Filed 3/1/21 P. v. Wilson CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DEVION WILSON,

Defendant and Appellant.

 D076841

 (Super. Ct. No. SCD282109)

APPEAL from a judgment of the Superior Court of San Diego County, 

Charles G. Rogers, Judge. Judgment affirmed. Request for judicial notice 

denied.

Charles R. Khoury, Jr., under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney 

General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for 

Plaintiff and Respondent.

A jury convicted Devion Wilson of unlawful possession of a firearm 

(count 1, Pen. Code, § 29800, subd. (a)(1)) and ammunition (count 2, § 30305, 
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subd. (a)(1)).1 It also found Wilson guilty of a misdemeanor, possessing a 

controlled substance, a lesser included offense of possession for sale (count 3, 

Health & Saf. Code, § 11350). The court sentenced Wilson to a six-year 

prison term.

On appeal Wilson challenges only his misdemeanor sentence. He 

contends the court violated section 1170.1(a) (section 1170.1(a)) by imposing a

full consecutive term instead of one-third of the full term. Wilson also 

contends the court abused its discretion by refusing to recommend the 

Department of Corrections and Rehabilitation place him in “fire camp.” 

We conclude section 1170.1(a) does not apply to adult misdemeanor 

convictions, and that the trial court acted within its discretion in not 

recommending Wilson for service as a wildland firefighter. Accordingly, we 

affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 2011, Wilson was convicted of assault with a deadly weapon with an 

accompanying gang enhancement. After violating probation, he served a 

seven-year prison term. 

In June 2019, San Diego police officers made a traffic stop on a 

Maserati in which Wilson, on parole and armed with a 9-millimeter semiautomatic handgun, was a backseat passenger. He also had $1,600 in his 

sock, all in $100 bills. In Wilson’s nearby parked car, police found a digital 

scale and 17.51 grams of cocaine.

The San Diego County District Attorney charged Wilson with 

(1) possession of a firearm by a felon (count 1); (2) felon in possession of 

ammunition (count 2); (3) possession for sale of a controlled substance 

1 Undesignated statutory references are to the Penal Code.
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(count 3); and possession of a firearm by possessor of a controlled substance 

(count 4). A prison prior and strike prior were also alleged.

A jury returned guilty verdicts on counts 1 and 2. After acquitting 

Wilson on count 3, the jury convicted him of simple possession as a lesser 

included offense. The court granted the People’s motion to dismiss count 4 

after the jury deadlocked on that count.

In bifurcated proceedings, Wilson admitted being on parole when 

committing these offenses. He also admitted the strike prior. 

The court sentenced Wilson to (1) the upper three year term on count 1, 

doubled for the strike prior; and (2) the upper three year term on count 2, 

doubled for the strike prior, the execution of which was stayed under section 

654. On the misdemeanor, a consecutive 292-day sentence was imposed, with 

credit for 146 actual days plus 146 conduct credits, the entirety of Wilson’s 

presentence credits. The court dismissed the prison prior, assessed various 

fines and fees, and declined defense’s counsel’s request to recommend the 

Department of Corrections and Rehabilitation place Wilson in “fire camp.”

DISCUSSION

A. The Court Properly Sentenced Wilson to a Full Consecutive Term

Where a defendant is convicted of two or more felonies and the court 

imposes a consecutive prison term, the court must calculate the aggregate 

prison term. (§ 1170.1, subd. (a).) The aggregate term is the sum of the 

principal term, the subordinate term(s), and any enhancements. (Ibid.) 

Generally, the principal term is the greatest term for any of the crimes. 

(§ 1170.1, subd. (a).) The subordinate term for each consecutive offense is 

ordinarily “one-third of the middle term of imprisonment prescribed for each 

other felony conviction for which a consecutive term of imprisonment is 

imposed.” (Ibid.)
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Wilson contends that by failing to sentence the misdemeanor either 

concurrently with the felony—or if consecutively, in the manner prescribed by 

section 1170.1(a)—the court imposed an “illegal” sentence.2 In evaluating his 

claim, we begin with the statutory text. Section 1170.1(a) provides in part:

(a) Except as otherwise provided by law . . . when any 

person is convicted of two or more felonies . . . and a 

consecutive term of imprisonment is imposed . . . the 

aggregate term of imprisonment for all these convictions 

shall be the sum of the principal term, the subordinate 

term, and any additional term imposed for applicable 

enhancements . . . . The subordinate term for each 

consecutive offense shall consist of one-third of the middle 

term of imprisonment prescribed for each other felony

conviction for which a consecutive term of imprisonment is 

imposed . . . .” (Italics added.)

