People v. Prado CA1/2

Filed 8/7/15 P. v. Prado CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A141490 v. SATURNINO PRADO, (Solano County Super. Ct. Nos. FCR298555 & FCR297743) Defendant and Appellant.

Saturnino Prado appeals from convictions of two counts of battery on a non- confined person. He contends the trial court erred in imposing consecutive sentences on the two counts without considering that it had discretion to run the sentences concurrently. We disagree that the trial court had such discretion and therefore affirm the judgment. STATEMENT OF THE CASE On December 31, 2013, the Solano County District Attorney filed two informations, each charging appellant with one count of battery by a prisoner on a non- confined person (Pen. Code, § 4501.5).1 After a court trial on February 21, 2014, the court sentenced appellant to a total of three years in prison, the low term of two years in case No. FCR298555, plus a consecutive one-third middle term of one year in case No. FCR297743. The court ordered these terms to run consecutively to appellant’s existing prison term. At the time of the present offenses, appellant was serving the sentence

1 Further statutory references are to the Penal Code unless otherwise indicated.

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imposed in Los Angeles County case No. BA195408; while serving that sentence, he was convicted of an in-prison offense in Del Norte County case No. CR-PB-02-5184. On February 27, 2014, appellant filed motions for resentencing, arguing that because appellant had a previous conviction for an in-prison offense, he should have been sentenced to a one-third middle term on each of the new offenses. At a hearing on March 19, 2014, the court vacated the sentence in case No. FCR298555 and imposed the one- third middle term of one year, and confirmed the one-year sentence in case No. FCR297743. Appellant filed a timely notice of appeal on April 2, 2014. STATEMENT OF FACTS Case No. FCR297743 concerns nurse Gairlie Zamora. On September 21, 2012, while Zamora was in appellant’s cell at the California Medical Facility to administer an injectable medication, appellant kicked her twice in the back. Case No. FCR298555 concerns medical technical assistant Jeannie Anati. On January 4, 2013, Anati was removing appellant’s wrist restraints as he held his hands out through the open food port of his cell. After she removed one of the restraints, appellant turned around, grabbed her wrists and pulled her arms in through the food port. Another medical technical assistant had to help free Anati from appellant’s grasp, and Anati suffered redness, swelling and welts on her wrist. DISCUSSION Appellant contends that the trial court sentenced him consecutively on the two counts of battery on a non-confined person without recognizing that it had discretion to impose concurrent sentences. Appellant acknowledges that the overall term imposed for the current offenses is statutorily required to run consecutively to the prison term he is already serving, but maintains the court had discretion to run the two current offenses concurrently to each other. Section 4501.5 provides: “Every person confined in a state prison of this state who commits a battery upon the person of any individual who is not himself a person