People v. Jones

• Decision Date: 13 September 1993
• Docket Number: No. S027672,S027672
• Citation: 22 Cal.Rptr.2d 753,857 P.2d 1163,5 Cal.4th 1142
• Court: California Supreme Court
• Parties: , 857 P.2d 1163 The PEOPLE, Plaintiff and Respondent, v. Monroe JONES, Defendant and Appellant.

Page 753

22 Cal.Rptr.2d 753

5 Cal.4th 1142, 857 P.2d 1163

The PEOPLE, Plaintiff and Respondent, v. Monroe JONES, Defendant and Appellant.

No. S027672.

Supreme Court of California In Bank.

Sept. 13, 1993.

Scott F. Kauffman, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

Kathleen Kahn and J. Bradley O'Connell, San Francisco, as amici curiae on behalf of defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama and Ronald A. Bass, Asst. Attys. Gen., Ronald S. Matthias, Joanne S. Abelson, Jeff Rubin and David H. Rose, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Did the electorate intend, when it enacted Proposition 8, for a sentence to prison to be enhanced both for a prior conviction and for a prison term imposed for that conviction? We conclude not; hence, defendant's unstayed sentence must be reduced from 32 to 31 years' imprisonment.

Defendant was tried for a sexual assault on a fellow county jail inmate. The 18-year-old victim, a resident of Merrimack, New Hampshire, had arrived in San Francisco 12 days before he was arrested for marijuana possession with intent to sell.

The victim testified that defendant approached him because, in the victim's words, defendant thought he was "cute and feminine." Defendant gave the victim certain favors, including cigarettes and commissary food, but when the victim rebuffed defendant's sexual advances, he cornered him in a cell for about an hour and, against his will, inserted his finger in his rectum and sodomized him three times.

Defendant testified in his own behalf. He admitted that he and the victim had sex, but said that he and the victim are gay men and that the sex both was consensual and was offered in exchange for defendant's payment of money. He further testified that he penetrated the victim twice, not three times, and that he did not insert his finger into him.

The jury found defendant guilty of three counts of forcible sodomy--a violation of Penal Code section 286, subdivision (c)--and one count of sexual penetration with his finger--a violation of Penal Code section 289, subdivision (a). ¹

The court, commenting on the victim's vulnerability, sentenced defendant under the harsh regime of subdivisions (c) or (d) of section 667.6--the court declared subdivision (d) should apply, but, if not, then subdivision (c) would. (See Cal.Rules of Court, rule 426.) Both subdivisions provide for full consecutive terms of imprisonment for recidivist sexual offenders. Hence the court sentenced defendant to consecutive middle terms of six years' imprisonment on each count, with one 6-year count to constitute the principal or base term.

The court found that defendant had been sent to prison for three prior felonies, and therefore qualified for three 1-year enhancements of his sentence under section 667.5, subdivision (b). The court further found that one of the three prior felonies, an aggravated form of kidnapping (§ 209), also qualified as a "serious felony" under section 667, subdivision (a), and therefore permitted the court to impose an additional five-year sentence enhancement.

Accordingly, the court added eight years to defendant's twenty-four-year sentence for his current crimes. Defendant objected to the cumulative enhancement of his sentence under sections 667 and 667.5 for his prior offense of kidnapping. On appeal, he contends that California law and the federal Constitution prohibit two enhancements for that one prior offense.

I.

Defendant was sentenced under a statutory and constitutional scheme enacted by the voters in 1982 as part of Proposition 8. In construing that scheme, "We begin with the fundamental rule that our primary task is to determine the lawmakers' intent. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724 [257 Cal.Rptr. 708, 771 P.2d 406].) In the case of a constitutional provision adopted by the voters, their intent governs. (Kaiser v. Hopkins (1936) 6 Cal.2d 537, 538 ; Armstrong v. County of San Mateo (1983) 146 Cal.App.3d 597, 618 .) To determine intent, ' "The court turns first to the words themselves for the answer." ' ( Brown v. Kelly Broadcasting Co., supra, 48 Cal.3d 711, 724 [257 Cal.Rptr. 708, 771 P.2d 406], quoting Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [110 Cal.Rptr. 144, 514 P.2d 1224].) 'If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).' (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299].)" (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798, 268 Cal.Rptr. 753, 789 P.2d 934.)

Proposition 8 added section 667, which provides in part:

"(a) In compliance with subdivision (b) of section 1385, any person convicted of a serious felony [as defined in subdivision (c) of section 1192.7 and section 1192.8] who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.

"(b) This section shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment. There is no requirement of prior incarceration or commitment for this section to apply."

As stated, Proposition 8 also amended the California Constitution. The relevant language provides: "Any prior felony conviction ... shall subsequently be used without limitation for purposes of ... enhancement of sentence in any criminal proceeding." (Cal. Const., art. I, § 28, subd. (f).)

Some years before the electorate enacted Proposition 8, the Legislature enacted section 667.5 as part of the Determinate Sentencing Act. (Stats.1976, ch. 1139, § 268, pp. 5137-5139; see Review of Selected 1977 California Legislation (1978) 9 Pacific L.J. 281, 470-471.) Section 667.5 provides in relevant part:

"(a) Where one of the new offenses is one of the violent felonies specified in subdivision (c), in addition and consecutive to any other prison terms therefor, the court shall impose a three-year term for each prior separate prison term served by the defendant where the prior was one of the violent felonies specified in subdivision (c). However, no additional term shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction."

"(b) Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction."

II.

It is clear that the electorate's intent in enacting article I, section 28, subdivision (f) of the California Constitution and simultaneously promulgating section 667 was to increase sentences for recidivist offenders. The more obdurate the offender, the greater the sentence to be imposed. As we explained in People v. Prather (1990) 50 Cal.3d 428, 437, 267 Cal.Rptr. 605, 787 P.2d 1012 (Prather ), the changes enacted under Proposition 8 were intended to achieve "increased punishment and effective deterrence ... by increasing the total period of imprisonment for recidivist offenders." (Id. at p. 435, 267 Cal.Rptr. 605, 787 P.2d 1012.)

In keeping with that logic, the Court of Appeal rejected defendant's contention that both enhancements may not apply to his prior offense. It reasoned in part that the two statutes were meant to punish individuals according to two different statuses, and that defendant suffered from both. "Prior felony convictions indicate a habitual offender; a prior prison term indicates a hardened criminal who is undeterred by the fear of prison. [Citations.] We conclude that the drafters of these provisions [sections 667 and 667.5] knew what they were doing in employing these different phrases in the two subject enhancement statutes."

The Court of Appeal's statement is unpersuasive, however, because its premise--that sections 667 and 667.5 identify and punish differently situated individuals--runs afoul of Prather.

The issue we decided in Prather, supra, 50 Cal.3d 428, 267 Cal.Rptr. 605, 787 P.2d 1012, was whether article I, section 28, subdivision (f) of the California Constitution forbade applying the double-the-base-term limit of section 1170.1 to prior prison term enhancements under section 667.5.

The constitutional provision specifies that "Any prior felony conviction ... shall subsequently be used without limitation for purposes of ... enhancement of sentence in any criminal proceeding." (Italics added.) The defendant in Prather, supra, 50 Cal.3d 428, 267 Cal.Rptr. 605, 787 P.2d 1012, relied on the italicized language to argue that because the California Constitution barred only limitations on enhancements based on prior felony convictions, and section 667.5, subdivision (b) instead provided an enhancement for prior prison terms, the Constitution's prohibition did not apply to him, and hence an enhancement under section 667.5, subdivision (b), could not be imposed on him, given the double-the-base-term limit.

We rejected the Prather d...