People v. Garcia

• Decision Date: 26 June 1989
• Docket Number: No. D008206,D008206
• Citation: 211 Cal.App.3d 1096,260 Cal.Rptr. 71
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Eduardo Echeveria GARCIA, Defendant and Appellant.

Page 71

260 Cal.Rptr. 71

211 Cal.App.3d 1096

The PEOPLE, Plaintiff and Respondent, v. Eduardo Echeveria GARCIA, Defendant and Appellant.

No. D008206.

Court of Appeal, Fourth District, Division 1, California.

June 26, 1989.

Review Denied Sept. 28, 1989.

Paul W. Blake, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Steven H. Zeigen, Supervising Deputy Atty. Gen., for plaintiff and respondent.

HUFFMAN, Associate Justice.

Eduardo Garcia appeals his judgment and sentence after the trial court sentenced him to a total eight-year term. He contends the sentence imposed is an illegal sentence, violative of the "double-the-base-term" provision of Penal Code section 1170.1(g), and violative of the United States and California Constitutions which preclude application of amendments to offenses occurring before their effective date. We shall hold application of the three-year enhancement under Health and Safety Code ¹ section 11370.2(a) was proper in this case and does not violate either the "double-the-base-term" limitation or ex post facto laws.

FACTS

On June 12, 1987, Chula Vista police officers arrested Garcia at the Happy Landing Bar on an outstanding arrest warrant. A search incident to his arrest produced a cigarette pack containing seven tin foil bindles of tar heroin in his right front pants pocket.

Based upon this evidence, he was charged February 16, 1988, with one count of unlawful possession of heroin for sale and purchase for purposes of sale. ( § 11351.) He was also alleged to have suffered an earlier section 11352 conviction within the meaning of section 11370.2(a), and two prior felony convictions within the meaning of Penal Code section 667.5(b). After he waived jury trial and stipulated the preliminary transcript could be used in place of the police officers' testimony, the trial judge found him guilty as charged and found the enhancement allegations to be true.

The court sentenced Garcia May 10, 1988, to a total eight-year term consisting of a three-year midterm on the current drug offense, a consecutive three-year term for the section 11370.2(a) enhancement and two consecutive one-year terms for the Penal Code section 667.5(b) enhancements.

DISCUSSION

Garcia appeals, contending the total sentence imposed is illegal because it violates the "double-the-base-term" limitation set

out in Penal Code section 1170.1(g) and violates ex post facto laws. We disagree.

OVERVIEW

At the time Garcia committed his present drug offense, Penal Code section 1170.1(g) provided:

"The term of imprisonment shall not exceed twice the number of years imposed by the trial court as the base term pursuant to subdivision (b) of Section 1170 unless the defendant stands convicted of a 'violent felony' as defined in subdivision (c) of Section 667.5, or a consecutive sentence is being imposed pursuant to subdivision (c) of this section, or an enhancement is imposed pursuant to Section 12022, 12022.4, 12022.5, 12022.6, 12022.7 or 12022.9 or the defendant stands convicted of felony escape from an institution in which he is lawfully confined."

This section was amended in 1987 to expressly exclude from the double-the-base-term limitation enhancements imposed under section 11370.2. (Assem.Bill No. 1578 (1987-1988 Reg.Sess.) ch. 1423, § 3.7. ² )

Section 11370.2, enacted by the Legislature in 1985 (Stats.1985, ch. 1398, § 2), and amended in 1986 (Stats.1986, ch. 80, § 1 and ch. 1044, § 15), provides in pertinent part:

"(a) Any person convicted of a violation of Section 11351 ... shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of Section ... 11352 ... whether or not the prior conviction resulted in a term of imprisonment."

Garcia was convicted here of a violation of section 11351 for which the sentencing court imposed a midterm of imprisonment. Translated into raw numbers for computation of the twice-the-base-term equation: the court imposed a three-year base term which, if no exception to the two-times-the-base-term formula applied, would mean that no more than a six-year total prison term could be imposed.

The court, however, had found true at trial the allegations Garcia had suffered an earlier conviction of section 11352 and had suffered two earlier felony convictions within the meaning of Penal Code section 667.5(b). Consequently, in addition to the three-year middle term for the section 11351 conviction, the court imposed additional time for these enhancements: a consecutive three-year term for the enhancement under section 11370.2(a) and two consecutive one-year terms for the enhancements under Penal Code section 667.5(b). The total term for which the court sentenced Garcia was thus eight years or two years over the twice-the-base-term limitation.

