Filed 4/18/17 P. v. Bouie CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Lassen)
----


THE PEOPLE,

Plaintiff and Respondent,

v.

DIRK JAONG BOUIE, JR.,

Defendant and Appellant.


C081581

(Super. Ct. No. CH032699)




A jury found defendant Dirk Jaong Bouie, Jr., guilty of two counts of battery by a prisoner on a nonconfined person. In a bifurcated proceeding, the trial court found true allegations that defendant had two prior strike convictions. The trial court sentenced defendant to the midterm of three years on count one, doubled to six years under the Three Strikes law, and imposed the same concurrent sentence on count two.
Defendant now contends the trial court abused its discretion in selecting the midterm sentence for each count. We do not reach defendant’s claim, however, because as the People correctly point out, the trial court imposed an unauthorized sentence by sentencing him to concurrent rather than consecutive sentences. We will reverse the sentence, remand for resentencing, and in all other respects affirm the judgment.
BACKGROUND
Defendant was incarcerated at High Desert State Prison in August 2014. One morning correctional officers Oscar Smith and Gary Rossi were escorting defendant from an outdoor area to his cell after he failed to return to his housing unit as directed. As they approached the door leading inside the building, defendant, who was handcuffed, tensed up, flexed his arms, and pushed back into the officers. Shortly after they entered the building, defendant crouched, twisted his body and lunged at Smith with his head, causing his shoulder to hit Smith’s arm. Defendant then made an arcing motion toward Rossi, causing his elbow to make contact with the bottom of Rossi’s rib cage. The officers took defendant to the ground and regained control of him.
Defendant testified at trial that on the day of the incident he told Smith he had a suicidal thought, needed to speak with a psychiatrist, and that the proper procedure was to take him to a holding cell for a psychiatric evaluation. When defendant realized the officers were not following the proper procedure, he attempted to fall to the ground to get a medical response. But the officers held him up and pulled him through the door leading inside the building. Eventually defendant dropped to his knees and the officers dragged him and then slammed him to the ground. Defendant denied that he lunged at Smith or made contact with either officer.
The jury found defendant guilty of two counts of battery by a prisoner on a nonconfined person. (Pen. Code, § 4501.5.) In a bifurcated proceeding, the trial court found true allegations that defendant had two prior strike convictions under the Three Strikes law. (§§ 667, subds. (b)-(i); 1170.12.)
At sentencing, the prosecutor argued for a midterm sentence of three years on count one, doubled to six years under the Three Strikes law, to be served consecutive to his current term of incarceration. The prosecutor did not request a specific sentence on count two. Instead, the prosecutor indicated that a stay of the sentence might be appropriate under section 654 but, when queried, indicated he would be fine with the imposition of a concurrent sentence. Defense counsel made an oral motion to dismiss the prior strike allegation, and argued for the low term of two years. Defendant asserted that a low term sentence was appropriate because the officers did not sustain any injuries and he was suffering from mental health issues at the time of the incident.
The trial court sentenced defendant to three years on count one, doubled to six years under the Three Strikes law. The trial court imposed the same sentence on count two and ordered the sentence to run concurrent with the sentence imposed on count one. The trial court also ordered defendant’s sentence to be served consecutive to his current term of incarceration.
DISCUSSION
Defendant contends the trial court abused its discretion in selecting the midterm sentence for each count. We do not reach the claim, however, because we agree with the People that remand for resentencing is appropriate.
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 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 requires the imposition of consecutive sentences 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). (People v. Hojnowski (2014) 228 Cal.App.4th 794, 799 (Hojnowski).)
Section 4501.5 requires consecutive terms in this context. Thus, the sentence imposed by the trial court was unauthorized. (See People v. Scott (1994) 9 Cal.4th 331, 354 [a sentence is unauthorized where it could not be lawfully imposed under any circumstance in the particular case].) We will reverse the sentence and remand the matter so the trial court can impose consecutive sentences on each count and apply the one-third the middle term limitation for the subordinate count.
We reject defendant’s contention that the sentencing provisions of section 4501.5 are inapplicable because he was sentenced under the Three Strikes law. A similar argument was made and rejected in Hojnowski. (Hojnowski, supra, 228 Cal.App.4th at pp. 799-802.)
Defendant asserts that if the matter is remanded for resentencing, we should direct the trial court to conduct a full resentencing hearing, including reconsideration of defendant’s motion to dismiss the prior strike allegations. Because defendant cites no authority to support his assertion, we decline to address it.
DISPOSITION
The sentence is reversed and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.



/S/
MAURO, J.



We concur:



/S/
ROBIE, Acting P. J.



/S/
RENNER, J.