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

The PEOPLE, Plaintiff and Respondent, v. James McDANIEL, Defendant and Appellant.

No. A068870.

Decided: April 30, 1996

David B. Harrison, San Francisco, for appellant. 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, Jeremy Friedlander, Deputy Attorney General, Sacramento, for respondent.

James McDaniel (appellant) was convicted by a jury of three counts of possessing marijuana for sale (Health & Saf.Code § 11359) on July 21, 1994, August 11, 1994, and August 24, 1994.   He was also convicted of selling marijuana (Health & Saf.Code § 11360, subd. (a)) on the latter date.   In a separate trial, the court found true an allegation that appellant had suffered a prior felony conviction (robbery in 1969) pursuant to Penal Code 1 section 667, subdivision (d).   Appellant was sentenced to a total prison term of six years and eight months, calculated as follows:  the lower term of two years on the sale conviction, doubled, pursuant to section 667, subdivisions (d) and (e);  plus one-third the middle term on the July 21 and August 11 possession charges (eight months for each), doubled, pursuant to section 667, subdivisions (d) and (e).   The court ordered that the two subordinate terms be served consecutively.

In the unpublished portion of this opinion, we consider and reject two challenges to appellant's conviction and several challenges to the sentence imposed.   In the published portion of the opinion, we determine (a) that imposition of consecutive subordinate sentences was mandatory under “Three Strikes” (§ 667, subds.(b)-(i));  (b) that doubling the subordinate sentences was mandatory under “Three Strikes”;  and (c) that the prosecutor lost all discretion and authority to strike or move to strike appellant's prior once it was pled and proved.


On July 21, two San Francisco police officers observed appellant sitting on the grass at the Lake Alvors entrance to Golden Gate Park. The officers saw an individual named Robert Bloomer signal to appellant by placing his thumb and index finger to his mouth as if smoking a cigarette.   Appellant then walked deeper into the park, where he was approached by an individual named Larry White;  as they met, appellant reached into his sock and pulled out a yellow pouch which he handed to White.   White took the pouch to Bloomer and handed it to him;  Bloomer looked inside the pouch, then apparently saw the officers watching the incident.   Bloomer gave the pouch back to White, and the two men started walking away from each other.   The officers detained Bloomer and White.   When they examined the pouch, they found it contained several baggies of marijuana.   They then arrested appellant and found two more bags of marijuana on his person.   A drug expert testified that the incident was an aborted drug transaction and that appellant possessed the marijuana for sale.

On August 11, 1994, another San Francisco police officer was driving past the intersection of Haight and Stanyan Streets, when he observed appellant transferring something from one clear plastic baggie into a smaller one.   The officer arrested appellant and found two bindles of marijuana in the area just in front of appellant.   When appellant was searched at the station, the police found another baggie, containing two more bindles of marijuana.   The prosecution's drug expert testified that appellant possessed the marijuana for sale.

On August 24, 1994, an undercover police officer approached appellant and asked him for some “bud,” a street name for marijuana.   The officer gave appellant $20 in marked bills, and appellant gave the officer a small baggie of marijuana.   When the police arrested appellant, they found the marked money in his wallet.   During a booking search, the police found two more bindles of marijuana in appellant's socks.   The prosecution's drug expert again testified that the marijuana was possessed for sale.



C. Consecutive Subordinate Sentences Were Mandatory Under “Three Strikes”

The trial court originally sentenced appellant to the lower term of two years for the conviction of sale of marijuana, doubled, with concurrent terms for the other convictions.   Subsequently, the court received a letter from the Department of Corrections which called into question the propriety of imposition of concurrent, as opposed to consecutive, sentences.   The court conducted a new sentencing hearing at which it imposed the noted consecutive sentences, noting that consecutive sentences were mandatory because “the two possessions for sale [offenses] occurred on different dates.”

Appellant contends that the court erred in that determination.   Appellant's contention is based on his interpretation of section 667, subdivision (c)(6):  “If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e).”  (Italics added.)   Appellant concedes that the possession offenses on July 21 and August 11 were committed on different occasions (dates) from the sale offense on August 24.   However, he argues that all the crimes arose—or at least could be construed to have arisen—from the same set of operative facts.5  Because the trial court only referred to the fact that the offenses occurred on different dates and made no express determination that they arose from different operative facts, he reasons that remand is required so that the trial court may determine whether or not the offenses in fact arose from the same operative facts.

