The PEOPLE, Plaintiff and Respondent, v. Michael Edward TILLMAN, Defendant and Appellant. IN RE: Michael Edward Tillman on Habeas Corpus.
Michael Edward Tillman appeals from a conviction of failing to register as a sex offender. He claims he received ineffective assistance of counsel in that his attorney failed to defend against the charge on the ground appellant had not been constitutionally convicted of a prior registrable offense. This contention is further addressed in a related petition for writ of habeas corpus. On appeal, appellant additionally urges the use of his prior rape conviction both as an element of the substantive registration offense and as a “strike” to enhance his sentence was improper.
STATEMENT OF THE CASE
Appellant was charged by information filed on January 13, 1997, with one count of failing to register as a sex offender between September 1 and November 21, 1996. (Pen.Code, § 290, subd. (a)(1).) 1 It was alleged that appellant had previously been convicted of rape (§ 261, subd. (a)(2)) on May 23, 1984. It was further alleged that appellant was presumptively ineligible for probation under section 1203, subdivision (e)(4), and that his sentence was subject to enhancement under section 667.5, due to four prior felony convictions and prison terms: the 1984 rape conviction; an October 17, 1980, conviction for first degree burglary (§ 459); a September 13, 1989, conviction for being a felon in possession of a firearm (§ 12021); and a February 11, 1991, conviction for petty theft after serving a term for another theft (§ 666). Two of these priors were alleged as “strikes” under section 1170.12, subdivision (c)(2): The 1980 burglary and the 1984 rape.
On January 15, 1997, appellant pleaded not guilty and denied the priors. Appellant's motions to dismiss for improper venue and under section 995 were denied on April 10, 1997.
On April 21, 1997, appellant waived trial by jury and a court trial began. On motion of the prosecution, the court dismissed the first alleged “strike” prior, the burglary. On April 24, the court found appellant guilty of violating section 290, subdivision (a)(1), and found true all of the allegations regarding priors (except the one dismissed). On June 16, appellant's motion to strike the remaining “strike” prior was denied. On the same date, appellant was sentenced to a total prison term of six years and eight months, consisting of the lower term of 16 months for the section 290 conviction, doubled under section 1170.12, subdivision (c)(1), plus one year terms for each of the four priors under section 667.5.
Appellant filed a timely notice of appeal on June 27, 1997.
STATEMENT OF FACTS
On May 23, 1984, appellant entered a plea of nolo contendere to the charge of rape in violation of section 261, subdivision (a)(2). The declaration appellant signed at the time indicated he had been informed the maximum penalty that could be imposed as a result of his plea was “nine years and four years parole” and did not say anything about the requirement to register as a sex offender. At the hearing, after the court had accepted appellant's plea of no contest to the rape charge, the district attorney asked to have the record reflect that appellant was “subject to having to register as a sex offender based on this conviction,” noting that the plea form did not contain this information but that defense counsel had discussed the issue with appellant. Defense counsel acknowledged that appellant understood this. The court asked appellant if he understood he would “have to register as a sex offender to the police department due to [his] conviction in this case if [he was] convicted.” Appellant answered in the affirmative and indicated he still wished to plead no contest.
In the present case, appellant was found guilty of failing to register as a sex offender in violation of section 290 between September 1 and November 21, 1996. The facts underlying his failure to register are not relevant to the issues on appeal or on the petition for writ of habeas corpus.
In 1996, former section 290 provided in pertinent part: “(a)(1) Every person described in paragraph (2), for the rest of his or her life while residing in California, shall be required to register with the chief of police of the city in which he or she is domiciled, or the sheriff of the county if he or she is domiciled in an unincorporated area ․ within 14 days of coming into any city, county, or city and county in which he or she temporarily resides or is domiciled for that length of time. The person shall be required annually thereafter, within 10 days of his or her birthday, to update his or her registration with the entities described in this paragraph, including, verifying his or her address on a form as may be required by the Department of Justice. [¶] (2) The following persons shall be required to register pursuant to paragraph (1):[¶] (A) Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state ․ of a violation of ․ paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261․”
The felony of failing to register as a sex offender was defined in 1996 as follows: “[A]ny person who has been convicted of ․ any violation of Section 261 ․ and who is required to register under this section who willfully violates this section is guilty of a felony punishable by imprisonment in the state prison for 16 months, or two or three years.” (§ 290, former subd. (g)(2).) Appellant contends he had a defense to this crime because he was not constitutionally convicted of the underlying violation of section 261. He urges his plea of nolo contendere to the 1984 rape was constitutionally invalid because he was not advised that one of the consequences of his plea would be a lifetime registration requirement. Accordingly, appellant argues on appeal and in his petition for writ of habeas corpus that he received ineffective assistance of counsel because his attorney failed to move to dismiss the section 290 charge on the ground that the underlying rape conviction was constitutionally invalid, move to strike the allegations in the information that appellant had suffered the rape conviction, or present evidence at trial to rebut the validity of the conviction. Additionally, appellant urges his attorney should have moved to strike the allegations regarding the rape conviction as the basis for enhancement of his sentence under section 667.5 or for sentencing under the “Three Strikes” law.
A defendant entering a plea of guilty or nolo contendere to a criminal charge must be advised of and waive his or her constitutional rights to trial by jury, to confront and cross-examine witnesses and against self incrimination. (Boykin v. Alabama (1969) 395 U.S. 238, 243-244, 89 S.Ct. 1709, 23 L.Ed.2d 274.) The California Supreme Court initially interpreted Boykin as requiring that the record affirmatively demonstrate express advisements and waivers. (In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.) In People v. Howard (1992) 1 Cal.4th 1132, 1178, 5 Cal.Rptr.2d 268, 824 P.2d 1315, however, the court adopted the federal test-that the “record must affirmatively demonstrate that the plea was voluntary and intelligent under the totality of the circumstances”-“in place of the rule that the absence of express admonitions and waivers requires reversal regardless of prejudice.”
