People v. Helms

I concur in the majority opinion's result and much of its reasoning. I disagree, however, with the statement that "the Marin sentence [the determinate term] was properly made consecutive to the third strike sentence under the first prong of section 1170.12, subdivision (c)(2)(B), which provides that a third strike term `shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law.'" (Maj. opn., ante, at pp. 612-613.) By its terms, the quoted statutory provision governs only the service of sentence for the indeterminate term imposed pursuant to the three strikes law; it says nothing about sentencing or service of sentence on the previously imposed determinate term. The sentencing court therefore erred in believing itself bound to order consecutive service of the determinate term, but erred harmlessly, since the indeterminate sentences must, in any event, be served consecutively to the determinate. I concur in the result because nothing defendant has cited or I have discovered indicates that the order in which these sentences are served affects defendant's actual length of confinement.

Because, as the majority explains, the applicable provisions of the three strikes law do not in any way alter the punishment for defendant's pre-three-strikes offense, this case provides no occasion for considering the permissibility, under the ex post facto clauses, of retroactive changes in laws governing service of parole or probation violation terms. I would therefore *Page 618 omit the discussion of sister state authority on this question, a discussion with which I am not in full agreement. (Maj. opn.,ante, at pp. 616-617.)

Brown, J., concurred. *Page 619