P v. Woodworth (5th Dist.) PC 1170.15 Gives the Court Discretion to Impose a Concurrent Sentence

The same day Mr. Woodworth was released from prison, he met a Fresno prostitute (Ms. C) and invited her into his hotel room.  What happened next depends on who you believe.  Ms. C says Woodworth choked her unconscious and proceeded to sodomize her.  When she came to, Woodworth was still at it and told her if she screamed, he'd kill her.

Woodworth's version was that he contracted with Ms. C for some "rough sex" and received same in return for consideration paid.  

A jury believed Ms. C and found Woodworth guilty of, among other crimes, forced sodomy and dissuading a victim of a crime.  The trial court sentenced Woodworth to 25-to-life on the sodomy charge and a consecutive three year term for the dissuasion charge.  The trial court interpreted PC 1170.15 to require a consecutive full term sentence for the dissuasion in this case.  Woodworth appealed the three year dissuasion sentence.

The Fifth District remands the matter for the trial court to resentence Woodworth on the dissuasion count, taking into consideration it has the discretion to impose a concurrent sentence.  

The issue is one of statutory construction.  Penal Code section 1170.1 provides that when a defendant is sentenced on multiple determinate counts, consecutive subordinate counts are to be one-third of the middle term.  Section 1170.15 is an exception to the one-third of the middle term rule.  It states in pertinent part: 

 “the subordinate term for each consecutive offense” of dissuading a witness must be the full middle term for the dissuading a witness count plus any enhancements applicable to that count.

The trial court interpreted this language as requiring a consecutive full middle term sentence.  Woodworth argues the language should be interpreted to mean if the court imposes a consecutive sentence, then it must be full middle term.  Under Woodworth's interpretation, the court retains the discretion to decide whether the dissuasion sentence should be consecutive or concurrent.  

The AG concedes Woodworth's interpretation is the correct one and the Fifth District agrees.  The case is now sent back to the trial court for a determination of whether to run the dissuasion count consecutive or concurrent to the 25-life sentence.