While Garcia acknowledges Penal Code section 1170.1(g) was amended in 1987 to add section 11370.2 to the list of enhancements excepted by the double-the-base-term limitation, he contends because his crime was committed before January 1, 1988, the effective date of the amendment, the exception does not apply to him; to apply the exception would be in violation of the United States and California Constitutional proscriptions against ex post facto laws.

Interestingly, Garcia does not challenge the court's imposition of the two one-year enhancements under Penal Code § 667.5(b). Rather he merely argues the three-year enhancement imposed under section 11370.2(a) is illegal and unconstitutional as violative of the double-base-term limitation.

Nor do the People address any issue concerning the relevance of Penal Code § 667.5(b) to this case other than mentioning that we have previously upheld such section as being an exception to Penal Code section 1170.1(g), even though it was not one of the listed enhancements in that section and to suggest the same rationale should apply to hold section 11370.2(a) is also such an exception. (See People v. Hall (1985) 168 Cal.App.3d 624, 628-629 Technically, under the holding of People v. Magill (1986) 41 Cal.3d 777, 224 Cal.Rptr. 702, 715 P.2d 662, if any of the statutory enhancements applied to a defendant's sentence is excepted from the base term limiting provisions of Penal Code section 1170.1(g), the entire sentence is exempt from the limitation, not just the part imposed for the exception. Thus, because Garcia has not challenged the enhancements imposed under Penal Code section 667.5(b) and we have already determined such enhancements are excluded from the Penal Code section 1170.1(g) double-base-term limitation (People v. Hall, supra, 168 Cal.App.3d at pp. 628-629, 214 Cal.Rptr. 289 and People v. Poole, supra, 168 Cal.App.3d at pp. 522-524, 214 Cal.Rptr. 502), the three years imposed here under section 11370.2(a) does not violate the twice-the-base-term proscription.

214 Cal.Rptr. 289 and People v. Poole (1985) 168 Cal.App.3d 516, 522-524, 214 Cal.Rptr. 502.)

However, being mindful of the existing split of authority on the issue of whether Penal Code section 667.5(b) is an exception to the double-the-base-term rule (see Poole- Hall cases, supra, versus People v. Rodrigues (1988) 205 Cal.App.3d 1487, 253 Cal.Rptr. 306 ³), that our Supreme Court has granted hearing on the issue (People v. Prather (1988) 252 Cal.Rptr. 7, review granted (1988) 254 Cal.Rptr. 508, 765 P.2d 940), and that the parties have not briefed that issue, we focus our review on whether section 11370.2(a) is excepted from the twice-the-base-term limitation.

SECTION 11370.2(A)

As already discussed, section 11370.2 was enacted in 1985. ⁴ At that same time, section 11370.4, which provides for additional enhancements (three to ten years; amended to include a fifteen-year enhancement) for possession of substances containing heroin or cocaine according to the amount possessed, was enacted. The express purpose for the enactment of these sections was "to punish more severely those persons who are in the regular business of trafficking in, or production of, narcotics and those persons who deal in large quantities of narcotics as opposed to individuals who have a less serious, occasional, or relatively minor role in this activity." (Assem. Bill No. 2320 (1985-1986 Reg.Sess.) ch. 1398, § 1.)

In People v. Carvajal (1988) 202 Cal.App.3d 487, 249 Cal.Rptr. 368 ⁵, the Court of Appeal held enhancements under section 11370.4 "were not, in 1986, limited by the double-the-base-term rule of former Penal Code section 1170.1, subdivision (g), despite the Legislature's initial, inadvertent failure to include such enhancements among the enumerated exclusions." (Id. at p. 502, 249 Cal.Rptr. 368.) The court looked at section 11370.4 "in a reasonable and common sense manner consistent with [its] apparent purpose and the legislative intent underlying [it]--one practical, rather than technical, and one promoting a wise policy rather than mischief or absurdity. [Citation.]" (Id. at p. 501, 249 Cal.Rptr. 368.) It determined that to apply the double-base-term rule to that section would "frustrate the Legislature's purpose to punish narcotic drug dealers in proportion to the quantity of drug possessed. [Citation.]" (Id. at p. 502, 249 Cal.Rptr. 368.)

The reasoning of Carvajal is equally appropriate here. While section 11370.2(a) does not, like section 11370.4, add additional To hold that at the time of the offense here Penal Code section 1170.1(g) precluded imposition of the three-year enhancement under section 11370.2(a) would negate its stated purpose and render its provision to add "a full, separate and consecutive three-year term for each prior felony conviction" specified there nugatory. ( § 11370.2(a), italics added.) For example, such holding would foreclose the sentencing court's option in the case of a person, like Garcia, who is convicted of a crime under section 11351 with one prior...