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Name: People v. Hojnowski
Case #: A139455
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 08/04/2014

Consecutive terms were required for prison inmate’s three battery by gassing offenses even though he was sentenced under the Three Strikes law. Appellant was convicted of three counts of aggravated battery by “gassing” under Penal Code section 4501.1 based on evidence that he spit on three different correctional officers when they were in the process of returning him to his prison cell after a shower. Allegations that appellant had suffered a prior strike and had served a prior prison term were found true. The trial court imposed consecutive terms, for an aggregate sentence of 11 years. On appeal, appellant claimed that his case had to be remanded for resentencing because the trial court erroneously believed that consecutive terms were required for all three counts of battery by gassing. Held: Affirmed. Under section 4501.1, a state prisoner who commits a battery by gassing must be sentenced to prison for a term that is to be served consecutively. Nothing in the statute allows concurrent terms for multiple in-prison offenses, although consecutive sentences are subject to the one-third-the-middle-term limitation for subordinate counts (Pen. Code, § 1170.1, subds. (a) & (c)). The court disagreed with appellant’s argument based on the Three Strikes law (Pen. Code, § 667, subd. (c)(6)) that concurrent sentences were not precluded because the offenses were committed on the “same occasion” and arose from the same set of operative facts. Section 667, subdivision (c)(6) does not permit concurrent sentences when a different provision of the Penal Code requires consecutive sentences. The Three Strikes law expressly provides that it applies in addition to any other punishment provisions that may apply and the consecutive sentences required by section 4501.1 is such a provision.