PEOPLE v. HARRISON (1997)

OPINION ON REHEARING

Appellant William Thomas Harrison (Harrison) appeals convictions and true findings in three separate criminal matters.   After reviewing the charges and facts, we address Harrison's claims of error.

CHARGES AND CONVICTIONS

ISuperior Court Case Number SCN018887 (D025024)

In D025024, Harrison was convicted of four counts arising from an incident on February 25, 1995:  count one charged carjacking (Pen.Code,2 § 215, subd. (a));  count two charged assault with a semiautomatic firearm weapon (§ 245, subd. (b));  count three charged attempted robbery (§§ 211, 664);  and count four charged possession of a firearm by a felon (§ 12021, subd. (a)).  Harrison also was convicted of personal use of a firearm in connection with counts one through three (§ 12022.5, subd. (a)), and he pleaded guilty to the allegation he was released on bail at the time of the commission of counts one through four (§ 12022.1).   In a bifurcated proceeding, true findings were made that Harrison had suffered two prior serious felony convictions within the meaning of section 667, subdivision (a)(1), two prior serious or violent felony convictions within the meaning of section 667, subdivisions (b)-(i) and one “prison prior” (§ 667.5, subd. (b)).³  Harrison was sentenced to 56 years and 4 months to life:  25 years to life for carjacking plus a consecutive 5 years for the firearm enhancement and, to run consecutively, 25 years to life for attempted robbery plus a consecutive 1 year and 4 months for the firearm enhancement.   The sentences on the remaining convictions and allegations were stayed.

II

Superior Court Case Number SCN020931 (D024993)

In D024993 Harrison was convicted of five counts arising out of an incident on February 23, 1995:  counts one and two charged robbery (§ 211);  counts three and four charged assault with a deadly weapon or by means of force likely to cause great bodily harm (§ 245, subd. (a)(1));  and count five charged possession of a firearm by a felon (§ 12021, subd. (a)).  Harrison also was convicted of personal use of a firearm in connection with counts one and two (§ 12022.5, subd. (a)) and of personally inflicting great bodily injury in connection with count four (§ 12022.7, subd. (a)).⁴  Harrison pleaded guilty to the charge that he was released on bail at the time of the commission of counts one through four (§ 12022.1).   In a bifurcated proceeding, true findings were made that Harrison had suffered two prior serious felony convictions within the meaning of section 667, subdivision (a)(1), two prior serious or violent felony convictions within the meaning of section 667, subdivisions (b)-(i), and one “prison prior” (§ 667.5, subd. (b)).  Harrison was sentenced to 68 years and 4 months to life:  25 years to life as the principal term for 1 count of robbery plus a consecutive 4 years for the firearm enhancement plus a consecutive 2 years for the release on bail enhancement and, to run consecutively, 25 years to life for the second count of robbery plus a consecutive 1 year and 4 months for the firearm enhancement and, to run consecutively, 10 years for the 2 section 667, subdivision (a) prior serious felony allegations and, to run consecutively, 1 year for the prior prison term.   The sentences on the remaining charges and allegations were stayed.

III

Superior Court Case Number SCN023408 (D025023)

In D025023 Harrison was convicted of failure to appear while on bail (§ 1320.5.).   In a bifurcated proceeding, true findings were made that Harrison had suffered two prior serious or violent felony convictions within the meaning of section 667, subdivisions (b)-(i) and one prison prior (§ 667.5, subd. (b)).  Harrison was sentenced to 25 years to life;  the sentence on the prison prior was stayed.

FACTS

ID025024:  The Carjacking

On February 25, 1995, the victim, Ronnie Smith (Smith), drove his car to an Automatic Teller Machine (ATM).   Smith left his car running near the ATM. While Smith was standing at the ATM Harrison approached him,⁵ pulled out a gun and said, “Take at least $200 out of the bank, and I'm taking your vehicle.”   Smith told Harrison he did not have that much in the bank.   After some discussion, Harrison abandoned his effort to obtain cash but stated, “I want you to drive me to where I want to go.”   When Smith refused to comply Harrison said, “Well, I'm going to take your vehicle.”   Harrison then got into Smith's car and drove away.   Smith called 911.

