People v. Solorio CA5

California Court of Appeal Oct 13, 2021 No. F081602Unpublished

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Holding. The court held that Penal Code section 1170.1, subdivision (c) does not apply to an in-prison offense if the defendant is no longer serving the prison term for the original conviction at the time of sentencing for the in-prison crime.

Issues

Whether the trial court erred in applying Penal Code section 1170.1, subdivision (c) instead of subdivision (a) when the defendant's original conviction had been reversed at the time of sentencing.

Disposition. remanded

Quotations verified verbatim against the opinion

“if the defendant is no longer serving a prison term at the time of sentencing for his in-prison crime, then subdivision (c) has no application.”

“a reading of the plain language of subdivision (c) makes apparent that this provision does not apply once the prisoner has completed the sentence he or she was serving when the in-prison crime was committed.”

Filed 10/13/21 P. v. Solorio CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F081602 Plaintiff and Respondent, (Super. Ct. No. F18904920) v.

FRANCISCO JAVIER SOLORIO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Adolfo M. Corona, Judge. James E. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Michael Dolida and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Snauffer, J. and DeSantos, J.

Defendant Francisco Javier Solorio committed a felony while serving a term in state prison. At sentencing, the trial court imposed a full consecutive term for the in-prison felony pursuant to Penal Code section 1170.1, subdivision (c).1 On appeal, defendant contends the trial court should have sentenced him pursuant to section 1170.1, subdivision (a). We vacate the sentence and remand for resentencing. FACTUAL AND PROCEDURAL SUMMARY On July 29, 2015, defendant was convicted of murder (§ 187, subd. (a)) with a firearm enhancement (§ 12022.53, subd. (d)) in Imperial County case No. JCF30660, and was sentenced to 50 years to life in state prison. On May 2, 2017, while serving his prison term, defendant was found assaulting another inmate.2 As discussed in further detail below, this assault became the basis of the charge in the instant case. On November 16, 2017, the Fourth District Court of Appeal reversed defendant’s murder conviction in the Imperial County case and remanded the case back to the trial court for a new trial. (People v. Solorio (2017) 17 Cal.App.5th 398, 412.)3 On April 3, 2018, defendant was released from custody, but was rearrested that same day pending a new trial and placed in county jail. On July 24, 2018, the Fresno County District Attorney filed a complaint charging defendant with assault with a deadly weapon by a prisoner (§ 4501, subd. (a); count 1). The complaint further alleged defendant had suffered a prior strike conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).

People v. Solorio CA5

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