In addition to the constitutional rights enumerated in Boykin, a defendant pleading guilty or nolo contendere must be advised of the direct penal consequences of the plea, including the maximum possible period of confinement and any registration requirements. (People v. McClellan (1993) 6 Cal.4th 367, 376, 24 Cal.Rptr.2d 739, 862 P.2d 739; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 531 P.2d 1086.) “[T]he requirement that an accused be advised of the consequences of the plea is not constitutionally compelled and failure to advise as to consequences constitutes error which requires that the plea be set aside only if prejudice is demonstrated.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1031, 254 Cal.Rptr. 586, 766 P.2d 1.) In order to show prejudice, a defendant must show he or she would not have entered the plea if the proper advisement had been given. (In re Moser (1993) 6 Cal.4th 342, 352, 24 Cal.Rptr.2d 723, 862 P.2d 723.) A defendant may be found to have waived a challenge to the validity of a prior on these grounds if no objection was made at the time the registration requirement was imposed. (Compare, People v. McClellan, supra, 6 Cal.4th at p. 377, 24 Cal.Rptr.2d 739, 862 P.2d 739 [claim waived by failure to object where probation report recommended registration requirement] with In re Moser, supra, 6 Cal.4th 342, 352, 24 Cal.Rptr.2d 723, 862 P.2d 723 [no waiver where no reason for defendant to be aware of error in court's advisement].)
Appellant contends the United States Supreme Court has always required the record to demonstrate a defendant's knowledge of the direct penal consequences of the plea as well as of the three constitutional rights waived by a plea of guilty or nolo contendere. Accordingly, he urges a plea entered without knowledge of the direct penal consequences is involuntary, and requires reversal without regard to prejudice, just as with a plea entered without knowledge of the three constitutional rights. We are not convinced that the references to “consequences” of pleas in the cases appellant cites indicate the United States Supreme Court views a failure to advise regarding penal consequences of a plea as requiring automatic reversal.2 Given our Supreme Court's consistent reiteration that failure to advise of the penal consequences of a plea requires setting aside the plea only upon a showing of prejudice, we will not adopt a different rule.
In the present case, it should be noted, appellant does not complain he received no advice regarding the section 290 registration requirement; he admits his attorney told him, on the day he pleaded no contest to the rape charge, that he would have to register when he was released from prison. He claims, however, that he was never advised he would have to register in every community in which he lived for the rest of his life.
Assuming appellant was not informed of the lifetime registration requirement and would not have pleaded no contest if he had been informed-an assumption we are required to make at this juncture on the petition for writ of habeas corpus (People v. Duvall (1995) 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252)-he is not entitled to the relief he seeks. In Garcia v. Superior Court (1997) 14 Cal.4th 953, 963-966, 59 Cal.Rptr.2d 858, 928 P.2d 572, our Supreme Court held that a criminal defendant may not move to strike a prior criminal conviction charged for purposes of sentence enhancement on grounds of ineffective assistance of counsel in the prior proceeding. Garcia followed the reasoning of Custis v. United States (1994) 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517, which limited the right to collaterally challenge the constitutional validity of a prior conviction under federal law to cases involving claims that the prior conviction was obtained in violation of the defendant's right to counsel under Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. (14 Cal.4th at p. 961, 59 Cal.Rptr.2d 858, 928 P.2d 572.) Custis “ ‘based this limitation in part upon the historical basis (in its jurisprudence pertaining to collateral attacks) for treating the failure to appoint counsel for an indigent defendant as a unique constitutional defect, attributing a jurisdictional significance to the failure to appoint counsel at all. [Citation.]’ ” (Ibid., quoting People v. Horton (1995) 11 Cal.4th 1068, 1133, 47 Cal.Rptr.2d 516, 906 P.2d 478.)
As well as determining that federal law limits the right to collaterally challenge a prior conviction to cases of alleged Gideon error, Garcia found the state constitution does not afford any greater right and considerations of judicial efficiency do not justify a rule allowing collateral attacks on grounds of ineffective assistance of counsel. Garcia, following considerations identified in Custis, emphasized the fact that claims of ineffective assistance of counsel-unlike Gideon claims-generally can not be resolved on the appellate record but require factual investigations that would protract the proceedings on the current offense. (14 Cal.4th at pp. 961-966, 59 Cal.Rptr.2d 858, 928 P.2d 572.)
As explained in Garcia, the procedures for moving to strike prior convictions in California have developed as a means of challenging the constitutionality of the priors. (14 Cal.4th at pp. 959-961, 59 Cal.Rptr.2d 858, 928 P.2d 572.) Garcia, in rejecting the challenge based on alleged constitutionally ineffective assistance of counsel, determined that not even all claims of constitutional invalidity of a prior conviction would support a collateral attack. It necessarily follows from this conclusion that claims of nonconstitutional invalidity of a prior conviction may not be raised by collateral attack. As discussed above, failure to advise a defendant of the penal consequences of a plea does not amount to a constitutional error.
Even if we were to view the failure to advise of penal consequences of a plea as rising to the level of a constitutional violation, however, Garcia would preclude collateral attack. In adopting the rule of Custis, Garcia quoted the United States Supreme Court's explanation of some of the distinctions between Gideon claims and claims of ineffective assistance of counsel: “ ‘As revealed in a number of the cases cited in this opinion, failure to appoint counsel at all will generally appear from the judgment roll itself, or from an accompanying minute order. But determination of claims of ineffective assistance of counsel, and failure to assure that a guilty plea was voluntary, would require sentencing courts to rummage through frequently nonexistent or difficult to obtain state court transcripts or records that may date from another era, and may come from any one of the 50 States. [¶] The interest in promoting the finality of judgments provides additional support for our constitutional conclusion. As we have explained, “[i]nroads on the concept of finality tend to undermine confidence in the integrity of our procedures” and inevitably delay and impair the orderly administration of justice․ By challenging the previous conviction, the defendant is asking a district court “to deprive [the] [state court judgment] of [its] normal force and effect in a proceeding that ha[s] an independent purpose other than to overturn the prior judgmen[t].” [Citation.] These principles bear extra weight in cases in which the prior convictions, such as the one challenged by Custis, are based on guilty pleas, because when a guilty plea is at issue, “the concern with finality served by the limitation on collateral attack has special force.” ’ ” (Garcia, supra, at p. 962, 59 Cal.Rptr.2d 858, 928 P.2d 572, quoting Custis v. United States, supra, 511 U.S. at pp. 496-497, 114 S.Ct. 1732.) Garcia further explained that claims of ineffective assistance of counsel “often will necessitate a factual investigation with regard to counsel's actions, omissions, and strategic decisions, requiring the parties and the court to reconstruct events possibly remote in time, and to scour potentially voluminous records, substantially delaying the proceedings related to the current offense.” (14 Cal.4th at p. 965, 59 Cal.Rptr.2d 858, 928 P.2d 572.)
