People v. Fuhrman

• Decision Date: 28 August 1997
• Docket Number: No. S055920,No. 58011,S055920,58011
• Citation: 67 Cal.Rptr.2d 1,941 P.2d 1189,16 Cal.4th 930
• Court: California Supreme Court
• Parties: , 941 P.2d 1189, 97 Cal. Daily Op. Serv. 6975, 97 Daily Journal D.A.R. 11,246 The PEOPLE, Plaintiff and Respondent, v. Scott Robert FUHRMAN, Defendant and Appellant. Crim

Page 1

67 Cal.Rptr.2d 1

16 Cal.4th 930, 941 P.2d 1189, 97 Cal. Daily Op. Serv. 6975,

97 Daily Journal D.A.R. 11,246

The PEOPLE, Plaintiff and Respondent, v. Scott Robert FUHRMAN, Defendant and Appellant.

No. S055920.

Supreme Court of California

Crim. No. 58011.

Aug. 28, 1997.

Roberta K. Thyfault, San Diego, under appointment by the Supreme Court, for Defendant and Appellant.

Charles H. James, Public Defender (Contra Costa), Martinez, and Ron Boyer, Deputy Public Defender, Walnut Creek, as Amici Curiae on behalf of Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, M. Howard Wayne, Robert M. Foster and Laura Whitcomb Halgren, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, Chief Justice.

We granted review in this case to address three issues involving the interpretation of Penal Code section 667, subdivisions (b) through (i), commonly known as the "Three Strikes" law. ¹ The first issue is whether, when a defendant has been convicted of more than one violent or serious felony offense in a single prior proceeding, each conviction may be counted as a "strike" under the Three Strikes law, or whether, as a general matter, a prior conviction may be counted as a separate strike only if it was "brought and tried separately" from another prior conviction that is to be used as a strike. ² The second issue is whether, assuming that a prior conviction generally may be counted as a strike even if it was not "brought and tried separately" from another qualifying prior conviction, the prior conviction still may be counted as a strike if the sentence on the conviction was stayed under the compulsion of the provisions of section 654. The third issue is whether a defendant who was sentenced under the Three Strikes law prior to the filing of our decision in Romero is entitled, on appeal, to have the matter remanded to the trial court for reconsideration of the sentence in light of Romero where the record is silent as to whether the trial court understood that it retained discretion under section 1385 to dismiss a prior felony conviction allegation in furtherance of justice, or instead must seek relief through a petition for writ of habeas corpus.

With regard to the "brought and tried separately" issue, we conclude that a prior qualifying conviction need not have been brought and tried separately from another qualifying conviction in order to be counted as a separate strike. With regard to the section 654 issue, we conclude that because of the peculiar circumstances of this case, this is not an appropriate vehicle for deciding this issue. As we shall explain, although the trial court in a prior proceeding stayed the sentence on one of defendant's prior convictions pursuant to section 654, it is clear from the record of the prior proceeding that a stay was not warranted under well-established principles related to section 654. Under these circumstances, we believe it is appropriate to reserve the section 654 issue for resolution in another case presenting this issue--peOple v. bENson (1997) 54 caL.apP.4th 282, 62 caL.rpTr.2d 690, review granted 66 Cal.Rptr.2d 422, 941 P.2d 55 (1997)--that is pending before our court. Finally, with regard to the "silent record" issue, we conclude that a remand on appeal is not required in such a case, and that a defendant instead must seek relief through a petition for writ of habeas corpus.

I.

A.

Based upon a vehicle theft discovered on May 24, 1994, and the robbery of a bank committed later that day, defendant was charged in the current proceeding with one count of robbery (§ 211) and one count of unlawfully driving or taking an automobile (Veh.Code, § 10851). It also was alleged that defendant personally used a dangerous or deadly weapon in the commission of the robbery. (§§ 12022, subd. (b), 1192.7, subd. (c)(23).) Further, it was alleged that defendant previously had suffered (1) one prior serious felony conviction within the meaning of section 667, subdivision (a) (based upon a conviction for robbery entered on July 10, 1989), (2) two prior prison terms within the meaning of section 667.5, subdivision (b) (based upon a conviction for vehicle theft entered on January 11, 1988, and a conviction for escape entered on June 19, 1989), and (3) two prior serious or violent felony convictions that were alleged as strikes within the meaning of section 667, subdivisions (c) and (e) of the Three Strikes law (based upon convictions for robbery and assault with a deadly weapon, both entered on July 10, 1989). (The circumstances relating to the two convictions alleged as strikes are discussed below.)

