PEOPLE v. WYNDER

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Court of Appeal, Second District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Frederick James WYNDER, Defendant and Appellant.

No. B093159.

Decided: December 19, 1996

Leslie C. Greenbaum, under appointment, for Defendant and Appellant. Daniel E. Lundgren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Sanjay T. Kumar, Supervising Deputy Attorney General, Robin Miller Sloan, Deputy Attorney General, for Plaintiff and Respondent.

Frederick James Wynder appeals from the judgment entered following his conviction by jury trial of first degree burglary in violation of Penal Code section 459.1  He does not challenge the sufficiency of the evidence to support his conviction.   In a bifurcated proceeding, allegations that he had suffered six prior serious or violent felony convictions within the meaning of section 667, subdivisions (b) through (i) (the Three Strikes Law), and five prior serious felony convictions within the meaning of section 667, subdivision (a)(1) were found true by the court trial.   He was sentenced to 50 years to life.

I. Facts

The evidence shows the following:  Michael Demayo saw appellant near Gary Lubrica's apartment on the morning of April 12, 1994.   Shortly thereafter, Lubrica was ironing in his apartment when he heard a noise and saw appellant on a ladder next to his window.   Appellant leaned halfway through the window.   Lubrica got his gun and waited.   Appellant climbed down the ladder, knocked at Lubrica's door, and, when it was not answered, tried to open it.   Lubrica called 911.

Appellant returned to the ladder, then went back to Lubrica's door and knocked a second time.   Lubrica then saw appellant walk toward the sidewalk, turn, and then run past Lubrica's apartment followed by police officers.   He was caught a few minutes later.

II.–V.**

VI. Three Strikes Issues

a. Appellant's claim of error in sentence calculation depends upon the interplay among several code sections.

Appellant finally contends that the court erroneously calculated his sentence.   This contention involves the interplay among several code sections.   Prominent among them are section 667, subdivision (a) (at times referred to below as “667(a)”);  section 667, subdivision (e)(2)(A)(i) (referred to below as “option (i)”);  section 667, subdivision (e)(2)(A)(ii) (referred to below as “option (ii)”);  and section 667, subdivision (e)(2)(A)(iii) (referred to below as “option (iii)”).

b. The 667(a) enhancement provisions.

Section 667(a) provides that a defendant “convicted of a serious felony who previously has been convicted of a 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.”   Section 667(a) also requires that “[t]he terms of the present offense and each enhancement shall run consecutively.”

In the instant case, appellant was convicted of a serious felony;  he thus qualified for 667(a) enhancements.   He had five 667(a) priors.   Section 667(a) thus expressly requires that appellant receive a consecutive determinate sentence of twenty-five years “in addition to the sentence imposed by the court for the present offense.”   The question thus becomes:  what sentence should be imposed for the present offense?   Since appellant had six prior convictions which were qualifying priors for Three Strikes purposes, and since all six were proven in the instant action, appellant's present offense was his “third strike.”   The “sentence imposed by the court for the present offense” must therefore be calculated according to the Three Strikes law. (§ 667, subd. (b) through (i)).   We thus turn to the Three Strikes provisions for calculation of the proper term for “the present offense”—the term to which the twenty-five years in determinate 667(a) enhancements must be served consecutively.

c. The “Three Strikes” sentence.

Section 667, subdivision (e)(2)(A) provides in pertinent part that, on a third strike, 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” options (i), (ii) or (iii).   The indeterminate life term specified, with a minimum term calculated according to option (i), (ii) or (iii), applies “in addition to any other enhancement or punishment provisions which may apply.” (§ 667, subd. (e).)  Two points are clear:  First, section 667, subdivision (e), expressly requires that the “indeterminate term of life imprisonment” be served in addition to the 667(a) enhancements.   Second, the “indeterminate term of life imprisonment” provision is qualified by the requirement that at least a “minimum term,” calculated as the greater of either option (i), (ii) or (iii), must be served.4

Other code sections reinforce the express requirements noted above.   Section 667, subdivision (e)(2)(B) provides in pertinent part that the “indeterminate term described in subparagraph (A) [the indeterminate life term] shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed.”   Section 669 provides in pertinent part that “[w]henever a person is committed to prison on a life sentence which is ordered to run consecutive to any determinate term of imprisonment imposed pursuant to Section ․ 667 ․ the determinate term of imprisonment shall be served first and no part thereof shall be credited toward the person's eligibility for parole․”   Taken together, the statutes thus provide for a Three Strikes indeterminate life sentence to be served after completion of any 667(a) enhancements, and that—once begun—the indeterminate Three Strikes life term has a minimum duration before eligibility for parole calculated as the greater of options (i), (ii) or (iii).

d. The option (i), (ii) and (iii) calculations.

