People v. Hojnowski

Filed 8/4/14

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent,
A139455
v.
JOSEPH HOJNOWSKI, (Del Norte County
Super. Ct. No. CRPB125152)
Defendant and Appellant.

After appellant Joseph Hojnowski was found competent to stand trial, a jury
convicted him of three counts of aggravated battery by “gassing” under Penal Code
section 4501.1,1 which is statutorily defined as “intentionally placing or throwing, or
causing to be placed or thrown, upon the person of another, any human excrement or
other bodily fluids or bodily substances . . . that results in actual contact with the person’s
skin or membranes.” (§ 4501.1, subd. (b).) In a bifurcated proceeding, the jury also
found true allegations appellant had suffered a prior conviction under the Three Strikes
law and had served a prior prison term. (§§ 667, subds. (b)-(i), 1170.12, 667.5, subd.
(b).)
In this appeal from the judgment sentencing him to prison for an aggregate term of
11 years, appellant contends (1) the trial court should have declared a doubt as to his
mental competency and suspended criminal proceedings before the trial began, even
though he had previously been found competent; (2) the court’s denial of his motion for
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II and III.A.–C.
1
Further statutory references are to the Penal Code.

1
self-representation under Faretta v. California (1975) 422 U.S. 806 (Faretta) was an
effective declaration of doubt as to his competence to stand trial; (3) the court should
have held a hearing on his right to substitute counsel under People v. Marsden (1970)
2 Cal.3d 118 (Marsden); and (4) the case should be remanded for resentencing because
the court erroneously believed it was required to impose consecutive sentences on all
three counts. We affirm.

I. FACTS
On April 1, 2012, appellant was serving a prison term in Pelican Bay State Prison
and was housed in a lockup unit. Correctional Officers Rodgers and Serna escorted him
to the showers and placed him in a stall with a steel mesh security screen. After appellant
had finished showering, Rodgers handcuffed him while he was still in the shower stall
before moving him back to his cell.
Rodgers asked appellant whether he had a cellmate, because security protocols
required correctional officers to take certain precautions when another inmate was
present. Appellant responded, “Well, go check the board yourself you dumb
motherfucker,” and spit at Rodgers through the security screen. Some of the spit hit
Rodgers’s face and made contact with Serna, who was standing close by.
Correctional Officer Rios heard a “scuffle” and walked into the shower area to see
Rodgers “kind of pulled back from the shower door.” Appellant, who was still in the
shower, cursed at Rios and spit on his face. Correctional Officer Rosas approached
appellant to place a “spit hood” on him and appellant spit on Rosas as well.

II. PROCEDURAL HISTORY
A. Criminal Complaint
The Del Norte County District Attorney filed a felony complaint charging
appellant with four counts of aggravated battery by gassing under section 4501.1. The
complaint also alleged appellant had been previously convicted of two prior “strike”
offenses—an attempted robbery committed in 2010 and an assault with a deadly weapon

2
committed in 2005—and had served a prior prison term (§§ 667, subds. (b)-(i), 1170.12,
667.5, subd. (b)).

B. Mental Competency Evaluation
On November 7, 2012, before the preliminary hearing was held, appellant’s
appointed counsel filed a written motion in which he declared a doubt as to his client’s
competence to stand trial and requested a suspension of criminal proceedings. (§§ 1367,
1368.) In his declaration supporting the motion, counsel stated, “My client refused to
visit me today because he is irrationally holding onto the false notion that he is scheduled
to be released from prison in the next week or so. Off[icer] Coleman has confirmed
twice to me that his earliest possible release date with good behavior would be September
15, 2015. I told Defendant that when I saw him at the jail, but he ignores reality and
persists in thinking that he can ignore the new charges pending in this case because he
thinks he will be released in a few days despite facing 4 felony counts of aggravated
gassing, a potential 3rd strike, and a prior prison term enhancement.”
The court suspended criminal proceedings and appointed a prison psychologist,
Edwin Jenesky, Ph.D., to examine appellant. Jenesky reviewed appellant’s mental health
records and conducted an interview on December 19, 2012. His report noted appellant
received mental health services in prison “based on Rule Out diagnoses of Psychotic
Disorder Not Otherwise Specified (NOS) as well as Schizophrenia, Paranoid Type.”
However, there were no current symptoms of either condition and appellant was taking
no psychotropic medications. Jenesky found appellant to be “stable in presentation,
coherent and cooperative with no symptoms or impairments due to a severe mental
disease or defect. . . . Presently there are no signs or symptoms to support an active
Axis I diagnosis. There remains the possibility of an underlying personality disorder.
However neither a possible mental illness or personality disorder appears to influence
present thinking capabilities or have any adverse effect other than when he becomes
aggressive while angry or enraged.”

