People v. Nguyen

• Decision Date: 05 August 1999
• Docket Number: No. S064081,S064081
• Citation: 980 P.2d 905,21 Cal.4th 197,87 Cal.Rptr.2d 198
• Court: California Supreme Court
• Parties: , 21 Cal.4th 845C, 980 P.2d 905, 99 Cal. Daily Op. Serv. 6257, 1999 Daily Journal D.A.R. 7989 The PEOPLE, Plaintiff and Respondent, v. Binh Phouc NGUYEN, Defendant and Appellant

Page 198

87 Cal.Rptr.2d 198

21 Cal.4th 197, 21 Cal.4th 845C, 980 P.2d 905,

99 Cal. Daily Op. Serv. 6257,

1999 Daily Journal D.A.R. 7989

The PEOPLE, Plaintiff and Respondent, v. Binh Phouc NGUYEN, Defendant and Appellant.

No. S064081.

Supreme Court of California

Aug. 5, 1999.

As Modified Sept. 22, 1999.

Opinion Modified Sept. 22, 1999.

Louis Marinus Wijsen, under appointment by the Supreme Court, Alameda, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Joan Killeen and Raymond A. Cardozo, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

The "Three Strikes and You're Out Law" (Pen.Code, §§ 667, subds. (b)-(i), 1170.12, hereafter the Three Strikes law) ¹ provides that, for defendants with one prior qualifying conviction (generally referred to as "two strike" defendants), "the determinate term ... shall be twice the term otherwise provided as punishment for the current felony conviction." (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) At issue here is the proper method of calculating consecutive determinate terms under this provision for two strike defendants convicted of multiple offenses. More specifically, the question is whether the consecutive determinate term to be doubled is one-third of the middle term or a full term (either the lower, middle, or upper). Stated differently, the issue is whether the two strike sentencing provision incorporates the principal term/subordinate term methodology of section 1170.1, one of the central provisions of the Determinate Sentencing Law. Consistent with published Court of Appeal decisions, we conclude that for second strike defendants the consecutive determinate term to be doubled ordinarily is one-third of the middle term.

I

The circumstances of the crimes defendant committed are not at issue here. In brief, defendant and his accomplices committed a residential robbery during which they abducted one of the residents and drove her to an automated teller machine where they were observed by alert police officers. During the ensuing pursuit, defendant at one point drove off in a patrol car that had been left briefly unattended.

A jury convicted defendant of eight felony counts, consisting of four counts of first degree robbery (§§ 211, 212.5, subd. (a)) and one count each of kidnapping for robbery (§ 209, subd. (b)), taking or driving a motor vehicle (Veh.Code, § 10851, subd. (a)), gun possession by a convicted felon (§ 12021, subd. (a)(1)), and reckless driving while fleeing a police officer (Veh.Code, §§ 2800.1, 2800.2). The jury also convicted defendant of two misdemeanor offenses and found true various enhancement allegations. Defendant waived jury trial on prior conviction allegations, which were bifurcated and tried to the court. The court found the allegations true and determined that defendant had one prior conviction that qualified as a strike under the Three Strikes law.

At sentencing, the court imposed a sentence of life plus 46 years and 4 months. Apart from the indeterminate life term imposed for the offense of kidnapping for robbery, the trial court imposed consecutive determinate terms for five of the seven felony counts. In doing so, the court used the principal term/subordinate term methodology of section 1170.1. On one robbery count, the court imposed a 22-year term (designated the principal term). For each of the remaining four counts, the court imposed terms (designated subordinate terms) by doubling one-third of the middle term for each offense.

On defendant's appeal, the Court of Appeal reversed and remanded for resentencing. The Court of Appeal reduced one robbery conviction from first to second degree, struck one enhancement finding, directed the trial court to stay the terms imposed for three counts under the multiple punishment prohibition of section 654, and directed the court to recalculate the consecutive determinate terms by doubling a full term (either the lower, middle, or upper term) for each count rather than by doubling one-third of the middle term.

The Court of Appeal gave this explanation for its conclusion on this point: "The trial court's errors were its imposition of consecutive one-third the midterm sentences for several counts. The court imposed consecutive terms of one-third of the doubled midterm.... Penal Code section We granted defendant's petition for review.