Harrison abandoned the car a few blocks from the ATM. A witness saw Harrison leave the car and followed him into an alley.   Harrison climbed over a gate and disappeared.   Police arrived and apprehended Harrison a few minutes later.   Harrison had taken a cellular phone from Smith's car and was carrying it when apprehended.

The witness testified Harrison engaged in furtive activity around a dumpster in the alley.   Police recovered a semiautomatic weapon next to the dumpster;  Smith identified the weapon as the gun Harrison used.

II

D024993:  The Robbery and Assaults

On February 23, 1995, two teenage girls were in a park when Harrison and two companions approached them.   Harrison pulled out a semiautomatic weapon, loaded it and menaced them with it.   He then took a backpack from each of the girls and ordered one of his companions to gather some female friends and return to “kick these bitches' asses.”   While waiting for the gang to return, Harrison punched one girl in the face.   The gang arrived and severely beat the victims.

III

D025023:  The Failure to Appear

On December 28, 1994, Harrison was arrested and booked into jail for drug possession.   He gave police a false name.   He was released on bond and ordered to appear on January 30, 1995.   He failed to appear as ordered and a bench warrant was issued for his arrest.   He was arrested for failure to appear when taken into custody in connection with the February 25, 1995 carjacking.

ANALYSIS

IThe Issues in D025024A **

B

The Sentencing Issues1 **2Terms for Prior Serious Felonies

 The People argue the trial court erred in the D025024 sentencing because it failed to impose two consecutive five-year terms for the two prior serious felony convictions (§ 667, subd. (a)) on which the trial court had made true findings.   The People correctly note that imposition of serious prior felony enhancements is mandatory, and “absent some other provision of law, the trial court lacked the authority to decline to impose the required punishment.”  (People v. Purata (1996) 42 Cal.App.4th 489, 498, 49 Cal.Rptr.2d 664.)   However, we find no error because two consecutive five-year terms for the two “prior serious felony” convictions were added to Harrison's sentence in D024993 rather than in D025024 in accordance with the overall sentencing scheme contemplated by the parties below.⁸  The court in People v. Tassell (1984) 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1 (overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401, 27 Cal.Rptr.2d 646, 867 P.2d 757) examined the sentencing scheme set forth in section 1170.1 and concluded that two types of enhancements were contemplated by section 1170.1:  those which go to the nature of the offender, and those which go to the nature of the offense.   Enhancements which go to the nature of the offender are (absent special provisions therefor) added only once as a component of the aggregate sentence rather than added as multiples of each new conviction.  (Tassell, supra, at pp. 89-92, 201 Cal.Rptr. 567, 679 P.2d 1.)  Tassell's approach applies with equal force where the defendant is convicted of multiple new offenses in a single proceeding or where, as here, he has suffered convictions for multiple new offenses in distinct criminal proceedings.⁹

 The People claim Tassell's limitation applies only when determinate sentences are imposed under section 1170.1, rendering Tassell's limitation inapplicable because Harrison was sentenced under section 1170.12.   Although section 1170.12 supersedes section 1170.1 in some respects, primarily by altering the length of time to be served for the new crimes, respondent cites no authority holding that section 1170.12 was intended to abrogate the limitations imposed by section 1170.1 on enhancements “which go to the nature of the offender.”  (Tassell, supra, at p. 90, 201 Cal.Rptr. 567, 679 P.2d 1.)   On the contrary, section 1170.12, subdivision (c) provides that “[f]or purposes of [section 1170.12], and in addition to any other enhancement [ ] ․ provisions which may apply,” certain minimum terms for the offense must be imposed.   We construe the prefatory language of section 1170.12, subdivision (c) as preserving the rules applicable to enhancements, including Tassell's limitation that enhancements based on the status of the offender are to be added only once to the end of the aggregate sentence for the underlying counts.¹⁰  Section 667, subdivision (a) enhancements are based on the status of the offender and therefore the trial court correctly did not impose them in Harrison's sentence in D025024;  these enhancements were imposed in Harrison's sentence in D024993 and may be imposed only one time.

