The PEOPLE, Plaintiff and Respondent, v. Otis Michael THOMAS, Defendant and Appellant.
Otis Michael Thomas appeals from the judgment entered after his conviction by jury trial of first degree residential burglary (count II; Pen.Code,1 § 459), making a terrorist threat (count III; § 422), possession of a firearm by a felon (count IV; § 12021, subd. (a)(1)), and false imprisonment of a hostage (count V; § 210.5).2 The jury found true the allegations that Thomas was armed with a firearm in the commission of the offenses charged in counts II, III and V.3 The jury also found true the allegation that the victim of the terrorist threats charge was reasonably in sustained fear for her safety. Thereafter, in a bifurcated trial, the same jury found true the allegations under the Three Strikes law (§§ 667, subd. (b)-(i) & § 1170.12) and under section 667, subdivision (a) that Thomas had been earlier convicted of, and served prison terms for, two serious or violent felonies.4
The trial court sentenced Thomas to a composite of (1) a determinate term of 11 years on the enhancements (two five-year terms for the serious or violent priors [§ 667, subd. (a) ] and a one-year term for a different felony prior [§ 667.5, subd. (b) ] ) 5 , and (2) three consecutive indeterminate terms of life in state prison, each with a minimum term of 25 years, on counts II, III and V, pursuant to section 667, subdivision (e)(2). Sentence on count IV was stayed, pursuant to section 654.
We affirm. In the published portions of this opinion we conclude that (1) the matter must be returned to the trial court for resentencing as there is nothing on the record which indicates the sentencing court understood it had the discretion to sentence Thomas to either consecutive or concurrent terms, and (2) section 2933.1, subdivision (c) limits Thomas's presentence conduct credits to 15 percent of his time in local custody as this is the plain meaning of the cited section and carries out the express intent of the Legislature in enacting it. We also return the matter to the trial court to exercise its discretion in sentencing Thomas on the three section 12022, subdivision (a)(1) enhancements which were proven, but for which no sentencing determination was made. In the unpublished part of the opinion, we reject Thomas's remaining contentions.
FACTUAL AND PROCEDURAL BACKGROUND
1. Prosecution evidence.
Viewed in accordance with the usual rule of appellate review (People v. Rayford (1994) 9 Cal.4th 1, 23, 36 Cal.Rptr.2d 317, 884 P.2d 1369; People v. Johnson (1980) 26 Cal.3d 557, 575-577, 162 Cal.Rptr. 431, 606 P.2d 738), the evidence established that Thomas and Jacqueline Shorter (Shorter) had met in April 1996 and lived together at her residence for approximately one month, from May through mid-June, 1996. Shorter had four children who also resided with her. At no time did she give Thomas a key to her apartment.
On November 29, 1996, at between 5 and 6 p.m., Shorter was returning to her apartment alone, carrying some bags. As she unlocked her front door, she noticed Thomas behind her. Thomas lifted his jacket, revealing he was armed with a handgun. He ordered her to leave with him: “Come go with me, bitch. You're going with me.”
Shorter responded by telling him she would meet him outside after she had fed her children; she then entered her apartment. Thomas forced his way inside to find about 12 children, ages ranging from 1 to 13, in the living room and Shorter's daughter Tawna and her boyfriend Jalon cooking in the kitchen.
Thomas told her to “hurry up and feed the [f---ing] kids because” he was going to take her to his niece's house. Shorter fed her niece and baby. As she did so, Thomas told her quietly so the children could not hear: “Hurry up before [I do] a [f---ing] nutty.” Shorter understood this to be a threat to “take out the gun and start shooting up the house.” They had had a prior conversation which gave this context to his words. Shorter “got really nervous.” She became frightened when he repeated his threat about “doing a [f---ing] nutty.” He ordered her to “[h]urry up and come on so we can [f---ing] go.” She thought he would start shooting if she did not go with him.
At this point Tawna called her mother into the kitchen. Shorter responded and went, whispering to Tawna that Thomas had a gun. The phone rang; Shorter answered. It was her sister. Shorter told her Thomas was “ tripping,” and asked her to call the police. She also told a second caller to do the same. Thomas was nervous and angry, telling Shorter to put on her shoes and “hurry the [f---k] up.”
Four or five police officers arrived. All of the children left the house. One officer pointed a shotgun at Thomas, another aimed his handgun, identified himself as a police officer and ordered Thomas to turn around and put his hands in the air.
Shorter yelled that Thomas had a gun. Thomas grabbed Shorter, putting her in a choke hold and pulling her in front of him. This placed her directly in the line of fire. He yelled: “Bitch, you set me up.” Thomas had his arm around her neck in a choke hold. Shorter was afraid.
An officer repeatedly ordered Thomas to release Shorter. Thomas tried to pull Shorter back toward the kitchen door and back door; Shorter resisted. Shorter, sensing Thomas was off-balance, pushed him into the dining room table and fled the apartment.
Finally, Thomas complied with the officers' commands and lay on the ground. A .38 caliber revolver was found in his waistband; it had three live rounds in the cylinder. Thomas announced: “You won't find my fingerprints on the gun.” “I won't do no six months or a year for the [f---ing] gun.”
2. Defense evidence.
Thomas did not testify. He called Shorter as a witness and attempted to impeach her with respect to count I, the June 26, 1996 burglary allegation.
Thomas contends (1) the threat he made to Shorter was conditional and equivocal, thus precluding his conviction of the crime of making a terrorist threat; (2) live testimony should not have been admitted at the trial on his Three Strikes priors; (3) remand is required for resentencing on counts II, III and V as the record is silent on whether the trial court understood it had discretion to impose consecutive or concurrent sentences on those counts; and (4) section 654 requires staying the sentences on counts III and V. The People dispute each assertion, and contend the award of local conduct credits was excessive.
3. The consecutive sentences in light of People v. Deloza.
Thomas contends imposition of consecutive life sentences on each of counts II (residential burglary), III (terrorist threats), and V (false imprisonment of a hostage) violates the statutory prohibition on multiple punishment contained in section 654 even though the trial court had discretion to impose this sentence under the Three Strikes law. In support of this contention, Thomas claims all of his actions were part of one, indivisible course of conduct.
The People characterize Thomas's criminal conduct as arising out of multiple criminal objectives, first an unpermitted entry (in an attempt to kidnap); next, a threat to shoot the children and Shorter if she did not go with him; and, finally, using Shorter as a human shield to save himself when the police arrived. The People argue: “Each offense evidenced appellant's response to unforeseen changes in circumstances. Before committing each [crime], [Thomas] had the opportunity to reflect, but chose to commit new, increasingly violent crimes.”
While the circumstances of the crimes support the trial court's imposition of consecutive sentences, we cannot determine from the record whether the trial court understood that it had the discretion to impose either concurrent or consecutive sentences. If, on remand, the trial court again determines that consecutive sentences are appropriate, it must articulate on the record a reason for this sentencing choice.
b. Factual predicate.