1170.12 does not authorize such sentencing. Instead, it sets forth an entirely new and separate sentencing scheme which is not based on or derived from the sentencing scheme described in Penal Code section 1170. This new sentencing scheme does not distinguish between principal and subordinate terms. All of the terms imposed under Penal Code section 1170.12 are full-length terms. Penal Code section 1170.12, subdivision (c) defines the length of each of these terms. When a defendant has one prior felony conviction, the term is 'twice the term otherwise provided as punishment' for each current felony count. There is no ambiguity here. The trial court's only choice was between the lower, middle and upper terms 'otherwise provided as punishment' for each felony count. In resentencing defendant, the trial court is obligated to impose full-length terms...."

II

Under California law, most felonies carry a "determinate" prison sentence consisting of one of three possible terms, designated the lower, middle, and upper terms. For example, the normal punishment for first degree robbery is "imprisonment in the state prison for three, four, or six years." (§ 213, subd. (a)(1)(B).) At sentencing, the court selects one of the three as the term to be imposed for the conviction. (See § 1170, subd. (b); Cal. Rules of Court, rule 420.)

If a defendant is convicted in a single proceeding of more than one felony carrying a determinate sentence, the sentencing court may order that the terms be served either concurrently or consecutively. If the sentencing court imposes consecutive terms, subdivision (a) of section 1170.1 specifies the normal method for calculating the overall prison term. It provides that, with certain exceptions, "the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1." (§ 1170.1, subd. (a).) It explains that the "principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements" and that, with certain exceptions, "[t]he subordinate term for each consecutive offense ... shall consist of one-third of the middle term of imprisonment prescribed for each" felony and "shall exclude any specific enhancements." (Ibid.) For example, if a defendant were convicted of three counts of first degree robbery, with no enhancements, and the sentencing court imposed consecutive terms, the court would select either three, four, or six years for the principal term, and would then add to this principal term an additional term of sixteen months (one-third of the middle term of four years) for each of the remaining two counts. The aggregate term would be the sum of the principal term (either three, four, or six years) and the two subordinate terms (of sixteen months each).

The issue presented here is how this consecutive sentence calculation is affected by the Three Strikes law, which provides that for a defendant with one prior conviction for a "strike" (a violent or serious felony) "the determinate term ... shall be twice the term otherwise provided as punishment for the current felony conviction." (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) If the current conviction is for a single felony offense, this calculation is simple enough. For instance, a defendant with a prior strike who is convicted of first degree robbery and who would otherwise be sentenced to the middle term of four years will have that term doubled to eight years.

Published decisions by the Courts of Appeal have been unanimous in stating that consecutive sentences for a defendant with one qualifying prior strike conviction are calculated by doubling the principal In several of these decisions, the issue before the appellate court was whether in this situation the sentencing court should double only the principal term and not the subordinate term or terms. (People v. Green, supra, 50 Cal.App.4th 1076, 1087, 58 Cal.Rptr.2d 259; People v. McKee, supra, 36 Cal.App.4th 540, 547-548, 42 Cal.Rptr.2d 707; People v. Anderson, supra, 35 Cal.App.4th 587, 601-602, 41 Cal.Rptr.2d 474; People v. Hill, supra, 37 Cal.App.4th 220, 227-228, 44 Cal.Rptr.2d 11; People v. Martin, supra, 32 Cal.App.4th 656, 665-668, 38 Cal.Rptr.2d 776.) No party contended, and the appellate court did not expressly consider, whether the sentencing court should disregard section 1170.1 and double a full term for each count. In other decisions, the statements were dicta because the court was actually deciding a different issue. (People v. Castello, supra, 65 Cal.App.4th 1242, 1252, 77 Cal.Rptr.2d 314 [whether Florida adjudication qualified as a "conviction"]; People v. Thomas, supra, 56 Cal.App.4th 396, 399-403, 65 Cal.Rptr.2d 425 [sentencing issue for a defendant with two qualifying prior strike convictions].)

and the subordinate terms that would otherwise be imposed under section 1170.1. (People v. Castello (1998) 65 Cal.App.4th 1242, 1252, 77 Cal.Rptr.2d 314; People v. Honea (1997) 57 Cal.App.4th 842, 844, 67 Cal.Rptr.2d 303; People v. Thomas (1997) 56 Cal.App.4th 396, 399-403, 65 Cal.Rptr.2d 425; People v. Green (1996) 50 Cal.App.4th 1076, 1087, 58 Cal.Rptr.2d 259; People v. Hill (1995) 37 Cal.App.4th 220, 227-228, 44 Cal.Rptr.2d 11; People v. McKee (1995) 36 Cal.App.4th 540, 547-548, 42 Cal.Rptr.2d...