People v. Anderson, A066424

• Citation: 41 Cal.Rptr.2d 474,35 Cal.App.4th 587
• Decision Date: 31 May 1995
• Docket Number: No. A066424,A066424
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Paul Raymond ANDERSON, Defendant and Appellant.

Page 474

41 Cal.Rptr.2d 474

35 Cal.App.4th 587

The PEOPLE, Plaintiff and Respondent, v. Paul Raymond ANDERSON, Defendant and Appellant.

No. A066424.

Court of Appeal, First District, Division 3, California.

May 31, 1995.

Review Denied Aug. 24, 1995.

Cynthia A. Thomas, Mark Shenfield, under appointment by the Court of Appeal, First District Appellate Project, San Francisco, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Ronald A. Bass, Asst. Attys. Gen., Ronald E. Niver, David H. Rose, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

CORRIGAN, Associate Justice.

This case involves the application of Penal Code section 667, subdivisions (b) to (i), ¹ popularly known as the "Three Strikes Law," which was enacted as emergency legislation and became effective March 7, 1994. ² Defendant

                appeals from the judgment, contending the imposition of the five-year enhancement for a prior serious felony conviction under section [35 Cal.App.4th 591] 667, subdivision (a)(1), 3 in addition to the doubling of the base term under subdivision (e)(1), is barred by the terms of the Three Strikes Law and by section 654. 4  Defendant also contends that his prior serious felony conviction does not qualify as a "strike" for purposes of subdivisions (b) to (i) and that the doubling of a subordinate term for a subsequent count is similarly barred.  Finally, he claims the court erred in sentencing him consecutively for an enhancement to that subordinate term.  We reject all of defendant's claims and affirm the judgment
                

STATEMENT OF THE CASE

Defendant pled no contest to and was found guilty of two counts of robbery (§ 211) and the use of a deadly weapon (§ 12022, subd. (b)) as to each count. He also admitted two prior convictions, one for which he served a prison term under section 667.5, subdivision (b), and the second a serious felony under section 667, subdivisions (a)(1), (d)(1), and (e)(1). Four counts of robbery and one count of false imprisonment (§ 236) were dismissed. By agreement, he was sentenced to the midterm of three years on one count of robbery, doubled to six years pursuant to subdivision (e)(1), and one consecutive year for the use of a weapon. Also by agreement, he was sentenced consecutively to two years for the second robbery (one-third the doubled midterm) and four months (one-third the term) for the use of a weapon in that robbery. Finally, he was sentenced consecutively to one year for the prior prison term (§ 667.5, subd. (b)) and five years for

the prior serious felony (subd. (a)(1)), for a total of fifteen years and four months in prison. Defendant specifically reserved his right to appeal the use of the prior serious felony conviction to both double the base term and add five years to the sentence. Defendant filed a timely notice of appeal designating only that issue.

ARGUMENT

I.

As we shall discuss below (part II), defendant's prior felony conviction for attempted robbery (§§ 211, 664) qualifies as a "strike" under subdivision (d)(1). Hereafter, we shall refer to such "strikes" as qualifying convictions. Defendant argues that, if the court relies on his qualifying conviction to double his base term under subdivision (e)(1), it cannot also rely on that same conviction to add five more years to his sentence under subdivision (a)(1). Defendant's contention runs afoul of both the clear language of subdivision (e) and the legislative intent set out in subdivision (b). In interpreting a statutory scheme, we begin with the intent of the Legislature. Where that intent is clear and unambiguous from the language of the statute itself, we need not resort to secondary evidence. (People v. Jones (1993) 5 Cal.4th 1142, 1146, 22 Cal.Rptr.2d 753, 857 P.2d 1163.)