Appellant's argument is best understood by stating subdivision (c)(6) in a different way:  consecutive sentences are not mandatory if (a) the crimes were committed on the same occasion or (b) the crimes arose from the same operative facts.   The problem, of course, is determining what acts which constitute separate crimes and are committed on different occasions (days) yet arise from “the same operative facts.”

In People v. McKee (1995) 36 Cal.App.4th 540, 42 Cal.Rptr.2d 707, Division Six of the Second District addressed that problem in a case where McKee stole 68 blank checks from his former employer and cashed 10 of them over a 23–day period.   McKee was charged with 10 counts of forgery.   Pursuant to plea agreement, he pled guilty to four counts;  the trial court imposed consecutive terms on the remaining counts, based on a determination that the crimes were committed “ ‘at different times and separate places' ” and did not constitute “ ‘a single period of aberrant behavior.’ ”  (Id. at pp. 544–545, 42 Cal.Rptr.2d 707.)   The Court of Appeal noted that the trial court's ruling had its “roots” in “case law interpreting section 654[6 ] and its proscription against unlawful multiple punishment.”  (Id. at pp. 545–546, 42 Cal.Rptr.2d 707.)   The McKee court then determined that a “traditional” section 654 analysis should be employed in determining whether multiple new felonies arise from the same set of operative facts.  (Id. at p. 546, 42 Cal.Rptr.2d 707.)

 We agree with the approach taken in McKee and consider appellant's intent and objective in effecting each of the crimes in question.   (People v. Latimer (1993) 5 Cal.4th 1203, 1209–1216, 23 Cal.Rptr.2d 144, 858 P.2d 611.)   We conclude that the acts were sufficiently different from each other in intent and objective that multiple punishment is not inappropriate.   We first note that appellant's crimes did not occur on the same day but were spaced out over a period of 34 days.   In addition, appellant was not in possession of the same bags of marijuana on different days.   On each occasion, he possessed several different (new) baggies.   Moreover, the July 21 possession was part and parcel of an aborted sale, while the possession on August 11 involved no sale component.

In the case at bench the trial court did not expressly find that the crimes did not arise from the same set of operative facts.   However, nothing in the record indicates that the trial court would have found that the crimes did arise from the same set of operative facts had the court spoken specifically to that issue.   In such circumstances, all intendments are in favor of the trial court's judgment.  (People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, 1266, 1 Cal.Rptr.2d 333.)   Further, as analyzed herein, if the trial court had found that the offenses arose from the same operative facts, it would have been an abuse of discretion.   Thus, we find no error in the imposition of consecutive sentences.

D. The Trial Court Properly Doubled the Subordinate Terms

Appellant next argues that it was error for the trial court to double the sentences imposed for the subordinate terms.   He first asserts that the language of section 667, subdivision (e)(1),7 reflects a legislative intent that only the principal term be doubled when a defendant has been convicted of one prior qualifying felony.

Appellant's argument is predicated on the fact that the Legislature speaks in the singular (“term”) in section 667, subdivision (e)(1).   Appellant reasons that, if the Legislature had intended to require a doubling of any but the principal term, it would have spoken in the plural (“terms”).

