People v. Arant

[296]Opinion

HAMLIN, Acting P. J. Defendant was convicted on his plea of nolo contendere to violation of Penal Code section 4573.6, possession of drug paraphernalia by a state prison inmate. The underlying facts are not in dispute: defendant was searched when he was transferred into the California Correctional Institution at Tehachapi from Folsom State Prison, and incident to the search defendant was X-rayed. The X-ray revealed a foreign object secreted in defendant’s rectum which was found to consist of an altered hypodermic syringe in a plastic tubular container. Consistent with his plea bargain, defendant was sentenced to the lower term of 16 months, and the trial court ordered this term to run fully consecutive to the sentence defendant was serving at the time he committed the offense, Defendant appeals, contending the trial court erred in believing it lacked discretion to order the new sentence be served concurrent with the term for which he was then incarcerated.

In advancing this argument, defendant candidly acknowledges that acceptance of his position would require this court to disapprove its holding in People v. Lamont (1986) 177 Cal.App.3d 577, 584 [223 Cal.Rptr. 52], i.e., “[Penal Code] section 1170.1, subdivision (c) does mandate a consecutive term for one or more ‘in prison’ offenses.” Defendant has persuaded us to do so.

Penal Code section 1170.1, subdivision (c), provides: “(c) In the case of any person convicted of one or more felonies committed while the person is confined in a state prison, or is subject to reimprisonment for escape from such custody 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 which the person is required to serve consecutively shall commence from the time such person would otherwise have been released from prison. If the new offenses are consecutive with each other, the principal and subordinate terms shall be calculated as provided in subdivision (a), except that the total of subordinate terms may exceed five years. The provisions of this subdivision shall be applicable in cases of convictions of more than one offense in different proceedings, and convictions of more than one offense in the same or different proceedings.”

In construing this statute, we are governed by “[t]he fundamental principle of statutory interpretation [which] is ‘the ascertainment of legislative intent so that the purpose of the law may be effectuated. . . .’ [Citation.] This principle requires us to determine the objective of the Legislature and to interpret the law so as to give effect to that objective even when such an interpretation appears to be at odds with conventional usage or the