People v. McKee (36 Cal. App. 4th 540, 1995)

Opinion

YEGAN, J.

This is a “second strike” case under the new “three strikes” law, yet another complex sentence law overlaying an existing complex sentencing scheme. David McKee pled guilty to four counts of forgery. (Pen. Code, § 470.) He was sentenced to prison for six years, eight months and appeals contending: “I. The trial court erred in imposing consecutive subordinate terms. [U II. The trial court erred by doubling the subordinate terms. . . . [‘jQ III. Using appellant’s prior conviction both to enhance his sentence by doubling the subordinate terms and to mandate consecutive sentences constitutes a prohibited dual use.”

In 1992, appellant committed a residential burglary for which he was convicted and sentenced to prison. This conviction is a “serious felony” which triggered the “second strike” sentencing provision. (§§ 1192.7, subd. (c)(18); 667, subds. (d)(1), (e)(1).)

After his release from prison, appellant took 68 blank checks from his former employer, West Valley Toyota, without permission. During a 23-day period in August and September of 1994, he cashed 10 checks at various liquor stores in Ventura County. He was charged with 10 counts of forgery.

Pursuant to a negotiated disposition, appellant initially pled guilty to six counts of forgery. The trial court initially committed to imposing a maximum sentence of six years. It is not clear how the trial court intended to arrive at the proposed sentence. The sentencing scheme for forgery is either a county jail commitment or sixteen months, two, or three years in state prison. (§§ 473, 18.) Perhaps the trial court thought it could double the upper three-year term on one of the counts and impose concurrent terms for the remaining counts.

Prior to sentencing, counsel met in chambers and agreed to an alternative disposition based on the trial court’s determination that it could not lawfully impose the previously agreed upon six-year sentence. In open court, the trial court stated: “The Court has previously committed to a commitment to the California Department of Corrections for six years. [*][] The Court cannot continue with that commitment. . . . [Pjursuant to the appropriate code section, section 667(c), et cetera, there’s no way for the Court to get to six years. That is to say the Court must impose a subordinate term consecutively. [1 ... So the Court cannot continue with its commitment of six years. [