People v. Lister

Opinion

WALLIN, J.

This is defendant Joseph Lister’s third appeal in this case. The only issue presented is whether, on the second remand for resentencing,

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the court properly imposed a sentence consecutive to a federal term which was imposed after the first time Lister was sentenced.

. Lister was convicted on state charges and sentenced in April 1979. The trial judge attempted to make this initial sentence consecutive to the term for Lister’s case then pending in federal court. In May 1979, Lister was convicted in federal case and sentenced to a term to be served concurrently with his state term. Lister appealed his state court conviction and the case was remanded twice for resentencing. On the second remand, January 24, 1983, the sentencing court correctly calculated the term, but ordered the term to run consecutively to the federal term pronounced in May 1979. We modify that portion of the sentencing order to indicate the term will run concurrently with the federal term.

Discussion

Penal Code section 669 authorizes a state court to direct that a term run consecutively to any prior judgment, including a federal judgment.

(People

v.

Veasey

(1979) 98 Cal.App.3d 779 [159 Cal.Rptr. 755].)

Defendant contends the date of the judgment in this case is the date he was first sentenced in April 1979. Therefore the May 1979 federal judgment was subsequent to the state judgment. Because Penal Code section 669 authorizes a court to impose sentence consecutive to

prior

judgments only, the state court had no power to impose a term consecutive to the “subsequent” federal judgment.

We disagree with Lister’s analysis. No judgment occurred in this case until Lister was properly sentenced on January 24, 1983. Therefore, the May 1979 federal judgment is “prior” to the state judgment for purposes of Penal Code section 669 and the court had the power to order the term to run consecutively to Lister’s federal term.