Helms

I concur in the majority opinion’s result and much of its reasoning. I disagree, however, with the statement that “the Marin sentence [the determinate term] was properly made consecutive to the third strike sentence under the first prong of section 1170.12, subdivision (c)(2)(B), which provides that a third strike term ‘shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law.’ ” (Maj. opn., ante, at pp. 612-613.) By its terms, the quoted statutory provision governs only the service of sentence for the indeterminate term imposed pursuant to the three strikes law; it says nothing about sentencing or service of sentence on the previously imposed determinate term. The sentencing court therefore erred in believing itself bound to order consecutive service of the determinate term, but erred harmlessly, since the indeterminate sentences must, in any event, be served consecutively to the determinate. I concur in the result because nothing defendant has cited or I have discovered indicates that the order in which these sentences are served affects defendant’s actual length of confinement.

Because, as the majority explains, the…

Defendant received a four-year sentence in Marin Superior Court for possessing a controlled substance, a crime he committed in 1993. He was placed on probation. After that, the voters enacted the three strikes law. About one month later, defendant committed a new offense of possessing a controlled substance, for which he was convicted in Santa Clara Superior Court and sentenced to an indeterminate term under the three strikes law. Finally, the Marin court revoked the probation ordered for his 1993 offense. The court put into effect the four-year sentence it had previously imposed, thus committing defendant to prison. In so doing, it ruled that the three strikes law required defendant to serve his sentence consecutively to his indeterminate term.

The question is whether this procedure violated state law or the ex post facto clauses of the United States or California Constitution as currently interpreted. We conclude that it did not, and we reverse the Court of Appeal’s judgment to the contrary.

As quoted here, the Court of Appeal accurately described this case’s procedural history:

The Court of Appeal modified the judgment to have the sentences run concurrently. It…