People v. McKinney CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD247679
- Trial judge
- Leo Valentine, Jr.
- Outcome
- modified — Affirmed as modified with directions.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), O'Rourke, Joan K. Irion
Analysis
The trial court sentenced McKinney to 25 years to life plus a 19-year determinate term, including three consecutive five-year serious felony prior enhancements, even though the underlying counts 2 and 3 were sentenced concurrently. The Court of Appeal affirmed the judgment as modified, directing the trial court to reduce the serious felony prior enhancement term from 15 years to 5 years by serving the enhancements for counts 2 and 3 concurrently with their underlying counts.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of consecutive five-year serious felony prior enhancements on counts 2 and 3, which were sentenced concurrently with count 1.“Imposing the enhancements consecutively where their underlying counts are imposed concurrently is an unauthorized sentence which can be corrected even though there was no objection made in the trial court.” | de novo | error | agree with court agree with court |
Authorities
- relied: People v. Williams (2004) 34 Cal.4th 397 — When a person is sentenced to an indeterminate term under the Three Strikes law and a serious felony prior enhancement has been proved, the trial court must add that enhancement to each indeterminate term.
- relied: Robert L. v. Superior Court (2003) 30 Cal.4th 894 — Where a trial court sentences indeterminate terms concurrently, the accompanying serious felony prior enhancements must also be applied to those counts and run concurrently with the underlying charge.
- relied: People v. Robertson (2012) 208 Cal.App.4th 965 — Imposing enhancements consecutively where their underlying counts are imposed concurrently is an unauthorized sentence which can be corrected even though there was no objection made in the trial court.
The appellate opinion: sound — sound
How this analysis was made · dispute it
unusual dispositionThe San Diego Superior Court sentenced McKinney, after guilty pleas to three attempted robberies and four false imprisonments with three strike priors and one serious felony prior, to 25 years to life on count 1 with concurrent 25-to-life terms on counts 2 and 3, plus a 19-year determinate term that included three consecutive five-year serious felony enhancements. The Court of Appeal, accepting the People's concession, held the enhancements attached to counts 2 and 3 must run concurrently with those counts, reduced the serious felony enhancement term from 15 to five years, and otherwise affirmed with directions to amend the abstract of judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of three consecutive five-year section 667(a)(1) serious felony enhancements on counts 1 through 3 even though the indeterminate terms on counts 2 and 3 were ordered to run concurrently with count 1“Imposing the enhancements consecutively where their underlying counts are imposed concurrently is an unauthorized sentence which can be corrected even though there was no objection made in the trial court.” | de novo | error (law misapplied) | agree with court The court did not expressly state a standard but treated the issue as a pure question of law (an unauthorized sentence reviewable without objection). Under Williams a section 667(a) enhancement is added to each third-strike indeterminate term; because an enhancement is an additional term appended to the base term of a specific count, when counts 2 and 3 run concurrently with count 1 their attached enhancements necessarily run concurrently as well and cannot be severed and stacked consecutively. The People conceded the point and the result follows from the cited authorities. |
Authorities
- relied: People v. Williams (2004) 34 Cal.4th 397 — Under the Three Strikes law, a section 667(a) serious felony enhancement must be added to each indeterminate third-strike term rather than imposed only once.
- relied: Robert L. v. Superior Court (2003) 30 Cal.4th 894 — A sentence enhancement is an additional term of imprisonment added to the base term of a specific count, distinguishing it from an alternate penalty provision.
- relied: People v. Robertson (2012) 208 Cal.App.4th 965 — An unauthorized sentence may be corrected on appeal even absent an objection in the trial court.
The appellate opinion: sound — The opinion correctly applies Williams and the general rule that an enhancement is appended to its underlying count, reaching a result conceded by the People and compelled by the structure of the sentence. It is brief but the issue is narrow and uncontested, and the cited authorities support the disposition.
Opinion
Filed 5/5/15 P. v. McKinney 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, D065937
Plaintiff and Respondent, v. (Super. Ct. No. SCD247679)
ROY GEORGE MCKINNEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed as modified with directions.
Appellate Defenders, Inc. and Neil Auwarter, 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, Melissa Mandel and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent. Roy George McKinney entered guilty pleas to three counts of attempted robbery (counts 1-3; Pen. Code,1 §§ 664 & 211) and four counts of false imprisonment by violence, menace, fraud or deceit (counts 4-7; §§ 236 & 237, subd. (a)). McKinney also admitted three strike priors (§ 667, subds. (b)-(i)) and one serious felony prior conviction (§ 667, subd. (a)(1)).
The court sentenced McKinney to an indeterminate term of 25 years to life, consecutive to a 19-year determinate term. The sentence was composed of 25 years to life for count 1; 25 years to life for counts 2 and 3, to run concurrently with count 1; a consecutive total of four years for the false imprisonment counts; plus three consecutive five-year enhancements for the serious felony prior conviction.
McKinney appeals, challenging only a portion of his sentence. He contends the trial court erred in imposing consecutive five-year enhancements on counts 1 through 3 when the court had imposed concurrent terms for counts 2 and 3. He argues the five-year enhancement added to counts 2 and 3 must be sentenced concurrently along with the counts to which the enhancements are appended. The People correctly concede the enhancements for counts 2 and 3 must be served concurrently along with the counts.
Thus the sentence must be modified to reduce the term for the serious felony prior from 1 All further statutory references are to the Penal Code unless otherwise specified.
2 15 years to five years. We agree with the parties that the sentence imposed was improperly calculated. We will direct the court to modify the sentence accordingly.2
DISCUSSION
When a person is sentenced to an indeterminate term under the Three Strikes law and a serious felony prior enhancement has been proved, the trial court must add that enhancement to each indeterminate term. (People v. Williams (2004) 34 Cal.4th 397, 400-401, 404.) However, where a trial court uses its discretion to sentence indeterminate terms concurrently, the accompanying serious felony prior enhancements must also be applied to those counts. The enhancement attaches to the specific count and thus if the count is sentenced concurrently with other indeterminate terms, the serious felony prior enhancement is necessarily part of the concurrent sentence. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898-899.) Thus, if the underlying count runs concurrently with other counts, its attached enhancements cannot run consecutively apart from their underlying charge.
Imposing the enhancements consecutively where their underlying counts are imposed concurrently is an unauthorized sentence which can be corrected even though there was no objection made in the trial court. (People v. Robertson (2012) 208 Cal.App.4th 965, 995.)
2 The facts of the underlying offenses are not relevant to any issue presented by this appeal. Accordingly we will omit the traditional statement of facts. 3 DISPOSITION The trial court is directed to modify the sentence in this case to show that the serious felony enhancements as to counts 2 and 3 must be served concurrently along with those counts. Thus the total sentence must be modified to reduce the 15-year term for the serious felony prior enhancement to a total of five years. The trial court is directed to amend the abstract of judgment accordingly and to forward an amended abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
Cites, in this corpus
- People v. Robertson No. F061058 · 2012-08-21
- People v. Williams S110377 · 2004-10-18
- Robert L. v. Superior Court S100359 · 2003-08-20