PEOPLE v. RUCKER

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Appellant, v. Tyrone Lamont RUCKER, Defendant and Respondent.

No. B090125.

Decided: December 20, 1995

Gil Garcetti, District Attorney (Los Angeles), Diana L. Summerhayes and Moira J. Curry, Deputy District Attorneys, for Plaintiff and Appellant. Melissa W. Johnson, under appointment by the Court of Appeal, Berkeley, for Defendant and Respondent.

Respondent Tyrone Lamont Rucker was convicted by jury of second degree robbery, with jury findings he had three prior convictions of a serious felony.  (Pen.Code, §§ 211;  667, subds. (a)–(i).)   The court imposed the indeterminate term of 25 years to life for the robbery, but concluded imposing the five-year terms required under Penal Code section 667, subdivision (a)(1), was not authorized by statute.   The People appeal and contend:  “I.  The People have the right to appeal from imposition of an unlawful sentence.   II.  Trial courts must impose the punishment mandated by section 667, subdivision (a)(1).   III.  The clear language of section 667, subdivisions (a)(1) and (e) mandate[s] imposition of the five-year enhancements in addition to the indeterminate term.   IV.  The trial court erred in holding that Rucker's five-year priors were ‘subsumed’ in his indeterminate life sentence.   V.  A defendant with serious felony priors, convicted of a new serious felony, should receive a greater sentence.”

FACTS

There is no sufficiency of the evidence claim.   Thus, the facts can be stated simply.   On April 22, 1994, respondent entered a 7–Eleven Market and feigned having a gun and took money and goods from the market's cashier.   A passing police car spotted him and apprehended him after a foot chase.   Respondent was in possession of items stolen during the robbery.   During the field identification procedure, respondent started laughing and told the police the cashier believed he was armed.   In defense, respondent claimed he was under the influence of phencyclidine, heroin and alcohol and explained he took advantage of the fact the cashier jumped to the conclusion he was committing robbery.   In rebuttal, the jury was shown the store's videotape of the robbery.1

At sentencing, the court imposed the “Three Strikes” indeterminate term of 25 years to life under Penal Code section 667, subdivision (e)(2)(A)(ii).   Over the People's objection, the court “stayed” the three five-year terms mandated under Penal Code section 667, subdivision (a)(1), as the court concluded it was not authorized to do so.   The court said:  “It's the court's position that the court cannot determine the legislative intent of this statute when the language is clear on its face.   The court determines that the language ‘two or more’ is designed to trigger cases where there is two or more serious or violent felonies wherein the defendant is convicted of the enhancement and as such it converts what would otherwise be a determinate sentence to an indeterminate sentence.   Therefore, all serious or violent prior felonies which are alleged are, in essence, subsumed in that criteria for two or more.”   The court then commented there were no equities in the case and, if the court had the authority to do so, it would have imposed the additional three five-year terms for the prior serious felony convictions (Pen.Code, § 667, subd. (a)(1)), making the aggregate term of imprisonment 40 years to life.

DISCUSSION

 The People's related contentions the court imposed an unauthorized sentence under the “Three Strikes” law by failing to have additionally imposed three five-year terms under Penal Code section 667, subdivision (a)(1), have merit.2

This court concludes the trial court properly should have imposed the three five-year terms under Penal Code section 667, subdivision (a)(1).

In pertinent part, Penal Code section 667 3 provides:  “(a)(1) In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.   The terms of the present offense and each enhancement shall run consecutively.  [¶] (2) This subdivision shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment.   There is no requirement of prior incarceration or commitment for this subdivision to apply․  [¶] (b) 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․  [¶] (e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction:  [¶] (1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.  [¶] (2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:  [¶] (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions.  [¶] (ii) Imprisonment in the state prison for 25 years.  [¶] (iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.  [¶] (B) The indeterminate term described in subparagraph (A) shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law.   Any other term imposed subsequent to any indeterminate term described in subparagraph (A) shall not be merged therein but shall commence at the time the person would otherwise have been released from prison.”  (Italics added.) 4

Penal Code section 1385, subdivision (b), removed from the court the power to strike prior convictions of a serious felony.  (People v. Rivadeneira (1991) 232 Cal.App.3d 1416, 1421, 284 Cal.Rptr. 75;  People v. Valencia (1989) 207 Cal.App.3d 1042, 1047, 255 Cal.Rptr. 180.)   This court has adopted the view nothing contained in Penal Code section 667, subdivisions (b) to (i), or in Penal Code section 1170.12, has reempowered the trial court to dismiss these enhancements in the interests of justice, or for purposes of sentencing an offender.   The separation of powers doctrine does not render the law invalid.  (See, e.g., People v. Campos (1995) 38 Cal.App.4th 1669, 1674, 45 Cal.Rptr.2d 706;  People v. Drew (1995) 40 Cal.App.4th 811, 47 Cal.Rptr.2d 319.) 5

The “Three Strikes” provisions have not changed Penal Code section 1385, subdivision (b)'s prohibition against striking serious felony priors but has further restricted the court's power to grant probation, order diversion, make narcotic rehabilitation commitments, sentence concurrently, and engage in plea bargaining.   Similarly, the “Three Strikes” law restricts the prosecutor's discretion to plead prior convictions and to dismiss allegations of prior convictions during plea bargaining.   The only mitigating provision in the “Three Strikes” law is that the prosecutor may now move to dismiss prior serious felony convictions on grounds of insufficient evidence or in the furtherance of justice.  (Pen.Code, § 667, subd. (f)(2).)

