PEOPLE v. MARKSON

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

The PEOPLE, Plaintiff and Respondent, v. Curtis MARKSON, Defendant and Appellant.

No. B088870.

Decided: December 21, 1995

Joseph P. Farnan, under appointment by the Court of Appeal, Long Beach, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Sanjay Kumar and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.

Curtis Markson challenges his conviction, raising several issues involving the sentencing scheme set forth in the Three Strikes Law (Pen.Code, § 667, subd. (b) through (i);  all statutory references are to this code unless otherwise indicated.)   We conclude that the court erred in sentencing appellant consecutively for mayhem and attempted carjacking, as both crimes were committed on the same occasion and arose from the same set of operative facts.   We modify the judgment to stay the sentence on count 1 and otherwise affirm the judgment of conviction.

FACTUAL AND PROCEDURAL SUMMARY

Appellant was convicted by jury of mayhem (count 1), assault with a deadly weapon (count 3), and the lesser-included offense of attempted carjacking (count 2).   Two robbery prior conviction allegations were found true, as were great bodily injury allegations as to counts 2 and 3.   Appellant was sentenced to 25 years to life, pursuant to the Three Strikes Law, for the mayhem conviction;  he was sentenced to a consecutive term of 25 years to life plus three years for the GBI enhancement for the attempted carjacking;  and he was sentenced to 25 years to life, plus 3 years, for the assault conviction, sentence to be stayed pursuant to section 654.   Appellant was sentenced to five years for each prior conviction pursuant to section 667, subdivision (a)(1), to run consecutive to the sentence on counts 1 and 2.   A restitution fine was ordered, and custody credits were awarded.   He appeals from the judgment of conviction.

DISCUSSION

IUrgency Legislation

 Appellant contends that since the Three Strikes Law (§ 667, subd. (b) et seq.) changed the duties of judges and prosecutors, it was not a proper subject of urgency legislation and hence was not legally in effect at the time the offenses in this case were committed.   He relies on article IV, section 8, subdivision (d) of the California Constitution, which provides that “[a]n urgency statute may not create or abolish any office or change the salary, term, or duties of any office․”  We find no constitutional impediment to the urgency legislation.

 In Martin v. Riley (1942) 20 Cal.2d 28, 123 P.2d 488, the Supreme Court explained:  “An addition or subtraction in relation to the volume of the duties required to be performed by an officer, which does not substantially affect the primary duties of his office, is not such a change of duties as would prevent immediate effectiveness of legislation properly declared to be urgent.”  (Id. at p. 37, 123 P.2d 488.)   The Three Strikes Law does not change the primary duties of the offices of trial judge or prosecutor.   Their discretion in sentencing or prosecuting defendants never has been absolute.   (See, e.g., §§ 969;  19.2;  1203.06;  1385, subd. (b).)  Since the restrictions on the duties of judges and prosecutors in the Three Strikes Law are not substantially different from those already imposed, they do not constitute a change in duties so as to preclude enactment of the statute by urgency legislation.

II

Separation of Powers

 Appellant argues that the Three Strikes Law violates the separation of powers clause of the California Constitution.   He claims that by requiring prosecutors to plead and prove all known felony convictions and precluding them from plea negotiations, the Legislature has invaded the province constitutionally reserved to the executive branch of the government.   He also contends that the Three Strikes Law does not preclude a court from striking a prior conviction pursuant to section 1385, subdivision (a), which provides discretion to a trial court to strike convictions “in furtherance of justice, ․” To construe it otherwise, he argues, would violate the separation of powers doctrine.   For this reason he asks that we remand his case to allow the trial court to exercise its discretion to strike one of the priors under section 1385.

Separation of powers issues are before the Supreme Court in People v. Superior Court (Romero) (1995) 40 Cal.Rptr.2d 308, 892 P.2d 804 and other cases.   We agree with the majority of cases that have reviewed the issue, which found no violation.

III

Pre-enactment Prior Conviction

 Appellant contends the Three Strikes Law cannot be applied to him because his robbery and attempted robbery prior convictions occurred before that statute was enacted, on March 7, 1994, and section 667, subdivision (d)(1) requires that “[t]he determination of whether a prior conviction is a prior felony conviction for purposes of subdivisions (b) to (i), inclusive, shall be made upon the date of that prior conviction․”  This argument was rejected in People v. Reed (1995) 33 Cal.App.4th 1608, 1611–1612, 40 Cal.Rptr.2d 47, where the court held that subdivision (d)(1) “does not require the determination whether a prior conviction is a ‘strike’ to be made at the time of the prior conviction, but simply by reference to the date of the prior conviction, and thus the Three Strikes law applies to prior felony convictions predating its enactment.”  (See also People v. Hill (1995) 37 Cal.App.4th 220, 223, 44 Cal.Rptr.2d 11;  People v. Sipe (1995) 36 Cal.App.4th 468, 477–478, 42 Cal.Rptr.2d 266;  People v. Green (1995) 36 Cal.App.4th 280, 282–283, 42 Cal.Rptr.2d 249;  People v. Anderson (1995) 35 Cal.App.4th 587, 600–601, 41 Cal.Rptr.2d 474.)   We agree.