II

The Issues In D024993

In D024993 Harrison was sentenced to 25 years to life on count one and a consecutive term of 25 years to life on count two.   Harrison also received an additional term totaling 18 years and 4 months, which included 2 consecutive 5-year terms for the 2 prior serious felony convictions (§ 667, subd. (a)).  Harrison claims the court erred by (1) imposing consecutive 25 years to life terms on the principal counts and (2) imposing the five-year prior serious felony enhancements.

Harrison also was sentenced to an additional term of four years for the section 12022.5, subdivision (a) firearm use enhancement found true in connection with count one and to a consecutive one-year, four-month term (one-third the midterm) for the section 12022.5, subdivision (a) firearm use enhancement found true in connection with count two.   The People contend the full four-year term should have been imposed in connection with the count two firearm enhancement.

A-B ***

C

Full Firearm Use Enhancements

The People contend the trial court correctly imposed a full four-year term for one firearm use enhancement (§ 12022.5, subd. (a)), but incorrectly imposed a one-year and four-months term (one-third the midterm) for the second firearm use enhancement.   The People rely on People v. Jackson (1993) 14 Cal.App.4th 1818, 18 Cal.Rptr.2d 586 (Jackson ) to argue the trial court must impose a full term for both enhancements and that the section 1170.1, subdivision (a) limitations are inapplicable to persons sentenced to an indeterminate term under the three strikes law.

It is undisputed that if the section 1170.1, subdivision (a) limitations are applicable, the trial court correctly imposed a sentence of one-third the four-year middle term for the second enhancement.¹¹  Although Jackson did hold the limitations of section 1170.1, subdivision (a) were not applicable in Jackson and that full terms for each firearm use enhancement were proper, Jackson apparently did so because in that case the principal terms to which the enhancements were appended were sentenced under section 1168, subdivision (b) rather than under the determinate sentencing laws set forth in section 1168, subdivision (a) and section 1170 et seq.   Although the Jackson opinion refers to “indeterminate terms imposed under section 1168” without designating the applicable subdivision of section 1168, it must be referring to section 1168, subdivision (b) because section 1168, subdivision (a) refers to offenses for which the Penal Code specifies a determinate term and the sentence for those offenses is to be computed under section 1170 et seq., including the one-third the midterm limitation set forth in section 1170.1, subdivision (a).¹²  Jackson reasoned that because section 1170.1, subdivision (a) states its “one-third of the middle term” limitations applied to consecutive sentences “imposed under [s]ections 669 and 1170,” a defendant such as the one in Jackson sentenced under section 1168, subdivision (b) does not qualify for reduced terms for enhancements.   (Jackson, supra, 14 Cal.App.4th at pp. 1832-1834, 18 Cal.Rptr.2d 586.)

The Jackson defendant was not sentenced under the three strikes law;  accordingly, Jackson did not address whether the limitations imposed by section 1170.1, subdivision (a) on firearm use enhancements remain applicable when the enhancements are appended to counts the imprisonment term for which is to be calculated pursuant to section 1170.12.   Several courts seem to have assumed that the limitations on the terms imposed for firearm use enhancements under section 1170.1, subdivision (a) are applicable when the enhancement is appended to a count the imprisonment term for which is calculated under section 1170.12.  (See, e.g., People v. Green (1996) 50 Cal.App.4th 1076, 1082, 58 Cal.Rptr.2d 259 and People v. Anderson (1995) 35 Cal.App.4th 587, 591-592, 41 Cal.Rptr.2d 474.)   Admittedly, both Green and Anderson are two rather than three strike cases which imposed a determinate term and therefore are not dispositive to our case.¹³

