Riggs

Certified for Partial Publication. [*]

A jury convicted defendant of receiving stolen property. (Pen.Code, § 496, subd. (a).) [1] He admitted having suffered one prior "strike," a 1995 robbery conviction (§ 211) arising out of an attempted shoplifting. The court, pursuant to section 1385, denied defendant's motion to dismiss the strike prior and sentenced him to the two year prison midterm, doubled under section 1170.12, subdivision (c)(1).

At the time of sentencing, defendant was serving a sentence for a 1997 second degree burglary conviction (§ 459) in El Dorado County, also arising out of an attempted shoplifting, and the court resentenced defendant on the El Dorado County offense to a consecutive term of 16 months, i.e., one-third the two year prison midterm pursuant to section 1170.1, subdivision (a), doubled.

Both parties appealed. Defendant contends that in denying the motion to dismiss the strike prior, the court failed to take into account certain "individualized considerations" pertaining to his background and the nature of the offense. The People assert the court erred by not ordering the sentence to run consecutive to the sentence previously imposed in El…

*1128 Opinion

A jury convicted defendant of receiving stolen property. (Pen. Code, § 496, subd. (a).) 1 He admitted having suffered one prior “strike,” a 1995 robbery conviction (§211) arising out of an attempted shoplifting. The court, pursuant to section 1385, denied defendant’s motion to dismiss the strike prior and sentenced him to the two-year prison midterm, doubled under section 1170.12, subdivision (c)(1).

At the time of sentencing, defendant was serving a sentence for a 1997 second degree burglary conviction (§ 459) in El Dorado County, also arising out of an attempted shoplifting, and the court resentenced defendant on the El Dorado County offense to a consecutive term of 16 months, i.e., one-third the two-year prison midterm pursuant to section 1170.1, subdivision (a), doubled.

Both parties appealed. Defendant contends that in denying the motion to dismiss the strike prior, the court failed to take into account certain “individualized considerations” pertaining to his background and the nature of the offense. The People assert the court erred by not ordering the sentence to run consecutive to the sentence previously imposed in El Dorado County. We shall…

I concur in the opinion insofar as it holds the phrase “otherwise provided by law” in Penal Code section 1170.12, subdivision (a)(8) invokes the subordinate term provisions of section 1170.1, subdivision (a). Pursuant to the latter provision the trial *1133 court correctly imposed an eight-month consecutive term on resentencing for the defendant’s prior conviction for burglary.

However, I dissent from the majority’s holding that the eight-month term for that prior conviction is a “term otherwise provided as punishment for the current felony conviction,” which must be doubled under Penal Code section 1170.12, subdivision (c)(1). (Italics added.) The defendant’s only current conviction is for receiving stolen property and the term of two years imposed for that offense was doubled under section 1170.12, subdivision (c)(1). That subdivision is the governing law and its terms are controlling.

Penal Code section 1170.12, subdivision (c)(1) provides that “[i]f a defendant has one prior felony conviction . . . the . . . term [for that conviction] shall be twice the term otherwise provided as punishment for the current felony conviction.” (Italics added.) This manifestly does not read…