IV

Sentencing and Enhancing Under Three Strikes

 Appellant contends the trial court erred in imposing two five-year enhancements pursuant to section 667, subdivision (a), based on prior felony convictions that also are used as qualifying “strikes” to impose the 25–years–to–life sentences.   He relies on section 667, subdivision (a)(2), which provides in part:  “This subdivision shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment․”  He argues that the 25–years–to–life terms he received under section 667, subdivision (e) exceed the aggregate term for mayhem and attempted carjacking plus 10 years, and thus under section 667, subdivision (a)(2), the subdivision (a)(1) prior serious felony enhancements cannot be applied.   This argument was rejected in People v. Ramirez (1995) 33 Cal.App.4th 559, 567–568, 39 Cal.Rptr.2d 374, and we follow that holding.

V

Dual Use of Priors

 Appellant claims the court violated the multiple punishment bar of section 654 when it used the same prior serious felony conviction to enhance his sentence under the “serious felony” statute and to trigger punishment under the Three Strikes Law.   This argument was considered and rejected by the court in People v. Ramirez, supra, 33 Cal.App.4th 559, 39 Cal.Rptr.2d 374.   We find that opinion persuasive and therefore reject appellant's claim.  (See also People v. Anderson, supra, 35 Cal.App.4th 587, 41 Cal.Rptr.2d 474.)

VI

Consecutive Life Terms for Crimes Arising Out of Same Operative Facts

 Appellant claims the court erred in imposing two consecutive life terms for the current convictions for mayhem and attempted carjacking, since both crimes were committed on the same occasion and arose from the same set of operative facts.   This argument is premised on subdivisions (c)(6) and (c)(7) of section 667.  (The issue presented should not be confused with the question whether the prior convictions must have been based on “charges brought and tried separately.”   That provision is in section 667, subdivision (a)(1), which is not part of the Three Strikes Law.)

Section 667, subdivision (c)(6) provides:  “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).”  (Emphasis added.)   This subdivision has been understood to apply the principle of section 654 to multiple current crimes, precluding multiple Three Strikes punishments for crimes committed as part of an indivisible course of conduct.   (See People v. Martin (1995) 32 Cal.App.4th 656, 663–664, 38 Cal.Rptr.2d 776;  People v. McKee (1995) 36 Cal.App.4th 540, 545–546, 42 Cal.Rptr.2d 707.)

Section 667, subdivision (c)(7) provides:  “If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.”  (Emphasis added.)   Appellant argues that the emphasized language incorporates the limitation on consecutive sentencing set forth in subdivision (c)(6) into subdivision (c)(7).   We agree.

Section 667, subdivision (c)(6) applies to “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, ․” Subdivision (c)(7) applies to “a current conviction for more than one serious or violent felony as described in subdivision (c)(6), ․” The only language in subdivision (c)(6) describing a current conviction for more than one felony is the limiting language “not committed on the same occasion, and not arising from the same set of operative facts, ․” Assuming as we must that the Legislature intended the phrase “as described in subdivision (c)(6)” to have some meaning (see People v. Collins (1969) 273 Cal.App.2d 1, 5, 77 Cal.Rptr. 741), and avoiding a construction that renders the phrase surplusage (see Delaney v. Superior Court (1990) 50 Cal.3d 785, 799, 268 Cal.Rptr. 753, 789 P.2d 934), we can only construe it as applying the limiting language of subdivision (c)(6) to subdivision (c)(7).   Respondent offers no alternate interpretation.   Hence, we conclude subdivision (c)(7) is only applicable to a current conviction for more than one serious or violent felony not committed on the same occasion, and not arising from the same set of operative facts.

Respondent argues that under this interpretation subdivision (c)(7) would serve no purpose.   This is so, according to respondent, because the same result (mandatory consecutive sentencing) would follow for a current conviction of more than one of any type of felony meeting the limitations of subdivision (c)(6) as for a current conviction of more than one serious or violent felony meeting those limitations.   As we construe the subdivision, subdivision (c)(7) has a substantive application independent of subdivision (c)(6), and the language of the two provisions is harmonized.

