People v. Mirmon (Cal. Ct. App. - Aug. 10, 2020)

This morning's opinion by Justice Miller has no introduction at all -- it just plunges right into "FACTUAL AND PROCEDURAL HISTORY" and "A. PROCEDURAL HISTORY."  That's a fairly unusual style.  It's not like the opinion is overly long; it's seven (double-spaced) pages total, including the caption.

The brevity of the opinion is also a little unusual given that it expressly creates a split in published opinions of the Court of Appeal.  Justice Miller's opinion holds that trial courts are not allowed to impose concurrent sentences for multiple-strike offenses committed in prison; rather, it's required that any such sentences be consecutive to the prior offense.  The opinion admits that the Fifth District decided otherwise in People v. Arant (1998) 199 Cal.App.3d 294.  But today's opinion from the Fourth District says that Arant was wrongly decided, so goes the other way.  Opinions involving such a split are typically longer and more detailed than today's opinion, if only because there's a heightened probability of review by the California Supreme Court to resolve the split.

One other thing that I found interesting.  There's a prior -- unpublished -- opinion that goes the same way as today's opinion:  People v. Rodriguez, back in 2014.  That unpublished opinion was -- like the opinion from today -- rendered by Division Two of the Fourth District.  Though that one was written by Justice McKinster.  Today's opinion nowhere mentions or cites Justice McKinster's prior opinion.

But check out the text of the respective opinions.  It's pretty much word-for-word, yet unattributed:

Justice Miller (today's opinion):

"We decline to follow Arant and conclude the trial court had no discretion to impose a concurrent sentence. “The determinate sentencing law treats in-prison offenses differently than out-of-prison offenses. (People v. McCart (1982) 32 Cal.3d 338, 340[.]) The difference is simple and understandable. The Legislature wanted in-prison crimes to be punished more severely than crimes committed ‘on the outside.’ ” (People v. White (1988) 202 Cal.App.3d 862, 869.) “Section 1170.1[, subdivision (c)] applies to felonies committed when the defendant is confined in a state prison. The statutory scheme makes clear that such felonies, i.e., those felonies committed in prison, are exempt from the general sentencing scheme. [Citation.] A sentence under subdivision (c) is longer than a sentence imposed under subdivision (a) because the in-prison offenses are fully consecutive to the sentence for the offense for which the defendant was in prison. Using sentencing jargon ‘the in-prison offense is treated as a new principal term rather than as a subordinate term to the out-of-prison offense.’ ” (Id. at pp. 869-870; see also In re Tate (2006) 135 Cal.App.4th 756, 764-765; People v. Cardenas (1987) 192 Cal.App.3d 51, 58; see generally People v. Langston (2004) 33 Cal.4th 1237, 1242-1244.) . . . . [B]ecause we find that the trial judge had no discretion to sentence defendant to a concurrent term for his in-prison possession convictions in the original sentencing on the Riverside Case, the trial court properly sentenced defendant to a term to be served fully consecutively to the sentence defendant was already serving."

Justice McKinster's prior opinion:

"[W]e decline to follow Arant and conclude the trial court had no discretion to impose a concurrent sentence. “The determinate sentencing law treats in-prison offenses differently than out-of-prison offenses. (People v. McCart (1982) 32 Cal.3d 338, 340....) The difference is simple and understandable. The Legislature wanted in-prison crimes to be punished more severely than crimes committed ‘on the outside.’ (Ibid.)” (People v. White (1988) 202 Cal.App.3d 862, 869 (White ).)  “Section 1170.1[, subdivision] (c) applies to felonies committed when the defendant is confined in a state prison. The statutory scheme makes clear that such felonies, i.e., those felonies committed in prison, are exempt from the general sentencing scheme. [Citation.] A sentence under subdivision (c) is longer than a sentence imposed under subdivision (a) because the in-prison offenses are fully consecutive to the sentence for the offense for which the defendant was in prison. Using sentencing jargon ‘the in-prison offense is treated as a new principal term rather than as a subordinate term to the out-of-prison offense.’ [Citations.]” (White, supra,202 Cal.App.3d at pp. 869–870; see also In re Tate (2006) 135 Cal.App.4th 756, 764–765; People v. Cardenas (1987) 192 Cal.App.3d 51, 58; see generally People v. Langston (2004) 33 Cal.4th 1237, 1242–1244.) Because the trial judge had no discretion to sentence defendant to a concurrent term for his in-prison possession conviction, he properly sentenced defendant to a term to be served fully consecutively to the sentence defendant was already serving."

I know the Court of Appeal's not generally supposed to cite unpublished opinions.  But when you're cutting-and-pasting verbatim someone else's words, typically you've got to give 'em some credit, no?  (Some might say that Justice Miller was on the horns of a difficult dilemma here, torn between being critiqued for either (a) improperly citing an unpublished opinion, or (b) plagiarizing someone else's words.  Though one solution might have been to paraphrase the prior case or elaborate on its reasoning with original language.)

Anyway:  Something you don't necessarily typically see.

P.S. - When I preview this post it looks like the color's all messed up at the end; that's a consequence of cutting-and-pasting the text of Justice McKinster's opinion from Westlaw.  I've tried to fix it but can't; if I was more of a perfectionist, I'd just retype the whole thing.  But I'm not ; I think I'll instead just keep it a (slight) mess and move on.  Sorry about that.