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Filed 9/16/13 P. v. McKim CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JASON McKIM,

Defendant and Appellant.

C070228

(Super. Ct. No. 11-2230)

In exchange for a stipulated sentence of 16 years four months, defendant Jason 

McKim pleaded no contest to two counts of robbery (Pen. Code, § 211 -- counts 1 & 2),1

one count of vandalism (§ 594 -- count 3) and one count of resisting or obstructing a 

peace officer (§ 148, subd. (a)(1) -- count 4). He also admitted a deadly weapon 

enhancement as to the second robbery charge (§ 12022, subd. (b)(1)), two prior serious 

felony enhancements (§§ 667, subds. (a)(1), (c), (e)(1), 1192.7) and a prior prison term 

 

1 Undesignated statutory references are to the Penal Code.
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enhancement (§ 667.5, subd. (b)). Defendant contends the imposition of a one-year term 

for the deadly weapon enhancement was unauthorized because it violates the 

requirements of section 1170.1. We find the court improperly designated count 1 as the 

principal term. This error requires the abstract of judgment be amended. 

BACKGROUND

Because of the nature of the claim on appeal a detailed recitation of the substantive 

facts underlying the offenses is not necessary.

In March 2011, defendant stole money from the cash register drawer at a 

pharmacy. Approximately two months later, he went to a sandwich shop and demanded 

cash from the store clerk at knife point. After his arrest for robbery, defendant attempted 

to escape from the Woodland Police Department. In his escape efforts, he damaged 

doors to the building. 

Defendant was charged with two counts of second degree robbery (counts 1 & 2), 

one count of vandalism (count 3) and one count of misdemeanor resisting or obstructing a 

peace officer (count 4). It was also alleged defendant used a deadly weapon in the 

commission of the robbery in count 2. It was further alleged defendant had a prior strike 

conviction (§ 667, subd. (a)(1)), a prior serious felony conviction (§ 667, subds. (c), 

(e)(1)), and had served two prior prison terms (§ 667.5, subd. (b)). 

The parties agreed to a plea in which defendant admitted committing both 

robberies, vandalism, and the deadly weapon enhancement. Defendant also admitted the 

prior conviction enhancements and one of the prior prison term enhancements. The 

remaining charges were dismissed and defendant agreed to a stipulated sentence of 16 

years four months. In accordance with the plea, the trial court sentenced defendant to an 

aggregate term of 16 years four months. The sentence was reached as follows: the trial 

court designated the robbery in count 1 as the principal term and sentenced defendant to a

term of three years, doubled because of the strike to six years; a one-year (one-third the 

midterm) term was imposed on the robbery in count 2, as a subordinate term, doubled to 
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two years because of the strike; one year for the deadly weapon enhancement; an eightmonth term was imposed on count 3 (one-third the midterm) doubled to 16 months due to 

the strike; five years for the prior serious felony; and, one year for the prior prison term 

enhancement. 

DISCUSSION

Defendant contends the imposition of a full one-year term on the deadly weapon 

enhancement was an unauthorized sentence, as it was a specific enhancement attached to 

a subordinate term. Accordingly, he argues the court should have imposed one-third the 

term for the enhancement, resulting in an aggregate term of 15 years eight months. The 

People agree the sentence is unauthorized, but for a different reason. The People contend 

the sentence is unauthorized because the trial court incorrectly selected count 1 as the 

principal term, not count 2. We agree with the People.

Section 1170.1 provides generally that if a sentencing court elects to impose 

consecutive sentences when a defendant is convicted of multiple offenses, it must impose 

an aggregate sentence composed of a principal term and subordinate terms. “The 

principal term shall consist of the greatest term of imprisonment imposed by the court for 

any of the crimes, including any term imposed for applicable specific 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, and shall include one-third of the term imposed for any 

specific enhancements applicable to those subordinate offenses. . . .” (§ 1170.1, subd. 

(a).) The term “specific enhancement,” as used in section 1170.1, “means an 

enhancement that relates to the circumstances of the crime,” and “includes . . . the 

enhancement[ ] provided in Section[ ] . . . 12022 . . . .” (§ 1170.11.) 

Here, the court selected count 1 as the principal term and the remaining counts 

were designated as subordinate terms. Despite the fact that the specific weapon 

enhancement was attached to a subordinate term the robbery in count 2, the court 
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imposed a full one-year term on that enhancement. This was error. If count 2 was 

properly designated as a subordinate term, then the specific enhancement attached to that 

count could not have been sentenced as a full term, but rather had to be reduced to onethird the term, in this case, four months. 

However, on this record, it is clear count 2 was not properly designated as a 

subordinate term and count 1 was not properly designated as the principal term. 

Structuring aggregate sentencing for multiple convictions is a three-step process. First, 

the trial court determines the sentence to be imposed on each of the convictions. Second, 

the trial court designates the longest of the sentences imposed in step one as the principal 

term, and the shorter sentences as subordinate terms. Third, the trial court calculates the 

sentence on each subordinate term as one-third of the middle term prescribed by statute 

for each conviction. (People v. Miller (2006) 145 Cal.App.4th 206, 216.) The reduction 

of the sentence for the subordinate term does not occur before the court determines the 

principal term by selecting the longest of the sentences to be imposed. (Ibid.) 

As to both robbery counts, the court imposed the midterm of three years. 

Determination of the principal term requires the court include in its calculation “any term 

imposed for applicable specific enhancements.” (§ 1170.1, subd. (a), italics added.) 

Accordingly, the sentence for the robbery in count 2, including the term imposed for the 

applicable specific deadly weapon enhancement, was four years. Thus, the longest of the 

sentences imposed was the sentence on count 2. Since count 2 had the greatest term of 

imprisonment, it had to be designated the principal term. This determination is not a 

discretionary one, but is mandated by section 1170.1. (See People v. Chagolla (1983) 

144 Cal.App.3d 422, 433, fn. 1.) 

Here, the court imposed a lawful sentence, but fashioned it in an unauthorized 

manner. (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311.) Even when the trial 

court has erred, remand is unnecessary except where the record clearly indicates the court 

probably would have imposed a more favorable sentence in the absence of error. (People 
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v. Avalos (1984) 37 Cal.3d 216, 233; People v. Murray (1994) 23 Cal.App.4th 1783, 

1792-1793.) There is no such indication in this record. The parties agreed to a sentence 

of 16 years four months and the record is clear that is the aggregate sentence the court 

intended to impose. The only way to properly impose a sentence of 16 years four months 

is to designate count 2 as the principal term. With count 2 as the principal term, the full 

term for the section 12022 enhancement attaches to that term and the resulting aggregate 

sentence for all counts is 16 years four months. We will, however, order the abstract of 

judgment corrected to reflect designation of the robbery in count 2 as the principal term.

DISPOSITION

The judgment is affirmed. The trial court is ordered to prepare an amended 

abstract of judgment designating count 2 as the principal term and to forward a certified 

copy of the amended abstract of judgment to the Department of Corrections and 

Rehabilitation.

 NICHOLSON , Acting P. J.

We concur:

 ROBIE , J.

 BUTZ , J.