People v. Roseberry

California Court of Appeal Nov 17, 2020 No. C092118Published

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Holding. The court affirmed the defendant's sentence because the record on appeal was inadequate to determine whether the defendant was still serving a prison term at the time of sentencing, which is a prerequisite for applying the sentencing rules of Penal Code section 1170.1, subdivision (c).

Issues

Whether the trial court erred by imposing a full consecutive term rather than one-third of the base term under Penal Code section 1170.1, subdivision (c).
Whether the trial court erred by failing to pronounce a single aggregate determinate term of imprisonment.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“In light of the incomplete record on appeal, we conclude that defendant has not carried his burden to show trial court error by an adequate record.”

“Appellant has the burden of showing error by an adequate record and has failed to sustain his burden”

“the record does not establish whether defendant was sentenced while serving his original term, his term for the in-prison offense, or any term.”

Filed 11/17/20 CERTIFIED FOR PUBLICATION

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

THE PEOPLE, C092118

Plaintiff and Respondent, (Super. Ct. No. 18CF07984)

WILLIAM STANLEY ROSEBERRY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Butte County, Kristen A. Lucena, Judge. Affirmed.

Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Daniel B. Bernstein, Supervising Deputy Attorney General, Stephanie A. Mitchell, Deputy Attorney General, for Plaintiff and Respondent.

Defendant William Stanley Roseberry committed multiple felonies while serving a term in state prison. In connection with defendant’s second in-prison felony, the trial court imposed a stand-alone state prison term of two years. Defendant contends the trial court: (1) thereby contravened Penal Code section 1170.1, subdivision (c) (statutory section references that follow are to the Penal Code), which governs sentencing for in- prison felonies, because only one-third of the base term should have been imposed; and (2) erred by failing to pronounce a single determinate term of imprisonment, “treat[ing] this case as a stand-alone case, which it was not.” Because defendant has not carried his burden to show error by an adequate record, we affirm.

FACTS AND PROCEDURAL HISTORY In June 2015, defendant began serving a five-year term in state prison for willfully inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)). While serving that time, defendant brought a controlled substance into prison (§ 4573). In December 2015, for defendant’s in-prison offense and pursuant to section 1170.1, subdivision (c), a trial court imposed a three-year prison term consecutive to the five-year term defendant was already serving for the corporal injury offense. In November 2018, a Butte County prosecutor filed a complaint alleging new in- prison offenses, including that in October 2018 defendant failed to return to confinement while temporarily released (§ 4530, subd. (c)). In February 2019, defendant was transported with a detainer from state prison to the Butte County jail to face the new charges. In June 2019, the trial court granted defendant’s request to set bail, though it appears defendant remained in county jail. In January 2020, defendant pleaded “no contest” to the section 4530 offense, and all remaining charges were dismissed. The trial court referred the matter to the probation

People v. Roseberry

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THE PEOPLE, C092118

WILLIAM STANLEY ROSEBERRY,

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