With regard to the considerations identified by Garcia, a collateral attack based on a claim of failure to advise of the penal consequences of a plea is more similar to a claim of ineffective assistance of counsel than to a claim of Gideon error. While a transcript of the plea proceeding would presumably indicate whether the trial court failed to advise the defendant of a consequence of the plea, it would not be likely to resolve questions of waiver or prejudice. Since a trial court's misadvisement regarding the consequences of a guilty plea is subject to waiver (People v. McClellan, supra, 6 Cal.4th at p. 377, 24 Cal.Rptr.2d 739, 862 P.2d 739), the court entertaining a collateral challenge to the plea would have to determine issues such as whether the consequence was referred to in the probation report or sentencing pleadings or at the sentencing hearing, whether the defendant failed to object at the sentencing hearing,3 and whether the defendant learned of the consequence from his or her attorney or from another source.
With respect to prejudice, the passage of time would necessarily make it increasingly difficult to determine whether a defendant would have pleaded guilty if he or she had been advised of the undisclosed penal consequence. In the present case, the evidence of prejudice consists of appellant's declaration that he believed he had a good defense to the charge of rape in 1983/1984 because the only evidence against him was that his fingerprints were found on a car in the carport where the rape occurred, which appellant explained to the police was due to his having stolen things from the carport; that he pleaded guilty because his attorney pressured him by saying he would get a much longer sentence if he went to trial; that he was told he had to register on the day he entered his plea and understood it to be a one-time registration requirement; and that he would not have pleaded guilty to the charge of rape if he had understood the registration requirement would apply for the rest of his life. This declaration was executed on July 29, 1998, some 14 years after his conviction. In In re Alvernaz (1992) 2 Cal.4th 924, 938, 8 Cal.Rptr.2d 713, 830 P.2d 747, which held that ineffective assistance of counsel may be demonstrated by proving ineffective representation led a defendant to go to trial rather than accept a plea bargain that would have been accepted by the court, the court stated that “a defendant's self-serving statement-after trial, conviction, and sentence-that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant's burden of proof as to prejudice, and must be corroborated independently by objective evidence.” (Italics in original.) Appellant's declaration is self-serving in the same manner as the defendant's in Alvernaz and would not be sufficient to demonstrate prejudice without independent corroboration.
Appellant relies upon People v. Sumstine (1984) 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904, as authority for his challenge to the prior conviction in this case. Sumstine held a defendant may collaterally attack the validity of a prior conviction by moving to strike on grounds of Boykin/ Tahl violations. Sumstine, however, dealt with a claim of failure to advise the defendant concerning his constitutional rights. As discussed above, a failure to advise of penal consequences of a plea does not constitute constitutional error for which collateral attack may be permitted. Indeed, Sumstine stated its conclusion that “a defendant seeking to challenge a prior conviction on any ground must allege actual denial of his constitutional rights.” (Id., at p. 922, 206 Cal.Rptr. 707, 687 P.2d 904, second italics added.)
The present case differs from Garcia in that Garcia involved a challenge to a prior conviction used to enhance the sentence in the current case rather than to a prior constituting an element of the present offense. This difference, however, does not mandate a difference in result. As respondent points out, caselaw in a different context holds that a person who has been convicted of an offense making some other conduct unlawful must refrain from the proscribed conduct unless and until the prior conviction is set aside rather than attacking the validity of the prior conviction in a prosecution for the new offense. (People v. Harty (1985) 173 Cal.App.3d 493, 499-500, 219 Cal.Rptr. 85; People v. Sanchez (1989) 211 Cal.App.3d 477, 479-481, 259 Cal.Rptr. 294.) Harty held that the possible invalidity of a prior felony conviction was not a defense to a charge of possession of a concealable weapon by a felon in violation of section 12021; Sanchez reached a similar conclusion in the case of a defendant charged with possession of a concealable weapon by a person previously convicted of assault with a deadly weapon in violation of section 12021.1.
Harty and Sanchez relied in large part on Lewis v. United States (1980) 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198, which held federal statutes prohibiting felons from possessing firearms applied regardless of the constitutional validity of the prior conviction because “ ‘the federal gun laws ․ focus not on reliability, but on the mere fact of conviction, or even indictment, in order to keep firearms away from potentially dangerous persons.’ ” (Harty, supra, 173 Cal.App.3d at p. 499, 219 Cal.Rptr. 85, quoting Lewis, supra, 445 U.S. at p. 67, 100 S.Ct. 915.) Appellant argues these cases are distinguishable in that they were based on the particular concerns associated with weapons laws. According to appellant, the rule of these cases may be justified “because prohibition of possession of a firearm is not considered a punishment, and such prohibition is not considered a penal consequence of a conviction.” (Italics in original.) It is difficult, however, to view a prohibition against possession of an otherwise lawful item solely because of one's status as a convicted felon as anything other than a penal consequence. The concern behind the weapons laws is keeping weapons out of the hands of a class of people viewed as posing a particular danger; this concern is considered significant enough to apply the rule even to defendants whose convictions might be invalid. The theory behind the registration requirement of section 290 is analogous: The Legislature has determined that individuals convicted of enumerated sex offenses “have a propensity to commit such antisocial crimes in the future and thus are the subject of continual police surveillance.” (In re Birch (1973) 10 Cal.3d 314, 321, 110 Cal.Rptr. 212, 515 P.2d 12.)