 We are persuaded that the limitations of section 1170.1, subdivision (a) are applicable here.   That section specifies it applies to consecutive sentences “imposed under [s]ections 669 and 1170.”   When a defendant is sentenced under the three strikes law for counts involving enhancements, his sentence contains two components:  (1) a term for the underlying counts, which may be a determinate or indeterminate term for a “one prior” defendant (§ 1170.12, subd. (c)(1)), or an indeterminate term for a “two priors” defendant whose minimum term must be calculated under section 1170 (§ 1170.12, subd. (c)(2));  and (2) a determinate term for the enhancements.   Because this latter component is a determinate term sentenced under section 1170 (People v. Hall (1994) 8 Cal.4th 950, 961, 35 Cal.Rptr.2d 432, 883 P.2d 974 [selection of terms for enhancements governed by section 1170] ), we conclude this determinate portion of the sentence for a three strikes defendant is a sentence “imposed under [s]ection[ ] ․ 1170” within the meaning of section 1170.1, subdivision (a).   Additionally, because section 669 by its own terms applies to cases, such as this one, where a firearm enhancement is appended to a life sentence, it is also a sentence “imposed under [s]ection [ ] 669․” ¹⁴  We therefore conclude that insofar as a three strikes defendant receives a determinate sentence component for enhancements, that component is a sentence “imposed under [s]ections 669 and 1170” within the meaning of section 1170.1, subdivision (a), triggering as to that component the limitations of section 1170.1, subdivision (a), except as to those provisions expressly superseded by section 1170.12.  (See In re Monigold (1983) 139 Cal.App.3d 485, 493, 494, 188 Cal.Rptr. 698.)

Furthermore, section 1170.1, subdivision (a) limitations are applicable here because the sentence was imposed under section 1168, subdivision (a).  (See fn. 12, ante.)   The public offenses for which Harrison was convicted were noncapital felony offenses for which one of three time periods of imprisonment is prescribed by law,¹⁵ thus triggering the mandate of section 1168, subdivision (a) to sentence Harrison “pursuant to Chapter 4.5 (commencing with Section 1170).”  (Accord, People v. Scott (1994) 9 Cal.4th 331, 349, 36 Cal.Rptr.2d 627, 885 P.2d 1040 [“The Determinate Sentencing Act ․ prescribes the punishment to be imposed in most noncapital felony cases. (§ 1170 et seq.;   cf. § 1168, subd. (b).)”].) Because chapter 4.5 encompasses section 1170.12, the three strikes law, a three strikes defendant is sentenced “pursuant to Chapter 4.5” notwithstanding the fact he might receive an indeterminate sentence.   Section 1170.1, subdivision (a) therefore applies to this case.   That section states a sentence “imposed under [s]ections 669 and 1170” (including any time added to the sentence for enhancements under section 12022.5) is subject to the one-third the midterm rule. (§ 1170.1, subd. (a).)

The People cite a series of authorities (People v. Day (1981) 117 Cal.App.3d 932, 173 Cal.Rptr. 9;  People v. McGahuey (1981) 121 Cal.App.3d 524, 175 Cal.Rptr. 479;  People v. Reyes (1989) 212 Cal.App.3d 852, 260 Cal.Rptr. 846) as holding that indeterminate sentences never form any part of the computations of principal/subordinate terms under section 1170.1, and never serve as either a principal or subordinate term;  instead, determinate and indeterminate sentences are calculated and considered independently of one another.  Day, McGahuey and Reyes each involved sentences in which the indeterminate term was the penalty for the principal offense and sentence was imposed under section 1168, subdivision (b), rather than an indeterminate term imposed under section 1168, subdivision (a) by calculations under section 1170.12 (i.e., terms imposed pursuant to section 1170 et seq.).   Although those cases do state determinate terms are not subordinate to indeterminate terms because the latter are not imposed under sections 669 and 1170, they do not aid in interpreting whether indeterminate terms imposed under sections 1168, subdivision (a), 1170 and 1170.12 qualify for “principal/subordinate” treatment under section 1170.1.   We find no authority contrary to our conclusion that the limitation of section 1170.1, subdivision (a) is applicable to the section 12022.5 enhancements in this case.

Because we apply section 1170.1, subdivision (a) to the current sentence, we conclude the trial court in D024993 erred by imposing a full firearm use enhancement as to count one;  the sentence in D024993 was consecutive to the sentence in D025024;  and the court in D025024 had already imposed a full firearm use enhancement.   The one-third limitation applies “․ when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed ․” (§ 1170.1, subd. (a).)  Because the determinate portion of Harrison's sentence in D024993 was consecutive to the determinate portion of the sentence in D025024, the “two firearm use enhancement determinate” portion of Harrison's sentence in D024993 is subject to the one-third limitation.   Accordingly, the trial court must impose a sentence in D024993 to reflect that each firearm use enhancement carries a term of one-third the full term imposed for the firearm enhancement in D025024.