Thomas went to Shorter's residence to force her to go with him to another location, taking a revolver with him to “back up” his orders. When Shorter had the presence of mind to distract him by claiming she had to feed the children and entered her residence, Thomas followed, forcing himself inside her home. Once inside, he lost control of the situation as the home was filled with a dozen children. To regain control he threatened to shoot randomly about the premises (“do a [f---ing] nutty”). Thereafter, Shorter was able to call the police, who arrived with dispatch. Thomas had to change his plan again: He seized Shorter and forcibly used her as a human shield.
The facts make clear that Thomas changed his original objective and plan to accommodate the changing circumstances. There is no version of the facts under which all of the crimes were part of an original, single criminal objective. Everything possible went wrong with Thomas's original plan, forcing several changes in its objective and in its execution.
c. Applicable law.
Analysis of the issues presented implicates both section 654 and the Three Strikes laws (§§ 667, subds. (b)-(i) & § 1170.12).9 The text of section 654 is set out in the margin.10 The Three Strikes laws contain no express provisions to be applied when a defendant is convicted of multiple felonies committed on the same occasion or involving the same set of operative facts. Development of such rules has been the subject of case analysis. People v. Hendrix (1997) 16 Cal.4th 508, 66 Cal.Rptr.2d 431, 941 P.2d 64 and People v. Deloza, supra, 18 Cal.4th 585, 76 Cal.Rptr.2d 255, 957 P.2d 945 have confirmed that (1) consecutive sentences are compelled when a defendant is convicted of multiple strike felonies committed on separate occasions and not involving the same set of operative facts (Hendrix ) and (2) the rules of section 654 do not apply (Deloza ). Deloza instead establishes that “section 654 is irrelevant to the question of whether multiple current convictions are sentenced concurrently or consecutively.” (Id. at p. 594, 76 Cal.Rptr.2d 255, 957 P.2d 945.)
The foregoing statement does not, however, mean that the long-standing rules of section 654 have been totally abrogated. Since Neal v. State of California (1960) 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839, the test under section 654 has been as follows: “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the defendant. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Id. at p. 19, 9 Cal.Rptr. 607, 357 P.2d 839.) The Neal test replaced that of In re Chapman (1954) 43 Cal.2d 385, 273 P.2d 817.11
In People v. Latimer (1993) 5 Cal.4th 1203, 23 Cal.Rptr.2d 144, 858 P.2d 611, our Supreme Court reaffirmed the Neal test, citing as examples several cases in which the “ ‘intent and objective’ ” test had been applied to sustain multiple sentences. (See id. at p. 1209, 23 Cal.Rptr.2d 144, 858 P.2d 611.)
The Latimer court also made clear that section 654 applies to sentencing both for crimes flowing from a single act and for crimes resulting from a course of conduct which violates more than one statute. (Id. at p. at 1208, 23 Cal.Rptr.2d 144, 858 P.2d 611; accord People v. Saffle (1992) 4 Cal.App.4th 434, 438, 5 Cal.Rptr.2d 648.)
Thus, the question for analysis under section 654 is whether the criminal conduct can be the subject of separate punishments. Application of section 654 principles is intended to answer the question: May these facts warrant punishment under multiple criminal statutes?
By contrast, the question implicated in a Three Strikes analysis is: Having determined that separate punishments are warranted, should the terms of those punishments be concurrent or consecutive?
At oral argument, which took place just five days after the Supreme Court's decision in People v. Deloza, supra, 18 Cal.4th 585, 76 Cal.Rptr.2d 255, 957 P.2d 945, counsel for each party contended that Deloza required remand of this case for the trial court to reconsider whether the sentences should be concurrent rather than consecutive. The People argued section 654 no longer applies and there is no reason to conclude the trial court did not understand that imposition of consecutive-or concurrent-sentences was within its discretion, even on the silent record with which we are presented. Thomas argued consecutive sentences were inappropriate on the facts presented in this case and a second opportunity, without the interference of the assertedly irrelevant section 654 rules, would enable the trial court to better exercise its discretion-assumedly with a better result for Thomas. Neither argument is correct.
Deloza does not represent the abrogation of application of section 654 principles to sentencing in Three Strikes cases. First, the question presented in Deloza was “whether the same analysis used to determine if multiple punishment is permitted under Penal Code ․ section 654 ․ should be used to determine if consecutive sentencing is required [by section 667, subdivisions (c)(6) and (c)(7) or] by section 1170.12, subdivision (a)(6) and (a)(7)․” (Id. at p. 588, 76 Cal.Rptr.2d 255, 957 P.2d 945, fns. omitted.) This statement of the issue presented does not suggest that section 654 principles are no longer relevant to analysis of sentencing issues. Rather, as discussed above, it points out that section 654 does not address the question whether Three Strike sentences-if subject to imposition-shall or may be consecutive or concurrent. Section 654 addresses the question whether the “intent and objective” were unitary rather than multiple-whether there may be separate punishments.12 If there may not be separate punishments, no consecutive sentencing issue need be addressed because multiple sentences would be imposed, but only one sentence subject to the section 654 limitation would be carried out; the other sentences would be stayed.13
Second, if the objectives were multiple, or if for some other reason analysis under section 654 yields the result that multiple sentences may be carried out, then the question of whether sentences should be consecutive rather than concurrent, is to be addressed. Deloza holds that the two are not the same: merely because multiple imposed (not stayed) sentences are possible (not barred by section 654) does not mean they are mandatory. Rather, Deloza expressly states “section 654 is irrelevant to the question of whether multiple current convictions are sentenced concurrently or consecutively.” (Id. at p. 594, 76 Cal.Rptr.2d 255, 957 P.2d 945.)
Did the trial court properly impose consecutive sentences on counts II, III and V? As we have discussed, ante, this question implicates both section 654 and Three Strikes principles.
(1) Section 654 does not preclude multiple punishment on the facts of this case.
The relevant facts are set out in part 3b., ante. Reference to those facts demonstrates that Thomas's intent and objective changed with the circumstances. There is strong evidence he had multiple intents and objectives warranting separate punishments. Relevant case authorities support this conclusion.
Thus, in People v. Nguyen (1988) 204 Cal.App.3d 181, 251 Cal.Rptr. 40 (questioned on another ground in People v. Miles (1996) 43 Cal.App.4th 364, 370, fn. 6, 51 Cal.Rptr.2d 87). Nguyen and an accomplice, both armed, entered a market. The accomplice escorted the clerk to a rear bathroom and forced him to lie face down on the floor. Nguyen remained in the front of the market and opened the cash register. Nguyen's crime partner shot the clerk in the back. Nguyen argued the trial court had violated section 654 by imposing sentences both for attempted murder and for robbery. The court found that separate acts of violence against a victim, whether gratuitous or to facilitate escape or to avoid prosecution, may be found to be not incidental to robbery for purposes of section 654. If the trial court determines the crimes have different intents and motives, multiple punishments are appropriate. (Nguyen, supra, at p. 193, 251 Cal.Rptr. 40.)