We need not conclusively decide whether there is a meaningful difference, for purposes of allowing collateral attack on a prior conviction, between a prior conviction used for sentencing and one constituting an element of the current offense. The issue before us is whether appellant's attorney may be found to have been ineffective for failing to challenge the prior rape conviction as an element of the substantive offense with which appellant was charged and as a basis for enhancing appellant's sentence. The latter point is answered in the negative by Garcia, which was filed several months before appellant's trial. While the precise question of collateral attack on a prior conviction constituting an element of the current offense was (and is) not the subject of published caselaw, defense counsel would have had every reason to expect a challenge in this context to be viewed similarly to the challenge on grounds of ineffective assistance of counsel in Garcia. Similarly, in light of Garcia, appellant cannot demonstrate a reasonable probability that a collateral challenge to the prior conviction would have been successful.
Appellant additionally contends the trial court impermissibly used his prior rape conviction both as an element of the section 290 violation and as a “strike” which augmented his sentence under section 1170.12, subdivision (c)(1). He claims this dual use offended the rule of People v. Edwards (1976) 18 Cal.3d 796, 135 Cal.Rptr. 411, 557 P.2d 995 and In re Shull (1944) 23 Cal.2d 745, 146 P.2d 417.
In Shull, the defendant was convicted of assault with a deadly weapon and sentenced to the prison term provided by statute for that offense. He was further sentenced to an additional term provided by statute for individuals who possessed certain weapons during the commission of the offenses of which they were convicted. Shull held this dual use of the weapon possession as an element of the substantive offense and as the basis of an enhancement of punishment was impermissible. Reasoning that the statute defining the term for assault with a deadly weapon was a specific one while the statute establishing the enhancement applied generally to felonies, the Shull court employed the principle that a special statute controls over a general statute to conclude the Legislature had fixed the penalty for the offense of assault with a deadly weapon and did not intend additional punishment to be imposed in the absence of any additional factor. (23 Cal.2d at pp. 750-751, 146 P.2d 417.)
In Edwards, the court followed this rule in holding a defendant convicted of being a felon in possession of a firearm could not be subjected to a greater minimum term of punishment than would normally be prescribed for the offense under a statute establishing increased minimum terms for defendants previously convicted of felonies. Such dual use of the prior convictions, Edwards explained, “runs afoul of the established rule that when a prior conviction constitutes an element of criminal conduct which otherwise would be noncriminal, the minimum sentence may not be increased because of the indispensable prior conviction.” (18 Cal.3d at p. 800, 135 Cal.Rptr. 411, 557 P.2d 995.)
In the present case, appellant argues that section 290, subdivision (g)(2), is a special statute, defining as a felony the offense of willfully failing to register where the registration requirement is based on a felony offense. Characterizing section 1170.12, subdivision (c)(1), as a statute of general application, appellant maintains Edwards and related caselaw preclude application of the Three Strikes law based on the same prior conviction underlying the section 290 violation.
Several cases have rejected the argument that a single prior conviction may not be used both to establish an element of the charged offense and to constitute a “strike.” (People v. Yarborough (1998) 65 Cal.App.4th 1417, 1419-1421, 77 Cal.Rptr.2d 402; People v. Nobleton (1995) 38 Cal.App.4th 76, 80-84, 44 Cal.Rptr.2d 611; People v. Sipe (1995) 36 Cal.App.4th 468, 484-489, 42 Cal.Rptr.2d 266.) In Sipe, the defendant was convicted of felony escape (§ 4532, subd. (b)) after leaving the honor farm where he was serving time after a conviction for residential burglary. Among other arguments on appeal, he relied on Edwards to urge the same prior conviction could not be used both to convict him of the substantive offense and to increase his sentence under the Three Strikes law. Sipe found Edwards inapplicable because section 667, subdivision (e)-the analogous provision in the initiative version of the Three Strikes law to section 1170.12, subdivision (c)-is not an enhancement but rather “an alternate sentencing scheme.” (36 Cal.App.4th at 485, 488, 42 Cal.Rptr.2d 266.) It further rejected application of the Edwards rule because it viewed Edwards, which predated the adoption of the Determinate Sentencing Law as having been invalidated by the adoption of determinate sentencing. (Id., at p. 488, 42 Cal.Rptr.2d 266.)
In People v. Nobleton, supra, 38 Cal.App.4th at p. 76, 44 Cal.Rptr.2d 611, the People challenged the trial court's refusal to use the prior conviction upon which the offense of possession of a firearm by a felon was based to impose an enhancement under section 667.5, subdivision (b); the defendant argued the single prior could not be used both to prove the substantive offense and to bar probation under the Three Strikes law. Like Sipe, Nobleton found Edwards inapplicable because “section 667, subdivisions (b) through (i) are not enhancements, but establish a separate sentencing scheme for recidivists” and because it viewed Edwards as having been superceded by statute. (38 Cal.App.4th at pp. 82-83, 44 Cal.Rptr.2d 611.)
