People v. Brantley

Filed 12/24/19 CERTIFIED FOR PUBLICATION

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

THE PEOPLE, C087675

Plaintiff and Respondent, (Super. Ct. No. CC034312)

v.

MARKEESE MONDALE BRANTLEY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Lassen County, Mark R. Nareau, Judge. Vacate and remand for resentencing.

Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.

1

Penal Code section 1170.1, subdivision (c) (statutory section references that follow are to the Penal Code) provides, in part: “In the case of any person convicted of one or more felonies committed while the person is confined in the state prison . . . and the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all the convictions that the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison.” If a prisoner commits a felony while serving a state prison sentence but is sentenced for the in-prison felony after completing the prison term, does subdivision (c) of section 1170.1 apply to the sentence for the crime committed in prison? In this case, defendant Markeese Mondale Brantley committed the crime of possession of marijuana while he was in state prison (§ 4573.6), but both his guilty plea and sentencing for that crime took place after he was released from prison. Before sentencing on the possession charge, defendant was convicted and sentenced on a domestic violence charge in another case. Finding section 1170.1, subdivision (c) applied to the possession charge, the trial court here imposed a full consecutive three-year term on the possession charge, rather than imposing one-third of the middle term for this offense pursuant to section 1170.1, subdivision (a). On appeal, defendant contends (1) the trial court erred in finding that section 1170.1, subdivision (c)’s exception to the one-third the base term rule applied to his sentence, (2) the court failed to exercise its discretion to impose a consecutive or concurrent term, and (3) that trial counsel’s failure to object to the consecutive term constituted ineffective assistance of counsel. Finding section 1170.1, subdivision (c) does not apply because defendant completed the prison term he was serving before being sentenced on the possession offense, we vacate the sentence and remand for resentencing.