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Name: People v. Sellner
Case #: B261487
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 09/24/2015

After reducing appellant’s conviction on the principal term of his sentence to a misdemeanor under Proposition 47, trial court properly imposed middle term of two years on the subordinate term felony. In 2014, Sellner was sentenced to eight months (one-third the two year midterm) for receiving stolen property, to be served consecutively to a three year principal term sentence in a different case. She obtained Proposition 47 relief on the conviction on the principal term, which was reduced to a misdemeanor, but denied such relief on the subordinate term (receiving stolen property). The trial court “resentenced” Sellner to two years for receiving stolen property. On appeal she claimed the trial court lacked jurisdiction to refashion the felony sentence and doing so illegally increased her eight month term (see Pen. Code, § 1170.18, subd. (e)). Held: Affirmed. Section 1170.1, subdivision (a) creates an exception to the general rule depriving the trial court of jurisdiction after execution of a sentence. It provides that when the court imposes a consecutive sentence, whether in the same proceeding or different proceedings, it must impose a principal term and one or more subordinate terms. Here, the eight month term for receiving stolen property was initially a consecutive term, so section 1170.1 restricted the term of imprisonment to one-third the middle term. When the trial court reduced the principal term to a misdemeanor, it was required to order Sellner to serve the two year term originally imposed on the remaining felony.

The increase of the eight-month subordinate term to two years did not illegally increase Sellner’s sentence. Sellner claimed that the increase in the former subordinate term sentence from eight months to two years subjected her to greater punishment than initially imposed. However, because the recomputed term (2 years) is less than the prior aggregate sentence (3 years, 8 months), Sellner was not punished more severely for her successful Proposition 47 petition. Thus, there is no jeopardy issue. The new term also does not run afoul of section 1170.18, subdivision (e), which prohibits the trial court from imposing a longer sentence when granting a Proposition 47 petition. Section 1170.18, subdivision (e) does not trump section 1170.1 or govern aggregate consecutive sentences.