Filed 8/31/18 P. v. Castro CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Mariposa County. Michael A. Fagalde, Judge.

Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

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Appointed counsel for defendant Blake Albizu Castro asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed and we received no communication from defendant. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm.

BACKGROUND

We provide the following brief description of the factual and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

On about March 21, 2017, defendant escaped while working outside the prison and while under the custody of prison officials.

On September 26, 2017, defendant pled guilty to escape while working outside prison (Pen. Code, § 4530, subd. (b))[1] and admitted having suffered a prior felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), in return for a sentence of 32 months—16 months, doubled pursuant to the Three Strikes law—to run consecutively to his existing prison term. The trial court denied probation and sentenced defendant to 32 months in prison.

On October 25, 2017, defendant filed a notice of appeal. The trial court granted his request for a certificate of probable cause, in which he alleged ineffective assistance of counsel for tricking defendant into accepting (or allowing him to accept) a plea that included a sentence greater than that which he would have received if he had been convicted at trial. He stated that he had become aware that his sentence upon conviction at trial would have been one-third the midterm of two years (eight months), doubled to 16 months, plus one year for the prison prior for a total of 28 months.

DISCUSSION

Under section 1170.1, subdivision (a), the determinate sentencing law provides that consecutive terms are generally calculated as a principal term, plus consecutive subordinate terms that are one-third the middle term for each offense. Subdivision (c) of the same section, however, reflects the legislative intent that determinate sentencing law treats in-prison offenses differently than out-of-prison offenses.[2] (People v. McCart (1982) 32 Cal.3d 338, 340 (McCart).) “The difference is simple and understandable. The Legislature wanted in-prison crimes to be punished more severely than crimes committed ‘on the outside.’ ” (People v. White (1988) 202 Cal.App.3d 862, 869 (White), citing McCart, supra, at p. 340.) “The statutory scheme makes clear that such felonies, i.e., those felonies committed in prison, are exempt from the general sentencing scheme” of section 1170.1, subdivision (a). (White, supra, at p. 869.) “The true legislative intent in enacting [section 1170.1, subdivision (c)] applicable to crimes committed by state prison inmates, is to require that they serve their full term for such conviction upon the completion of their term for other offenses for which they were convicted. The Legislature has thus made clear that a person who commits offenses while in prison is not entitled to the usual one-third of the middle term for consecutively imposed sentences.” (In re Sims (1981) 117 Cal.App.3d 309, 314; In re Tate (2006) 135 Cal.App.4th 756, 759 [“The effect of this provision is that the sentence for the in-prison offense must be fully consecutive to the term already being served, rather than being reduced to one-third the middle term pursuant to the usual determinate sentencing rule.”]; White, supra, at pp. 869-870 [“Using sentencing jargon ‘the in-prison offense is treated as a new principal term rather than as a subordinate term to the out-of-prison offense.’ ”]; see also People v. Reed (1993) 17 Cal.App.4th 302, 305.) “Thus, ‘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.) The latter term starts to run at the end of the prison term imposed for the defendant’s original “outside” offense. (Ibid.)’ (People v. White, supra, 202 Cal.App.3d at p. 870; see also People v. Langston, [(2004)] 33 Cal.4th [1237,] 1242 [‘ … new crimes committed while in prison are treated as separate offenses and begin a new aggregate term.’].)” (In re Tate, supra, 135 Cal.App.4th at p. 765.)

Section 4530, subdivision (b) describes an in-prison offense. It provides: “Every prisoner who commits an escape or attempts an escape as described in subdivision (a), without force or violence, is punishable by imprisonment in the state prison for 16 months, or two or three years to be served consecutively. No additional probation report shall be required with respect to such offense.” (§ 4530, subd. (b), italics added.) As an in-prison offense, a section 4530, subdivision (b) offense is properly sentenced as a full term to be served consecutively to the sentence already being served. (§ 1170.1, subd. (c); People v. Galliher (1981) 120 Cal.App.3d 149, 155 [“Defendant was properly sentenced to the entire two-year middle term for escape to be served consecutively to the robbery term presently being served by defendant.”].)

Under these authorities, defendant was properly sentenced to a full sentence rather than one-third of the middle term for the section 4530, subdivision (b) offense. He would not have received a better sentence at trial.

Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.