“We do not presume that the Legislature performs idle acts, nor do we construe statutory provisions so as to render them superfluous.”  (Shoemaker v. Myers (1990) 52 Cal.3d 1, 22, 276 Cal.Rptr. 303, 801 P.2d 1054.)   While subdivisions (c)(6) and (c)(7) overlap, subdivision (c)(7) contains additional sentencing requirements.   Reading those subdivisions together with subdivision (c)(8), we find a Legislative scheme designed to assure consecutive sentencing for defendants who are “in the strike zone” under a variety of circumstances.

 Under subdivision (c)(6), where there is a current conviction for more than one qualifying felony count, “the court shall sentence the defendant consecutively on each count․”  Like subdivision (c)(6), subdivision (c)(7) addresses consecutive sentencing on the current felony convictions.   But it also requires that the sentence for the current convictions run “consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.”  (§ 667, subd. (c)(7);  emphasis added.)   Subdivision (c)(7) would apply where a defendant currently convicted of serious or violent qualifying felonies is also convicted of misdemeanors, as to which he or she may be sentenced consecutively.  (§ 669;  see People v. Hibbard (1991) 231 Cal.App.3d 145, 282 Cal.Rptr. 351.)   It would apply, also, where a defendant has been convicted of a crime in one case, but has not yet begun to serve the sentence for that crime by being delivered to the custody of the Department of Corrections by the time he or she is being sentenced for the serious or violent qualifying felonies.  (Ibid.)  This might happen, for example, when a defendant is convicted of a non-violent, non-serious felony in one district of the Los Angeles Superior Court, and immediately after that, is tried in another district of that court for a serious felony.

 Yet another consecutive sentencing situation is covered by subdivision (c)(8), which provides:  “Any sentence imposed pursuant to subdivision (e) will be imposed consecutive to any other sentence which the defendant is already serving, unless otherwise provided by law.”   Reading these three subdivisions together, we find a legislative scheme requiring consecutive sentencing in three different situations.   Subdivision (c)(6) requires the court to sentence a defendant consecutively for each felony count not committed on the same occasion and not arising from the same set of operative facts.   Subdivision (c)(7) requires the court to run the sentence for a current conviction of more than one serious or violent felony not committed on the same occasion or arising from the same set of operative facts consecutive to any other conviction for which the defendant may be consecutively sentenced (i.e., in another case).   And subdivision (c)(8) requires the current sentence to be imposed consecutively to any other sentence which the defendant is already serving.   Subdivision (c)(7), read to include the same occasion, same operative facts limitation of subdivision (c)(6), serves a purpose separate from that served by subdivision (c)(6).

 There is, of course, a facial overlap between these subdivisions, particularly between subdivisions (c)(6) and (c)(7).   As we have noted, one of the canons of statutory construction holds that all statutory language should be construed to have some meaning, and not be regarded as mere surplusage.  (Rodriguez v. Superior Court (1993) 14 Cal.App.4th 1260, 1269, 18 Cal.Rptr.2d 120.)   A more fundamental rule of construction—one rooted in the principle of separation of powers—is that courts may not read substantive language out of a statute.   In interpreting statutory language, the court must not “insert what has been omitted, or ․ omit what has been inserted.”  (Code Civ.Proc., § 1858;  In re Rudy L. (1994) 29 Cal.App.4th 1007, 1011, 34 Cal.Rptr.2d 864.)  “The judiciary has no power to rewrite plain statutory language.”  (Hyland Therapeutics v. Superior Court (1985) 175 Cal.App.3d 509, 514, 220 Cal.Rptr. 590.)   The construction we have given the statute does not transgress the former of these rules.   The construction urged by the respondent would surely violate the latter.

We now examine the evidence to ascertain whether appellant's convictions for mayhem and attempted carjacking fall within or outside the same occasion, same operative facts limitation.   At about 1:30 a.m. on June 21, 1994, the victim, Bruce Frost, drove two women to a location near Pacific Coast Highway.   After the women left his car, he saw two men rapidly approach his car and then enter it on the passenger side, one in front and one in back.   A third man stood to the front of his car.   The victim identified appellant as the man in the front seat.   Appellant pinned the victim's arms to his side.   The victim felt two blows to his jaw, and felt his teeth break.   He was certain these blows were made with a hand, not an object.   He heard more than one person in the car tell him to get out of the car, and to give them his keys.   His head rotated toward the passenger side of the car and he saw the person in the back seat holding a small club.   He was hit in the head with the club, and the person in the front seat hit him in the face with something hard.   The next thing the victim remembered was standing at a woman's doorway asking for water;  he did not remember getting out of the car.   The victim required plastic surgery to repair the injuries to his face.   The victim estimated that from the time he noticed the men coming toward the car to the time he was being hit in the face was only a matter of moments.