3
 Jenesky concluded appellant was able to understand the nature and purpose of the
legal proceedings against him and could cooperate with his defense in a rational manner.
On January 31, 2013, after counsel submitted on the report, the court found appellant to
be mentally competent and reinstated criminal proceedings.

C. Plea Negotiations and Disagreement With Counsel
On February 7, 2013, the case was continued to accommodate ongoing plea
negotiations, the district attorney having indicated a willingness to allow a plea to a lesser
charge of battery on a correctional officer under section 243.1. When the parties
appeared in court on March 7, 2013, defense counsel advised the court the district
attorney had made a good offer in which appellant had been interested, but appellant had
refused to see him when he went to discuss the matter. Counsel asked the court to set the
case for a preliminary hearing, noting he had already declared a doubt as to appellant’s
competency and did not believe he was in a position to do so again.
Appellant advised the court he and counsel didn’t work well together, and
described why he believed the new offenses had been resolved and he was due to be
released from prison.2 He told the court he did not want to work with defense counsel,

2
“We don’t work well together. I got the papers for disposition for this whole
thing before I got the nonreferral papers if you check that memorandum, this ain’t going
to work out. We need to rectify two or three things. Once before I got in prison 2013
about three years back, set three years so don’t be pronouncing no wrong date. [¶] So if
you check that when you rectify that because we’re having a problem at the court thing I
get the prison also they even got that on the paperwork from the doctor you sent out.
[¶] They want to get an audit to check for my release date so you can pronounce that it
should be like 53 or to 54 days from today, which is the 7th of March or whatever, too, so
that’s not [a] problem and I got the disposition from this whole thing got a 150 days
credit violation of—on whatever. [¶] I couldn’t go to canteen or whatever for 150 days,
and I got a nonreferral paper for these charges already, so when I went to video court the
day I broke my leg on the way to court, this should all be resolved already was what was
said in video court. [¶] If you’re going to change the charge like he said last time to [a]
different number, I want video court again to rectify it, because I can completely deny
this whole thing. It’s completely [a] misunderstanding. Got so much overtime because
of it that everybody missed dinner for two or three hours. So it’s a big thing is what the
sergeant said.”

4
describing him as a “schizoid dummy,” and stated he would represent himself. The court
set the case for a preliminary hearing and told appellant it would not be appointing
another lawyer that day.

D. Preliminary Hearing
The preliminary hearing commenced on March 14, 2013, with appellant
represented by his appointed defense counsel. During the cross-examination of Serna,
who testified about appellant spitting at officers after his shower, appellant interjected,
“Wait. There’s like a cover on the shower. I’m not saying it wasn’t me in the shower,
but there’s like a plastic glass in front of the shower.” Disregarding his attorney’s advice
not to talk, he continued, “You’re missing a major question. There’s a big Plexiglas on
the shower thing. So me spitting on the Plexiglas can’t hit anybody over the door.”
Serna then testified the door did not have Plexiglas at the time. The court held appellant
to answer on the charges and on March 15, 2013, the prosecution filed an information
with the same charges and special allegations as the complaint.

E. Request for Self-Representation
The arraignment on the information was twice continued so appellant could
present additional “data” about his release date from prison. On June 6, 2013, defense
counsel asked the court to enter a not guilty plea and advised the court appellant had
refused to see him, though “[h]e did speak to me the first time I went out there so I
believe he understands the nature of the charges.” Appellant told the court, “This dude
ain’t going to represent me. I’m in prison for three years, seven months. Sentence was
three years. Okay?”3
The court asked appellant whether he wanted to represent himself and appellant
said yes. Asked by the court whether he wanted to make a motion to have new counsel
appointed, appellant responded, “That’s unnecessary. That’s the end of it. You can

3
The records show that in 2010 appellant was convicted of two counts of
attempted second degree robbery with a prior serious felony enhancement and was
sentenced to prison for eight years, eight months. (§§ 664/211, 667, subd. (a).)