The intent of the Legislature must be evaluated in the context of the criminal sentencing law as a whole. For most felony offenses, the Legislature establishes a range of determinate terms from which the trial court is empowered to select in imposing sentence. (See generally, § 1170 et seq. and Cal. Rules of Court, division III, beginning at rule 401 ⁵.) The specific manner in which a sentencing hearing is conducted is set out in rule 433. If a prison sentence is to be imposed, the court first selects a base term from the range provided. (Rule 405(b).) That base term may be increased, or enhanced, by factors that the Legislature has determined justify the increase of punishment. (Rule 405(c).) Enhancements are of two kinds: those relating to the offense and those relating to the offender. Offense-related enhancements are based on the circumstances of the crime itself, such as the infliction of great bodily injury (§ 12022.7) or the use of various weapons (§ 12022). ⁶ Offender-related enhancements include those imposed for prior convictions (e.g., §§ 667, subd. (a)(1), 667.5) and for the defendant's status on bail at the time the new offense is committed (§ 12022.1). The base term and any offense-related enhancements constitute the principal term. If a defendant is convicted of a number of crimes, the court imposes subordinate terms and directs that they be served concurrently or consecutively to the principal term. ⁷ (§ 1170.1; rule 425.) The aggregate term, then, is comprised of the principal term, any subordinate terms, and any additional terms added for offender-related enhancements. The analytical basis on which the sentencing law rests is that the Legislature sets the range of punishment. The court is empowered to tailor sentences within this framework. The trial court imposes greater or lesser punishments as a result of a series of sentencing choices that relate to aspects of the crime itself or to characteristics of the defendant who has committed it. (See generally, § 1170.)

The statute at issue here sets out a clear articulation of the Legislature's intent: "[T]o ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses." (§ 667, subd. (b).) To implement this intent, the Legislature has provided that the range of base terms for a particular crime will be greater than the range to be imposed upon those who have not suffered qualifying convictions. As set forth above, subdivision (e)(1) provides that, for a defendant with one qualifying conviction, the base term for the new felony conviction shall be twice that otherwise provided as punishment. The prefatory language Defendant's proposed interpretation, that a sentencing court cannot double the base term and add the five-year enhancement, would produce anomalous results. Under this proposal, many designated defendants would receive a lesser sentence under the new law than would previously have been the case. For instance, in this case under the previous law and using the same sentencing choices, the court would have sentenced defendant to three years as the base term plus one year for the weapons-use enhancement, for a total principal term of four years. The court would then have added one year and four months as the subordinate term for the second robbery and enhancement, and the additional terms of five years for the prior serious felony conviction and one year for the prior prison term, for a total aggregate term of eleven years and four months. Defendant's interpretation of the new law, however, results in a total aggregate term of ten years and four months, ⁹ one year less than under the previous law. In fact, under defendant's analysis, most of those convicted of a new serious felony, who have one qualifying conviction, and whose base term is less than five years would receive a lesser sentence under the new law. ¹⁰ Such a result was manifestly not intended by the Legislature.

of subdivision (e) directs that this doubling of the term shall be "in addition to any other enhancement or punishment provisions which may apply...." Clearly, the language of the provision contemplates the doubling of the term ⁸ and the imposition of all applicable enhancements. In addition to the traditional sentencing range, then, the Legislature has created a parallel system of base terms that apply to these repeat offenders.

Defendant puts forward a number of theories in support of his position. We find them unpersuasive for the reasons given below.

A. People v. Jones

Defendant contends the holding of People v. Jones, supra, 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163 prevents the imposition of the five-year enhancement in addition to the doubling of the base term. In Jones, the court determined that the enhancement for a prior prison term under section 667.5 could not be imposed cumulatively with the enhancement under section 667, former subdivision (a) for the same prior conviction. In general, the court held that separate enhancements for the same prior conviction cannot be imposed cumulatively unless the enhancement statutes specifically so permit. (Id. at pp. 1152-1153, 22 Cal.Rptr.2d 753, 857 P.2d 1163.)

The holding of Jones is irrelevant here. This case does not involve the application of two enhancement provisions. Defendant's position rests on the assumption that the doubling of the base term is an enhancement and the imposition of an additional five years for the prior serious felony conviction is a second enhancement. Defendant's threshold assumption is erroneous. The legislative determination, that under these circumstances the base term is doubled, does not constitute an enhancement. Instead, it is the articulation of a parallel sentencing scheme for specifically described recidivists. An enhancement is "an additional term of imprisonment added to the base term." (Rule 405(c).) A base term is "the determinate prison term selected from among the three possible terms prescribed by statute or the determinate prison term prescribed by law if Defendant's qualifying conviction brought him within the purview of subdivision (e)(1) as it...