Metropolitan News-Enterprise


Friday, September 25, 2015


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C.A. Upholds Sentence Increase, Clarifies Proposition 47 Issue


By a MetNews Staff Writer


A defendant sentenced to a subordinate prison term under the Determinate Sentencing Law may be resentenced to a longer term if the principal term is reduced under Proposition 47, as long as the aggregate term does not increase, the Court of Appeal for this district ruled yesterday.

Div. Six affirmed a two-year sentence imposed on Jennifer Rose Sellner in Ventura Superior Court for receiving stolen property.  

Sellner was sentenced to eight months in that case, last year, with that sentence to be served consecutive to a three-year term simultaneously imposed in another case. Following passage of Proposition 47, Judge Gilbert Romero denied a reduction to a misdemeanor in the case in which the shorter term was imposed, but granted it as to the other case.

The judge then resentenced Sellner to two years for the felony, with credit for 737 days served, so that she was immediately released.

The attorney general argued that Sellner’s release made the appeal moot. Justice Kenneth Yegan, writing for the Court of Appeal, disagreed, citing Penal Code § 2900.5(a), which requires the sentencing court to grant a credit of at least $30 per day towards outstanding fines or fees if a sentence is reduced to less time than the defendant has served.

As for the defendant’s claim that the court lacked jurisdiction to resentence her, Yegan said that was without merit. He cited §1170.1(a) as creating an exception to the general rule that a trial court loses jurisdiction once execution of sentence begins.

The subsection provides that “when a defendant is sentenced consecutively for multiple convictions, whether in the same proceeding or in different proceedings, the judgment or aggregate determinate term is to be viewed as interlocking pieces consisting of a principal term and one or more subordinate terms.”

Yegan explained:

“Here the eight month sentence was a subordinate consecutive term to the three-year sentence in case number 2011005319,” the jurist explained. “Based on the Proposition 47 modification of the principal sentence, the trial court not only was vested with jurisdiction to resentence in case number 2014007685, it was required to do so….Appellant was not strictly ‘resentenced’ but, instead, ordered to serve the sentence originally imposed, two years county jail.”

 The defense argument that the new sentence is unconstitutional because it exceeds the eight months previously imposed would be correct, the jurist said, “[w]ere one to put horse blinders on and view only the sentence” in that case. But in the “big picture,” Yegan said, the defendant was sentenced to an aggregate of three years and eight months originally, which was then reduced to two years after Proposition 47 was applied.

“When the principal term is no longer in existence, the subordinate term must be recomputed,” he wrote. “That is the case here.  As long as the recomputed term is less than the prior aggregate term, the defendant has not been punished more severely for the successful filing of a Proposition 47 petition.”

The case is People v.  Sellner, B261487.


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