With regard to Edwards' viability, Sipe and Nobleton relied upon People v. Bruno (1987) 191 Cal.App.3d 1102, 1106-1107, 237 Cal.Rptr. 31. Bruno was the first of a number of Court of Appeal cases to conclude the Edwards rule did not survive the adoption of determinate sentencing. This conclusion was based on the fact that section 1170, as originally enacted, included a sentence subsequently dropped by amendment before the operative date of the statute. The sentence, which Bruno viewed as codifying Edwards, provided: “ ‘In no event shall any fact be used twice to determine, aggravate, or enhance a sentence.’ ” (People v. Bruno, supra, 191 Cal.App.3d at p. 1106, 237 Cal.Rptr. 31; People v. Price (1992) 4 Cal.App.4th 1272, 1277-1278, 6 Cal.Rptr.2d 263; People v. Vega (1990) 224 Cal.App.3d 506, 512, 273 Cal.Rptr. 684, disapproved on another ground in People v. McClanahan (1992) 3 Cal.4th 860, 872, fn. 6, 12 Cal.Rptr.2d 719, 838 P.2d 241; People v. Levell (1988) 201 Cal.App.3d 749, 752-753, 247 Cal.Rptr. 489.) These cases thus took the view that the Legislature had “eliminated the Edwards rule by first codifying it and then deleting the codification.” (People v. Darwin (1993) 12 Cal.App.4th 1101, 1103, 15 Cal.Rptr.2d 894.)
People v. Darwin, supra, 12 Cal.App.4th at pp. 1103-1104, 15 Cal.Rptr.2d 894, disagreed with the reasoning of these cases. “The original version of Penal Code section 1170 did not codify the Edwards rule. The holding in Edwards was that if a prior conviction is an ‘element’ of an offense, the prior may not be used for sentence enhancement. (People v. Edwards, supra, 18 Cal.3d at p. 800, 135 Cal.Rptr. 411, 557 P.2d 995.) The later-deleted sentence in the original version of section 1170 did not address the dual use of a prior as an element of an offense and for sentence enhancement, but merely addressed sentencing, stating that a fact could not be used twice to ‘determine, aggravate, or enhance a sentence.’ These two points are not the same. Thus, the legislative action did not abrogate the Edwards rule.” 4 (Italics in original.)
The California Supreme Court addressed the disagreement about the viability of Edwards without resolving it in People v. Baird (1995) 12 Cal.4th 126, 131, 48 Cal.Rptr.2d 65, 906 P.2d 1220. The question in Baird was whether the prison term resulting from a prior felony conviction used to establish the ex-felon element of a charge under section 12021 could be used to enhance the defendant's sentence under section 667.5, subdivision (b). After noting the disagreement between the courts of appeal regarding Edwards, the supreme court concluded Edwards was inapplicable because, in the Baird situation, a single conviction was not being used both to establish an element of the offense and to enhance the sentence. Rather, the conviction was used to establish the element of the offense while the prison term was the basis of the enhancement. The multiple use of the prior was not precluded by People v. Jones (1993) 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163, which precluded imposition of cumulative sentence enhancements under section 667 and section 667.5, subdivision (b): Since it was not the case that “all or nearly all felony convictions used to establish the ex-felon element of a section 12021 violation [would] have resulted in the service of a prior prison term,” allowing both uses of the prior would not mean the penalties prescribed for section 12021 violations would become a year longer by application of section 667.5, subdivision (b), “ ‘in all but a very few cases.’ ” (12 Cal.4th at p. 134, 48 Cal.Rptr.2d 65, 906 P.2d 1220, quoting People v. Jones, supra, 5 Cal.4th 1142, 1150, 22 Cal.Rptr.2d 753, 857 P.2d 1163.)
While Baird did not expressly resolve the question of the continued viability of Edwards, it is interesting to note that it found Edwards inapplicable 5 without finding the Edwards rule had been abrogated. In any event, in the absence of any clear indication the supreme court would find the Edwards rule no longer viable, we are free to agree with the reasoning of Division Five of this court in Darwin, which we find more persuasive than that of the cases that have found Edwards to have been legislatively overruled.
The third case to find a single prior conviction may be used both to establish an element of the charged offense and to constitute a “strike” is precisely on point with the present case. (People v. Yarborough, supra, 65 Cal.App.4th at pp. 1419-1421, 77 Cal.Rptr.2d 402.) In Yarborough, the defendant's prior conviction for child molestation was used both as an element of the charged offense of failing to register as a sex offender under section 290 and as a “strike” which served to double the defendant's sentence for the registration offense. Yarborough distinguished Edwards on a narrow reading of Edwards ' holding. Yarborough described Edwards as having “announced the limited rule that when the underlying prior conviction constitutes an element ‘of criminal conduct which otherwise would be noncriminal,’ the sentence may not be enhanced because of the underlying conviction. (People v. Edwards, supra, 18 Cal.3d at p. 800, 135 Cal.Rptr. 411, 557 P.2d 995 [italics in Yarborough ].)” (Id. at p. 1420, 77 Cal.Rptr.2d 402.) In Edwards, the possession of a firearm would not have constituted criminal conduct had it not been for the defendant's prior conviction of sale of marijuana. By contrast, Yarborough stated that in the section 290 situation, “the underlying felony offense is for an omission of required conduct by a convicted sex offender. It does not involve an act at all, let alone an act that is otherwise legal. Yarbourough's failure to register as a sex offender in violation of section 290, former subdivision (g) (3) is inherently criminal, unlike the mere possession of a firearm.” (Yarborough, supra, at p. 1420, 77 Cal.Rptr.2d 402.)
We cannot agree with Yarborough 's reasoning. Yarborough is confusing in that it refers to the “underlying” offense in Edwards as the prior conviction for sale of marijuana but refers to the “underlying” offense in Yarborough as the “omission of required conduct by a convicted sex offender.” The “omission of required conduct” related not to the underlying offense-there, child molestation-but to the current offense of failing to register. Nevertheless, Yarborough 's point appears to be that the conduct (omission) made criminal by section 290-the failure to register-is inherently a criminal act. The obligation to register, however, arises only upon conviction of an offense listed in section 290. Without the prior conviction of a registrable offense, the act (or omission) of failing to register cannot be viewed as criminal because there is no obligation to register. Just as a prior conviction for a felony offense makes otherwise lawful possession of a firearm unlawful, a prior conviction for a registrable offense makes lawful failure to register unlawful. To say the failure to register is inherently criminal is to presuppose the prior conviction.
