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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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)).
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Because defendant entered a plea deal, the facts were derived from the probation
report.
3 On our own motion, we have taken judicial notice of the opinion pursuant to
Evidence Code section 452, subdivision (d).
2.
On May 22, 2019, the murder charge in the Imperial County case was amended to
a voluntary manslaughter (§ 192, subd. (a)) conviction. He was sentenced to 18 years to
life in state prison.
On June 7, 2019, defendant started his new prison term for the Imperial County
case.
On January 31, 2020, count 1 in the instant case was amended to reflect the charge
of assault by means of force likely to produce great bodily injury by a prisoner (§ 4501,
subd. (b)). Defendant pled no contest to the amended charge and admitted the prior strike
allegation.4
On August 10, 2020, the trial court in the instant case sentenced defendant to state
prison for two years doubled to four years pursuant to the Three Strikes law. The trial
court ordered his sentence be served consecutively to the sentence in the Imperial County
case pursuant to section 1170.1, subdivision (c). As relevant here, prior to sentencing,
defendant asked the trial court on multiple occasions to sentence him pursuant to
section 1107.1, subdivision (a). However, the trial court found section 1170.1,
subdivision (c) applied, and imposed a full consecutive term.
On August 12, 2020, defendant filed a notice of appeal.
DISCUSSION
Defendant contends the trial court misinterpreted section 1170.1, subdivisions (a)
and (c). He argues he should have been sentenced pursuant to section 1170.1,
subdivision (a) because at the time he was sentenced for the instant offense, his murder
conviction in the Imperial County case had been reversed. We agree.
4 On January 31, 2020, defendant admitted having suffered a prior strike conviction
for murder (§ 187) on July 29, 2015. However, defendant’s murder conviction had been
reversed prior to that date. He was retried and found guilty of manslaughter (§ 192) in
the same case on May 22, 2019. The trial court should consider the validity of
defendant’s admission of a prior strike conviction in resentencing defendant in this case.
3.
Section 1170.1, subdivision (a), provides in pertinent that “when any person is
convicted of two or more felonies, whether in the same proceeding or court or in different
proceedings or courts, and whether by judgment rendered by the same or by a different
court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170,
the aggregate term of imprisonment for all these convictions shall be the sum of the
principal term, the subordinate term, and any additional term imposed for applicable
enhancements for prior convictions, prior prison terms, and Section 12022.1. The
principal term shall consist of the greatest term of imprisonment imposed by the court for
any of the crimes, including any term imposed for applicable specific enhancements. The
subordinate term for each consecutive offense shall consist of one-third of the middle
term of imprisonment prescribed for each other felony conviction for which a consecutive
term of imprisonment is imposed, and shall include one-third of the term imposed for any
specific enhancements applicable to those subordinate offenses.”
Section 1170.1, subdivision (c) provides an exception to this general rule. It states
that, “[i]n the case of any person convicted of one or more felonies committed while the
person is confined in the state prison … 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 that the person is required to serve consecutively shall commence from
the time the 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). This subdivision shall be applicable in cases of convictions
of more than one offense in the same or different proceedings.”
“ ‘The statutory scheme makes clear that such felonies, i.e., those felonies
committed in prison, are exempt from the general sentencing scheme. [Citation.] A
sentence under subdivision (c) is longer than a sentence imposed under subdivision (a)
because the in-prison offenses are fully consecutive to the sentence for the offense for
which the defendant was in prison. Using sentencing jargon “the in-prison offense is
4.
treated as a new principal term rather than as a subordinate term to the out-of-prison
offense.” ’ ” (In re Coleman (2015) 236 Cal.App.4th 1013, 1019.)
On appeal, we review statutory interpretation issues de novo. (People v. Morales
(2018) 25 Cal.App.5th 502, 509.) On “all questions of statutory interpretation, we
attempt to discern the Legislature’s intent, ‘being careful to give the statute’s words their
plain, commonsense meaning. [Citation.] If the language of the statute is not ambiguous,
the plain meaning controls and resort to extrinsic sources to determine the Legislature’s
intent is unnecessary.’ ” (Ste. Marie v. Riverside County Regional Park & Open-Space
Dist. (2009) 46 Cal.4th 282, 288.)
Defendant argues People v. Brantley (2019) 43 Cal.App.5th 917 (Brantley) is on
point here and we agree. In Brantley, the defendant was convicted of robbery and false
imprisonment, and was sentenced to state prison. (Id. at p. 920.) While serving his
prison term, defendant was found in possession of marijuana and was charged
accordingly. (Ibid.) Thereafter, defendant completed his prison term for the robbery and
false imprisonment convictions. (Ibid.) After his release, defendant pled guilty to the
in-prison possession charge and was sentenced. (Ibid.) However, before sentencing on
the possession charge, defendant was convicted and sentenced on a domestic violence
charge in a separate and unrelated case. (Ibid.) At sentencing on the possession charge,
the trial court found section 1170.1, subdivision (a) did not apply, and the defendant
received a full consecutive term for the possession offense. (Brantley, at p. 921.) The
defendant appealed, arguing the trial court should have applied section 1170.1,
subdivision (a). (Brantley, at p. 921.) On appeal, the appellate court vacated his sentence
and remanded to the trial court for resentencing, holding that “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.” (Id. at p. 922.) The court noted, “[h]ad sentence on
the possession offense been imposed while defendant was serving his prison term for the
robbery and false imprisonment convictions …, then subdivision (c) of section 1170.1
5.
clearly would apply. However, 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.” (Id. at p. 922.)
Here, like in Brantley, defendant had been released from his original prison term
(the Imperial County case) when he suffered a new felony conviction and sentence, and
pled to the in-prison offense. “ ‘ “The effect of an unqualified reversal (‘the judgment is
reversed’) is to vacate the judgment, and to leave the case ‘at large’ for further
proceedings as if it had never been tried, and as if no judgment had ever been rendered.
[Citations.]” [Citations.]’ ” (People v. Martinez (2017) 10 Cal.App.5th 686, 718.)
Accordingly, the trial court should have sentenced defendant pursuant to section 1170.1,
subdivision (a). “Since the trial court failed to abide by subdivision (a) of section 1170.1,
we shall vacate the sentence and remand for resentencing.” (Brantley, supra, 43
Cal.App.5th at p. 923.)
DISPOSITION
The sentence is vacated and the matter is remanded for resentencing.
6.