In re Thoren

Opinion

KAUS, P. J. The question presented by this habeas corpus proceeding is whether, in fixing petitioner’s sentence pursuant to Penal Code section 1170.2, subdivision (b), the Community Release Board (CRB) erred in treating the sentence in case No. AO 16728 as consecutive to that in case No. A327560.

The facts are these: On October 27, 1976, petitioner was sentenced to state prison in case No. AO 16728 after entering guilty pleas to five narcotics offenses. Pursuant to a plea bargain, the court ordered the sentences on the five counts to run concurrently with each other. The most serious of the five offenses was transporting marijuana which at the time carried a penalty of five years to life. (Health & Saf. Code, § 11360, subd. (a), Stats. 1975, ch. 248.)

On January 10, 1977, petitioner pleaded guilty to one count of first degree robbery in case No. A327560 and admitted an allegation that he had used a firearm in the commission of the offense within the meaning of section 12022.5 of the Penal Code. In exchange for the guilty plea, four other pending counts were dismissed, the prosecutor agreed that the People would not write a letter to CRB in the event that that agency was [707]called upon to redetermine petitioner’s sentence, and the trial court promised that it would not impose a consecutive sentence. On January 31, 1977, petitioner was sentenced to state prison for the term prescribed by law on the robbery charge. The Penal Code section 12022.5 allegation was found to be true. Under the then existing law, this meant a term of 10 years to life. (Pen. Code, §§ 213, 12022.5, Stats. 1967, ch. 149, 1975, ch. 278.) The sentence was ordered served concurrently with any other prison sentence petitioner was then serving.

After the Determinate Sentencing Act became effective, CRB concluded that petitioner was a serious offender within the meaning of Penal Code section 1170.2, subdivision (b), and that a longer sentence than that which would result from retroactive application of the Determinate Sentencing Act (DSA) pursuant to Penal Code section 1170.2, subdivision (a) was called for.1 His term was fixed as follows: 36 months’ base term [708]for robbery, the middle term provided for under Penal Code section 213 (Stats. 1977, ch. 165, § 5), 24 months’ enhancement for the section 12022.5 violation, and 12 months’ enhancement for the offenses in Case No. AO 16728. Petitioner contends that this latter enhancement violates his plea bargain.