Moreover, while Edwards stated its holding in the limited form quoted by Yarborough, the caselaw upon which it was based does not limit application of the rule to circumstances in which the conduct constituting the current offense would be noncriminal but for the prior conviction. In Shull, supra, 23 Cal.2d 745, 146 P.2d 417, for example, the current offense was assault with a deadly weapon; Shull rejected application of a statute that would have added a term of punishment because of the defendant's possession of a weapon. The conduct underlying the current offense-assault-would have been criminal regardless of the defendant's weapon use but was made more serious because of that use. In People v. Floyd (1969) 71 Cal.2d 879, 80 Cal.Rptr. 22, 457 P.2d 862, the convictions were for attempted robbery in the first degree and robbery in the first degree, with the degree determined by the fact the defendant was armed with a deadly weapon during commission of the crimes; Floyd rejected application of statutes increasing the minimum term or adding an additional term for defendants armed with weapons. The conduct underlying the current conviction-robbery-would have been criminal even without the fact of arming, which served to increase the seriousness of the offense. People v. Ford (1964) 60 Cal.2d 772, 36 Cal.Rptr. 620, 388 P.2d 892 involved convictions for possession of a concealable weapon by a felon and assault with a deadly weapon, and refused to allow application of a statute increasing the minimum term for defendants armed with a deadly weapon at the time of the offense. As with In re Shull, the conduct underlying the assault conviction would have been criminal regardless of the weapon possession. The general point to be gleaned from these cases, taken together, is simply that a single fact may not be used both to constitute an element of the offense (whether or not the underlying conduct would have been criminal without that fact) and to increase the punishment for the offense.
Yarborough also indicated in a footnote that “the vitality of the Edwards rule in the context of the three strikes law is in doubt” due to “authority that the three strikes law is not an enhancement law but a separate sentencing scheme for recidivists.” (65 Cal.App.4th at p. 1420, fn. 4, 77 Cal.Rptr.2d 402.) That the Three Strikes law does not provide for enhancements was also an alternate ground for the holdings of Sipe and Nobleton. “ ‘The legislative determination, that under these circumstances the base term is doubled, does not constitute an enhancement. Instead, it is the articulation of a parallel sentencing scheme for specifically described recidivists. An enhancement is “an additional term of imprisonment added to the base term.” (Rule 405(c).) A base term is “․ the determinate prison term prescribed by law․” (Rule 405(b).)’ ” (People v. Nobleton, supra, 38 Cal.App.4th at p. 81, 44 Cal.Rptr.2d 611, quoting People v. Anderson (1995) 35 Cal.App.4th 587, 595, 41 Cal.Rptr.2d 474.) “[A]n enhancement is ․ characterized by a ‘focus on an element of the commission of the crime or the criminal history of the defendant which is not present for all such crimes and perpetrators and which justifies a higher penalty than that prescribed for the offenses themselves.’ ․ It is distinguished from the term prescribed for the underlying crime itself․ . [¶] Section 667, subdivision (e) (1) [6 ] does not provide for any kind of ‘added term.’ Instead, it defines the term for the crime itself, supplanting the term that would apply but for the prior serious or violent felony.” (People v. Martin (1995) 32 Cal.App.4th 656, 667, 38 Cal.Rptr.2d 776, quoting People v. Hernandez (1988) 46 Cal.3d 194, 207-208, 249 Cal.Rptr. 850, 757 P.2d 1013.)
According to these authorities, the rule of Edwards is not violated by using the same prior conviction to establish an element of the offense and to sentence to a double term under the Three Strikes law. Since the Three Strikes law establishes a parallel sentencing scheme for repeat offenders, the prior conviction is viewed as not being used to enhance the sentence that would otherwise be applicable but to trigger the application of a sentencing scheme imposing a different penalty for the current offense.
This analysis glosses over the essential point of Edwards and the cases upon which it was based: That a single fact may not be used both as an element of the current offense and as the basis for imposition of more severe punishment than would otherwise be prescribed for the offense. Edwards itself was not dealing with a sentence enhancement as that term is defined in the cases discussed above-it was a pre-determinate sentencing case. In Edwards, section 12021, the statute defining the offense of possession of a weapon by an ex-felon, prescribed a minimum term sentence; former section 3024, subdivision (c), which Edwards held could not be applied, provided for a greater minimum term sentence. Of the cases cited in Edwards, Ford also rejected application of a statute prescribing a greater minimum term than that otherwise provided for the offense; Floyd and Shull rejected application of statutes that would have added additional terms. While the latter would be viewed as enhancements under the definitions above, the statutes providing for greater minimum terms would not. Sipe, for example, concluded section 667, subdivision (e), was “an alternate sentencing scheme, not an enhancement” because it “does not add a term to defendant's sentence” but rather “provides an alternate method to calculate either the determinate term or minimum term for an indeterminate sentence.” (36 Cal.App.4th at p. 486, 42 Cal.Rptr.2d 266.)
To state that the rule of Edwards does not apply to dual use of a prior conviction to prove an element of the offense and to constitute a “strike” because section 667, subdivision (e), or section 1170.12, subdivision (c), is not an enhancement takes Edwards completely out of the context of its facts and the law under which it was decided. As a case decided under indeterminate sentencing, Edwards was not concerned with “enhancement” as that term is now understood but simply with increasing punishment on the basis of the same fact used to convict a defendant. Application of former section 3024 in Edwards would have subjected the defendant to a greater minimum term sentence because of his prior conviction, just as is the case with application of the Three Strikes law. Technically, there may be a difference between adding a specified term to the otherwise prescribed punishment for an offense because of the defendant's prior conviction, as with an “enhancement,” and choosing to apply an alternative and harsher sentencing scheme because of that prior. Semantics aside, however, use of a single prior conviction as an element of a substantive offense and as a strike obviously increases the defendant's sentence on the basis of that prior conviction.
