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Court of Appeal, First District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Josiah Cheston BARRA et al., Defendants and Appellants.

No. A076392.

Decided: January 08, 1998

Ross Thomas, for appellant Johnny Barra. Sandra Gillies, Woodland, for appellant Josiah Barra. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Christina V. Kuo, Deputy Attorney General, for respondent.

Under the “Three Strikes” law, when a defendant has one qualifying prior, “the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.”  (Pen.Code, §§ 667, subd. (e)(1);  1170.12, subd. (c)(1).)  The question we consider in the published portion of this opinion is the applicability of this doubling provision when the defendant's current conviction is attempted willful, deliberate, and premeditated murder, a crime punishable by “life with the possibility of parole.” (§ 664, subd. (a).) 1


A jury convicted Josiah Cheston Barra of two counts of attempted willful and premeditated murder and one count of second degree robbery (Pen.Code, §§ 664, 187, 211), each count with personal knife use and great bodily injury enhancements.  (Pen.Code, §§ 12022, subd. (b)(1), 12022.7, subd. (a).)

The same jury convicted Johnny Barra, Jr., of one count of attempted willful and premeditated murder, with personal knife use and great bodily injury enhancements, one count of second degree robbery, with a personal knife use enhancement, and one count of assault with a deadly weapon (§ 245, subd. (a)(1)), with a great bodily injury enhancement.   In bifurcated proceedings, the trial court found that he had suffered a prior serious felony conviction within the meaning of the “Three Strikes” law. (§§ 667, subds.(b)-(j);  1170.12, subds. (a)-(d).)

II.-IV. **


At Johnny Barra's sentencing hearing, the court imposed a life term for the attempted murder conviction, “doubled by reason of the so-called strike.”   The abstract of judgment also indicates that the life term is “to be doubled per [the Three Strikes law].”

Johnny contends that doubling of the life term was unauthorized by law.   He reasons that the Three Strikes law does not apply to a defendant with one qualifying prior when the punishment for his current offense is life with the possibility of parole, because that punishment is an indeterminate sentence with no minimum term to double.   The contention is based on an apparent misunderstanding of the difference between determinate and indeterminate life sentences.

A sentence of 15 or 25 years to life is an indeterminate sentence, with a minimum possible term of 15 or 25 years and a maximum potential term of life imprisonment.  (See In re Jeanice D. (1980) 28 Cal.3d 210, 215-219, 168 Cal.Rptr. 455, 617 P.2d 1087;  People v. Yates (1983) 34 Cal.3d 644, 648-652, 194 Cal.Rptr. 765, 669 P.2d 1;  People v. Smith (1984) 35 Cal.3d 798, 808-809, 201 Cal.Rptr. 311, 678 P.2d 886.)   When a second strike defendant's current conviction is punishable by an indeterminate life sentence (see, e.g., §§ 190, subd. (a) [murder], 217.1, subd. (b) [attempted murder of certain public officials] ), the specified minimum term for that conviction is doubled.  (See People v. Ruiz (1996) 44 Cal.App.4th 1653, 1657, 52 Cal.Rptr.2d 561 [second strike defendant sentenced to 15 years to life for second degree murder, doubled to 30 years to life].)

Section 664 is among several statutes that prescribe a life term without setting a specified minimum term.  (See, e.g., §§ 205 [aggravated mayhem], 209, subd. (a), (b) [certain kidnappings], 209.5 [kidnapping during carjacking], 219 [train derailing where no death occurs].)  Our Supreme Court has consistently characterized such a sentence as a determinate or express life term.  (See People v. Yates, supra, 34 Cal.3d at pp. 648-650, 194 Cal.Rptr. 765, 669 P.2d 1;  People v. Smith, supra, 35 Cal.3d at pp. 808-809, 201 Cal.Rptr. 311, 678 P.2d 886;  see also People v. Bright (1996) 12 Cal.4th 652, 669, 49 Cal.Rptr.2d 732, 909 P.2d 1354[§ 664, subd. (a) “sets forth a penalty provision prescribing an increased sentence (a greater base term) to be imposed upon a defendant's conviction of attempted murder when the additional specified circumstances are found true․”]) 7

 When faced with a question about the legislative intent underlying a statute, we begin with its actual words, giving them a plain and common sense meaning.  (People v. Valladoli (1996) 13 Cal.4th 590, 597, 54 Cal.Rptr.2d 695, 918 P.2d 999.)   We do not indulge in statutory construction when those words are clear and unambiguous.  (People v. Hendrix (1997) 16 Cal.4th 508, 512, 66 Cal.Rptr.2d 431, 941 P.2d 64.)   Instead, we follow the legislative intent as exhibited by that plain language, regardless of what we may think of the wisdom of the enactment.  (People v. Weidert (1985) 39 Cal.3d 836, 843, 218 Cal.Rptr. 57, 705 P.2d 380.)

 For a defendant with one qualifying prior, the plain language of the Three Strikes law distinguishes between determinate and indeterminate terms and specifies that “the determinate term ․ shall be twice the term otherwise provided as punishment for the current felony conviction.” (§§ 667, subd. (e)(1);  1170.12, subd. (c)(1).)   As that directive is clear and unambiguous, courts must follow it.   In this case, the punishment for Johnny's current conviction was a determinate life sentence, and the trial court correctly imposed twice that term, i.e., two consecutive determinate life terms.

Imposition of two consecutive life terms will result in a minimum parole eligibility period of at least 14 years.  (See § 3046 [“Where two or more life sentences are ordered to run consecutively to each other pursuant to section 669, no prisoner so imprisoned may be paroled until he or she has served at least seven calendar years ․ on each of the life sentences․”].)

We recognize that in People v. Tran (1997) 59 Cal.App.4th 1125, 69 Cal.Rptr.2d 535 modified December 30, 1997, the court held that the imposition of two consecutive life terms under similar circumstances was error.   Instead, the Tran court interpreted the Three Strikes law as requiring the imposition of one life term, with the doubling of the seven-year minimum period for parole eligibility set forth in section 3046.   The court viewed the omission of a specific reference to the minimum period for parole eligibility as a drafting error, but reasoned that the Legislature could not have intended to exempt defendants convicted of attempted premeditated murder from the term-doubling provisions of the law.   While we agree with the Tran court's assessment of the legislative and voter intent underlying the Three Strikes law, we question the court's failure to recognize the difference between indeterminate and determinate life terms.8



The judgments are affirmed.


1.   All subsequent statutory references are to the Penal Code unless otherwise indicated.

FOOTNOTE.   See footnote *, ante.

7.   The minimum parole eligibility release date for a defendant sentenced to a determinate life term is seven years. (§ 3046.)   With certain exceptions, that date for a defendant sentenced to an indeterminate life term is calculated by applying section 2931 credits against the statutory minimum sentence.  (In re Dayan (1991) 231 Cal.App.3d 184, 186, 282 Cal.Rptr. 269;  see §§ 190, 3046.)

8.   . The applicability of the Three Strikes law to a defendant with one qualifying prior and a current conviction of attempted deliberate and premeditated murder is currently pending before the California Supreme Court in People v. Jefferson (1996) 50 Cal.App.4th 958, 58 Cal.Rptr.2d 252, review granted February 19, 1997 (S057834).

FOOTNOTE.   See footnote *, ante.

STRANKMAN, Presiding Justice.

STEIN and SWAGER, JJ., concur.