Opinion
NOT TO BE PUBLISHED
Super. Ct. No. P06CRF0452.
BLEASE, Acting P. J.
After defendant Georgia Riley violated the terms of her probation, the trial court sentenced her to the middle term of two years for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and ordered that a 16-month term for a conviction in Sacramento County for attempted robbery (Pen. Code, § 664/211) run concurrently. Defendant argues the matter should be remanded for re-sentencing because the trial court erroneously believed it had no discretion to impose the 16-month term as the principal term. We find no error in the exercise of the court’s discretion, and shall affirm the judgment and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
In 2007 defendant pleaded no contest to the unlawful possession of methamphetamine. She was placed on probation for three years. In 2008 defendant was convicted in Sacramento County of attempted robbery, and was sentenced to imprisonment for a term of 16 months. A petition for revocation of probation was filed in El Dorado County based in part upon the Sacramento County conviction. Defendant admitted the violation of probation.
The trial court terminated defendant’s probation and sentenced her to a total term in prison of two years. The trial court imposed the midterm of two years for the unlawful possession of methamphetamine charge, and deemed it to be the principal count. The trial court ordered the term imposed in the Sacramento County case to run concurrently.
At the sentencing hearing, defendant objected to the sentence, and argued the trial court should make the 16-month term from the Sacramento County conviction the principal term, and sentence defendant to an 8-month subordinate term. The trial court responded:
“The Court had intended to impose a sentence of the midterm of two years. The Court is of the view that under 1170.1, as well as the Miller case, that that is the greatest actual term that would be imposed, assuming for the sake of this discussion the Court imposes the midterm.
People v. Miller (2006) 145 Cal.App.4th 206.
In taking judicial notice of the Sacramento commitment, the defendant was sentenced to the low term of 16 months. It’s this Court’s view that the choices the Court has is to make the Sacramento case a subordinate consecutive sentence of one-third the midterm, or eight months. The Court could also just run a concurrent sentence of 16 months or [sic] a concurrent sentence of 2 years.
We did discuss this matter in chambers, and pursuant to California Rules of Court, Rule 4.412, I think that because this is going to be the two-year sentence -- at least it’s this Court’s perspective -- that I would simply run the Sacramento sentence concurrent, which is 16 months.”
DISCUSSION
Defendant claims the case must be remanded for resentencing because the trial court did not believe that it had the authority to impose the Sacramento sentence as the principal term, with a one-third the midterm of the El Dorado case (eight months) as a consecutive, subordinate term. Defendant claims that Miller, supra, 145 Cal.App.4th 206, holds that the court must choose the principal term from the greatest term of imprisonment actually imposed. Defendant concludes the trial court could have made the El Dorado County sentence the subordinate term because it would have been an eight-month sentence (one-third the middle term of two years) and this would have been less than the 16-month Sacramento County term.
Penal Code section 1170.1, subdivision (a), provides in pertinent part that when a person is convicted of two or more felonies, “whether in the same proceeding or court or in different proceedings or courts, ” and a consecutive term of imprisonment is imposed, “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.... The principal term shall 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....”
Defendant apparently believes that the reference to “the greatest term of imprisonment imposed by the court” is a determination to be made after the terms are reduced to one-third the midterm. That is the only way a 16-month sentence could be considered greater than a two-year sentence. This is not the way the principal term is determined.
As People v. Miller, supra, 145 Cal.App.4th at page 216, instructs, structuring aggregate sentencing for multiple convictions is a three-step process. First, the trial court determines the sentence to be imposed on each of the convictions. Second, the trial court designates the longest of the sentences imposed in step one as the principal term, and the shorter sentences as subordinate terms. Third, the trial court calculates the sentence on each subordinate term as one-third of the middle term prescribed by statute for each conviction. As People v. Miller indicates, the reduction of the sentence for the subordinate term does not occur before the court determines the principal term by selecting the longest of the sentences to be imposed.
In this case, the trial court indicated its intention to sentence defendant to the midterm of two years for the unlawful drug possession. This was longer than the 16-month sentence imposed by Sacramento County. The trial court was correct in understanding that if it ran the sentences consecutively, the El Dorado County offense was the principal term.
However, the court did not sentence defendant to consecutive terms. Instead, it imposed concurrent terms. The principal and subordinate term computation under Penal Code section 1170.1, subdivision (a) is not applicable for concurrent sentencing. (People v. Thompson (2009) 177 Cal.App.4th 1424, 1432.) Moreover, defendant’s total sentence in this case (two years) is exactly the same as the sentence she argues she would have received if the trial court had made the 16-month sentence the principal term and the two-year sentence (reduced to 8 months) the subordinate term. In any event, the trial court did not misunderstand its sentencing options, and no remand for resentencing is necessary.
The recent amendments to Penal Code section 4019 do not operate to modify defendant’s entitlement to credit, as one of her convictions, attempted robbery, is a serious felony as defined by Penal Code section 1192.7, subdivision (c)(19) & (39). (Pen. Code, § 4019, subds. (b) and (c); Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.)
DISPOSITION
The judgment is affirmed.
We concur: SIMS, J. HULL, J.