 The Legislature made its intent plain.   The “Three Strikes” law was enacted 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.   This court must “select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.  [Citation.]”   (People v. Jenkins (1995) 10 Cal.4th 234, 246, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)

Nothing in the express provisions of the statute permits the five-year mandatory terms under Penal Code section 667, subdivision (a)(1), to be stricken when a “three strikes” life term is imposed.   The express provisions of Penal Code section 667, subdivision (a)(1), require “[t]he terms of the present offense and each enhancement shall run consecutively.”   Subdivision (e) of Penal Code section 667 expressly requires the terms provided for therein are to be imposed “in addition to any other enhancement or punishment provisions which may apply.”   These provisions indicate the Legislature had no intention to permit the striking of the mandatory five-year enhancements, even where the “Three Strikes” indeterminate life term was imposed.

The court made the observation in People v. Ramirez (1995) 33 Cal.App.4th 559, 567, 39 Cal.Rptr.2d 374:  “It is important to note that section 667 was amended in its entirety, at one time.   When the Legislature amended this statute, it reenacted the five-year enhancement provisions in the same statute as the new provisions.   The Legislature was indisputably aware of the five-year enhancement.   The issue of cumulative consequences was specifically raised in letters and reports prior to adoption of the legislation.  [Fn. omitted.]   In the face of this actual knowledge, the Legislature did not limit the cumulative effect of the various provisions of the statute.   Instead, the Legislature expressly stated that the new provisions were to be applied in addition to any other enhancements. ”  (Original italics.)   The Ramirez court also concluded that while the language used by the Legislature, “in addition to any other enhancement or punishment,” could not have been more broadly drafted, it is unnecessary for the Legislature specifically to enumerate the enhancements or punishments to which the statute alluded.

People v. Ramirez, supra, 33 Cal.App.4th 559, 566, 39 Cal.Rptr.2d 374 and People v. Anderson (1995) 35 Cal.App.4th 587, 593, 41 Cal.Rptr.2d 474, reached this conclusion with regard to “second strike” defendants.   To hold otherwise with a “three strikes” defendant would improperly construe the “Three Strikes” law in a fashion contrary to the law's stated intent.

People v. Jenkins, supra, 10 Cal.4th 234, 40 Cal.Rptr.2d 903, 893 P.2d 1224 does not support respondent's argument the enhancements do not apply.   The court in Jenkins did not reach the issue presented here and merely determined Penal Code section 667.7's provision did not contemplate use of Penal Code section 667, subdivision (a)(1)'s mandatory five-year enhancement as part of the calculation of the minimum period of imprisonment.  (People v. Jenkins, supra, at pp. 238, 249–253, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)   Penal Code section 667, subdivisions (a)(1) and (e) contain express statutory provisions mandating the five-year enhancement in addition to the “strike” terms, which is in contrast with Penal Code section 667.7 provisions, which lack such operative language.  (People v. Anderson, supra, 35 Cal.App.4th at pp. 596–598, 41 Cal.Rptr.2d 474.)   This court is dealing with the appropriate statutory interpretation of Penal Code section 667, and the fashion in which Penal Code section 667.7's habitual offender statute has been interpreted has no relevance to that issue.  (See People v. Jenkins, supra, 10 Cal.4th at p. 253, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)   The fact the five-year mandatory enhancement may be used under Penal Code section 667, subdivision (e)(2)(A), to define the “three strikes” term does not mean it cannot also be used to enhance the term.  (People v. Cartwright (1995) 39 Cal.App.4th 1123, 46 Cal.Rptr.2d 351.)6  “Engrafting” a determinate term onto an indeterminate term is expressly contemplated by Penal Code section 669.  (People v. Anderson, supra, 35 Cal.App.4th at p. 597, fn. 11, 41 Cal.Rptr.2d 474.)