Since 1872, the Legislature has distinguished between felonies and 

misdemeanors. (§17, subd. (a).) By its plain language, section 1170.1(a) 

applies only where a person is convicted of “two or more felonies” and a 

consecutive term of imprisonment is imposed for the “felony conviction.” 

Here, the consecutive term Wilson challenges is for a misdemeanor 

conviction. Therefore, section 1170.1(a) does not apply. 

In re Eric J. (1979) 25 Cal.3d 522 (Eric J.) reinforces this conclusion. 

There, a juvenile court found that a minor had committed a felony (burglary) 

and a misdemeanor (contempt of court). (Id. at pp. 525‒526.) The Supreme 

Court stated that in adult cases, the Legislature had “clearly indicated its 

intent” that section 1170.1 applies “only in imposing sentence for felonies.” 

2 The Attorney General contends Wilson has forfeited this issue by 

failing to object to the court imposing a full consecutive misdemeanor term. 

However, we consider the point because a sentence that is not authorized by 

law may be challenged for the first time on appeal. (People v. Scott (1994) 9 

Cal.4th 331, 354.)
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(Eric J., at p. 537.) In contrast, in juvenile matters, the Legislature 

manifested a different intent in Welfare and Institutions Code section 726, 

subdivision (c), which provides, “If the court elects to aggregate the period of 

physical confinement on multiple counts . . . the ‘maximum term of 

imprisonment’ shall be specified in accordance with subdivision (a) of Section 

1170.1 of the Penal Code.” (Eric J., at p. 536, fn. 3.)3 Harmonizing these two 

statutes Eric J. holds that in juvenile matters, the one-third formula for 

subordinate terms applies to both felonies and misdemeanors:

“By directing in [Welfare and Institutions Code] section 726 

that the juvenile court measure the maximum period of 

confinement for ‘multiple counts’ in accordance with 

subdivision (a) of Penal Code section 1170.1, without 

restricting the application of the consecutive term 

provisions of that subdivision to felony counts, the 

Legislature recognized the different circumstances of 

juvenile and adult commitments, and indicated its intent 

that the aggregation provisions of section 1170.1 be applied 

whether the offenses committed by the minor are felonies 

or misdemeanors.” (Eric J., at p. 538.)

In asserting that section 1170.1(a) applies to his misdemeanor 

conviction, Wilson asserts we should “follow the reasoning of . . . Eric J. and 

“order the misdemeanor sentence of count 3 reduced to four months.” 

Although we follow the reasoning of Eric J., we do not agree it requires 

reduction of the misdemeanor sentence for two reasons.

First, Eric J. turns on Welfare and Institutions Code section 726. That 

statute is not applicable to adult convictions. Second, appellate courts have 

rejected attempts to expand the holding in Eric J. to adult sentencing. People 

v. Brown (2016) 247 Cal.App.4th 1430 is illustrative. There, the trial court 

3 The substance of this provision is now in Welfare and Institutions Code 

section 726, subdivision (d)(3).
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imposed an upper term on a felony count, and a consecutive one-year term on 

a misdemeanor. (Id. at p. 1432.) Like Wilson, the defendant in Brown 

asserted that under section 1170.1(a), the only authorized consecutive 

sentence was one-third of that term. (Brown, at p. 1434.) Citing Eric J., 

supra, 25 Cal.3d 522, the court in Brown rejected that contention, noting that 

Eric J.’s holding is limited to juvenile commitments, not adult prison 

sentences. (Brown, at p. 1434; see also People v. Erdelen (1996) 46 

Cal.App.4th 86, 92 [rejecting section 1170.1 argument where court sentenced 

for three years on a felony and consecutive full terms for misdemeanors]; 

People v. Hartsfield (1981) 117 Cal.App.3d 504, 508 [section 1170.1 “does not 

apply to a sentence for misdemeanor ordered to be served consecutively to a 

felony term”].)