A jury found defendant guilty of the robbery and vehicle-taking counts, and returned a true finding as to the weapon enhancement. At a separate court trial, the court returned true findings as to the allegations involving defendant's prior serious felony, two prior prison terms, and two prior strikes. The court denied a motion to strike one of the two prior strike allegations--involving defendant's conviction on July 10, 1989, for assault with a firearm--on which the sentence had been stayed pursuant to section 654.

The court thereafter sentenced defendant as a Three Strikes offender on both counts. On count 1 (the current robbery offense), the court imposed a sentence of twenty-five years to life and a consecutive one-year term for the weapon-use enhancement; on count 2 (the vehicle-taking offense), the court imposed a sentence of twenty-five years to life and a consecutive seven-year term (a five-year term under section 667, subd. (a), for the prior serious felony, and two 1-year terms for the two prior prison terms). The court imposed the sentence on count 2 consecutive to the sentence on count 1, resulting in a total prison term of 58 years to life.

On appeal, defendant claimed, among other contentions, that the trial court erred in finding that he had two strikes for purposes of the Three Strikes law. The Court of Appeal affirmed the judgment in its entirety, rejecting defendant's request that the matter be remanded to the trial court for reconsideration of the sentence in light of this court's intervening decision in Romero, supra, 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628. ³

B.

Because the issues before us involve the consequences, for purposes of the Three Strikes law, of two of defendant's prior convictions, we briefly review the circumstances that resulted in those convictions.

In 1989, defendant was charged by information with 11 counts of criminal offenses. The probation report that was before the trial court in the current proceedings states as to those offenses that defendant, while driving a stolen car, collided with another vehicle. ⁴ When the victim of the collision expressed her intent to call the police, defendant brandished a handgun. Defendant then forced his way at gunpoint into a truck that had stopped because of the collision. Defendant ordered the driver of the truck to take him from the scene. The driver thereafter drove approximately two-tenths of a mile, when defendant told her to stop and ordered her from the truck. Defendant and the truck subsequently were found, and defendant was arrested.

Defendant was charged with assault with a firearm on the victim of the collision (§ 245, subd. (a)(2)), hit and run (leaving the scene of an accident) (Veh.Code, § 20002, subd. (a)), kidnapping (§ 209, subd. (b)), robbery (involving the driver of the truck) (§ 211), two counts of unlawfully taking and driving a vehicle (Veh.Code, § 10851, subd. (a)), being an ex-felon in possession of a firearm (§ 12021), driving with a suspended license (Veh.Code, § 14601.2, subd. (a)), possession of a hypodermic needle (Bus. & Prof.Code, § 4149), possession of a "slim jim" used to break into vehicles (§ 466), and resisting arrest (§ 148). Numerous enhancement allegations also were alleged.

Pursuant to a plea agreement, defendant pleaded guilty to robbery and assault with a firearm, and the remaining counts (including the kidnapping) were dismissed. The trial court sentenced defendant on the robbery count to the middle term of three years, with a two-year enhancement for use of a firearm (§ 12022.5, subd. (a)(1)) and an additional one-year enhancement for a prior prison term (§ 667.5, subd. (b)). On the assault with a firearm count, the trial court sentenced defendant to the middle term of three years, but the court stayed the sentence on this conviction "on the basis I think there's a 654. I think it's one simple transaction. [p] The enhancement I cannot impose because I can only impose one enhancement for one transaction." ⁵

II.

As noted, in the current proceeding the trial court concluded that defendant had two prior strikes within the meaning of the Three Strikes law. (§ 667, subds. (c) & (e).) The strikes were based upon the convictions resulting from the incidents that occurred in March of 1989, described above. As indicated, pursuant to a plea agreement in the 1989 proceedings, defendant pleaded guilty to the felony offenses of robbery and assault with a firearm.

Defendant acknowledges that, in general, a prior conviction for robbery and a prior conviction for assault with a firearm fall within the category of prior convictions for serious or violent felonies that qualify as strikes under the Three Strikes law. (See §§ 667, subd. (d)(1), 667.5, subd. (c)(8), 1192.7, subd. (c)(19), (23).) Nonetheless, defendant challenges, on two distinct grounds, the trial court's determination that defendant's 1989 convictions for robbery and assault with a deadly weapon comprised two strikes for purposes of the Three Strikes law.

First, defendant contends that separate strikes are created only for prior convictions of offenses that were "brought and tried separately." Defendant asserts that when, as in the 1989 proceeding, multiple convictions result from...