III-IV†

DISPOSITION

The sentences in D025024, D025023 and D024993 are vacated and the matters are remanded for resentencing in accordance with the views expressed in this opinion.   In all other respects the judgments in D025024, D025023 and D024993 are affirmed.

I concur in the majority opinion except for the discussion in part IIC regarding the potential sentence for firearm enhancements in case No. D024993.   As to that section, I respectfully dissent.

At the outset, I must observe that I am perplexed by the majority's insistence in addressing, as well as publishing, on this topic.   Because we all agree the case must be remanded for resentencing in light of People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 and are deferring discussion of whether the sentence imposed constitutes cruel and/or unusual punishment, any discussion as to how the appended firearm determinate term enhancements must be applied for the consecutive indeterminate three strikes life terms should also be deferred.

Certainly, on remand the trial court will be asked to strike one or more of the serious/violent felony priors in this case under Penal Code 21 section 1385.   If it does so, then the nature of the firearm enhancement discussion, like the cruel and unusual punishment analysis, will be significantly different from what is currently before us.   For instance, if one of the serious felony priors is stricken here for any count, the base sentence for that count will become a defined determinate term rather than an indeterminate term and the majority's lengthy and, in my opinion, wholly erroneous discussion of the firearm enhancement issue will be moot.   However, given the majority's dogged determination to advance its analysis of the issue, I proceed with my dissent.

Several major problems exist with the majority's analysis in part IIC of this opinion.   The principal problem is the majority's failure to comprehend the basic difference between a determinate and an indeterminate term.   Plainly, life sentences imposed under either version of the three strikes law are indeterminate terms. (§§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A);  see People v. Dotson (1997) 16 Cal.4th 547, 556, 66 Cal.Rptr.2d 423, 941 P.2d 56.)   When such indeterminate terms are imposed consecutively, section 1170.1, subdivision (a) simply has no application.  (See People v. McGahuey (1981) 121 Cal.App.3d 524, 531-532, 175 Cal.Rptr. 479.)   Rather, such sentences are controlled by sections 1168 and 669 as well as California Rules of Court, rule 451(a).   These sections and this rule read together reveal the legislative intent to treat and compute indeterminate and determinate terms separately.  (People v. Day (1981) 117 Cal.App.3d 932, 936-937, 173 Cal.Rptr. 9;  see also People v. Scott (1994) 9 Cal.4th 331, 349, 36 Cal.Rptr.2d 627, 885 P.2d 1040;  People v. Reyes (1989) 212 Cal.App.3d 852, 856-859, 260 Cal.Rptr. 846;  People v. McGahuey, supra, 121 Cal.App.3d at pp. 530-532, 175 Cal.Rptr. 479.)   Consequently, there is no provision for making a determinate term either principal or subordinate to an indeterminate term.  (People v. Day, supra, 117 Cal.App.3d at pp. 936-937, 173 Cal.Rptr. 9.)

Even more basic is the majority's failure to recognize that a firearm use enhancement, although technically a determinate term, is not a separate crime and cannot stand without the crime to which it is appended.  (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311, 28 Cal.Rptr.2d 172.)   When the crime to which the “determinate” firearm enhancement is appended is an indeterminate term, the enhancement must be applied at full strength and the one-third limitation of section 1170.1, subdivision (a) does not apply.   (People v. Jackson (1993) 14 Cal.App.4th 1818, 1832, 18 Cal.Rptr.2d 586;  People v. Reyes, supra, 212 Cal.App.3d at p. 858, 260 Cal.Rptr. 846.)   I believe the courts in Jackson and Reyes have correctly analyzed the relationship between indeterminate terms and enhancements.  (Ibid.) As the court in Reyes noted:  “․ the fact that the enhancement is determinate does not render it subordinate within the meaning of section 1170.1.”  (People v. Reyes, supra, at p. 858, 260 Cal.Rptr. 846.)   Clearly, under the section 1170.1 sentencing scheme, “[a firearm] enhancement may not be imposed as a subordinate term on its own.”  (People v. Mustafaa, supra, 22 Cal.App.4th at p. 1310, 28 Cal.Rptr.2d 172.)