 From this evidence, we conclude that all three current convictions were committed on the same occasion and arose out of the same operative facts, as argued by defense counsel.   The trial court did not (and under the evidence could not) make a finding to the contrary.   In accordance with the limiting language of section 667, subdivision (c)(6) incorporated into subdivision (c)(7), consecutive sentencing was not required for appellant's attempted carjacking conviction.   Moreover, under section 654, appellant could not be punished for both crimes.  “When multiple punishment has erroneously been imposed, the appropriate procedure on appeal is to eliminate the effect of the judgment as to the lesser offense as far as the penalty alone is concerned.”   (People v. Adams (1993) 19 Cal.App.4th 412, 447, 23 Cal.Rptr.2d 512.)   Appellant was sentenced to 25 years to life on his mayhem conviction (count 1) and 25 years to life with a 3 year great bodily injury enhancement on his attempted carjacking conviction (count 2.)   We must stay the sentence on the lesser punishment in count 1.

VII

Cruel and Unusual Punishment

 Appellant claims the Three Strikes Law is unconstitutional on its face because its sentencing provisions are mandatory in their application with no room to consider the individual offender or offense.   He relies on the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution.   We reject this argument for the reasons expressed in People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134, 46 Cal.Rptr.2d 351.

 Appellant also argues that an examination of the facts of the crimes, the totality of the circumstances surrounding the crimes, and the nature of the offender reveals that his sentence constituted cruel and unusual punishment.   Appellant's current felonies—mayhem, attempted carjacking, and assault with deadly weapon with a finding that he inflicted great bodily injury—are all designated as serious felonies under section 1192.7, subdivision (c), and mayhem is one of the violent felonies under section 667.5, subdivision (c).  Not only are the current crimes of a serious and violent nature, but he has a strong record of recidivist behavior, as well.   His previous convictions, spanning a 13–year period, include receiving stolen property, robbery, robbery with an armed allegation, and sale of a controlled substance, for which he was on probation at the time of the current offenses.   Appellant's sentence does not constitute cruel and unusual punishment.

VIII

Vagueness

Appellant contends the provisions of the Three Strikes Law are so vague and poorly drafted that they do not supply sufficient notice of the offense or penalty in a third strike situation, therefore violating the right to due process.   He provides a long list of “problems,” four of which he claims render the statute unconstitutionally vague as applied to him.   Most of the questions appellant raises have no application to him.   These can only be resolved in a proper case where the issues are presented.  (See People v. Sipe, supra, 36 Cal.App.4th 468, 481, 42 Cal.Rptr.2d 266.)   As to the claimed ambiguities involving actual issues in appellant's case, our discussions of these issues, supra, demonstrate that the statute is not so vague as to deprive him of notice of the offenses subject to the law or the resulting penalty.  (Id. at pp. 481–482, 42 Cal.Rptr.2d 266.)

IX

Restitution Fine

 Appellant claims the court exceeded its authority by imposing an $8,500 restitution fine pursuant to Government Code section 13967, subdivision (a) without making an express finding that he has the ability to pay the fine.   Appellant failed to object to the fine at the time of sentencing, and therefore waived this issue.  (People v. Menius (1994) 25 Cal.App.4th 1290, 1299, 31 Cal.Rptr.2d 15.)

 Recognizing that the ability to pay may be implied (People v. Frye (1994) 21 Cal.App.4th 1483, 1485–1486, 27 Cal.Rptr.2d 52), appellant claims the record does not support an implied finding that he had the ability to pay.   State prison wages may provide the evidentiary basis necessary for imposition of a restitution fine.  (Id. at p. 1487, 27 Cal.Rptr.2d 52.)   Here appellant was sentenced to a term of 25 years to life plus 13 years.   According to respondent, the present rate of pay for work performed by prison inmates ranges from $12 per month to $56 per month.   Given the length of appellant's sentence, the record supports an implied finding that he has the ability to pay from his prison wages the $8,500 restitution fine recommended in the probation report and imposed by the trial court.

DISPOSITION

The judgment is modified to stay the sentence on count 1;  in all other respects, the judgment is affirmed.

EPSTEIN, Acting Presiding Justice.

CHARLES S. VOGEL and BRETT KLEIN *, JJ., concur.

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