People v. Benson

• Decision Date: 14 May 1998
• Docket Number: No. S061678,S061678
• Citation: 74 Cal.Rptr.2d 294,18 Cal.4th 24,954 P.2d 557
• Parties: , 954 P.2d 557, 98 Cal. Daily Op. Serv. 3664, 98 Daily Journal D.A.R. 5055 The PEOPLE, Plaintiff and Respondent, v. Russell Donald BENSON, Defendant and Appellant
• Court: California Supreme Court

Page 294

74 Cal.Rptr.2d 294

18 Cal.4th 24, 954 P.2d 557, 98 Cal. Daily Op. Serv. 3664,

98 Daily Journal D.A.R. 5055

The PEOPLE, Plaintiff and Respondent, v. Russell Donald BENSON, Defendant and Appellant.

No. S061678.

Supreme Court of California

May 14, 1998.

Russell S. Babcock, San Diego, under appointment by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, William T. Harter, Pamela C. Hamanaka and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, Chief Justice.

In 1994, the Legislature, and thereafter the electorate, enacted similar "Three Strikes" laws. (See Pen.Code, §§ 667, subds. (b)-(i), 1170.12.) ¹ Under these provisions, a defendant who has one qualifying prior conviction, or "strike," may receive a lengthier sentence than would have been possible without that strike, and a defendant with two strikes may receive an even lengthier sentence. (See People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 504-506, 53 Cal.Rptr.2d 789, 917 P.2d 628 (Romero ).) In the present case, defendant has two prior felony convictions--(1) residential burglary, and (2) assault with intent to commit murder--sustained in one action and arising out of the same set of facts. The trial court in the earlier action imposed sentence for one of those convictions, but stayed the sentence on the other under Penal Code section 654, which prohibits multiple punishment under certain circumstances. ² (See generally, People v. Latimer (1993) 5 Cal.4th 1203, 23 Cal.Rptr.2d 144, 858 P.2d 611.) Each conviction individually would qualify as a strike. The question before us is whether defendant has one strike or two.

We conclude that the plain language, legislative history, and legislative purpose of the Three Strikes law compel the conclusion that when a court has stayed sentence on an otherwise qualifying conviction under section 654, the stayed conviction may be treated as a strike. Accordingly, we conclude that defendant has two strikes, not one. We therefore affirm the judgment of the Court of Appeal, which found that defendant has two strikes.

I.

On November 30, 1994, defendant was arrested for shoplifting a carton of cigarettes worth $20 from a Target store. He subsequently was convicted by a jury of petty theft with a prior. (§ 666.) Two prior strikes were found true. Defendant was sentenced to state prison for 25 years to life.

Defendant's prior strikes are based upon an incident that occurred in 1979. According to the probation officer's report, defendant resided in the same apartment building as the victim. He went to her apartment to borrow her vacuum cleaner. After returning the vacuum cleaner a short time later, he returned again to her apartment, stating that he had left his keys there. Once inside the victim's residence, defendant grabbed her from behind and struggled with her, forcing her to the floor and displaying a knife. He thereafter stabbed her approximately 20 times over most of her body. The victim was able to provide law enforcement officers with the identity of her assailant. The officers located the knife and the bloody clothing at defendant's apartment. The following day, defendant turned himself in to the police and was placed under arrest. As a result of the attack, the victim underwent four major surgeries and was severely scarred.

Based upon the foregoing incident, defendant was convicted by a jury in 1980 of residential burglary (§ 459) and assault with the intent to commit murder (former § 217, repealed by Stats.1980, ch. 300, § 2, p. 628, eff. Jan. 1, 1981; see now, generally, § 664). He was found to have used a knife (§ 12022, subd. (b)) and to have inflicted great bodily injury (§ 12022. 7) in the commission of those offenses. The trial court entered a judgment of conviction against defendant for the crime of residential burglary and the crime of assault with intent to commit murder. ³ The record reflects that the sentence on the assault conviction was stayed. ⁴

In the present case, defendant requested that the trial court strike the prior conviction allegations, as violative of the proscription against double punishment contained within section 654, and in the interest of justice, pursuant to section 1385. The trial court denied the request, finding no violation of section 654, and expressing the view that, under the Three Strikes law, it lacked the authority under section 1385 to strike a prior conviction allegation. As noted, defendant thereafter was convicted of having committed petty theft with a prior. The Court of Appeal affirmed the judgment and remanded the matter to allow the trial court to exercise its discretion to strike one of the prior conviction allegations, because the trial court had stated on the record its mistaken belief that it lacked discretion to strike the prior. (See Romero, supra, 13 Cal.4th 497, 529-532, 53 Cal.Rptr.2d 789, 917 P.2d 628; People v. Fuhrman, supra, 16 Cal.4th 930, 944, 67 Cal.Rptr.2d 1, 941 P.2d 1189.)