In People v. Perez (1979) 23 Cal.3d 545, 153 Cal.Rptr. 40, 591 P.2d 63, the defendant was charged with multiple sex offenses committed over a span of less than one hour on a single victim. In reversing the trial court's determination that all of the offenses were part of a single criminal intent and objective our Supreme Court observed: “․ if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct.” (Id. at p. 551, 153 Cal.Rptr. 40, 591 P.2d 63.)
In re Dowding (1961) 188 Cal.App.2d 418, 10 Cal.Rptr. 392, cited by Thomas, is inapposite. Dowding entered a drug store and robbed the druggist. The information described the burglary as part of the acts charged in the robbery count. The Court of Appeal correctly held imposing sentences for both robbery and burglary was violative of section 654. In so holding, that court determined that the “singleness of the act” precluded imposition of two sentences. (Id. at p. 422, 10 Cal.Rptr. 392.)
Reference to the facts of this case illustrates the difference between the instant case and that of Dowding. Rather than there being a single act, the facts of this case demonstrate Thomas had multiple, independent criminal objectives. It may be correct to say that Thomas did not harbor any objective other than the intent to kidnap Shorter when he confronted her at her apartment door with a loaded pistol. Yet, as events unfolded, he chose to improvise, first by forcing his way into Shorter's apartment, then by threatening to shoot the children and Shorter if she did not leave with him, and, finally, when the police arrived, by taking her hostage and using her as a human shield.
(2) Concurrent or consecutive sentences under Three Strikes.
As section 654 does not bar the imposition of multiple sentences, the next steps in the analysis are to determine whether the trial court properly (a) understood and (b) exercised its discretion when it imposed the three consecutive life terms.
The threshold question is raised by Thomas: Did the trial court understand that it had the discretion to impose either concurrent or consecutive sentences? The record below is silent; there is no indication at the sentencing hearing of whether the trial court understood the scope of its sentencing discretion.14
If the trial court correctly understood the scope of its discretion, then it would articulate on the record the reasons for that choice, as it selected consecutive terms.(§ 1170, subd. (c); Cal. Rules of Court, rule 406(b)(5); People v. Lepe (1987) 195 Cal.App.3d 1347, 1350, 241 Cal.Rptr. 388 [no statement of reasons required for concurrent terms].)
It is now established that remand to determine whether the trial court understood it had discretion to strike a serious or violent felony prior is not required on a silent record. (People v. Fuhrman (1997) 16 Cal.4th 930, 942-44, 67 Cal.Rptr.2d 1, 941 P.2d 1189.)
It is not established, however, that remand is not appropriate when the question is whether the trial court correctly understood its discretion to impose consecutive or concurrent sentences. As we are returning this case to the trial court for reasons expressed elsewhere in this opinion, and for purposes of resolving all sentencing issues in one proceeding below rather than multiple proceedings, we will also remand on this issue to give the trial court the opportunity to sentence Thomas to consecutive or concurrent terms on counts II, III and V, stating for the record its reasons for doing so if the trial court again concludes that consecutive sentences are appropriate. (Cf. People v. Deloza, supra, 18 Cal.4th p. at 600, 76 Cal.Rptr.2d 255, 957 P.2d 945.)
4. Credits for time in local custody.
Thomas contends he is entitled to 396 days of custody credits. These credits are comprised of 264 days of such credits for his physical incarceration (sometimes referred to as “actual time” credits) and 132 days of credits for his unexceptional conduct while in jail awaiting trial and sentencing (commonly know as “conduct” or “good time” and “work time” credits). (See §§ 2900.5 & 4019.) 15
The People do not dispute the award of actual time credits; rather, they contend Thomas's other local credits are subject to a 15 percent limit because Thomas's current criminal conduct is punishable by life imprisonment under the Three Strikes law (§ 667, subd. (e)(2)(A)).16 The People argue that section 2933.1, subdivision (c) precludes granting more than 15 percent local credits to defendants who are subject to life sentences. To sustain their contention, the People also argue that People v. Henson (1997) 57 Cal.App.4th 1380, 67 Cal.Rptr.2d 734, which differently construed section 2933.1, subdivision (c), and sections referred to therein, was wrongly decided.
In our view, the plain meaning of section 2933.1, subdivision (c) and its stated legislative purpose support the position advanced by the People. The history of enactment of section 2933.1, subdivision (c) and its relationship to the Three Strikes legislation which preceded it in enactment by six months also support this conclusion. Accordingly, we will hold that Thomas is entitled to a maximum of 15 percent local credits in addition to his actual time credits.
We use the term “credits” to refer to the time deducted from a felony defendant's period of incarceration in local (or state) custody.
(1) State prison credits. Credits allowable against incarceration once a defendant is delivered to the custody of the Department of Corrections are generally computed under the provisions of sections 2930 et seq. Subject to several significant exceptions, a felony defendant may receive credits of up to one half of his state prison term. (§ 2933, subd. (a).) Among the exceptions is section 2933.5, which denies all state prison credits to defendants who have been convicted for the third time of any of a group of serious or violent felonies and who have served state prison sentences on each prior occasion.17
(2) Local credits. For time served in local custody a felony defendant receives a full day of credit for each partial day served, including the day of arrest and the day of commitment to state prison (actual time credits). In addition, the defendant is generally eligible to receive credits of two days for every four days served (good time and work time credits). (§§ 2900.5 & 4019; People v. Sage (1980) 26 Cal.3d 498, 165 Cal.Rptr. 280, 611 P.2d 874; People v. Bravo (1990) 219 Cal.App.3d 729, 268 Cal.Rptr. 486; People v. Smith (1989) 211 Cal.App.3d 523, 259 Cal.Rptr. 515.)
The statutes permitting such local credits are also subject to exceptions. We are concerned with the exception to the rule regarding local credits which is set out in section 2933.1, subdivision (c).18
b. Section 2933.1, subdivision (c).
That portion of section 2933.1 relevant to our inquiry is subdivision (c), which provides: “Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail ․ prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a).” 19
This subdivision contains references to two other sections, first, to section 2933.1, subdivision (a), which itself incorporates the crimes listed in the second referenced section, section 667.5, subdivision (c). The clause contained in subdivision (a) of section 2933.1 which is relevant to our inquiry reads as follows: “any person who is convicted of a felony offense 20 listed in Section 667.5․” 21
Section 667.5, subdivision (c) lists 17 categories of offenses.22 Based on the facts of the present case, the only category which may support application of the 15 percent limit on local credits to Thomas is subdivision (c)(7) which reads as follows:
“Any felony punishable by death or imprisonment in the state prison for life.”