Thus far, our Supreme Court has not held that a single fact may be the basis both of an element of the charged offense and of a sentence enhancement. As discussed above, Baird, supra, 12 Cal.4th 126, 48 Cal.Rptr.2d 65, 906 P.2d 1220, specifically avoided deciding the continued validity of Edwards by concluding the statute in question there, section 667.5, subdivision (b), required enhancement of a defendant's sentence because of a prior prison term, a separate fact from the prior conviction used as an element of the offense. This factual distinction cannot be made in the present case: Appellant could not have been convicted of the offense of failing to register without proof of his prior rape conviction, and he could not have been sentenced under the Three Strikes law without proof of the same conviction.
Nevertheless, despite our disagreement with caselaw finding Edwards either no longer viable or inapplicable to the Three Strikes situation, it must be remembered that the rule applied in Edwards is one intended to effectuate legislative intent. Edwards, and the other cases it cited, derive from Shull. Shull, as discussed above, applied the principle that a specific statute controls over a general one to conclude the Legislature did not intend the fact of deadly weapon use to increase the punishment specifically stated for the offense of assault with a deadly weapon as it would for an offense in which use of a deadly weapon was not an essential element. (23 Cal.2d at p. 750, 146 P.2d 417.)
The intent behind the enactment of the Three Strikes law was clearly stated by the electorate. According to the statement of intent contained in the initiative measure by which section 1170.12 was adopted, “It is the intent of the People of the State of California in enacting this measure to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” (Prop. 184 (1994) Preamble, Historical Notes, West's Annot. Codes.) 7 Section 1170.12, subdivision (d)(1), provides: “ Notwithstanding any other provision of law, this section shall be applied in every case in which a defendant has a prior felony conviction as defined in this section.” Construing the similar language of section 667, subdivision (f)(1), Sipe, supra, concluded that “[t]his absolute language permits only the interpretation that the Legislature intended more severe punishment for recidivist felons, regardless of whether a prior conviction is a component of their current felony.” (36 Cal.App.4th at p. 489, 42 Cal.Rptr.2d 266.) 8 Additionally, section 1170.12, subdivision (c), states that its provisions for calculating sentences shall apply “in addition to any other enhancements or punishment provisions which may apply.” These provisions demonstrate a broad intent to have the Three Strikes law apply to all recidivists coming within its terms. This intent would be frustrated by allowing the Edwards rule to limit the prior convictions that could be used to trigger application of the Three Strikes law.
Appellant levels a number of arguments against this conclusion. First, appellant argues that People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 rejected the broadest construction of the “notwithstanding” language in section 667, subdivision (f)(1), by refusing to read this language as overriding section 1385. (Id., at pp. 523-524, 53 Cal.Rptr.2d 789, 917 P.2d 628.) As Romero explained, however, because section 1385 is specifically included in section 1170.12, subdivision (d)(2), the Three Strikes law cannot be applied “[n]otwithstanding any other law” without reference to section 1385. (Id., at pp. 519-520, 53 Cal.Rptr.2d 789, 917 P.2d 628.)
Appellant notes that Romero declined to interpret the Three Strikes law as eliminating courts' power under section 1385 “ ‘absent a clear legislative direction to the contrary’ ” because “the statutory power to dismiss in furtherance of justice has always coexisted with statutes defining punishment and must be reconciled with the latter.” (Id., at p. 518, 53 Cal.Rptr.2d 789, 917 P.2d 628.) Since the Edwards/Shull rule has also been around for a long time, appellant urges we should not interpret the Three Strikes law to have eliminated the rule without a clear expression of such intent. To say that the Three Strikes law applies “[n]otwithstanding any other provision of law,” however, is just such a clear expression. Just recently, the Supreme Court decided that a conviction for which sentence was stayed under section 654 may nevertheless be used as a “strike.” (People v. Benson (1998) 18 Cal.4th 24, 26, 74 Cal.Rptr.2d 294, 954 P.2d 557.) Section 654, of course, has been around as long as section 1385. In reaching its conclusion, Benson discussed the language of section 1170.12, subdivision (b), that a “strike” must be defined as provided in the Three Strikes law “ notwithstanding any other provision of law.” (18 Cal.4th at p. 31, 74 Cal.Rptr.2d 294, 954 P.2d 557.) We recognize that the case in Benson was even more clear, as section 1170.12, subdivision (b)(1)(B), expressly states that a “stay of execution of sentence” shall not “affect the determination that a prior conviction is a prior felony for purposes of this section.” (Ibid.) We nevertheless find the language of section 1170.12, subdivision (d)(1), sufficiently clear to indicate an intent to override contrary principles such as the Edwards rule. In Romero, which declined a broad interpretation of the “notwithstanding” language, the Supreme Court noted that the need for clear direction before interpreting the Three Strikes law as overriding former section 1365 was “increased in this instance by the grave constitutional questions that would follow from the recognition of a prosecutorial veto power.” (13 Cal.4th at pp. 518-519, 53 Cal.Rptr.2d 789, 917 P.2d 628.) The issue in the present case does not rise to this level.
Appellant also urges that the “notwithstanding” language refers only to the subdivision immediately following it, which deals with the prosecutor's obligation to plead and prove priors, and power to move to dismiss them. Section 1170.12, subdivision (d)(1), however, states: “Notwithstanding any other provision of law, this section shall be applied․” Other language in section 1170.12 uses the terms “subdivision” and “paragraph” to refer to specific parts of the statute. Accordingly, the use of the term “section” must be viewed as referring to the entire section 1170.12. Appellant cites Justice Chin's dissent in Benson, 18 Cal.4th at pp. 42-43, 74 Cal.Rptr.2d 294, 954 P.2d 557, in which he states that the “notwithstanding” language of section 1170.12, subdivision (b), “merely refers to the definition of a qualifying conviction” set forth in that subdivision. Appellant takes from this that the similar language in section 1170.12, subdivision (d)(1), refers only to that subdivision. Justice Chin's point in Benson, however, was not that the “notwithstanding” language was necessarily limited by the subdivision in which it appeared but that it was limited by the substance of the sentence: “Notwithstanding any other provision of law and for the purposes of this section, a prior conviction of a felony shall be defined as․” The language of section 1170.12, subdivision (d)(1), is of much broader application: “Notwithstanding any other provision of law, this section shall be applied in every case in which a defendant has a prior felony conviction as defined in this section.”