Appellant's claim of error in the calculation of his sentence relates not to the basic sentence for his “current felony conviction,” which is simply an indeterminate term of life, but instead to the calculation of the minimum portion of this life term which must be served before eligibility for parole after the 667(a) enhancements have been served.   To determine what that minimum term is, options (i), (ii) and (iii) must be examined to determine which yields the greatest number.

The minimum term calculation pursuant to option (i) is simply triple the base term.   In this case, tripling any available base term would yield a sentence of less than twenty-five years (tripling either two, four or six years, see § 461).   Since the option (ii) minimum term is a straight twenty-five years, and since the greater must be chosen, option (i) is eliminated in this case while option (ii) remains a possibility.   We thus turn to option (iii) to determine whether it exceeds option (ii).   Under option (iii), the minimum portion of the life term which must be served before eligibility for parole is calculated by referring to the base term for the underlying conviction (here two, four or six years) and to the enhancements for which defendant has qualified by reason of past crime.   In this case, the option (iii) minimum term calculation exceeds twenty-five years:  either two, four or six years by reference to the term choices on the current conviction, plus twenty-five years by reference to the 5 five-year 667(a) enhancements for which appellant has qualified.

e. Option (iii) properly applies here.

Since option (iii) in this case yields a greater number than both the twenty-five years specified by option (ii) and the lesser number yielded by option (i), appellant is correct that he should have been sentenced pursuant to option (iii) rather than pursuant to option (ii).

f. Characteristics of the variances in the option (i), (ii) and (iii) calculations.

The option (i), (ii) and (iii) methodology yields an indeterminate life term in all third strike cases.   Only the minimum time to parole varies.   That minimum time varies according to considerations unique to the offender or offense in question.   The minimum portion of the life term which must be served before parole might be set by considerations reflected in option (i), which relate to the severity of the current offense.   If the current offense is an extremely serious one with a high base term, tripling that base term might yield the greatest minimum time to parole.   Or the minimum time to parole might be set by considerations reflected in option (iii), which relate to the severity of the offender's recidivist past.   If the offender has an extensive recidivist history, the option (iii) calculation might yield the greatest minimum time to parole.   Whenever option (i) or option (iii) yield a number of less than 25 years, the 25 year “default” provision of option (ii) controls.

g. The application of 667(a) enhancements when the minimum time to parole is set by option (iii).

The determination that the minimum portion of his indeterminate life term which appellant must serve before becoming eligible for parole must properly be calculated according to option (iii) does not end this inquiry, because appellant contends that whenever the minimum time to parole is calculated according to option (iii), enhancements pursuant to 667(a) cannot be imposed.   To this issue we now turn.

Preliminarily, we note that appellant's argument is contrary to the literal wording of the several statutes discussed above.   Those statutes provide that 667(a) enhancements must be served in addition to—and consecutively to—the indeterminate life term, and that the 667(a) enhancements must be served before the indeterminate life term commences.   Additionally, we note the discordant consequences that flow from appellant's construction.   Appellant's view is that although 667(a) enhancements can be imposed when the minimum time to parole is calculated according to options (i) or (ii), they cannot be imposed when minimum time to parole is calculated according to option (iii).   If the law operated in this fashion, defendants with more egregious recidivist histories would often receive less punishment than those with lesser histories of recidivism.

The point can be observed by comparing the sentence appellant's construction would impose upon a hypothetical defendant with a lesser recidivist history.   If appellant were sentenced in this case according to his construction of option (iii), appellant would receive an indeterminate life sentence with a 27, 29 or 31 year minimum time to parole, depending upon the base term chosen by the trial judge.   No determinate 667(a) enhancements could be added to the indeterminate life term, hence no 667(a) enhancements would have to be served before the indeterminate life term commences.   If, by contrast, our hypothetical defendant had been convicted of only three (rather than, as here, five ) 667(a) priors, the hypothetical defendant would not be sentenced pursuant to option (iii), but rather according to option (ii):  the flat twenty-five year minimum time to parole option.   This is because, with only three hypothetical 667(a) priors, option (iii) would yield a number less than twenty-five, and option (ii) would therefore control.   Thus our hypothetical defendant would receive an indeterminate life term with a twenty-five year minimum to be served after a mandatory fifteen years for the three hypothetical 667(a) priors.