Three Courts of Appeal have rejected the argument advanced by appellant.   Division Four of the Second District and the Fifth District both interpreted section 667, subdivision (e)(1), in the context of Judicial Council rules on sentencing.  (People v. Martin (1995) 32 Cal.App.4th 656, 665–666, 38 Cal.Rptr.2d 776;  People v. Hill (1995) 37 Cal.App.4th 220, 227–228, 44 Cal.Rptr.2d 11.)   Although each court approached the question from a slightly different perspective, the analysis in Hill fairly represents the analysis in Martin:  “Under determinate sentencing, a determinate term is a fixed term, as distinguished from a life sentence.  [Citation.]  The base term is the determinate term selected from one of three set by statute or the single term prescribed by law.  (Rule 405(b), Cal. Rules of Court.)   Where there is a conviction for more than one felony, and therefore more than one determinate term, the greatest determinate term is selected as the principal term;  any other consecutive term is a subordinate term. (§ 1170.1, subd. (a).)  For nonviolent felonies, the subordinate term is one-third the midterm.  (Ibid.) Since the subordinate term is a fixed term, it is a ‘determinate term,’ and should be included in the ‘determinate term’ calculated under section 667, subdivision (e)(1).  [¶] Section 667, subdivision (c)(6), requires consecutive sentences if there is a current conviction for more than one felony not committed on the same occasion and not arising from the same set of operative facts.   This subdivision indicates the Legislature understood the ‘current conviction’ could encompass more than one felony offense.   Thus ‘the term otherwise provided as punishment for the current felony conviction’ is not limited to a single offense, or the principal term.   Further, subdivision (c)(6) provides:  ‘[T]he court shall sentence the defendant consecutively on each count pursuant to subdivision (e).’   Subdivision (e) provides for doubling, so the determinate term for each count should be doubled.”   (People v. Hill, supra, 37 Cal.App.4th at pp. 227–228, 44 Cal.Rptr.2d 11.)

Appellant argues that language employed in section 667, subdivision (e)(2)(A)(i),8 should lead us to a different conclusion.   That same argument was addressed by the Martin court:  “Respondent points to the fact that section 667, subdivision (e)(1) is stated in the singular, while subdivision (e)(2)(A)(i) specifies a tripling of ‘each current felony conviction.’   He reasons this demonstrates a legislative purpose to allow the term of only one of multiple felonies to be doubled.   The short answer to this argument is that in the Penal Code (as in other codes) ‘the singular number includes the plural.’ (§ 7.) Beyond that, the phrasing of subdivision (e)(2)(A)(i) appears to be based on a proper grammatical use of language rather than an intent to distinguish between multiple current felonies and a single current felony.”  (People v. Martin, supra, 32 Cal.App.4th at p. 668, 38 Cal.Rptr.2d 776.)

Division Six of the Second District adopted the reasoning of the Martin court in addressing the differences in language between the two subdivisions.   (People v. McKee, supra, 36 Cal.App.4th at pp. 547–548, 42 Cal.Rptr.2d 707.)

 We find the analyses of the Hill, Martin and McKee courts thoughtful and persuasive.   We also note another reason why the Legislature did not employ the phrase “for each current felony conviction,” as opposed to the phrase “for the current felony conviction,” in subdivision (e)(1), while language similar to the former phrase is employed in subdivision (e)(2)(A)(i).   The simple answer is that subdivision (c)(6) makes it clear that consecutive sentences “shall ” be imposed for “each ” current count “pursuant to subdivision (e),” where a defendant has been convicted of only one prior qualifying felony (italics added);  however, subdivision (c) contains no similar provision referencing subdivision (e), where a defendant has been convicted of more than one prior qualifying felony.

In sum, the trial court did not err in doubling the subordinate terms.

E. The Prosecutor Did Not Have Discretion to Strike the Prior Once It Had Been Pled and Proved

Appellant next argues that remand is required to permit the prosecutor to move to strike the prior pursuant to section 667, subdivision (f)(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.”   According to appellant, the prosecutor's agreement with the original sentence imposed (four years) indicates that the prosecutor might well have moved to strike the prior had he been aware of subdivision (f)(2).

 Appellant's argument lacks merit.   Nothing in the record indicates that the prosecutor was unaware of section 667, subdivision (f)(2).   Moreover, by the plain language of subdivision (f)(2), a prosecutor may only move to dismiss or strike a prior “allegation.”  (Italics added.)   Once the prior was proven, the prosecutor lost this power.



The judgment is affirmed.


FN1. Unless otherwise noted, all further statutory references are to the Penal Code..  FN1. Unless otherwise noted, all further statutory references are to the Penal Code.

FOOTNOTE.   See footnote*, ante.

5.   Appellant notes that all the crimes were committed over a 34–day period and that he was arrested in the same spot, engaging in essentially the same conduct—possessing or selling small amounts of marijuana kept in plastic bags.

6.   Section 654 provides:  “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one․”

7.   Section 667, subdivision (e), provides:  “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․”

8.   Section 667, subdivision (e)(2)(A) provides:  “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․”

FOOTNOTE.    See footnote*, ante.

ANDERSON, Presiding Justice.

REARDON and HANLON, JJ., concur.