5
check his personal status, check my personal status. I’m not schizo. This dude—go back
to your motherfucking problem you got.” He continued, “This dude is not good enough
to represent me, period. That’s the end of it. That’s the end of it. I don’t want to hear
about your dumbass pretending he’s got teeth so move out, dude.” When the court stated
it was “concerned,” appellant responded, “Not about me. Concerned in the conversation
if you speak another language. This is master, not mister or some weird ass shit. You try
speaking clearly. All right? I don’t need your input.” When the court suggested
appointing other counsel, appellant replied, “No, that’s not necessary, dude. I’m
representing myself. That’s how it’s going to go.” The court told appellant to file his
motion for self-representation, but cautioned him, “[T]here is a good chance if you
continue to act the way you are acting today, that I will deny the motion.”
The motion for self-representation was heard on June 20, 2013. Appellant
explained he was not cooperating with his appointed attorney and they were having
trouble communicating about his release date. Counsel indicated appellant would not
listen to him when he presented him with records showing a 2015 minimum release date
for the prior attempted robbery offenses. Appellant advised the court he had “signed up”
for 36 months, with additional time for the spitting violation.
In response to an inquiry by the court, the district attorney stated appellant’s
exposure in the current case was 15 years. Appellant disputed this: “I didn’t do another.
I didn’t do 15 years so far. I didn’t do 15. Say it right. If you can read ‘deca’ as the
number that starts with 1 and zero after the word, don’t say 15 like you got 5 and zero,
and you’re adding zero repeatedly. Say it properly, all right.”
After appellant repeatedly interrupted the court’s discussion with defense counsel
regarding appellant’s request to represent himself, the court asked appellant what he
thought they were doing in court that day. Appellant responded, “I know what this is all
about. This is about—this is, like, a phasing thing. I been to prison before. Same thing
with the police, big ole charges, everybody is getting in trouble here or there. There is a
margin of gap of error. People been in front of them for years in prison. Everybody
complains about it when they get back to the homeowner’s association or whatever.

6
[¶] Each person will have a problem. Somebody will get grilled or somebody is not
going to, you know what I’m saying. So I understand the court process. But I don’t want
to be your motherfucking guinea pig or scapegoat. I’m not going to be. [¶] So I paid for
my whole legal agenda . . . . It’s going to be completed and needs to be honored the same
way it was honored before I was incarcerated and turned myself in.” Asked how he
would represent himself on the charges, appellant replied it had all been resolved in
“video court,” including a “602” he had filed after he suffered a broken hip when being
transported to the video court. He reiterated that his release date was less than 10 days
away.4
The court asked defense counsel about his perception of the situation, and counsel
responded, “It’s very hard for me to diagnose what’s going on here. [¶] I don’t feel
there’s any reason I can’t represent him, but he won’t listen to me. He won’t talk to me.
And two-thirds of the time he won’t come out of his cell to [see me]. And when he does
come out, this is what happens.” The court asked counsel whether he perceived any
competency issues and counsel noted they had “done 1368.” Appellant interjected he
wanted his release date honored.
The court denied appellant’s Faretta motion: “Well, look, obviously, if an
individual can knowingly, intelligently waive their rights to a lawyer, and the Court
concludes that they can, not have to even really do a competent job, just barely an
adequate job with the resources they have, be able to defend themselves. And that’s their
right, and they take their chances. That’s the way it is. [¶] But from what I heard,
defendant doesn’t even begin to have the ability to defend himself on his own. He
can’t—quite frankly, he can’t even make sense here trying to basically discuss these

4
Though cryptic, appellant’s remarks are tethered in fact. Administrative appeals
by inmates are filed on California Department of Corrections and Rehabilitation Form
602 (Rev. 08/09), Inmate/Parolee Appeal. (Cal. Code Regs., tit. 15, § 3084.1, subd. (b).)
On October 4, 2012, appellant refused to appear for a video arraignment on the current
charges. The section 1368 evaluation prepared by Jenesky notes that appellant suffered a
fractured hip on October 18, 2012, and became belligerent when authorities tried to
transport him to court from the prison hospital.