Since option (ii)'s twenty-five year minimum time to parole contains no reference to the extent of appellant's recidivist history (beyond the underlying two qualifying “strike” priors subjecting appellant to the Three Strikes law), the hypothetical defendant would have no argument that the 667(a) priors could not also be imposed when the minimum time to parole is set by option (ii).   Many cases have decided that a defendant may be both sentenced under the Three Strikes law and subjected to 667(a) enhancements.  (People v. Nelson (1996) 42 Cal.App.4th 131, 49 Cal.Rptr.2d 361 [second strike];  People v. Turner (1995) 40 Cal.App.4th 733, 47 Cal.Rptr.2d 42 [third strike, option (ii) ];  People v. Cartwright (1995) 39 Cal.App.4th 1123, 46 Cal.Rptr.2d 351 [third strike, option (ii) ];  People v. Anderson (1995) 35 Cal.App.4th 587, 41 Cal.Rptr.2d 474 [second strike];  People v. Ramirez (1995) 33 Cal.App.4th 559, 39 Cal.Rptr.2d 374 [second strike].)  Hence, according to appellant's view, a defendant with a prior recidivist history of only three 667(a) priors would be sentenced under option (ii) to a fifteen year determinate term followed by a twenty-five year minimum time to parole, while appellant—with five 667(a) priors—would be eligible for parole in twenty-seven, twenty-nine or thirty-one years.   Appellant in effect claims that, by committing two additional 667(a) priors (five instead of the hypothetical three), he has spared himself many additional years of incarceration.

It is doubtful that it was the intent of the Three Strikes law to provide for punishment to decline as criminality increases, especially in view of the statute's legislative history and obvious purpose of punishing recidivists more severely.   It is secondly doubtful in view of the fact that appellant's construction is directly contrary to the literal wording of the statutes.   It is thirdly doubtful because reaching appellant's result requires that option (iii) be treated differently from options (i) and (ii) with regard to effect on enhancements, when there is no indication that options (i), (ii) and (iii) were intended to operate otherwise than exactly the same insofar as enhancements are concerned.   The anomalous result argued for by appellant, coupled with its conflict with the statutory language and its creation of differential treatment of options (i), (ii) and (iii) makes appellant's construction untenable. (cf.  People v. Anderson, supra 35 Cal.App.4th 587, 593, 41 Cal.Rptr.2d 474.)

h. Imposition of 667(a) enhancements when minimum time to parole is calculated pursuant to option (iii) does not violate section 654.

Section 654 provides in pertinent part that “[a]n 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․”   The cases are clear, however, that adding 667(a) enhancements to a Three Strikes sentence does not violate the proscription of section 654.  (See People v. Nelson, supra, 42 Cal.App.4th 131, 49 Cal.Rptr.2d 361 [second strike];  People v. Ingram (1995) 40 Cal.App.4th 1397, 1410–1411, 48 Cal.Rptr.2d 256 [third strike, option (ii) ];  People v. Turner, supra, 40 Cal.App.4th 733, 47 Cal.Rptr.2d 42 [third strike, option (ii) ];  People v. Cartwright, supra, 39 Cal.App.4th 1123, 46 Cal.Rptr.2d 351 [third strike, option (ii) ];  People v. Anderson, supra, 35 Cal.App.4th 587, 41 Cal.Rptr.2d 474 [second strike];  People v. Ramirez, supra, 33 Cal.App.4th 559, 39 Cal.Rptr.2d 374 [second strike] ).

Here, the only act for which appellant is currently being punished is his current offense.   Had he not committed the current offense, he would be receiving no punishment by reason of his continuing and unchangeable status as a recidivist.   Having committed the current offense, he is now being punished for that current offense.   The Legislature has prescribed that appellant's status as a recidivist will significantly affect the magnitude of his punishment for the current offense.   Appellant's status as a recidivist, however, does not constitute an “act or omission” within the scope of section 654.   Mere status as a recidivist is not an “act or omission which is made punishable” by any code section.   What is “made punishable” by code section is commission of a current crime.

“It is the current offense which calls for the penalty, the magnitude of which is attributable to appellant's status as a repeat offender.  [Citation.]   That status, which is based on prior convictions, existed at the time he committed each offense.   While the status calls for the increased sentence, it is the new criminal conduct rather than the status which is being punished.   Therefore, section 654 does not apply.”  (People v. Anderson, supra, 35 Cal.App.4th 587, 599–600, 41 Cal.Rptr.2d 474, quoting from People v. Decker (1988) 199 Cal.App.3d 694, 698, 245 Cal.Rptr. 40;  see also People v. Cartwright, supra, 39 Cal.App.4th 1123, 1139, 46 Cal.Rptr.2d 351 [prior conviction establishes defendant's status as a recidivist;  it is not an “act”, so section 654 does not apply];  People v. Turner, supra, 40 Cal.App.4th 733, 743, 47 Cal.Rptr.2d 42 [citing and following Cartwright ].)

Hence section 654 does not prohibit calculation of the minimum time to parole on appellant's current offense pursuant to option (iii) while enhancements are also imposed pursuant to 667(a).

i. People v. Jenkins is distinguishable and People v. Ingram contains only dictum regarding option (iii).

