P. v. Floyd
Filed 3/28/07 P. v. Floyd CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. KIM FLOYD, Defendant and Appellant. | D049188 (Super. Ct. No. JCF 16021) |
APPEAL from a judgment of the Superior Court of Imperial County, Annie M. Gutierrez, Judge. Affirmed in part and reversed and remanded in part.
Kim Floyd entered negotiated guilty pleas to possessing a weapon while a prison inmate (Pen. Code, 4502, subd. (a))[1]and battery on a non-confined person ( 4501.5). He admitted three prior strikes. ( 667, subds. (b)-(i), 1170.12.) The court struck two prior strikes and sentenced him to prison for 10 years, eight months, consecutive to a term he was serving at the time of sentencing: double the four-year upper term for possessing a weapon with a prior strike and a consecutive two years, eight months for battery with a prior strike on a non-inmate, (double one-third the upper term). Floyd contends the trial court erred in imposing a sentence of double one-third the upper term rather than double one-third the middle term for battery with a prior strike on a non-inmate.
FACTS
During 2004 Floyd was an inmate in Calipatria State Prison. On January 23 guards went to Floyd's cell to conduct a cell search. Floyd turned, grabbed an object from his bunk and placed the object in his buttock area. Guards took Floyd to a shower area where he underwent a skin search and was ordered to reveal his rectum. Floyd refused. When the guards began a second skin search, Floyd reached into his buttock area. A guard noticed a metal object in Floyd's clinched fist. When Floyd tried to destroy the object, a guard sprayed him with OC spray. Floyd withdrew the object, and threw it, striking a guard in the shoulder. The guards searched Floyd's cell and found a second inmate produced weapon.
DISCUSSION
The sentence for a single weapon offense by a prison inmate that is committed while the inmate is serving a sentence on another crime runs consecutive to the sentence the prisoner is serving when he commits the new offense. The term on the new crime commences from the time the defendant otherwise would have been released from prison. (People v. Venegas (1994) 25 Cal.App.4th 1731, 1742.) Where as here, a defendant commits multiple in-prison crimes, one of the convictions is the principal conviction and the others are subordinate. The People concede that sentence on the subordinate crime must be one-third the middle term. Here, the court imposed a sentence of two years, eight months on the subordinate crime double one-third of the upper term. It should have imposed a sentence of double one-third the middle term two years. The trial court thus erred when it imposed sentence on the subordinate offense.
DISOSITION
The judgment is affirmed but for the sentence. The matter is remanded to enable the trial court to modify the abstract of judgment to reflect a 10-year rather than a 10-
year, eight month sentence. The trial court shall forward a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
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[1] All statutory references are to the Penal Code.