7
issues.” It continued, “If the Court were to allow the defendant to represent himself, it
would be a sham proceedings. It would be a folly.” Defense counsel indicated he was
ready for trial and defendant stated, “You ain’t ready for shit, dude. You don’t have
anything to do with me. Get the faggot out of here. I don’t want him talking for me.
You don’t got to talk for shit. Keep your stinkin’ mouth shut. I don’t want to hear about
your two-whoring faggot or anything else you think you are.”

F. Trial and Sentencing
At a readiness conference on June 27, 2013, appellant continued to claim he
should be released and swore numerous times at the court. He referred to the “video
court” and a “602” he filed, for which “a whole bunch [of] people got in trouble.” When
the court reminded him he was facing new charges, appellant insisted the judge was
“appealing” him and holding him beyond his release date. He told the court he had won a
“perusal,” and told the court to shut its “schizo mouth” when it questioned him about the
meaning of that word. Appellant urged the court to look at the “in-house thing” from the
prison: “So calculate my time right there. Look at it. Look at the calendar. It’s, like,
two, three days, dude. What are you going to do about it? You don’t got to charge one
with a video court, period. You lost last year, period. [¶] . . . [¶] That’s the end of it,
period. If you got (inaudible) whole motherfuckin’ squadron, that’s your problem, dude,
period. [¶] Don’t expect anything from my motherfuckers, neither. Because military-
wise, I’m thinking about (inaudible) looking trinity. If you are going schizo, I’m still
bigger than you. [¶] You got a big ole motherfuckin’ personality problem that makes
Judge Levine (inaudible) Calhoun’s problem or anybody who wants to finance you, you
never (inaudible) employment status or any standard like that. So don’t show up
anywhere around me in society or around anybody I know, period.”
On July 8, 2013, the first day of trial, appellant advised his attorney he did not
want to participate in the trial or be present in the courtroom. After questioning appellant
and ascertaining he did not wish to attend, the court ordered that he would not be brought
to court against his wishes, but each day would be offered the opportunity to personally

8
attend. He was also ordered placed in a holding cell with closed-circuit television to
enable him to watch the proceedings.
The count of battery by gassing naming Serna as a victim was dismissed by the
prosecution before trial. After a one-day jury trial at which Rodgers, Rios and Rosas
were called as witnesses, appellant was convicted of the three counts involving those
correctional officers. In a bifurcated proceeding, the jury found true a “strike” allegation
based on the 2010 attempted robbery and a prior prison term allegation based on the 2004
conviction of assault with a deadly weapon.5
On August 5, 2013, the court held a sentencing hearing that appellant chose not to
attend. It sentenced him to prison for an aggregate term of 11 years, to be served
consecutive to the prison term appellant was currently serving: six years on the Rodgers
count (the three-year middle term, doubled under the Three Strikes law), consecutive
terms of two years each on the Rios and Rosas counts (one-third the middle term,
doubled under the Three Strikes law), and a consecutive one-year term for the prior
prison term enhancement.

III. DISCUSSION
A. Competency to Stand Trial
Appellant argues the court should have suspended criminal proceedings because
the comments he made during hearings held shortly before his trial show he was
incompetent to stand trial. We disagree.
Both the due process clause of the Fourteenth Amendment to the United States
Constitution and state law prohibit the state from trying or convicting a defendant who is
mentally incompetent. (People v. Ary (2011) 51 Cal.4th 510, 517-518 (Ary).) A
defendant is incompetent if he lacks “ ‘ “sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding” ’ ” or “ ‘ “a rational as well as
factual understanding of the proceedings against him.” ’ [Citation.]” (Ibid.; see Dusky v.

5
The information alleged two qualifying prior convictions under the Three
Strikes law, but the prosecution submitted a verdict form on only one of them.