Respondent also argues Penal Code section 667, subdivision (a)(2), requires striking the Penal Code section 667, subdivision (a)(1), enhancements for a “three strikes” defendant.   However, the interpretation put on this provision by the Supreme Court in People v. Jones (1993) 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163 was that the provision meant “when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply.”  (Id. at p. 1150, 22 Cal.Rptr.2d 753, 857 P.2d 1163.)7  Given the Supreme Court's interpretation of subdivision (a)(2), this court must find subdivision (a)(2) has no application here.   The provisions of the “Three Strikes” law proscribe alternate terms for the offense and are not enhancements.  (People v. Martin (1995) 32 Cal.App.4th 656, 667, 38 Cal.Rptr.2d 776.)   Hence, subdivision (a)(2) does not demand that the five-year mandatory term in subdivision (a)(1) be stricken where a “three strikes” indeterminate term is applied.  (Cf. People v. Jenkins, supra, 10 Cal.4th at pp. 253–254, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)

Also, contrary to respondent's claim, Penal Code section 654 is not implicated.   Subdivision (e) of Penal Code section 667 provides the “Three Strikes” defendant shall obtain a sentence enhancement in addition to any other authorized punishment.   That language presents an express statutory exception to the provisions of Penal Code section 654.   (People v. Ramirez, supra, 33 Cal.App.4th at pp. 572–573, 39 Cal.Rptr.2d 374;  People v. Cartwright, supra, 39 Cal.App.4th at p. 1138, 46 Cal.Rptr.2d 351;  People v. Nobleton (1995) 38 Cal.App.4th 76, 80–83, 44 Cal.Rptr.2d 611, as modified Oct. 3, 1995.) 8

This court will modify the judgment to impose an authorized sentence.

DISPOSITION

The judgment is modified to impose three five-year consecutive terms for the Penal Code section 667, subdivision (a)(1), findings and the aggregate term is modified pursuant to Penal Code section 669 to 40 years to life.   The court shall cause an amended abstract of judgment to be sent to the Department of Corrections reflecting these changes in the judgment.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   Respondent has also appealed from the judgment and that appeal, People v. Tyrone Lamont Rucker, case No. B089884, is also pending before this court.   This record does not contain the reporter's transcripts for the entire trial.   Accordingly, we have taken judicial notice of the file in the other appeal case, No. B089884, and have taken the facts from the reporter's transcripts of the trial, which are contained in that file.

2.   Under Penal Code section 1238, subdivision (a)(10), the People can appeal from the judgment if the court has imposed an unlawful sentence.

3.   The “Three Strikes” initiative was enacted by the electorate on November 8, 1994, on a date which is subsequent to the commission of respondent's robbery.   Thus, its correlative provisions in Penal Code section 1170.12 are not in issue.

4.   Penal Code section 667 also provides:  “(f)(1) 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).   The prosecuting attorney shall plead and prove each prior felony conviction except as provided in paragraph (2).  [¶] (2) The prosecuting attorney may move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to Section 1385, or if there is insufficient evidence to prove the prior conviction.   If upon the satisfaction of the court that there is insufficient evidence to prove the prior felony conviction, the court may dismiss or strike the allegation.”Penal Code section 1385, subdivision (b), provides:  “This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.”

5.   People v. Campos, supra, and People v. Drew, supra, are not yet final.   The issues presented by the “Three Strikes” law are presently before the California Supreme Court in People v. Superior Court (Romero) (1995) 35 Cal.App.4th 1313, 37 Cal.Rptr.2d 364, review granted April 13, 1995 (S045097), People v. Glaster (1995) 36 Cal.App.4th 785, 45 Cal.Rptr.2d 65, review granted October 19, 1995 (S048283), People v. Petty (1995) 37 Cal.App.4th 730, 44 Cal.Rptr.2d 34, review granted November 2, 1995 (S048702), People v. Bailey (1995) 37 Cal.App.4th 871, 44 Cal.Rptr.2d 205, as modified August 21, 1995, and September 7, 1995, review granted November 16, 1995 (S048808), People v. Williams (1995) 37 Cal.App.4th 1737, 44 Cal.Rptr.2d 743, as modified September 12, 1995, and October 3, 1995, review granted November 16, 1995 (S049295), People v. Loomis (1995) 37 Cal.App.4th 1781, 44 Cal.Rptr.2d 775, review granted November 16, 1995 (S049374), People v. Gore (1995) 37 Cal.App.4th 1009, 44 Cal.Rptr.2d 244, review granted November 22, 1995 (S048866) and People v. Superior Court (Pipkin ) (1995) 38 Cal.App.4th 1773, 46 Cal.Rptr.2d 474, as modified October 13, 1995, review granted November 22, 1995 (S049470).

6.   People v. Cartwright, supra, is not yet final.

7.   People v. Jones, supra, 5 Cal.4th at page 1150, 22 Cal.Rptr.2d 753, 857 P.2d 1163, addressed the meaning of former Penal Code section 667, subdivision (b).   With the enactment of the “Three Strikes” law, Penal Code section 667, subdivision (b), became Penal Code section 667, subdivision (a)(2).

8.   People v. Nobleton, supra, is not yet final.

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs. JOHNSON, J., concurs in the judgment only.

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