In an attempt to distinguish the traditional sentencing dichotomy between indeterminate and determinate terms and the rules pertaining to the application of their respective appended enhancements, the majority appears to create a new class of indeterminate terms, those imposed under the “three strikes law.”   They cite People v. Anderson (1995) 35 Cal.App.4th 587, 41 Cal.Rptr.2d 474 and People v. Green (1996) 50 Cal.App.4th 1076, 58 Cal.Rptr.2d 259 for the proposition section 1170.1, subdivision (a) applies to consecutive sentencing for terms imposed under the three strikes law, regardless whether that term is an appended enhancement to an indeterminate term.   They dismiss without discussion People v. Miles (1996) 43 Cal.App.4th 364, 370, footnote 6, 51 Cal.Rptr.2d 87, which they observe holds to the contrary.  (Maj. opn., p. 190.)

Respectfully, reliance on Anderson and Green exemplifies the majority's confusion.   Both of those cases, as the majority concedes, involve “two strike” situations which by statute mandate a determinate sentence and thus section 1170.1 is plainly applicable. (§ 667, subd. (e)(1).)  Miles, on the other hand, involves an indeterminate term and its holding regarding appended enhancements is contrary to the position of the majority.  (See People v. Miles, supra, 43 Cal.App.4th at p. 370, fn. 6, 51 Cal.Rptr.2d 87.) Recognizing the difference between the imposition of a base term that is determinate or indeterminate, as noted in Miles, is not a minor distinction;  it is crucial, and the failure to so acknowledge it illustrates the majority's wrongheaded approach to this issue.

The majority's reliance on the placement of the initiative version of the three strikes law (§ 1170.12) in Chapter 4.5 of title 7 of part 2 as further evidence section 1170.1 applies to firearm enhancements appended to indeterminate terms imposed under that law is also misplaced.   Chapter 4.5 is entitled “Trial Court Sentencing” and includes various provisions for sentencing and resentencing persons for the purposes of imposing “determinate” sentences or punishment for their crimes. (§ 1170, subd. (a)(1).)   Section 1170 (entitled “Determinate sentencing”), in subdivision (a)(3) specifically exempts from the determinate sentencing provisions other statutes that provide for the imposition of death sentences, the grant or restriction of probation or the suspending of execution or imposition of sentence, or “expressly provide [ ] for imprisonment in the state prison for life.”  (Italics added;  see People v. Stofle (1996) 45 Cal.App.4th 417, 421, 52 Cal.Rptr.2d 829.)   Section 1170.1 concerns the determination of aggregate and additional terms and enhancements and specifically excludes terms not imposed under sections 669 and 1170.   The three strikes law in section 1170.12 refers to sentencing requirements of repeat offenders and includes provisions for imposing a new sentencing scheme, which is not an additional term or enhancement but a new term for a qualified repeat offender that is computed as directed under its provisions.  (People v. Dotson, supra, 16 Cal.4th 547, 66 Cal.Rptr.2d 423, 941 P.2d 56;  People v. Martin (1995) 32 Cal.App.4th 656, 665-668, 38 Cal.Rptr.2d 776.)   Section 1170.12, subdivision (c)(2)(A) explicitly provides the term for a repeat offender with two qualifying priors and a new felony conviction is an indeterminate term with a minimum term of at least twenty-five years to life.

Thus, perhaps the most fundamental flaw in the majority's analysis is their conclusion the three strikes indeterminate life sentences in this case were imposed under section 1168, subdivision (a) because the underlying current crimes were offenses that involved determinate terms which are imposed under sections 1170 and 669, e.g., robbery and carjacking.   Not only should the majority reexamine closely the basic determinate sentencing law, especially concerning principal and subordinate terms with regard to firearm enhancements, it should reread the case law regarding the three strikes statute.  (See People v. Dotson, supra, 16 Cal.4th 547, 66 Cal.Rptr.2d 423, 941 P.2d 56;  People v. Martin, supra 32 Cal.App.4th at pp. 665-668, 38 Cal.Rptr.2d 776.)