9
United States (1960) 362 U.S. 402.) When the court is presented with substantial
evidence raising a reasonable doubt as to the defendant’s ability to stand trial, it must
suspend criminal proceedings and conduct a full competency hearing. (Ary, at pp. 517-
518; People v. Ramos (2004) 34 Cal.4th 494, 507 (Ramos); see §§ 1367-1369.) A
defendant is presumed to be competent unless proved otherwise by a preponderance of
the evidence (§ 1369, subd. (f)), and we review a court’s decision as to whether to hold a
competency hearing for abuse of discretion. (Ramos, at p. 507.)
Criminal proceedings in this case were suspended in November 2012, before the
preliminary hearing, when defense counsel declared a doubt regarding appellant’s mental
competence. (See § 1368, subd. (b).) A psychologist was appointed to evaluate appellant
and, in January 2013, the court determined appellant to be mentally competent after
reviewing the written report. Appellant does not challenge that determination, but argues
his exchanges with the court during the June 20, 2013, hearing on his Faretta motion and
the June 27, 2013, readiness conference raised a reasonable doubt as to his competency.
When, as here, a defendant has been found competent to stand trial, “a trial court
need not suspend proceedings to conduct a second competency hearing unless it ‘is
presented with a substantial change of circumstances or with new evidence’ casting a
serious doubt on the validity of [the competency] finding.” (People v. Jones (1991) 53
Cal.3d 1115, 1153 (Jones).) To warrant a second competency hearing, “[m]ore is
required than just bizarre actions or statements by the defendant.” (People v. Marshall
(1997) 15 Cal.4th 1, 33; accord, Ramos, supra, 34 Cal.4th at p. 508; People v. Marks
(2003) 31 Cal.4th 197, 220.)
The trial court did not abuse its discretion in failing to hold a second competency
hearing because it was not “ ‘presented with a substantial change of circumstances or
with new evidence’ casting serious doubt on the validity of” the earlier finding of
competency. (Jones, supra, 53 Cal.3d at p. 1153.) Defense counsel had previously
expressed a doubt about appellant’s competency because appellant was convinced he was
about to be released from prison and rejected counsel’s efforts to provide him with
information to the contrary. The psychologist who examined appellant found him

10
competent. Appellant’s subsequent exchanges with the court, though profane and
bizarre, were reiterations of his professed belief in an imminent release date, the same
belief that triggered the initial competency hearing. (See People v. Kelly (1992) 1 Cal.4th
495, 543 [no second hearing required where “[t]he substance of the defense testimony
relied upon on appeal was generally included in the facts defense counsel recited when
they expressed their doubts as to competency in the first place”].)
Appellant’s belief in an imminent release date, even if genuine and irrational, did
not directly affect his ability to understand the current charges against him or to assist his
counsel in defending against the same. (Ary, supra, 51 Cal.4th at pp. 517-518.) To the
contrary, his comments at the preliminary hearing regarding the presence of a plastic
shield on the shower shows he understood the elements of the charged offenses, which
required proof his spit made contact with the correctional officers.
Appellant’s hostile attitude and refusal to speak with his attorney did not
demonstrate incompetency, because there was no substantial evidence his lack of
cooperation stemmed from inability rather than unwillingness. (People v. Lewis (2008)
43 Cal.4th 415, 526, disapproved on other grounds in People v. Black (2014) 58 Cal.4th
912, 919.) Defense counsel advised the court proceedings had already been suspended
under section 1368, but did not present any new information that would alter the earlier
determination of competency. (See People v. Medina (1995) 11 Cal.4th 694, 734
[defendant’s “continued noncooperation did not, under the circumstances, constitute
substantial evidence of a change in circumstances necessitating a new hearing”]; Jones,
supra, 53 Cal.3d at p. 1153 [new hearing not required because counsel’s representations
that defendant could not assist in defense “did not cast serious doubt on the results of the
earlier competency determination”].) Indeed, defense counsel advised the court he
believed appellant understood the nature of the pending charges.

B. Effect of Order Denying Appellant’s Faretta Motion
Appellant argues the trial court implicitly declared a doubt as to his competency to
stand trial when it denied his Faretta motion for self-representation. We disagree,

11
because “the Constitution permits States to insist upon representation by counsel for
those competent enough to stand trial . . . but who still suffer from severe mental illness
to the point where they are not competent to conduct trial proceedings by themselves.”
(Indiana v. Edwards (2008) 554 U.S. 164, 178; see People v. Johnson (2012) 53 Cal.4th
519, 523, 528 [California trial courts may deny requests for self-representation in cases
where Indiana v. Edwards permits such denial].) Because the standard of competence
required for self-representation under Faretta is higher than the standard of competence
to stand trial, the court’s denial of appellant’s Faretta motion did not necessarily mean he
was incompetent to stand trial with the assistance of counsel.6