Section 2933.1, subdivision (c), restated to incorporate the reference to subdivision (a) and its incorporation of section 667.5, subdivision (c )-as applicable to this case-provides: (c) Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person who is convicted of a felony offense punishable by life imprisonment.23
Thomas contends the italicized phrase “any person who is convicted of a felony offense punishable by life imprisonment ” requires that the determination of punishment be made based on the statutorily defined punishment for the particular crime prior to consideration of the actual punishment because of the particular defendant's criminal history. The People contend that the italicized phrase refers to the actual punishment for a particular defendant based on the particular defendant's current and prior convictions.
If the People's contention is correct, the facts that (1) Thomas's current conviction is his third strike and (2) he is subject to a maximum term of life imprisonment carry the added consequence that Thomas is subject to the 15 percent limit on local credits. The issue is of broader significance as any third strike defendant would appear to be subject to this limitation on local credits.
c. Rules of statutory construction and their application.
In determining the meaning of a statute, “ ‘our primary task is to determine the lawmakers' intent. [Citation.]’ ” (People v. Jones (1993) 5 Cal.4th 1142, 1146, 22 Cal.Rptr.2d 753, 857 P.2d 1163.) “Our first step is to scrutinize the actual words of the statute, giving them a plain and commonsense meaning. [Citations].” (People v. Valladoli (1996) 13 Cal.4th 590, 597, 54 Cal.Rptr.2d 695, 918 P.2d 999.) “ ‘ “If the language is clear and unambiguous, there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature․” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299].)’ (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798 [268 Cal.Rptr. 753, 789 P.2d 934].)” (People v. Jones, supra, 5 Cal.4th at p. 1146, 22 Cal.Rptr.2d 753, 857 P.2d 1163.) The literal meaning of a statute must be in accord with its purpose. “We are not prohibited ‘from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute․’ ” (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 658-659, 25 Cal.Rptr.2d 109, 863 P.2d 179, quoting from Lungren v. Deukmejian, supra; In re Carr, supra, 65 Cal.App.4th at p. 1530, 77 Cal.Rptr.2d 500.)
Penal provisions which comprise portions of a general legislative scheme should be construed with reference to the entire statutory system of which they form a part in such a way that harmony may be achieved among the parts. (People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 40, 127 Cal.Rptr. 122, 544 P.2d 1322.) When a statute has two reasonable constructions, the defendant is entitled to that which is more favorable to him. (In re Christian S. (1994) 7 Cal.4th 768, 780, 30 Cal.Rptr.2d 33, 872 P.2d 574.) Nevertheless, ambiguity may be resolved by reference to the perspective obtained by reference to the history of enactment of the statute. (See People v. Ledesma (1997) 16 Cal.4th 90, 101, 65 Cal.Rptr.2d 610, 939 P.2d 1310.)
“In the construction of a statute ․, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; ․” (Code Civ. Proc., § 1858.) “ ‘This court has no power to rewrite the statute so as to make it conform to a presumed intention which is not expressed. This court is limited to interpreting the statute, and such interpretation must be based on the language used․ “It is elementary that there can be no intent in a statute not expressed in its words; that the intention of the legislature must be determined from the language of the statute.” ’ ” (People v. Hill, supra, 37 Cal.App.4th at p. 225, 44 Cal.Rptr.2d 11, quoting Seaboard Acceptance Corp. v. Shay (1931) 214 Cal. 361, 365-366, 5 P.2d 882.)
Having stated these familiar rules of statutory construction, we proceed to their application.
First, the plain, straightforward reading of the statute supports our conclusion that Thomas is limited to 15 percent local credits.
The crime of which Thomas was convicted is punishable by a life sentence by reason of the fact that Thomas has two prior serious or violent felony convictions.24 Section 667, subdivision (e)(2)(A) commands that a defendant who suffers any third felony conviction and who has two serious or violent felony prior convictions shall be punished by life imprisonment.25
In our “reaggregation” of section 2933.1, subdivision (c) (see page 162, ante ), we have included the referenced clauses of section 2933.1, subdivision (a) and of section 667.5, subdivision (c)(7). Reaggregating the statute makes clear that the language of the statute focuses on the punishment in the particular case and not on the abstract fact of the statutory penalty for the crime. So understood, the statutory command is clear: any felon whose conduct is punishable by life imprisonment is limited to 15 percent local credits.
This emphasis on the individual, recidivist defendant is appropriate. Section 2933.1, subdivision (c) has been interpreted in a related context in exactly that manner, viz., to focus on the punishment which the particular defendant will receive. Thus, in People v. Aguirre, supra, 56 Cal.App.4th 1135, 66 Cal.Rptr.2d 77, the court held that the 15 percent local credit limitation applies to the entirety of a sentence imposed on a felony defendant so long as any of the crimes is listed in section 667.5, subdivision (c) and irrespective of whether sentence is imposed under indeterminate (e.g., Three Strikes) or determinate sentencing statutes. (Id. at p. 1141, 66 Cal.Rptr.2d 77.) While Aguirre did not construe the clause of section 667.5, subdivision (c) that concerns us in the instant case, it confirms that our focus on the impact which the individual defendant's criminal history will have on his punishment in the particular case is correct. (See also People v. DeSimone (1998) 62 Cal.App.4th 693, 700, 73 Cal.Rptr.2d 73 [magnitude of the penalty is dependent upon the defendant's status as a recidivist offender].)
Second, limiting local conduct credits to 15 percent for defendants who face sentences of life imprisonment is consistent with the express statement of legislative purpose contained in the bill by which the Legislature enacted section 2933.1:
“Section 2933.1, when enacted included an urgency clause, rendering it effective immediately ‘to protect the public from dangerous repeat offenders who otherwise would be released․’ ” (People v. Camba (1996) 50 Cal.App.4th 857, 862, 57 Cal.Rptr.2d 907, quoting Stats.1994, ch. 713, § 1; Assem. Bill No. 2716 (1993-1994 Reg. Sess).) The Legislature's focus on repeat, recidivist offenders “who otherwise would be released” confirms our “plain meaning” understanding of the section.26
Third, our construction of section 2933.1, subdivision (c) is consistent with the objective of the Three Strikes statute, which was enacted earlier at the same session of the Legislature and which is helpful, therefore, in confirming or ascertaining the meaning of section 2933.1, subdivision (c).
The Three Strikes law contains an explicit statement that its purpose is to enhance punishment for recidivist criminal conduct. Thus, section 667, subdivision (b) provides:
“It is the intent of the Legislature in enacting [the Three Strikes law] 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.”
