P v. Brown (4th Dist., Div.2) PC1170.1 Does Not Apply to Misdemeanor Sentences Ordered to Be Served Consecutive to Felony 1170(h) Sentences

An alternate title for this post is "Sometimes you might not want to request that lesser-included instruction."  

Mr. Brown was charged with two counts of felony obstruction, PC 69.  He took his case "to the box" and (at first glance) came out okay.  The jury found him not guilty of one of the PC 69 counts, instead finding him guilty of the lesser-included crime of misdemeanor obstruction, PC 148(a).  Brown was found guilty on the other felony obstruction and a prior prison term was found true.

At sentencing, Brown was sentenced to the upper term of three years on the PC 69, one year was added for the prior prison term, and a one year sentence on the misdemeanor PC 148(a) was ordered to run consecutive to the felony PC 69 sentence, for a total term of five years in the county jail (PC 69 being an 1170(h) felony).  Brown appeals.

The Fourth District affirms.

The rub here is that by beating one of the felony PC 69 counts, Brown actually gets a longer sentence than the could have gotten had he gone down on two felony PC 69 counts.  The reason for this is PC 1170.1, a statute that limits most consecutive felony sentences to "one-third of the middle term".  Penal Code section 69 has a sentencing trial of 16 months, 2 years, or 3 years.  One-third of two years is 8 months.  So had Brown been found guilty of the two PC 69 felonies, the maximum time he could have spent in jail would have been four years and eight months (3 years on the first PC 69, 8 months on the second, plus one year for the prior prison term).  By being found not guilty of the second PC 69 and instead guilty on the lesser included misdemeanor of 148(a), Brown's punishment is increased.

The panel finds nothing illegal about this.  Despite a lengthy and discordant analysis, what the panel really says is that PC 1170.1 is not ambiguous; it applies only to felonies.  Brown's argument, represented by the panel via a lengthy and discordant description, is really that the plain language's consequence is absurd, to wit, since the legislature has deemed the sole reason for incarceration is punishment, giving effect to the unambiguous language of 1170.1 results in a greater punishment for a crime that the legislature has deemed of lesser severity than the more severe offense of which Brown was acquitted.

But for some reason (maybe conscious omission), the panel avoids mentioning this paltry legal dilemma.