Opinion
Page 270a
105 Cal.App.4th 270a ___Cal.Rptr.2d___ THE PEOPLE, Plaintiff and Respondent, v. BRIT FANUEL AUGBORNE III, Defendant and Appellant. B154786 California Court of Appeal, Second District, Fifth Division January 13, 2003[Modification of opinion (104 Cal.App.4th 362; 128 Cal.Rptr.2d 258) on denial of petition for rehearing.]
This modification requires editorial changes to the summary, page 362, and headnote (2a-2d), page 363. The first sentence in the second paragraph of the summary will be changed to read, "The Court of Appeal, in the published portion of the opinon, reversed and struck the on-bail enhancement as to the robbery count, reversed the sentence and further modified the judgment in the unpublished portion of the opinon, and affirmed the judgment in all other respects." In addition, the words "two or more" will be deleted from the fourth sentence of the second paragraph of the summary, and from headnote (2a-2d).
OPINION
THE COURT.
The rehearing petitions filed December 31, 2002, are denied.
The opinion filed December 16, 2002, is modified in the following particulars:
1. The caption is changed to reflect defendant's name as BRIT FANUEL AUGBORNE III.
2. On page 3, line 1 [104 Cal.App.4th 366, advance report, line 16], following the word "committed" add the words "on separate occasions, or" before the word "by."
3. On page 3, line 6 [104 Cal.App.4th 366, advance report, line 23], following the words "prove that the," delete the words "two or more."
4. On page 13, line 20 [104 Cal.App. 4th 375, advance report, line 1], after the terms "the predicate crimes must have" add the word "either" before the words "been committed."
5. On page 13, line 21 [104 Cal.App.4th 375, advance report, line 2], delete "and the predicate offense must have been committed" following the word "occasions" and insert the word "or."
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6. On page 13, line 22 [104 Cal.App.4th 375, advance report, line 3], after the words "different persons" add "(See People v. Loeun, supra, 17 Cal.4th 1, 9-10.)"
7. On page 20, subsection "E," line 4, delete case No. "YA0446778" and replace with "YA046778."
Reporter's Note: This portion of the modification applies to the nonpublished portion of the opinion.
Reporter's Note: This portion of the modification applies to the nonpublished portion of the opinion.
Reporter's Note: This portion of the modification applies to the nonpublished portion of the opinion.
8.‡ On page 21, line 16, after the terms "less than one day" add "Moreover, as will be set forth below, defendant's sentence must be reversed and reflect an aggregate term. Our colleagues in the Court of Appeal for the First Appellate District recently held: "In determining the appropriate conduct credits to award as part of a consecutive sentence, the second court is entitled to recalculate the conduct credits previously awarded on an earlier conviction. Further, it must base that recalculation on the rules applicable to the current, consecutive term. Even if a subordinate term is imposed for a nonviolent felony conviction occurring before the current offense, if the current offense triggers the credit limitations of section 2933.1, those limitations apply to every offense in the aggregate term. Defendant's current robbery offense is a violent offense as described in sections 2933.1, subdivision (a) and 667.5. As a result, the credit limitations of section 2933.1 apply." (People v. Baker (2002) 104 Cal.App.4th 774, 781 [128 Cal.Rptr.2d 581].)
9.‡ On page 21, subsection "F," line 4, after the words "on bail enhancement" delete the remainder of the paragraph and insert: "However, the trial court was jurisdictionally obliged to impose an aggregate term utilizing the provisions of section 1170.1, subdivision (a), as to both cases. Our colleagues in the Court of Appeal for the First Appellate District held in People v. Jackson (1987) 192 Cal.App.3d 209, 218-220 [237 Cal.Rptr. 373], held: "[T]he Legislature did not intend to alter the consecutive sentencing scheme of section 1170.1 when it enacted section 12022.1. It simply intended the sentences on the earlier and the later offenses to be served consecutively, with the principal and subordinate terms designated according to section 1170.1." Section 1170.1, subdivision (a), provides in pertinent part: "[W]hen any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for . . . Section 12022.1. The principal term shall
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consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed ...." (See also Cal. Rules of Court, rule 4.452.) Hence, the trial court was jurisdictionally obligated to fix an aggregate term as defendant argues in his rehearing petition and as he did at oral argument.
"In this case, the principal term should be three years imposed as to count 2, the robbery, because it provided the greatest term of imprisonment pursuant to section 1170.1, subdivision (a). (See People v. Melchor (1989) 211 Cal.App.3d 1485, 1490 [260 Cal.Rptr. 174]; People v. Baries (1989) 209 Cal.App.3d 313, 320 [209 Cal.Rptr. 920]; People v. Jackson, supra, 192 Cal.App.3d at p. 219.) Defendant is sentenced to: three years as to count 2 (second degree robbery); eight months as to count 1 (criminal threats), which is one-third the midterm of two years, consecutive to count 2 in this case; and eight months, as to count 1 (§ 12031, subd. (a) (2) (A)) in case No. YA046778, which is one-third the midterm of two years to be served consecutive to count 2 in this case; plus five years pursuant to section 186.22, subdivision (b) (1), and an additional two years pursuant to section 12022.1, subdivision (b). A six month concurrent misdemeanor sentence is imposed as to count 2 in case No. YA046778. (§ 4600, subd. (a).) Defendant's total term of imprisonment is 11 years, 4 months."
10. On page 22, line 4 [104 Cal.App. 4th 378, advance report, line 5] after the heading for part IV, following the terms "The sentence in this case is," delete the remainder of that sentence and insert: "reversed. The sentence is modified as follows: count 2, three years; count 1; eight months consecutive to count 2; count 1 in case No. YA046778, eight months consecutive to count 2 in this case; plus five years pursuant to section 186.22, subdivision (b) (1), and two years pursuant to section 12022.1, subdivision (b). A six-month concurrent misdemeanor sentence is imposed as to count 2 in case No. YA046778." The remainder of the "Disposition" shall remain as previously stated.