People v. Cooper (1996) 43 Cal.App.4th 815, 51 Cal.Rptr.2d 106, sets forth the relevant expression of the Legislature's intent in enacting the Three Strikes law: “Under the three strikes law, defendants are punished not just for their current offense but for their recidivism. Recidivism in the commission of multiple felonies poses a danger to society justifying the imposition of longer sentences for subsequent offenses. (Rummel v. Estelle (1980) 445 U.S. 263, 284 [100 S.Ct. 1133, 1144, 63 L.Ed.2d 382, 397].) The primary goals of recidivist statutes are:‘․ to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person's most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.’ (Id. at pp. 284-285 [100 S.Ct. 1133].)[¶] By enacting the three strikes law, the Legislature acknowledged the will of Californians that the goals of retribution, deterrence, and incapacitation be given precedence in determining the appropriate punishment for crimes. Further, those goals were best achieved by ensuring ‘longer prison sentences and greater punishment’ for second and third ‘strikers.’ Such determinations are questions of legislative policy.” (Id. at pp. 823-824, 51 Cal.Rptr.2d 106.)
An integral component of “longer prison sentences and greater punishment” is the reduction in credits for time in local custody as well as in state prison. The Three Strikes legislation itself contains a limitation on credits available to defendants once they are committed to state prison. Section 667, subdivision (c)(5) limits state prison credits for all second and third strike cases to a maximum of 20 percent of time served. (People v. Hill, supra, 37 Cal.App.4th at p. 226, 44 Cal.Rptr.2d 11.) Section 667, subdivision (c)(5) does not preclude allowance of a lesser percentage of local credits, such as those allowable under section 2933.1, subdivision (c). (People v. Caceres, supra, 52 Cal.App.4th at p. 112, 60 Cal.Rptr.2d 415.) Section 2933.1, subdivision (c) establishes a maximum on local credits for recidivist and violent offenders, just as Three Strikes established a maximum for state prison credits.27
The fact that legislative action on section 2933.1, subdivision (c) followed within six months the enactment, also as an urgency measure, of the Three Strikes law 28 is additional evidence that the Legislature intended to restrict all credits otherwise available to recidivist offenders. Enactment of laws on related topics at the same session of the Legislature carries the presumption that the Legislature was aware of the earlier enacted statute when it acted on the later legislation. To ignore the earlier legislation in seeking to harmonize two statutes on related topics violates an accepted canon of interpretation that it must be presumed that in enacting a statute “the Legislature is aware of existing related laws and intends to maintain a consistent body of rules. [Citations.]” (Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1, 7, 128 Cal.Rptr. 673, 547 P.2d 449.)29
Fourth, the fact that conviction of any third felony is sufficient for imposition of a life sentence under the Three Strikes law makes it evident that the Legislature intended to impose maximum sanctions for any third felony conviction if the defendant has two strike priors. Accepting Thomas's construction of section 2933.1, subdivision (c) (including the relevant clause from § 667.5, subd. (c)) results in an inconsistent reading of the two, closely related statutory plans. If Thomas were correct, then while the maximum punishment would be mandatory for any third felony, it would not carry with it a key element of that punishment in the form of the reduction in local credits provided by section 2933.1, subdivision (c).30
There is nothing in the history of enactment of the Three Strikes law which suggests that it was enacted to extend leniency to felons subject to its provisions. (See, e.g., People v. Benson, supra, 18 Cal.4th at p. 35, fn. 7, 74 Cal.Rptr.2d 294, 954 P.2d 557.) Nor should we read into section 2933.1, subdivision (c) any intent to restrict the application of the plain words of that statute.31
d. People v. Henson.
Thomas points out that application of the 15 percent limit to local credits in this case in the manner contended by the People conflicts with the holding of People v. Henson, supra, 57 Cal.App.4th 1380, 67 Cal.Rptr.2d 734. In Henson, the Fourth District construed the term “ ‘[a]ny felony punishable by ․ [life] imprisonment’ ” to mean any such felony originally so punishable. (Id. at p. 1389, 67 Cal.Rptr.2d 734.) Thus, the Henson court states: “․ [section 2933.1] applies only where the current conviction is for a ‘violent felony’ as defined in section 667.5, subdivision (c). Although the latter section includes as a violent felony any felony punishable by life in prison, we conclude that provision should be applied only to offenses which themselves carry a life sentence, and not to those which, like the offense here, carry that sentence only because of the defendant's prior convictions.” (Id. at p. 1382, 67 Cal.Rptr.2d 734.)
We do not concur in this analysis. First, section 2933.1, subdivision (c) is unambiguous on its face: If the punishment to be imposed for the current felony is life imprisonment, local credits will be limited to 15 percent.32 The Henson court violates the “plain meaning rule” of statutory construction when it, in effect, inserts the word “originally” into section 2933.1. Doing so significantly alters the meaning of the statute.
Second, Henson 's analysis is based upon the assumption that all crimes listed in section 667.5, subdivision (c) are crimes of violence. This is not the case. People v. Hetherington, supra, 154 Cal.App.3d at p. 1139, 201 Cal.Rptr. 756 so holds. Henson's analysis also does not recognize that, in enacting section 2933.1, the Legislature never used the word “violent.” Moreover, by basing its analysis on the answer to the question: Did the Legislature “[intend] in enacting section 2933.1 to eliminate any distinction between ‘violent’ and ‘nonviolent’ third strikers” (id., at p. 1389, 67 Cal.Rptr.2d 734), the Fourth District proceeds from an incorrect premise. In enacting section 2933.1, subdivision (c), the Legislature never intended any such distinction and none is contained in the text of that section.
Third, the contemporaneous legislative history does not support the question posed in Henson. The stated purpose for urgency status in enactment of section 2933.1 was “to protect the public from dangerous repeat offenders who otherwise would be released․” (Stats.1994, ch. 713, § 1.) Further, in enacting the Three Strikes law, the Legislature specifically determined that for purposes of sentencing of recidivist, third strike felons, no distinction would be made in the type or seriousness of the felony committed: conviction of any third felony invokes a life sentence.
Our Supreme Court has recognized the distinction between violent and nonviolent offenders, but for the express purpose of clarifying that it is generally irrelevant whether a recidivist felon's third strike is either violent or serious. (See People v. Henson, supra, 57 Cal.App.4th at pp. 1386-1387, 67 Cal.Rptr.2d 734, citing People v. Dotson, supra, 16 Cal.4th 547, 555, 66 Cal.Rptr.2d 423, 941 P.2d 56 [distinguishing the Three Strikes law, under which “the defendant's current felony need not be ‘serious' for the three strikes law to apply” from section 667, subdivision (a), under which the “current felony offense must be ‘serious' ․ for [that section's] five-year enhancement to apply”] and People v. Cooper, supra, 43 Cal.App.4th at p. 825, 51 Cal.Rptr.2d 106 [upholding a life sentence under the Three Strikes law for a defendant “convicted of a nonviolent, nonserious felony but with at least 2 prior convictions for violent or serious felonies”].) Dotson and Cooper demonstrate that the Legislature knows how and when to differentiate among violent and non-violent third strikers, and did not do so in section 2933.1.33
In the same manner, section 2933.1 contains no differentiation between violent and non-violent third strike offenders.
