Defendant held in jail awaiting transfer to prison was “already serving” his sentence within the meaning of the Three Strikes law and trial court did not have discretion to impose a concurrent sentence in a new case. Gonzalez was granted probation in 2016 for a felony conviction. In 2017, he was again placed on probation for a new felony conviction (a strike offense). In 2018, he was found in violation of probation in both cases and was sentenced to prison. Later in 2018, while he was still in the local county jail pending delivery to state prison, he pleaded guilty to a serious felony in a third case and admitted strike and serious felony allegations. The trial court recalled Gonzalez’s sentences in the probation violation cases and sentenced him to prison in all three cases, with the time imposed in the probation violation cases to be served consecutive with the time imposed in the third case. On appeal, Gonzalez argued the trial court misunderstood its discretion to impose the sentence in the third case concurrently. Held: Affirmed (but remanded for the court to consider its discretion to strike the prior serious felony enhancement). Penal Code section 667, subdivision (c) addresses sentencing restrictions when a defendant is convicted of a felony and it has been pled and proved that the defendant has one or more strike offenses. Under subdivision (c)(8), a Three Strikes sentence must be “imposed consecutive to any other sentence which the defendant is already serving, unless otherwise provided by law.” After analyzing relevant case law and the legislative intent of the Three Strikes law, the Court of Appeal concluded that “the words ‘already serving’ in subdivision (c)(8) of former section 667 are unambiguous and mean a defendant must be sentenced consecutively when the defendant is ‘committed to the custody of the sheriff’ no matter the location of that custody (i.e., county jail), when the defendant is remanded to that custody prior to sentencing on the later case.” Here, Gonzalez was housed in jail awaiting trial, and was “already serving” his sentence within the meaning of subdivision (c)(8) of section 667 in the probation violation cases.

Senate Bill No. 1393, restoring a trial court’s authority to strike serious felony prior convictions in the interest of justice, is retroactive to cases whose judgments are not final. SB 1393 amended Penal Code section 1385 to delete the proscription against trial courts striking enhancements for serious felony prior convictions in the interest of justice. Agreeing with People v. Garcia (2018) 28 Cal.App.5th 961 that SB 1393 is retroactive to cases whose judgments were not final when it took effect, the Court of Appeal remanded the matter to the trial court for consideration of its discretion to strike the five-year enhancement imposed for the prior serious felony conviction alleged under Penal Code section 667, subdivision (a).

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/D074500.PDF