People v. Jenkins (1995) 10 Cal.4th 234, 40 Cal.Rptr.2d 903, 893 P.2d 1224 and People v. Ingram (1995) 40 Cal.App.4th 1397, 48 Cal.Rptr.2d 256, both relied upon by appellant, are distinguishable.  Jenkins involved section 667.7, which provides for indeterminate life sentences for certain recidivists convicted of a felony in which they inflicted great bodily injury.   The minimum term of such imprisonment is either twenty years or the base term for the underlying conviction plus any enhancements, a calculation quite similar to option (iii) of the Three Strikes law.  Jenkins held that defendants sentenced to life pursuant to section 667.7 were not subject to enhancements.   The Supreme Court explained this holding by stating:  “Nothing in the statute suggests that the Legislature intended that those same enhancements be used again to add an additional term of imprisonment onto the life term.”   (People v. Jenkins, supra, 10 Cal.4th 234, 253, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)   The “statute” referred to by the Supreme Court is section 667.7.   By contrast, the statute involved here—section 667, subdivision (e)—expressly states that the sentences calculated pursuant to its provisions shall be “in addition to any other enhancement or punishment provision which may apply․”  (Italics added.)

Ingram holds that a defendant convicted of two counts of residential burglary must be sentenced to two consecutive life terms, each with a twenty-five year minimum, in addition to enhancements.   The court went on to state, in dictum, that “if [the court] finds the longest term is provided by option (iii) by including enhancements, there are no ‘other enhancement or punishment provisions' to add to the minimum term.”  (Ingram, supra, 40 Cal.App.4th 1397, 1410, 48 Cal.Rptr.2d 256, original italics.)   We respectfully disagree with this dictum.5  If Ingram's dictum were accurate, it would raise the anomalies discussed above:  those with more egregious recidivist histories would receive lesser sentences than those with more moderate recidivist histories.   It would also conflict with the literal wording of the statutes and require creation of a distinction in the application of options (i), (ii) and (iii), where the wording of the statute makes no such distinction.   Moreover, option (iii) does not provide for “including” or “adding” enhancements, but only for calculating minimum time to parole when an indeterminate life sentence is imposed under certain circumstances.   As noted above, when the defendant has a more egregious recidivist history, the legislature has provided that the time to parole will be longer because the defendant's proven recidivist history will be taken into account via option (iii).   The indeterminate life term with a minimum time to parole calculated according to option (i), (ii) or (iii) expressly must be imposed “in addition to any other enhancement or punishment provisions which may apply.”

j. Conclusion.

The Legislature has mandated that minimum time to parole when an indeterminate Three Strikes life sentence is imposed must be calculated according to either option (i), (ii) or (iii), whichever yields the longer minimum term.   The Legislature has also provided for imposition of enhancements—which must be served consecutively pursuant to section 667, subdivision (a).   Nothing in section 654 prohibits calculation of minimum time to parole by taking into account the defendant's recidivist history, as option (iii) does, simply because enhancements are also imposed pursuant to 667(a).   We agree with People v. Anderson, supra, 35 Cal.App.4th 587, 596, 41 Cal.Rptr.2d 474, which stated that “[t]he prefatory language of section 667, subdivision (e) [stating that the indeterminate life term with a minimum time to parole calculated according to options (i), (ii) or (iii) must be imposed “in addition to any other enhancements or punishment provisions which may apply”] must then be read ․ to mandate the inclusion of enhancements as a separate determinate sentence after the calculation of the minimum term and in addition to the indeterminate sentence.”   Pursuant to section 669, the determinate term created by section 667, subdivision (a), enhancements must be served first, with the Three Strikes indeterminate life term to follow consecutively.6

DISPOSITION

The judgment of conviction is affirmed.   The matter is remanded to the trial court for resentencing consistent with the views expressed in this opinion.

FOOTNOTES

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

FOOTNOTE.   See footnote *, ante.

4.   This “minimum term” provision is further qualified by the potential award of “credits,” not to exceed one-fifth of the total term imposed, recognized by section 667, subdivision (c)(5).

5.   People v. Randall (1996) 50 Cal.App.4th 144, 57 Cal.Rptr.2d 702 concerned a different, but related question:  the proper calculation of minimum time to parole under option (iii) when a defendant is convicted and sentenced on multiple counts.   While we generally agree with Randall's analysis, we do not agree with any suggestion it may be read to contain that in cases in which minimum time to parole is calculated pursuant to option (iii), the effect on enhancements is any different from cases in which minimum time to parole is calculated pursuant to options (i) or (ii).   In our view, the applicability of enhancements is the same regardless of whether minimum time to parole is calculated pursuant to option (i), (ii) or (iii).

6.   People v. Ochoa (1996) 49 Cal.App.4th 697, 706–708, 57 Cal.Rptr.2d 112, as modified at 50 Cal.App.4th 328g (pet. for rev. pending, S056787), is consistent with the analysis set forth above.

ZEBROWSKI, Associate Justice.

FUKUTO, Acting P.J., and NOTT, J., concur.