B. The Court Did Not Abuse Its Discretion in Declining to Recommend 

Wilson for Fire Camp

Fire camps are jointly operated by the California Department of 

Corrections and Rehabilitation and Cal Fire. Each camp houses between 80 

to 125 inmate firefighters, “mainly nonviolent offenders who have 

volunteered to be trained and deployed as wildland firefighters.” (Stygar, 

Thinking Outside the Box: A Point-Based System of Reintegration for 

California’s Inmate Firefighters (2020) 56 Cal. Western L.Rev. 455, 462

(hereafter Inmate Firefighters).) Fire camp inmates receive two dollars per 

day, plus one dollar per hour while on a fire assignment. Additionally, 

inmates earn a two-day sentence reduction for each day spent working in fire 

camp. (Id. at pp. 471‒472.)

“Inmates assigned to a camp receive a number of incentives for their 

hard work. When not working, prisoners are free to move about the camp 

facility as they please.[] They also receive better quality meals prepared 

onsite by fellow inmate firefighters.[] At Fire Camp, concrete walls and 
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barbed wire are replaced by open fields and greenery.[] The grounds 

themselves, which the inmates maintain, are outfitted with weight rooms, 

vegetable gardens, shaded picnic areas, horseshoe pits, and other niceties 

otherwise unavailable to inmates.” (Inmate Firefighters, supra, 56 Cal. 

Western L.Rev. at p. 463.)

At sentencing Wilson’s attorney asked the court to recommend fire 

camp, stating:

“I’d ask that the court recommend fire camp for Mr. Wilson. 

I understand he has a prior violent offense, but in this case 

I think that it might be beneficial for him to pick up a trade 

skill as well as let him help the community or learn that 

trade.”

The court declined, stating, “I’m not going to recommend fire camp for this 

man.”

Wilson contends the court abused its discretion in refusing to 

recommend fire camp without stating reasons. He asserts the court’s “desire 

for punishment . . . overrode a possible last chance for [Wilson] has to turn 

his life around.” To demonstrate the value of inmate fire fighters, Wilson

asks that we take judicial notice of internet articles discussing certain 

California prisoners assigned to fire camp.

The request for judicial notice is denied. The record does not indicate 

that these materials were presented to the trial court. Moreover, even if they 

had been, the documents are not properly subject to judicial notice. (Ragland 

v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194 [improper to 

take judicial notice of “Web sites and blogs”].)

Wilson cites no authority, and we are aware of none, requiring the 

court to state its reasons for refusing to recommend fire camp. Declining to 
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recommend fire camp is not a sentencing choice requiring a statement of 

reasons. (Cal. Rules of Court, rule 4.406(b).) 

In any event, the court had ample grounds for declining to recommend 

fire camp. At sentencing the court noted that of the four people in the car, at 

least two were gang members. Wilson was on parole and directed to not 

associate with gang members. Wilson was “loaded on cocaine” when arrested 

He was also armed with a nine millimeter semi-automatic handgun fully 

loaded with hollow point bullets. Wilson explained to the probation officer 

that he was “really paranoid” due to his drug use and thought people were 

out to get him. The court could reasonably conclude that Wilson’s gang 

affiliation, history of violence, drug abuse, and refusal to conform his conduct 

to the requirements of the law made him ill-suited for a fire camp

recommendation. 
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DISPOSITION

The judgment is affirmed.4

DATO, J.

WE CONCUR:

BENKE, Acting P. J.

O’ROURKE, J.

4 At the conclusion of oral argument, appellant’s counsel sought to 

preserve an issue regarding Wilson’s ability to pay certain fines and fees that 

were assessed as part of the judgment, citing a case currently pending before 

the California Supreme Court. (See People v. Kopp (2019) 38 Cal.App.5th 47, 

review granted Nov. 13, 2019, S257844.) This contention was nowhere 

mentioned in the briefs. Absent good cause, we do not consider points raised 

for the first time at oral argument. (See, e.g., Kinney v. Vaccari (1980) 27 

Cal.3d 348, 356, fn. 6.)