To reiterate, as Justice Epstein noted very early in the appellate review of the three strikes law, the statute actually creates a new sentencing scheme for offenses committed by persons with qualifying prior convictions.  (People v. Martin, supra, 32 Cal.App.4th at pp. 665-668, 38 Cal.Rptr.2d 776.)   As such, it specifically defines the punishment for those repeat offenders based on the commission of any new felony and having previously suffered one or more prior felony convictions defined in sections 667, subdivision (d) and 1170.12, subdivision (b).   In essence, the scheme, whether by legislation (§ 667, subds. (b)-(i)) or initiative (§ 1170.12), defines a recidivist “offense” which punishes the defendant by a set calculation for his qualified repeat criminal conduct and not solely for the underlying current crime.   In other words, as the court in People v. McKee (1995) 36 Cal.App.4th 540, 42 Cal.Rptr.2d 707 noted, the three strikes law “defines a new term for the crime itself, a term which replaces the term which would have applied if appellant had not been previously convicted of a serious or violent felony.”  (Id. at p. 547, 42 Cal.Rptr.2d 707.)

Therefore, if the defendant has one qualifying prior, sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1) provide that “in addition to any other enhancements or punishment provisions which may apply” the term imposed will be “the determinate term or minimum term for an indeterminate term” which is “twice the term otherwise provided as punishment for the current felony conviction.”   If the defendant has two or more qualifying priors, “the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of” three different formula. (§§ 667, subd. (e)(2)(A)(i)-(iii), 1170.12, subd. (c)(2)(A)(i)-(iii), italics added.)

Further, any notion that section 1170.1 is applicable to indeterminate terms imposed under the three strikes law has been laid to rest by existing case law.  (See People v. Dotson, supra, 16 Cal.4th at pp. 551-556, 66 Cal.Rptr.2d 423, 941 P.2d 56;  People v. Ayon (1996) 46 Cal.App.4th 385, 390-394, 53 Cal.Rptr.2d 853;  People v. Stofle, supra, 45 Cal.App.4th at p. 421, 52 Cal.Rptr.2d 829;  People v. Miles, supra, 43 Cal.App.4th at p. 370, fn. 6, 51 Cal.Rptr.2d 87;  People v. Cartwright (1995) 39 Cal.App.4th 1123, 1141-1143, 46 Cal.Rptr.2d 351;  People v. McKee, supra, 36 Cal.App.4th at p. 547, 42 Cal.Rptr.2d 707;  People v. Martin, supra, 32 Cal.App.4th at pp. 665-668, 38 Cal.Rptr.2d 776.)   It therefore logically follows that because section 1170.1 is not applicable to indeterminate sentences under the three strikes law, it cannot be used to calculate or limit the terms for the firearms enhancements in this case.

Using the appropriate calculations in this case given the proved priors, the term for robbery is 25 years to life-not a two-, three-, or five-year term as the majority posits.  (Maj. opn., p. 191, fn. 15.)   Regrettably, the majority simply does not accept that the underlying terms applicable here are indeterminate pursuant to sections 1170.12(c)(2)(A) and 1168, subdivision (b), and that section 1170.1 does not apply in the calculations of the respective appended firearm enhancement terms.   As a result, they reason backwards from a faulty premise, and, not surprisingly, reach a wrong conclusion.

As I earlier pointed out, because we are remanding this matter for resentencing, part IIC of this opinion is addressed solely for the purpose of “giving advice to the trial court.”   The pursuit of this process is unfortunate because I fear the majority has wrongly “advised” the trial court and anyone else who reads our opinion on the issue of imposing consecutive firearm enhancements for indeterminate life terms under the three strikes law.   Accordingly, I must dissent from such analysis.

FOOTNOTES

FN2. All further statutory references are to the Penal Code unless otherwise specified..  FN2. All further statutory references are to the Penal Code unless otherwise specified.

3.   The allegations of two prior felony convictions in each of the three cases are based on the same two convictions for robbery in People v. Harrison (Super. Ct. San Diego County, Nos. CRN16551 and CRN21959).  The allegations of a prison prior in each case are based on the prison term served on the same conviction for petty theft with a prior in People v. Harrison (Super. Ct. San Diego County, Nos. CRN19700).

