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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Sean HELMS, Defendant and Appellant.

No. A071204.

Decided: April 30, 1996

Cynthia Thomas, Executive Director, Mark Shenfield, Staff Attorney, First District Appellate Project, San Francisco, for appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Stan M. Helfman, Supervising Deputy Attorney General, Sharon G. Birenbaum, Deputy Attorney General, San Francisco, for respondent.

On this appeal we must determine whether application of the mandatory consecutive sentencing provisions of the three strikes law to an offense committed before its enactment violates the prohibition against ex post facto legislation.   We conclude that it does and modify the sentence.


In 1993, appellant Sean Helms was convicted in Marin County of possessing a controlled substance (Health & Saf.Code, § 11350, subd. (a)) with a state prison prior (Pen.Code, § 667.5, subd. (b)).1  He was sentenced to four years in state prison, with execution of the sentence suspended and a grant of probation.   On March 7, 1994, the three strikes law became effective.  (See Stats.1994, ch. 12, § 1.) Thereafter, and while on probation from Marin County, appellant committed a felony in Santa Clara County that was prosecuted as a three strikes case.   In May 1995, he was convicted and sentenced to 25 years to life.   The Santa Clara conviction served as the basis for revocation of probation in the Marin County case.

On the issue of whether the Marin County sentence should run concurrently with or consecutive to the Santa Clara term, the trial court stated that “․ the 25 years is enough to punish you for all of your offenses, but in this situation what I think does not count, actually what's governing here, I'm looking at the law, I think that the court has no choice.   If I'm wrong we'll find out about it, but I think that there is no choice but to impose the four year sentence.   [¶] I do think that—you know, you were sentenced under the three strikes law.   You'll be gone for a long time.   And were it not for that law I think that an appropriate disposition would be to impose the sentence and to make it concurrent, but I don't have that option to be able to do that.”   The court then ordered the previously imposed sentence of four years to run consecutive to the twenty-five-year-to-life sentence out of Santa Clara County.


The “law” that the trial court referenced as compelling a consecutive sentence is section 667, subdivision (e)(2)(B) of the three strikes law, which provides in relevant part that a determinate sentence “imposed subsequent to any indeterminate term ․ shall not be merged therein but shall commence at the time the person would otherwise have been released from prison.”   If application of this provision is barred as ex post facto, section 669 controls and gives the trial court discretion to sentence concurrently or consecutively under these circumstances.   Here, the record establishes that the trial court would have sentenced concurrently but believed that it lacked discretion to do so under section 667, subdivision (e)(2)(B).

 The ex post facto clause of the California Constitution is congruous with its federal counterpart and federal precedents are the appropriate gauge of whether a statute is ex post facto in California.   (People v. McVickers (1992) 4 Cal.4th 81, 86, 13 Cal.Rptr.2d 850, 840 P.2d 955.)   Under current federal law, “․ the clause prohibits three legislative categories:  legislation [1] which punishes as a crime an act previously committed, which was innocent when done;  [2] which makes more burdensome the punishment for a crime, after its commission, or [3] which deprives one charged with crime of any defense available according to law at the time when the act was committed․”  (Id. at p. 84, 13 Cal.Rptr.2d 850, 840 P.2d 955, internal quotation marks omitted.)

 “Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated․”  (Weaver v. Graham (1981) 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17.)

Two lines of cases, which reach different results, have developed for situations involving events occurring both before and after the date of a statute increasing penalties.  “The first focuses on statutes that increase the penalties for repeat or habitual offenders.   The second focuses on statutes that alter the consequences of violations of parole.”  (U.S. v. Meeks (2d Cir.1994) 25 F.3d 1117, 1119.)

“With respect to statutes that increase the penalties for repeat or habitual offenders some of whose convictions predate the effective date of the penalty increase, the Supreme Court has held that such statutes are not ex post facto laws, reasoning that they merely increase punishment for the crimes committed after the date of the statute.”  (U.S. v. Meeks, supra, 25 F.3d at p. 1119.)   Respondent relies on several California cases which fall into this first category.   Typical is People v. Mills (1992) 6 Cal.App.4th 1278, 8 Cal.Rptr.2d 310 which reasoned:  “ ‘․ [P]unishment is for the new crime only, but is more severe because the defendant is an habitual criminal.’  ․ [Citation.]”  (Id. at p. 1287, 8 Cal.Rptr.2d 310.)

In the second line of cases, “․ statutes that alter the consequences of violations of parole, as applied to prisoners or parolees whose underlying offenses occurred prior to the passage of the statutes, have consistently been held to violate the Ex Post Facto Clause because the increased burden on parole operates to enhance the penalty for that underlying offense.”  (U.S. v. Meeks, supra, 25 F.3d at p. 1120.)

An example of the second line is Schwartz v. Muncy (4th Cir.1987) 834 F.2d 396.   Defendant was convicted of offenses in 1968 and 1978.   In 1979 a statute was passed which increased the penalties for three-time offenders.   Defendant was placed on parole.   In 1982, defendant was convicted and sentenced for committing a third offense.   Also as a result of the 1982 conviction, defendant's parole for the 1978 offense was revoked, he was returned to prison and his sentence for the 1978 offense was effectively increased pursuant to the provisions of the 1979 statute.  (Id. at pp. 396–397.)

 The federal court held that application of the 1979 statute to the 1978 offense violated the ex post facto proscription because the “acts leading to [defendant's] 1978 conviction of course occurred prior to the 1979 change of the [law]” and the 1979 statute increased his punishment for the 1978 offense.  (Schwartz v. Muncy, supra, 834 F.2d at p. 398.)   For ex post facto purposes the key date is the date of the offense being punished, not the date of the violation of parole or probation for that offense.  Schwartz v. Muncy is strikingly similar to the instant case since both involve habitual criminal statutes applied in the context of a parole/probation violation to offenses which occurred before the date of the statute.

 Respondent argues that appellant's instant Marin County sentence is not being increased, but rather the consecutive sentence is a manifestation of the punishment for the later Santa Clara conviction, which postdates the three strikes law.   Such an argument was implicitly rejected in Schwartz.   The fatal flaw of respondent's argument is that the increased sentence is, in fact, placed on the pre-three strikes offense.   Appellant was given a 25–year to life sentence for the Santa Clara offense.   He was given a consecutive sentence for the Marin offense because of a change in the law after commission of that offense.   Thus, the application of section 667, subdivision (e)(2)(B) of the three strikes law to increase the punishment for an offense committed before its enactment falls squarely within the prohibitions of the ex post facto clauses of the federal and state constitutions.2


The judgment of conviction is modified to reflect that the four-year state prison term is ordered to run concurrently with the twenty-five-year to life term imposed in Santa Clara County.   In all other respects, the judgment is affirmed.


1.   All further section references are to the Penal Code.

2.   Appellant also contends the record suggests that the trial court did not understand that it had options other than ordering the suspended sentence into effect.   We disagree with this interpretation.   In our view, the only lack of discretion evidenced by the record concerned the concurrent sentencing issue.

REARDON, Associate Justice.

ANDERSON, P.J., and HANLON, J., concur.