Fourth, Henson's comparison of the definition of a violent felony for enhancement purposes and that for section 2933.1 is incorrect because “section 2933.1 is not an enhancement [citations] but rather a method for computing presentence credits.” (People v. Fitzgerald (1997) 59 Cal.App.4th 932, 937, 69 Cal.Rptr.2d 453.)
Fifth, Henson's concern that our holding would make “every third strike ․ both a ‘serious' and a ‘violent’ felony” (57 Cal.App.4th at p. 1387, 67 Cal.Rptr.2d 734) is misplaced.
Thus, the Henson court expressed concern that if every third strike is subject to the 15 percent local credit limitation of section 2933.1, subdivision (c), then the distinction between serious and violent felonies on the one hand, and non-serious and non-violent felonies on the other, is eliminated for all purposes and that this consequence would obliterate important statutory distinctions in the Three Strikes law. (Henson, supra, at pp. 1386, et seq., 67 Cal.Rptr.2d 734.)
While it is true that every serious or violent felony is a strike (§ 667, subd. (d)(1)), it is also true that no third felony need be either serious or violent to invoke the maximum punishment. This difference is inherent in the Three Strikes law. (§ 667, subd. (e)(2)(A).)
The dilemma Henson posits is not correct. While every third strike results in a limit on local credits, that offense does not thereby become violent or serious.34
In part, the supposed dilemma results from the relationship between sections 667.5, subdivision (c) and 2933.1, subdivision (c). The sole purpose of section 667.5, subdivision (c) is to serve as a source for description of the categories of crimes subject to the terms of section 2933.1, subdivision (c); it does not otherwise implicate the construction or meaning of section 2933.1, subdivision (c).
Our holding today is that any third strike offender merits increased incarceration by the means of reducing his local custody credits. Our holding recognizes the Legislature's determination to so sanction that group of third-time felons who have two serious or violent felony priors. This does not automatically convert every third strike into a serious or violent felony. The Three Strikes law itself does not require that the third strike be serious or violent (§ 667, subd. (e)(2 )(A )). While a third strike always results in reduction in credits, it does not itself become serious or violent thereby for other Three Strikes purposes.35
The correct number of days of local credit is 39 (15 percent of 264).36 An error created by the improper calculation of credits makes the sentence unauthorized, a jurisdictional error that is properly corrected at the time it is brought to the attention of the court, including for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040; People v. Fitzgerald, supra, 59 Cal.App.4th at pp. 934-936, 69 Cal.Rptr.2d 453; People v. Guillen (1994) 25 Cal.App.4th 756, 764, 31 Cal.Rptr.2d 653.)
Accordingly, the abstract of judgment is ordered corrected to restate the number of days of local credits as 39 and the total number of days of credit for time spent in local custody as 303 rather than 396.
The judgment is affirmed. The matter is remanded to the trial court for it to exercise its discretion in sentencing Thomas on the three section 12022, subdivision (a)(1) true findings and in determining whether one or more of counts II, III and V shall run consecutively or concurrently, and to state for the record its reason for each such determination. Upon conclusion of proceedings in the trial court consistent with the views expressed in this opinion, the superior court clerk shall prepare an amended abstract of judgment, including therein the correct number of days of local credits, and forward it to the Department of Corrections.
FN1. All subsequent statutory references are to the Penal Code.. FN1. All subsequent statutory references are to the Penal Code.
2. Thomas, who represented himself at trial, was found not guilty of first degree residential burglary as alleged in count I (§ 459) on an earlier date, June 26, 1996.
3. [[/]]The parties acknowledge that the trial court did not impose sentence on the three section 12022, subdivision (a) enhancements. That was error. (§ 12022, subd. (a)(1)). As the trial court has the discretion to strike the additional punishment if it determines that action to be appropriate (§ 1170.1, subd. (h); see Cal. Rules of Court, rule 428(a)), we return the case to the trial court for it to make this discretionary determination.
4. These priors, commonly referred to as “strike priors,” were personally shooting at an inhabited dwelling (§ 246) and robbery (§ 211).
5. An additional one-year enhancement was stayed because it arose from the same conviction on which a five-year enhancement was imposed.
FOOTNOTE. See footnote *, ante.
9. There are two versions of the Three Strikes law. The legislative version, set out at section 667, subdivisions (b) through (i) and the initiative version, set out at section 1170.12. The legislative version was enacted as an urgency measure, effective March 7, 1994. The initiative version was approved by the voters on November 8, 1994, and became effective the following day. The two versions are virtually identical. (People v. Deloza (1998) 18 Cal.4th 585, 76 Cal.Rptr.2d 255, 957 P.2d 945.) As there are no differences relevant to resolution of the issues presented in this case, our subsequent citations to the Three Strikes law will be to the legislative version.
10. Section 654 provides: “(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. [¶] (b) Notwithstanding subdivision (a), a defendant sentenced pursuant to subdivision (a) shall not be granted probation if any of the provisions that would otherwise apply to the defendant prohibits the granting of probation.”
11. In re Chapman, supra, articulated the relevant inquiry in the following manner: “It is only when the two offenses are committed by the same act or when that act is essential to both that they may not both be punished.” (Id. at p. 390, 273 P.2d 817.)
12. It is important to apply section 654 to appropriate circumstances as well. By its terms and case law, section 654 does not preclude multiple sentences to be imposed when there are multiple victims. This is the factual circumstance presented in People v. Deloza, supra. Thus, Deloza illustrates a situation in which section 654 did not restrict the trial court's sentencing discretion; rather, the trial judge in Deloza was presented with the question: Does the Three Strikes law compel imposition of consecutive sentences under the terms of that statute? The Supreme Court remanded the case to the trial court for it to exercise the discretion which the record indicates it did not believe it had at the prior sentencing proceeding. (Id. at pp. 599-600, 76 Cal.Rptr.2d 255, 957 P.2d 945.)
13. This means only one sentence subject to section 654 is not “stayed.” The mechanics of sentencing under section 654 are not to be overlooked. If two or more convictions are subject to section 654, the trial court must sentence on each, but is required to stay all but one sentence subject to that section: A judgment of conviction is entered on each conviction, the sentence is imposed on each count, and then stayed on those counts as to which the section 654 ban applies. (People v. Pearson (1986) 42 Cal.3d 351, 358, 228 Cal.Rptr. 509, 721 P.2d 595.) The judgment of conviction on a stayed count has lasting impact as it may be treated as a strike under the Three Strikes law. (People v. Benson (1998) 18 Cal.4th 24, 31, 74 Cal.Rptr.2d 294, 954 P.2d 557.)For clarity we note that sentences on convictions for crimes not affected by the section 654 analysis are not stayed either. Whether those sentences are consecutive or concurrent is an issue resolved by principles other than those contained in section 654.