C. Failure to Hold a Marsden Hearing
Appellant contends reversal is required because the trial court failed to hold a
hearing under Marsden, supra, 2 Cal.3d 118 in response to his pretrial complaints about
his appointed counsel. We disagree.
The duty to hold a hearing under Marsden arises when a defendant asserts
appointed counsel is providing inadequate representation and seeks to have new counsel
appointed. (Marsden, supra, 2 Cal.3d at pp. 123-124; People v. Memro (1995) 11
Cal.4th 786, 857.) A trial court is “unable to intelligently deal with a defendant’s request
for substitution of attorneys unless [it] is cognizant of the grounds which prompted the
request.” (Marsden, at p. 123.) A court abuses its discretion when it denies a motion for
substitute counsel without hearing the reasons for the motion. (Marsden, at p. 124.)
When the parties in this case appeared in court on March 7, 2013 to set a date for
the preliminary hearing, defense counsel advised the court appellant had refused to see
him to discuss a plea offer. Appellant indicated he and his attorney did not work well
together and he did not want counsel to represent him due to a “conflict of interest.”
Appellant referred to counsel as a “schizoid dummy,” but did not describe any instances
of misconduct or incompetent misrepresentation by counsel. He said he would represent

6
Appellant makes no claim the trial court erred in denying his Faretta request for
self-representation.

12
himself, but later told the court, “Give me somebody else to represent me.” The court
responded that it would not appoint anyone else that day.
On June 6, 2013, counsel advised the court appellant had again refused to meet
with him. Asked by the court why he did not want to talk to his attorney, appellant
explained his defense counsel had not calculated his release date correctly. Appellant
made a number of other comments about the calculation of the release date and said he
wanted to represent himself. He told the court it was “unnecessary” to consider a motion
for a new attorney because he was going to represent himself. At the June 20 hearing on
the motion for self-representation, defendant again explained he and his attorney had
problems communicating about his release date, which counsel confirmed.
Although no formal Marsden hearing was ever held, the proceedings satisfied the
requirements of Marsden. Appellant spoke to the court several times about his
dissatisfaction with trial counsel, but the only reason he ever articulated for wanting
counsel removed from the case was the disagreement about appellant’s release date.
Defense counsel was not ineffective for attempting to advise appellant of his correct
release date and a full-blown Marsden hearing was not required to resolve this issue.
(See People v. Freeman (1994) 8 Cal.4th 450, 480-481 [court not required to hold a
Marsden hearing when it considered handwritten letter submitted by the defendant and
there was no reason to believe defendant withheld supporting facts or wished to state
additional examples of inadequate representation]; People v. Wharton (1991) 53 Cal.3d
522, 580 [same].) The court had a sufficient understanding of appellant’s reasons for
requesting a new attorney and a sufficient basis for denying that request.

D. Consecutive Sentences
Appellant contends the case must be remanded for resentencing because the trial
court erroneously believed consecutive terms were required for all three counts of battery
by gassing. He argues that while the relevant statutes require the base term of a sentence
for multiple in-prison offenses to be served consecutively with any prison term the
defendant is currently serving, they do not necessitate consecutive terms for each count.

