People v. Baker CA3

Filed 7/29/15 P. v. Baker CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C076775

Plaintiff and Respondent, (Super. Ct. No. MF037024A)

v.

MICHAEL ANTHONY BAKER,

Defendant and Appellant.

Convicted by jury of attempted escape from San Joaquin County Honor Farm in September 2013 (Pen. Code, § 4532, subd. (b)),1 defendant Michael Anthony Baker was sentenced to the midterm of two years in state prison, to be served consecutively to the sentence he was serving when he attempted to escape. He contends the trial court erred by imposing a full-term consecutive sentence because he was serving a split sentence and had not completed the mandatory supervision portion of that sentence. (§ 1170, subd.

1 Undesignated statutory references are to the Penal Code.

1

(h)(5)(B).) Under that sentencing scheme, according to defendant, his new sentence must be one-third the midterm. (§ 1170, subd. (h)(1).) The Attorney General agrees, as do we. The parties disagree on the remedy, however. Defendant contends this court can modify the sentence to one-third the midterm, but the Attorney General asserts that we must remand the matter to the trial court for resentencing. We conclude defendant is correct. We shall modify the sentence to one-third the midterm, or eight months, and affirm as modified. DISCUSSION Because the sole issue raised presents a pure question of law, we need not discuss the facts of defendant’s offense. When defendant committed the current offense, in September 2013, he was serving sentences imposed earlier that month for receipt of stolen property and grand theft. His aggregate term was three years eight months (three years for grand theft, plus eight months, one-third the midterm, for receiving stolen property). The trial court in the prior case ordered defendant to serve 16 months of his sentence for grand theft in county jail and the remaining 28 months on mandatory supervision. The current case came on for trial on April 15, 2014. Defendant completed the county jail portion of his sentence on April 24, 2014. The trial court imposed sentence in the current case on June 9, 2014. An attempted escape from an honor farm, if not involving the use of force or violence, is punishable by imprisonment in state prison for 16 months, two years, or three years, to be served consecutively to the defendant’s current sentence, or by a maximum of one year in county jail. (§ 4532, subd. (b)(1).) Although the jury was not asked to decide whether defendant used force or violence, the trial court expressly found at sentencing that defendant did not do so. Thus, this case falls within section 4532, subdivision (b)(1). “[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