4.   The jury could not reach agreement on a section 12022.7, subdivision (a) allegation in connection with count two, and the court declared a mistrial as to that allegation.   The People subsequently dismissed that allegation.

5.   The defense at trial was misidentification of Harrison as the perpetrator.   However, because Harrison does not assert the evidence was insufficient to support the determination of his identity as the perpetrator, we do not discuss the identification evidence.

FOOTNOTE.   See footnote 1, ante.

8.   Sentencing occurred in all three cases on October 23, 1995, and all three sentencing judges were cognizant that each term they imposed would serve as a component of Harrison's overall sentence.   The sentence first imposed was in D024993:  two consecutive five-year terms for the two prior serious felony convictions.   The judge in D025024 declined to impose those five-year terms because the terms had already been imposed in D024993.

9.   Section 1170.1, subdivision (a) provides:  “Except as provided in subdivision (c) and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, 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 pursuant to Section 667․”

10.   Our conclusion that section 1170.12, subdivision (c) leaves Tassell untouched is buttressed by the fact that subdivision (c) prescribes the criteria under which either a determinate term (see subd. (c)(1)) or an indeterminate term (see subd. (c)(2)(A)) might be imposed.   If a “one prior” defendant received a determinate sentence under subdivision (c)(1), Tassell would clearly apply to bar multiple prior serious felony enhancements from being imposed.   Because nothing in section 1170.12, subdivision (c) suggests a legislative intent to apply a different rule to a “two priors” defendant (insofar as enhancements are applied), we conclude Tassell remains applicable even to “two priors” defendants receiving indeterminate sentences.

FOOTNOTE.   See footnote 1, ante.

11.   Section 1170.1, subdivision (a) provides that when a person is convicted of multiple felonies and is sentenced to consecutive terms “under [s]ections 669 and 1170,” the aggregate term shall be composed of the principal term, the subordinate term and certain additional terms for enumerated enhancements not relevant here.   Section 1170.1, subdivision (a) then provides that the principal term shall be the greatest term imposed plus any enhancement imposed, among other things, under section 12022.5.   Section 1170.1 then specifies the subordinate term for nonviolent felonies shall be composed of one-third the middle term for any consecutively sentenced count and shall exclude any enhancements, while any subordinate term for violent felonies sentenced consecutively shall be composed of one-third the middle term for the underlying offense plus one-third the term imposed for certain enhancements, including those imposed under section 12022.5.

12.   Section 1168 provides in part:“(a) Every person who commits a public offense, for which any specification of three time periods of imprisonment ․ or for which only a single term of imprisonment ․ is specified shall ․ be sentenced pursuant to Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2.“(b) For any person not sentenced under such provision, ․ the court imposing the sentence shall not fix the term or duration of the period of imprisonment.”

13.   The only case suggesting a contrary rule, People v. Miles (1996) 43 Cal.App.4th 364, 51 Cal.Rptr.2d 87, cited Jackson in a footnote to indicate that full-term enhancements would be imposed.  (Id. at p. 370, fn. 6, 51 Cal.Rptr.2d 87.)

14.   Section 669 states that “[w]henever a person is committed to prison on a life sentence which is ordered to run consecutive to any determinate term of imprisonment imposed pursuant to [s]ection ․ 12022.5 ․” the determinate term is served first.

15.   Carjacking carries a term of three, five or nine years (§ 215, subd. (b));  assault with a deadly weapon carries a term of two, three or four years (§ 245, subd. (a)(1));  assault with a semiautomatic firearm carries a term of three, six or nine years (§ 245, subd. (b));  robbery carries a term of two, three or five years (§§ 213, subd. (b) & 664);  and attempted robbery carries a term of one, one and one-half or two and one-half years (§§ 213, subd. (b) & 664).   The other offenses were single-term offenses.

FOOTNOTE.   See footnote 1, ante.

FN21. All statutory references are to the Penal Code..  FN21. All statutory references are to the Penal Code.

McDONALD, Associate Justice.

JONES, J., concurs.††