13
Appellant further argues concurrent terms were authorized because he was sentenced
under the Three Strikes law. We disagree.
The elements of battery by gassing are defined in section 4501.1, which provides
in part, “(a) . . . Every state prison inmate convicted of a felony under this section shall
serve his or her term of imprisonment as prescribed in section 4501.5.” Under section
4501.5, “Every person confined in a state prison of this state who commits a battery upon
the person of any individual who is not himself a person confined therein shall be guilty
of a felony and shall be imprisoned in the state prison for two, three, or four years, to be
served consecutively.”
Section 1170.1, subdivision (c) specifies that a consecutive term for an in-prison
offense shall commence at the time the person would otherwise have been released from
prison and further provides, “If the new offenses are consecutive with each other, the
principal and subordinate terms shall be calculated as provided in subdivision (a).”
Section 1170.1, subdivision (a) limits the sentence on a consecutive subordinate count to
one-third the middle term unless otherwise provided.
The Three Strikes law requires that a defendant’s determinate term be doubled
when he or she has a single qualifying prior conviction. (§§ 667, subd. (e)(1), 1170.12,
subd. (c)(1).) 7 In the case of consecutive determinate terms, “the sentencing court must
designate principal and subordinate terms as required by section 1170.1, calculating the
subordinate terms as one-third of the middle term (except when full-term consecutive
sentences are otherwise permitted or required), and then double each of the resulting
terms.” (People v. Nguyen (1999) 21 Cal.4th 197, 203-204.)
Appellant was convicted of three counts of battery by gassing against three
separate victims: Rodgers, Rios and Rosas. At sentencing, the trial court designated the
Rodgers count as the principal count and imposed a six-year term, consisting of the
7
Though the information refers to both the legislative and initiative versions of
the Three Strikes law, codified in sections 667 and 1170.12, appellant focuses primarily
on section 667 in his briefs. We will do likewise for the sake of continuity, but our
discussion is equally applicable to section 1170.12. (See People v. Lawrence (2000) 24
Cal.4th 219, 222, fn. 1 (Lawrence).)

14
three-year middle term doubled to six years under the Three Strikes law. Indicating that
consecutive terms were required under section 4501.5, the court imposed consecutive
terms of two years each on the remaining two counts, consisting of one year (one-third
the middle term) doubled to two years under the Three Strikes law. With an additional
year for the prior prison term enhancement under section 667.5, appellant’s aggregate
sentence was 11 years, to be served consecutively to the prison term he was already
serving.
The trial court correctly determined it was required to impose consecutive terms
on all three counts. As with many other statutes concerning in-prison offenses, section
4501.5 requires the imposition of consecutive sentences. Nothing in that provision
distinguishes between single and multiple in-prison offenses or allows concurrent terms
for multiple in-prison offenses, although consecutive sentences are subject to the one-
third-the-middle-term limitation for subordinate counts established by section 1170.1,
subdivisions (a) and (c). (See People v. Mosely (2007) 155 Cal.App.4th 313, 328
[§ 4502, mandating that terms for possession of certain weapons and devices in a penal
institution “be served consecutively,” required consecutive sentencing on multiple counts
but did not permit imposition of full-strength terms]; People v. Washington (1994) 27
Cal.App.4th 940, 945 [defendant convicted of two violations of § 4501.5; second count
should have been subject to one-third-the-middle-term requirement].)
Appellant suggests a different rule applies to his case because he was sentenced
under the Three Strikes law, which supplants the mandatory consecutive sentencing
provisions of section 4501.5. He relies on language contained in section 667, subdivision
(c)(6): “Notwithstanding any other law, if a defendant has been convicted of a felony and
it has been pled and proved that the defendant has one or more prior serious and/or
violent felony convictions . . . , the court shall adhere to each of the following:
[¶] . . . [¶] (6) If there is a current conviction for more than one felony count not
committed on the same occasion, and not arising from the same set of operative facts, the
court shall sentence the defendant consecutively on each count pursuant to [this section].”

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(Italics added.)8 Appellant reasons that because all three counts of battery by gassing
were committed on the “same occasion” and arose from the same set of operative facts,
concurrent sentences were not precluded by section 667, subdivision (c)(6) and could be
imposed notwithstanding section 4501.5.
Section 667, subdivision (c)(6) does not give a trial court the discretion to impose
concurrent terms when consecutive sentences would otherwise be mandatory. It
increases the punishment for certain recidivist offenders by making consecutive sentences
mandatory in Three Strikes cases when the defendant was convicted of more than one
offense not committed on the same occasion or arising out of the same operative facts.
Our Supreme Court has construed this language to mean “ ‘consecutive sentences are not
mandatory [under the Three Strikes law] if the multiple current felony convictions are
“committed on the same occasion” or “aris[e] from the same set of operative facts.” ’ ”
(People v. Deloza (1998) 18 Cal.4th 585, 591 (Deloza); see People v. Hendrix (1997) 16
Cal.4th 508, 512-513 (Hendrix).) But in those cases, a concurrent term was not otherwise
barred by statute and the only basis for arguing a consecutive term was mandatory was
the Three Strikes law itself. (Deloza, supra, 18 Cal.4th at p. 589 [multiple robbery
counts]; Hendrix, supra, 16 Cal.4th at p. 512 [robbery and attempted robbery counts].)
Section 667, subdivision (c)(6) does not permit concurrent sentences when a different
provision of the Penal Code requires consecutive sentences.
Appellant argues we should disregard section 4501.5 because section 667,
subdivision (c)(6) applies “[n]otwithstanding any other law,” and the Supreme Court has
construed that phrase to mean “[t]he Three Strikes law, when applicable, takes the place
of whatever law would otherwise determine defendant’s sentence for the current
offense.” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 524 (Romero),
discussing § 667, subd. (f)(1) [“Notwithstanding any other law, subdivisions (b) to (i),