14. The threshold question may be stated more comprehensively as whether concurrent or consecutive sentences were either (a) compelled by or (b) permitted under the Three Strikes law. In making a sentencing determination under the Three Strikes law in a case presenting multiple current convictions, the trial court must first determine whether those felonies were committed on the same-or separate-occasions or arose from the same set of operative facts. If the trial court determines that the felonies were not committed on the same occasion and did not arise from the same set of operative facts, then the sentences must be consecutive. (§ 667, subds. (c)(6) & (c)(7); People v. Hendrix, supra, 16 Cal.4th at pp. 513-514, 66 Cal.Rptr.2d 431, 941 P.2d 64.) If, on the other hand, the trial court concludes that the felonies were committed on the same occasion or did arise from the same set of operative facts, it has the discretion, guided by extant sentencing rules, to impose consecutive or concurrent sentences, unless applicable sentencing rules require consecutive sentences. (People v. Hendrix, supra, at p. 514, 66 Cal.Rptr.2d 431, 941 P.2d 64.) In the context of the instant case, the trial court would include in its analysis a determination of the sentencing consequences, if any, of any arguably unforeseen intervening event such as the arrival of the police at Shorter's residence and of the criminal conduct which followed. (§ 667, subds. (c)(6) & (c)(7); People v. Deloza, supra, 18 Cal.4th 585, 76 Cal.Rptr.2d 255, 957 P.2d 945; People v. Hendrix, supra, 16 Cal.4th 508, 66 Cal.Rptr.2d 431, 941 P.2d 64.)
15. Section 2900.5 provides in pertinent part: “(a) In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail, ․ all days of custody of the defendant, ․ and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment, ․”Section 4019 provides in pertinent part: “(a) The provisions of this section shall apply in all of the following cases: [¶] (1) When a prisoner is confined in or committed to a county jail, ․ including all days of custody from the date of arrest to the date on which the serving of the sentence commences․ [¶] ․ [¶] (4) When a prisoner is confined in a county jail, ․ following arrest and prior to the imposition of sentence for a felony conviction. [¶] (b) Subject to the provisions of subdivision (d), for each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff ․ [¶] (c) For each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff ․ [¶] ․ (e) No deduction may be made under this section unless the person is committed for a period of six days or longer. [¶] (f) It is the intent of the Legislature that if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.”
16. As will be discussed, post, conviction of any third felony invokes the life sentence maximum punishment of the Three Strikes law (§§ 667, subds. (b)-(i)) so long as it follows two prior serious or violent felony convictions. Such convictions are commonly referred to as “strikes.” Those crimes which are violent or serious within the meaning of the Three Strikes law are those set out at section 667.5, subdivision (c) and section 1192.7, subdivision (c), respectively.
17. Among the sections restricting grants of state prison credits are sections 667.70 [persons convicted of murder are eligible only for credits under section 2931, subdivision (b) ]; 667.61, subdivision (j) [violent sex offenders may earn a maximum of 15 percent conduct credits]; and section 190, subdivisions (a) and (c) [defendants' credits are restricted to those permitted by section 2931, subdivisions (a), (b), and (c) ].
18. We use the term “local credits” in this section of the opinion to refer to all credits other than credits for actual time in custody.
19. Section 2933.1 provides in its entirety: “(a) Notwithstanding any other law, any person who is convicted of a felony offense listed in Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.[¶] (b) The 15 percent limitation provided in subdivision (a) shall apply whether the defendant is sentenced under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2 or sentenced under some other law. However, nothing in subdivision (a) shall affect the requirement of any statute that the defendant serve a specified period of time prior to minimum parole eligibility, nor shall any offender otherwise statutorily ineligible for credit be eligible for credit pursuant to this section. [¶] (c) Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, ․ following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a). [¶] (d) This section shall only apply to offenses listed in subdivision (a) that are committed on or after the date on which this section becomes operative.”
20. The Legislature did not describe the class of convicted felons subject to this restriction as those convicted of a violent felony offense. (Cf. People v. Caceres (1997) 52 Cal.App.4th 106, 112, 60 Cal.Rptr.2d 415.) Had the Legislature intended to restrict the application of the section to those felons convicted of violent felonies, it had the tools to do so. As will be discussed in the text, post, section 2933.1, subdivision (a) applies to persons sentenced to any of the 17 categories of felonies listed in section 667.5, subdivision (c), whether violent or not.
21. The reference in section 2933.1, subdivision (c) to subdivision (a) of the same section is made solely to define the group of persons subject to the terms of subdivision (c). While subdivision (a) places a limit of 15 percent only on credits for supervised work done while in local custody (commonly referred to as “work time” credits, and generally unavailable to defendants charged with felonies who are awaiting trial), subdivision (c) extends this limit to all credits which might be earned while in local custody. (People v. Aguirre (1997) 56 Cal.App.4th 1135, 1140, 66 Cal.Rptr.2d 77; People v. Palacios (1997) 56 Cal.App.4th 252, 258, 65 Cal.Rptr.2d 318; People v. Hill (1995) 37 Cal.App.4th 220, 225, fn. 3, 44 Cal.Rptr.2d 11.)
22. These 17 categories of offenses include both crimes involving physical violence, and those not requiring physical violence, for their commission. (People v. Hetherington (1984) 154 Cal.App.3d 1132, 1139, 201 Cal.Rptr. 756 [listing those section 667.5, subdivision (c) crimes which were then defined as “violent felonies” but which could be committed without physical injury to the victim].) Arson (§ 667.5, subd. (c)(10)) and lewd act on a child under age 14 (§ 667.5, subd. (c)(6)) remain on the list of “violent” felonies even though no physical violence is necessary for their commission. (See In re Carr (1998) 65 Cal.App.4th 1525, 1529, 77 Cal.Rptr.2d 500.) Our holding that third strike felonies are within the meaning of section 667.5, subdivision (c)(7) is consistent with the long-standing legislative practice of listing crimes deserving of additional incarceration as “violent.” (People v. Hetherington, supra.)
23. Our interlineation, or reaggregation, of section 2933.1, subdivision (c) makes clear those portions of the referenced statutes which the Legislature intended to form a part of section 2933, subdivision (c). (See People v. Aguirre, supra, 56 Cal.App.4th at p. 1140, 66 Cal.Rptr.2d 77.)
24. Thomas's prior convictions are for personally shooting at an inhabited dwelling in 1984 (§ 246) and robbery in 1992 (§ 211). (See fn. 7, post.)
25. For purpose of our analysis, computation of the minimum term of incarceration is not important; it is sufficient that the maximum term is life imprisonment.
