relevant to the issue on appeal, and the factual basis
for defendant’s plea is not included in the appellate record. Thus, this brief factual
background is taken from the People’s opposition to suppress defendant’s confession.


                                              3
       On November 14, 2005, defendant pled guilty to conspiracy to distribute and

possess methamphetamine, and a federal court sentenced him to a total term of 150

months. Defendant’s federal prison term commitment began on February 22, 2006. He

completed his sentence on October 9, 2014, receiving credit for time served.

       On October 30, 2014, defendant appeared before the trial court in the instant case.

The matter was continued.

       On February 25, 2015, defendant filed a sentencing memorandum, arguing that he

was entitled to custody credit from the time the detainer was issued by the sheriff’s

department to the time he was released from federal custody.

       The People filed a response to defendant’s sentencing memorandum, arguing that

defendant’s federal proceeding was wholly unrelated to the instant case, and, thus, he

should not receive custody credit for any time served in federal custody.

       At an ex parte hearing on March 6, 2015, the court referred the matter to the

probation department for sentencing recommendations and an analysis as to whether

defendant should be sentenced concurrently or consecutively to the time served in federal

custody. The probation department filed a sentencing memorandum, stating that

defendant was not entitled to receive concurrent time because there was no section 13814




       4  Section 1381 governs the right of California prisoners to be brought to trial on
pending charges within 90 days of request, and its companion statute, section 1381.5,
provides federal prisoners with an analogous 90-day right. (People v. Vila (1984) 162
Cal.App.3d 76, 81.) Section 1381.5 requires a prisoner to request that he be brought to
trial. (§ 1381.5.)


                                             4
demand in the record, and because “the credits were already applied to his federal prison

case” and he was serving that sentence up until October 19, 2014.

       The court held a hearing on June 5, 2015, and found that defendant’s failure to

appear on August 30, 2002, was willful. It also noted that his federal case came after that

date. Thus, the court found defendant in violation of his Vargas waiver. It further found

that he was not entitled to concurrent sentencing, but rather consecutive sentencing. The

court sentenced him to the previously imposed 28 years in state prison, with 592 custody

credits.

                                        ANALYSIS

Section 669 Does Not Give the Trial Court Authority to Impose a Sentence Concurrent to

                             an Already Completed Sentence

       Defendant claims that, pursuant to section 669, the trial court had the discretion to

run his sentence in the instant case concurrent to the sentence in his federal case. He

contends that the court failed to exercise its discretion, and remand is now required to

enable the court to exercise discretion on whether to impose a concurrent sentence. We

disagree.

       Section 669, subdivision (a), provides, in relevant 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.” Thus, under


                                             5
section 669, the trial court executing the second sentence has a choice to impose either

concurrent or consecutive terms. (People v. Davis (1996) 48 Cal.App.4th 1105, 1110.)

       Defendant argues that when the court here sentenced him, it did not exercise any

discretion as to whether to impose his sentence concurrent to his federal sentence.

Rather, it merely stated that he was not entitled to concurrent sentencing. However, the

trial court correctly concluded that defendant was not entitled to concurrent sentencing.

Concurrent sentences are defined as sentences that “run together during the time that the

periods overlap.” (In re Roberts (1953) 40 Cal.2d 745, 749.) “[A] concurrent new term

‘overlaps’ the prior term to the extent service of the earlier sentence is not complete on

the day the new term is imposed.” (People v. Bruner (1995) 9 Cal.4th 1178, 1182, fn. 3.)

Thus, “Section 669 allows a subsequently executed sentence to be run concurrent to an

earlier imposed term only to the extent the earlier imposed sentence has not been

completed at the time the subsequent sentence is commenced.” (People v. Ross (1985)

165 Cal.App.3d 368, 374, fn. 4.) Here, defendant’s state sentence was suspended, and he

completed his federal sentence before the state sentence was actually executed. Because

he appeared for sentencing on his state conviction after he had already completed his

federal sentence, there was no prior incomplete term upon which the trial court could

impose a concurrent term. Thus, the court properly found that defendant could not be

sentenced concurrently.

       Defendant concedes that courts have interpreted section 669 as being limited in its

application to a subsequently imposed sentence being run concurrent to an earlier

imposed sentence that has not yet been completed. Nonetheless, he argues that “the trial


                                              6
court [had] the discretion to impose the 28-year state sentence concurrent to the already

served federal sentence.” Given the plain definition of concurrent sentences, defendant’s

contention is simply illogical. (See In re Roberts, supra, 40 Cal.2d at p. 749 [Concurrent

sentences “run together during the time that the periods overlap.”].)

       Ultimately, because defendant had already completed his federal sentence by the

time the court imposed his sentence in the current case, the sentences could not overlap,

and the trial court could not have ordered the sentences to run concurrently. Thus, the

trial court properly sentenced defendant, and no remand is required.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                               HOLLENHORST
                                                                                            J.
We concur:


RAMIREZ
                       P. J.


McKINSTER
                          J.




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