8
Offenses are committed on the “same occasion” when there is “at least a close
temporal and spatial proximity between two events.” (Lawrence, supra, 24 Cal.4th at
p. 229.) “Operative facts” refers to “the facts of a case which prove the underlying act
upon which a defendant had been found guilty.” (Id. at p. 231.)

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inclusive, shall be applied in every case in which a defendant has one or more prior
serious and/or violent felony convictions”].) We are not persuaded.
Though the court in Romero referred to the Three Strikes law as “tak[ing] the
place” of other sentencing statutes, it went on to note the “[n]otwithstanding any other
law” language simply “eliminates potential conflicts between alternative sentencing
schemes.” (Romero, supra, 13 Cal.4th at p. 524.) Thus, a defendant who has a
qualifying prior conviction must be sentenced under the Three Strikes law, and in the
case of a conflict, the Three Strikes law will control. (Ibid.; People v. Acosta (2002) 29
Cal.4th 105, 132-133 [Three Strikes law applied notwithstanding defendant’s eligibility
for sentencing under One Strike provisions of section 667.61]; People v. Franklin (1997)
57 Cal.App.4th 68, 73-74 [in case of conflict, Three Strikes law governs].) The
mandatory consecutive sentencing provisions of section 4501.5 do not conflict with the
Three Strikes law.
Moreover, the Three Strikes law expressly incorporates other sentencing statutes
as part of its methodology for calculating a sentence under its provisions. Section 667,
subdivision (e) provides: “For purposes of subdivisions (b) to (i), inclusive, and in
addition to any other enhancement or punishment provisions which may apply, the
following shall apply where a defendant has one or more prior serious and/or violent
felony convictions: [¶] (1) If a defendant has one prior serious and/or violent felony
conviction as defined in subdivision (d) that has been pled and proved, the determinate
term or minimum term for an indeterminate term shall be twice the term otherwise
provided as punishment for the current felony conviction.” (Italics added.) Section
4501.5, which requires consecutive sentences for battery by gassing under section
4501.1, is another “punishment provision[] which may apply” under section 667,
subdivision (e).
The purpose of the Three Strikes law “is to provide greater punishment for
recidivists.” (People v. Davis (1997) 15 Cal.4th 1096, 1099; see § 667, subd. (b).) It
“uses a defendant’s status as a recidivist to separately increase the punishment for each
new felony conviction.” (People v. Williams (2004) 34 Cal.4th 397, 404.) Were we to

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construe the Three Strikes law to supersede section 4501.5, a defendant convicted of
multiple in-prison offenses who had suffered a qualifying prior conviction would be
treated less harshly, with respect to consecutive sentences, than a defendant who had not
suffered a qualifying prior conviction. In light of the underlying purpose of the Three
Strikes law, we think it unlikely the Legislature intended that sentencing scheme to
supplant otherwise applicable provisions rendering consecutive sentences mandatory.
The trial court did not abuse its discretion in failing to consider a concurrent term
when a concurrent term was not authorized by law. Our resolution of this issue makes it
unnecessary to consider appellant’s alternative argument his trial counsel was ineffective
in failing to seek the imposition of concurrent terms.

IV. DISPOSITION
The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P. J.

BRUINIERS, J.

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Del Norte County Superior Court, No. CRPB125152, William H. Follett, Judge.

James S. Donnelly-Saalfield, under appointment by the Court of Appeal, for Defendant
and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Gerald A. Engler, Senior Assistant Attorney General, Rene A. Chacon and Juliet B.
Haley, Deputy Attorneys General, for Plaintiff and Respondent.

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