II.

A.

Section 1170.12, subdivision (b), part of the Three Strikes law enacted by the electorate, provides in pertinent part: "Notwithstanding any other provision of law ... a prior conviction of a felony shall be defined as: [p] (1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state.... None of the following dispositions shall affect the determination that a prior conviction is a prior felony ...: [p] ... [p] (B) The stay of execution of sentence. " (Italics added; see also § 667, subd. (d) [legislative version].)

Defendant contends that the Three Strikes law cannot properly be interpreted to permit separate strikes to be imposed for offenses that in a prior proceeding were determined to have been committed as part of an indivisible transaction, committed against a single victim, and as to which it was concluded that imposition of separate punishment for each offense would constitute multiple punishment proscribed by section 654. Because the trial court implicitly found in the 1980 proceeding that section 654 precluded the imposition of punishment on the count involving assault with intent to commit murder (having determined that the offense was part of the same transaction that gave rise to the residential burglary count), and stayed the execution of sentence on that count, defendant urges this court to hold that the trial court erred in counting as strikes the convictions for both the residential burglary and the assault with intent to commit murder.

In support of his contention, defendant relies upon this court's decision in People v. Pearson (1986) 42 Cal.3d 351, 228 Cal.Rptr. 509, 721 P.2d 595 (Pearson ). In Pearson (decided eight years prior to the 1994 enactment of the Three Strikes law), the defendant committed an act of sodomy on each of two children. For each act, he was convicted of two offenses -- sodomy with a child under fourteen years of age (§ 286, subd. (c)), and lewd conduct (§ 288, subd. (a)). The trial court imposed sentence on the lewd conduct convictions, but stayed sentence on the sodomy convictions so as to prevent the defendant from being punished twice for the same act. (§ 654.)

In affirming the judgment of the trial court, we explained in Pearson: "In the case at bar the trial court ... stayed execution of sentence on each of the sodomy counts, the stays to become permanent on completion of the sentence on the lewd conduct counts. The question remains whether defendant can be subjected to future enhancements based on all four of his convictions in this case. We conclude that he cannot. Any subsequent sentences imposed on defendant can be enhanced on the basis of the convictions for which he served a sentence; but convictions for which service of sentence was stayed may not be so used unless the Legislature explicitly declares that subsequent penal or administrative action may be based on such stayed convictions. Without such a declaration, it is clear that section 654 prohibits defendant from being disadvantaged in any way as a result of the stayed convictions." (42 Cal.3d at p. 361, 228 Cal.Rptr. 509, 721 P.2d 595, italics added.)

As is indicated by the italicized portion of the quoted passage, the court in Pearson explicitly acknowledged that even when multiple punishment for separate offenses has been barred under section 654 in an earlier proceeding, the Legislature is free to authorize the designation of such prior felony convictions as separate priors for purposes of determining the appropriate sentence following a subsequent conviction.

The parties in the present case dispute whether, in enacting the Three Strikes law, the Legislature spoke with sufficient clarity to invoke the proviso set forth in Pearson. In addressing this issue, the trial court observed: "I thought the new Three Strikes law said that all other laws notwithstanding this will be how you sentence. And if you have a conviction, it didn't matter whether the other court stayed it or what it did. [I]f there was a felony conviction, ... it didn't matter whether you went to prison. It didn't matter whether you had good conduct for five years. It didn't matter whether ... all your counts were in the same case, but the two felony convictions would count for the Three Strikes law. I thought that was clear." (Italics added.)

The Court of Appeal agreed with the trial court's conclusion, explaining: "Appellant presents us with 24 pages of briefing as to why the statute is ambiguous. We repeat the foremost rule of statutory construction: ' " 'Where the statute is clear, courts will not "interpret away clear language in favor of an ambiguity that does not exist." ' " ...' (People v. Coronado [ (1995) ] 12 Cal.4th [145,] 151, 48 Cal.Rptr.2d 77, 906 P.2d...