Appellant quotes Romero 's statement that “[a] simpler reading of the language in question (‘[n]otwithstanding any other law’) that more likely describes its probable intent is this: The Three Strikes law, when applicable, takes the place of whatever law would otherwise determine defendant's sentence for the current offense. The language thus eliminates potential conflicts between alternative sentencing schemes.” (13 Cal.4th at p. 524, 53 Cal.Rptr.2d 789, 917 P.2d 628.) This statement was made in reaction to the Attorney General's argument in that case that “notwithstanding” language in section 667 similar to that in section 1170.12, subdivision (d)(1), meant Three Strikes sentences must be imposed without a court being able to exercise its power under section 1385. The rejection of this construction of the “notwithstanding” language in the context of section 1385 does not necessarily dictate the result in the present case, as suggested by the result in Benson discussed above. Appellant characterizes Edwards as a rule about deciding which law is applicable, the general or the specific. Given the express intent behind the Three Strikes law, however, the legislature and electorate cannot be viewed as having intended its application to be limited whenever a specific statute defined a term for a particular offense.
Finally, appellant argues a broad reading of the “notwithstanding” language would lead to absurd and unconstitutional results: For example, the language of section 1170.12 would mean this statute applied and not section 667, while the “notwithstanding” language of section 667, subdivision (f)(1), would mean section 667 applied and not section 1170.12. Given the lack of substantive difference between the provisions of section 667, subdivisions (b) through (i), and section 1170.12, this argument is not difficult to dismiss.
The judgment is affirmed. The petition for writ of habeas corpus is denied.
1. All further statutory references will be to the Penal Code.
2. In Boykin, the Court stated, “What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. ” (395 U.S. at pp. 243-244, 89 S.Ct. 1709, italics added.) The immediately preceding discussion in Boykin was devoted to the three specific constitutional rights: The privilege against self incrimination, the right to a jury trial, and the right to confrontation. In context, Boykin 's use of the term “consequences” refers to the three enumerated rights, and not to the concept of penal consequences.In Brady v. United States (1970) 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747, the Court stated: “Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady held that entry of a plea to avoid the death penalty, which by statute at the time was allowed to be imposed only in a case tried by a jury, did not amount to a coerced plea.Several of the separate opinions in Henderson v. Morgan (1976) 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108, discuss the fact that a defendant must be informed of the consequences of a guilty plea; the issue in that case, however, was that the defendant had not been informed of the nature of the offense to which he was pleading guilty. (Id., at pp. 650 (conc. opn. of White, J.) [defendant, rather than lawyer, must be informed of consequences of plea], 655, 96 S.Ct. 2253 (dis. opn. of Rehnquist, J.) [plea voluntary because made with understanding of consequences].)McMann v. Richardson (1970) 397 U.S. 759, 766, 90 S.Ct. 1441, 25 L.Ed.2d 763, quotes Brady, supra, in stating a defendant pleading guilty must be informed of the consequences of the plea in the context of rejecting collateral challenges to pleas entered by defendants, on the advice of counsel, after giving confessions allegedly coerced by physical abuse and threats.In Kercheval v. United States (1927) 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009, the Court made the statement: “Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.” Kercheval held that a guilty plea set aside on grounds it was induced by promises from the prosecuting attorney could not be introduced in evidence at a subsequent trial.Machibroda v. United States (1962) 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473, quoted Kercheval 's statement that a defendant's plea should not be accepted unless made with full “understanding of the consequences” in holding that allegations a plea was induced by promises and threats warranted an evidentiary hearing.
3. Which appears to have been the case here.
4. Darwin went on to agree with the ultimate conclusion of the Bruno line of cases-that a single prior could be used to establish the offense of petty theft with a prior and to enhance sentence under sections 667.5, subdivision (b), or 667, subdivision (a)-for a different reason. Darwin explained that because in the context of a section 666 charge “the prior ‘is a sentencing factor for the trial court and not an “element” of the section 666 “offense[,]” ․ the Edwards rule against dual use of a prior as an element of an offense and for sentence enhancement does not apply.’ ” (12 Cal.App.4th at p. 1104, 15 Cal.Rptr.2d 894, quoting People v. Bouzas (1991) 53 Cal.3d 467, 480, 279 Cal.Rptr. 847, 807 P.2d 1076.)
5. By contrast, it is not the case that almost every violation of section 290 would constitute a strike under the Three Strikes law: The obligation to register under section 290 arises from convictions of many offenses that would not necessarily qualify as prior convictions under section 1170.12. For example, while the offenses of sodomy (§ 286) and oral copulation (§ 288a) are always registrable offenses under section 290, they would qualify as prior convictions under section 1170.12 only if committed “by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person.” (§ 1192.7, subds. (c)(4), (c)(5).) Many other offenses listed under section 290 (e.g., §§ 266, 266c, 266h, 266i, 266j, 267, 285, 288.2, 311.2, 311.3, 311.4, 311.10, 311.11, 314, 647.6) would not qualify as “strikes” or would so qualify only if the defendant personally inflicted great bodily injury or used a firearm. (§ 1192.7, subd. (c)(8).) Thus, the requisite element of the offense could be proven by a conviction of any of the offenses listed in section 290, while it is only if the prior offense was for a serious or violent felony (§§ 667.5, 1192.7, subd. (c)) that the Three Strikes law will be implicated.
6. Section 1170.12, subdivision (c)(1), is the analogous provision in the initiative version of the Three Strikes law.
7. Similarly, section 667, subdivision (b), provides: “It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.”
8. Section 667, subdivision (f)(1), provides: “Notwithstanding any other law, subdivisions (b) to (i), inclusive, shall be applied in every case in which a defendant has a prior felony conviction as defined in subdivision (d).”
LAMBDEN, J., and RUVOLO, J., concur.