Opinion
2d Crim. No. B225903 Super. Ct. No. F446819 F440416
09-28-2011
THE PEOPLE, Plaintiff and Respondent, v. KTAMAR DSHAND DAVIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Luis Obispo County)
Ktamar Dshand Davis appeals the judgment following his plea of no contest to two counts of possession of a weapon while confined in a penal institution. (Pen. Code, § 4502, subd. (a).) The trial court sentenced him to three years and one year in prison for the first and second offenses, respectively, and ordered the sentences to be served consecutively to the sentence he was already serving, and consecutively to each other. Davis contends the trial court erred in ruling that section 4502 requires the sentences to be served consecutively to each other. He obtained a certificate of probable cause (§ 1237.5) to raise the issue on appeal. We affirm.
All statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
The relevant facts are derived from the preliminary hearing.
At all relevant times, Davis was an inmate at the California Men's Colony in San Luis Obispo County. In October 2009, a correction officer found a sock filled with two batteries in his cell. In March 2010, another officer found a pointed six-inch metal bar in his possession. Davis was charged with possession of a weapon arising out of these incidents in two separate cases. After a waiver of rights and no contest pleas, Davis was sentenced to a total of four years in state prison. The sentence consisted of the three-year middle term for the October 2009 offense, designated as the principal term, and a one-year term for the March 2010 offense, designated as the subordinate term. The trial court ordered the sentences to be served consecutively and also consecutively to the sentence which Davis was serving at the time of the in-prison offenses.
DISCUSSION
Section 4502, subdivision (a) provides that every person who possesses a weapon enumerated in the statute while confined in any penal institution "is guilty of a felony and shall be punished by imprisonment in the state prison for two, three, or four years, to be served consecutively." Davis acknowledges that the statute requires the sentence for any covered offense to be served consecutively to the sentence being served at the time of the offense, but contends that section 4502, subdivision (a) does not require multiple in-prison sentences to be served consecutively to each other. He argues that the trial court mistakenly believed it had no discretion to order concurrent sentences for the in-prison offenses. We disagree, and conclude that section 4502, subdivision (a) requires the sentences for multiple counts of possession of a weapon by a person confined in a penal institution to be served consecutively to each other as the trial court ordered in this case.
Section 4502, subdivision (a) provides in its entirety: "Every person who, while at or confined in any penal institution, while being conveyed to or from any penal institution, or while under the custody of officials, officers, or employees of any penal institution, possesses or carries upon his or her person or has under his or her custody or control any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sandbag, or metal knuckles, any explosive substance, or fixed ammunition, any dirk or dagger or sharp instrument, any pistol, revolver, or other firearm, or any tear gas or tear gas weapon, is guilty of a felony and shall be punished by imprisonment in the state prison for two, three, or four years, to be served consecutively."
Generally, when the trial court misunderstands the scope of its discretion, reman for resentencing is required. (People v. Fuhrman (1997) 16 Cal.4th 930, 944; People Coelho (2001) 89 Cal.App.4th 861, 889.)
As with many other in-prison offenses, section 4502, subdivision (a) expressly requires the imposition of consecutive sentences. (People v. Mosley (2007) 155 Cal.App.4th 313, 327-328; see also §§ 4501, 4501.5, 4503, 4530, subd. (b), 4532, subd. (a)(2).) There is no basis in the language of the statute to distinguish between single and multiple in-prison offenses or to permit the court to impose concurrent sentences for multiple in-prison offenses. Section 4502, subdivision (a) clearly and unequivocally requires sentences for its violation "to be served consecutively."
In addition, the legislative intent of the statute would be achieved only if sentences for multiple in-prison sentences are served consecutively. Section 4502, subdivision (a) is intended to "protect inmates and officers of state prisons from the peril of assaults with dangerous weapons perpetrated by armed prisoners," and the "statute was adopted on the justifiable theory that there is greater danger of imprisoned felons becoming incorrigible and resorting to violence if they are permitted to carry upon their persons deadly weapons." (People v. Wells (1945) 68 Cal.App.2d 476, 481, disapproved on other grounds in People v. Barnum (2003) 29 Cal.4th 1210, 1219, fn. 1.) Allowing a defendant to commit multiple in-prison offenses without being required to serve a longer prison term than could be imposed for commission of a single offense is inconsistent with this intent.
Davis argues that the section 4502, subdivision (a) language requiring that sentences shall "be served consecutively" permits concurrent sentences when read in conjunction with section 1170.1, subdivision (c). His argument is unpersuasive.
Section 1170.1, subdivision (c) provides that when a person commits one or more felonies while confined in prison and the law requires the terms to be served consecutively, all sentences required to be served consecutively shall commence from the time the person would otherwise have been released from prison. As with section 4502, subdivision (a), the legislative intent of section 1170.1, subdivision (c) is to punish felonies committed in prison more severely than offenses committed outside prison by exempting such felonies from the general sentencing scheme of section 1170.1, subdivision (a). (People v. McCart (1982) 32 Cal.3d 338, 340 [construing former subd. (b), since redesignated subd. (c)]; People v. White (1988) 202 Cal.App.3d 862, 869.) Under section 1170.1, subdivision (c), the sentence for the first in-prison offense, in effect, is a new "principal" term rather than one "subordinate" to the term of the prior out-of-prison offense. Sentences for subsequent in-prison offenses are added as "subordinate terms" thus creating a single term of imprisonment for all in-prison offenses. (McCart, at pp. 343-344; White, at pp. 869-870.)
Section 1170.1, subdivision (c) provides in its entirety: "In the case of any person convicted of one or more felonies committed while the person is confined in a state prison or is subject to reimprisonment for escape from custody and the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all the convictions that the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison. If the new offenses are consecutive with each other, the principal and subordinate terms shall be calculated as provided in subdivision (a). This subdivision shall be applicable in cases of convictions of more than one offense in the same or different proceedings."
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Section 1170.1, subdivision (c) itself does not require consecutive sentences for section 4502, subdivision (a) offenses. It applies to all in-prison offenses when another statute requires consecutive sentencing. (See People v. Venegas (1994) 25 Cal.App.4th 1731, 1743.) The section "does not direct that all in-prison offenses must be punished by consecutive sentences. Rather, it provides that if a consecutive sentence is imposed for such an offense, the term runs from the time the defendant otherwise would have been released from prison." (People v. Rosbury (1997) 15 Cal.4th 206, 211.) In this case the applicable statute is section 4502, subdivision (a) and that section requires all in-prison sentences "to be served consecutively."
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P.J.
COFFEE, J.
Barry T. LaBarbera, Judge
Superior Court County of San Luis Obispo
California Appellate Project, Jonathan B. Steiner, Executive Director, Richard B. Lennon, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi, David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.