26. In re Carr, supra, 65 Cal.App.4th 1525, 77 Cal.Rptr.2d 500, contains extensive discussion of the legislative history of section 2933.1, albeit for the purpose of answering a different question, viz.: Are defendants placed on probation entitled to full credits even though they would be limited to 15 percent of such credits if sentenced to state prison? Concluding its analysis of that question, Division Five of this court finds the legislative history ambiguous: “To sum up, as is the case in many situations, the evidence concerning legislative intent is in conflict. [Citations.]” (Id. at p. 1535, 77 Cal.Rptr.2d 500.) While the legislative history is ambiguous with respect to the issue presented in In re Carr, the statute itself contains the unambiguous statement of legislative purpose quoted in the text which is germane to resolution of the issue presented in the instant case.
27. The fact that the Three Strikes maximum is 20 percent while the section 2933.1, subdivision (c) maximum is 15 percent is not significant. (People v. Caceres, supra, 52 Cal.App.4th 106, 111, 60 Cal.Rptr.2d 415.)
28. The Three Strikes law became effective as an urgency measure of March 7, 1994. (Stats.1994, ch. 12, §§ 1, 2.) Section 2933.1 became effective as an urgency measure on September 21, 1994. (Stats.1994, ch. 713, § 1.)
29. The Fuentes principles were applied recently in People v. Ervin (1996) 50 Cal.App.4th 259, 57 Cal.Rptr.2d 728, disapproved on other grounds in People v. Fuhrman, supra, 16 Cal.4th 930, 947, fn. 16, 67 Cal.Rptr.2d 1, 941 P.2d 1189, in which a defendant charged with rape under section 667.61, commonly known as the “One Strike law,” contended the provisions of that statute precluded application of the Three Strikes law. In rejecting that contention, the court pointed out the One Strike law had been enacted just six months after the Three Strikes law and that both should be given effect, in part because “our analysis of the issue before us begins with the presumption that the Legislature was aware of the three strikes law when section 667.61 was enacted․” (Id. at p. 264, 57 Cal.Rptr.2d 728.)Section 2933.1 was enacted with almost identical timing to the One Strike law, also in September, 1994. It deals with another criminal sentencing topic, that is commonly known as “truth in sentencing,” which had received considerable legislative attention. (See Letter of Governor Wilson to the Legislature, Stats.1994, ch. 713, No. 6 Deering's Advance Legislative Service, p. 3386.)In construing section 2933.1, we must recognize that its enactment shortly after the Three Strikes law was adopted requires that we construe it consistently with the earlier enactment. Doing so leads us to conclude that the clause at issue in the instant case must be construed so as to reduce credits for all recidivist, third strike defendants.
30. The most typical impact of the limitation on custody credits is not reduction of the minimum term imposed under the Three Strikes law (see People v. Stofle (1996) 45 Cal.App.4th 417, 421, 52 Cal.Rptr.2d 829 [20 percent custody credits limitation of section 667, subdivision (c)(5) applies only to determinate sentences and not to sentences imposed under indeterminate sentencing laws]; see also People v. Rowland (1982) 134 Cal.App.3d 1, 13-14, 184 Cal.Rptr. 346 [prison conduct credits are not available for indeterminate terms absent specific statutory provision]), but reduction of time to be served on the determinate sentence which commonly accompanies the indeterminate Three Strikes sentence. The determinate sentence is often comprised of section 667, subdivision (a) priors and enhancements such as those for weapons use. (See People v. Dotson (1997) 16 Cal.4th 547, 66 Cal.Rptr.2d 423, 941 P.2d 56.) How much of that determinate sentence is served depends in part on the local credits which are awarded.
31. Statutes addressing recidivist criminal conduct typically specify the applicable sentence upon the present conviction for a defendant with a certain criminal history. While it is the current offense which compels the imposition of a criminal sanction, the magnitude of that sanction is determined by the particular defendant's criminality and criminal history. In the Three Strikes context, the defendant's status as a repeat offender and the nature of the prior convictions are determinative. (§ 667, subdivision (b).)
32. There is an important difference between complexity and ambiguity, illustrated in this case by the need to assemble the true text of the statute by inclusion of clauses from section 2933.1, subdivision (a) and section 667.5, subdivision (c)(7). Once the relevant language is assembled, however, its text is unambiguous.
33. Use of the term “violent felonies” to refer to the crimes listed in section 667.5, subdivision (c) is misleading. As discussed, ante, at p. 161, fn. 22, that section lists nonviolent as well as violent offenses. Rather than being a rigid classification, section 667.5, subdivision (c) is a catalogue of those offenses of different characters which the Legislature determined should be sanctioned in the same manner. When the Legislature determined to export the categories of crimes listed there into section 2933.1, it cannot be said to have intended to do more than use the section 667.5, subdivision (c ) list as a list of offenses for which local credits would be limited to 15 percent. The Legislature recognized as much by not using the term “violent” in section 2933.1.
34. In People v. Hernandez (1981) 30 Cal.3d 462, 179 Cal.Rptr. 239, 637 P.2d 706, our Supreme Court was faced with explicating the relationship between section 667.5, subdivision (c)(8) [commission of a felony in which great bodily injury is inflicted, or in which the defendant used a firearm] and section 1170.1 [imposing an additional term under specified circumstances]. The court concluded that the incorporation of section 667.5, subdivision (c)(8) into the sentencing structure of section 1170.1 required giving effect to the unlimited subordinate terms for crimes enumerated in section 667.5, subdivision (c)(8) as well as for “any other felony” where great bodily injury was inflicted or in which a firearm was used. (Id. at pp. 466-467, 179 Cal.Rptr. 239, 637 P.2d 706.) In so holding our Supreme Court found no error in giving different meanings to the same phrase as it appeared in different parts of the same statute stating: “When the occasion demands it, the same word may have different meanings to effectuate the intention of the act in which the word appears.' [Citation.]” (Id. at p. 468, 179 Cal.Rptr. 239, 637 P.2d 706.)The instant case would be resolved in the same manner if the dilemma presented in Henson were correct.
35. We note that our holding results in different treatment for second strike sentenced prisoners who, generally, will be able to receive one-third local credits. This is not inconsistent with other differences in sentencing between second and third strike cases. Simply stated, the Legislature did not treat second strike defendants as harshly as third strike defendants. Even though doubling the term for the current offense (§ 667, subd. (e)(1)) is a significant “second strike” consequence, it is less severe than the life term with a minimum of 25 years imposed for any third felony conviction with two prior strikes. Not placing the same lid on local credits for second strike defendants recognizes the legislative decision to treat second strike defendants less harshly than third strike defendants.
36. In counting the number of days of credits any decimal is excluded; 15 percent is the literal maximum number of days allowable. (People v. Ramos (1996) 50 Cal.App.4th 810, 816, 58 Cal.Rptr.2d 24.)
GOODMAN, Associate Justice.** FN** Assigned by the Chairperson of the Judicial Council.
KLEIN, P.J., and CROSKEY, J., concur.