PEOPLE v. RANDALL

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Carlton Wayne RANDALL, Defendant and Appellant.

No. H014552.

Decided: October 22, 1996

Arthur Dudley, and Page, Salisbury & Dudley, in Association with Sixth District Appellate Program, Santa Clara, for Defendant and Appellant under appointment by the Court of Appeal. 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, Christina V. Kuo, Deputy Attorney General, for Plaintiff and Respondent.

This appeal raises several issues concerning the imposition of consecutive life terms and the calculation of minimum terms under the Three Strikes law, Penal Code section 1170.12.1

Defendant Carlton Wayne Randall pleaded guilty to committing a first-degree burglary (§§ 459–460) on January 23, 1995, and to attempting (§ 664) two first-degree burglaries on January 24, 1995.   Defendant also admitted ten prior “strikes” or serious felony convictions within the meaning of section 1170.12, subdivision (b), seven of which were brought and tried separately within the meaning of section 667, subdivision (a).2  Defendant also admitted serving two prior prison terms. (§ 667.5, subd. (b).)

Defendant was 37 years old at the time of sentencing.   The trial court sentenced defendant to prison for 113 years to life.   The court imposed three consecutive indeterminate life terms, one for each current felony conviction.   It calculated the minimum term on count one, first degree burglary, as 39 years, comprised of the 4–year middle term for the burglary and 7 consecutive 5–year serious felony enhancements.   It calculated the minimum terms for counts two and three, attempted burglaries, as 37 years each, comprised of the 2–year middle term for attempted burglary, plus the same 7 consecutive 5–year serious felony enhancements.   The court added the minimum terms for each count to arrive at the 113 year minimum.   The court stayed both of the prior prison term enhancements.   It declined to impose seven consecutive five-year serious felony enhancements.

We set out the statute and the trial court's sentencing where relevant to defendant's contentions.   For the reasons stated below, we will affirm the judgment.

1. Imposing Consecutive Life Sentences

A. Did Both Burglary Attempts Involve the Same Set of Operative Facts?

 On appeal defendant renews a contention that the trial court should not have imposed consecutive sentences on counts 2 and 3, two attempted burglaries.   He contends that the two attempts fit an exception to consecutive sentencing stated in section 1170.12, subdivisions (a)(6) and (7).

Subdivision (a) provides in pertinent part:  “(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 this section.

“(7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6) of this subdivision, 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.” 3  When subdivision (7) says “as described in paragraph (6) of this subdivision,” it means a felony “not committed on the same occasion, and not arising from the same set of operative facts.”   (People v. Hendrix (1996) 47 Cal.App.4th 11, 16, 54 Cal.Rptr.2d 755, review granted Sept. 25, 1996 (S055275);  see People v. Carter (1995) 41 Cal.App.4th 683, 688, 48 Cal.Rptr.2d 726;  People v. Samuels (1996) 42 Cal.App.4th 1022, 1026, 50 Cal.Rptr.2d 157.)

Subdivisions (a)(6) and (a)(7) of section 1170.12 create an exception to mandatory consecutive sentencing when the current felonies arose from the same set of operative facts on the same occasion.   This exception is understood to import section 654 4 concerns into the Three Strikes law.  (People v. Martin (1995) 32 Cal.App.4th 656, 664, 38 Cal.Rptr.2d 776;  People v. McKee (1995) 36 Cal.App.4th 540, 545–546, 42 Cal.Rptr.2d 707;  People v. Carter, supra, 41 Cal.App.4th at pp. 688–689, 48 Cal.Rptr.2d 726;  People v. Pearsall (1996) 48 Cal.App.4th 600, 603, 55 Cal.Rptr.2d 713.)

Defendant contends that the two burglary attempts occurred on the same occasion and arose out of the same set of operative facts.   The grand jury transcript reveals the following facts about the attempted burglaries.   Around 10 a.m. on January 24, 1995, defendant hopped the fence into the backyard at 1801 University Avenue in Palo Alto.   He pulled the screen off the bathroom window.   The resident, Rena Podesta, heard the noise and yelled when she saw a man outside the frosted glass window.   Defendant ran off.   Podesta called the police.

Defendant hopped the fence from the backyard of 1801 University Avenue into the backyard of 95 Crescent Drive in Palo Alto, where Glenna Violette lived.   When Violette returned home from an errand that morning she discovered that the master bedroom window was smashed and a screen inside was damaged.   The burglar alarm had been activated.   A screen in the sunroom was also damaged from prying.   The sunroom is on the opposite side of the house from the bedroom.   No property was taken.   When the police caught defendant on January 24, 1995, he admitted that he had set out that morning to steal property to support his cocaine habit.

The sentencing court rejected defendant's argument that these burglary attempts involved the same operative facts.  “I find that count two and count three are separate crimes.   I do believe that separate property was entered.   There was an attempt at both places.”

Substantial evidence supports the trial court's conclusion.   Defendant attempted to enter two different inhabited dwelling houses.   Though the houses were near each other and the attempts were near in time, these burglary attempts did not involve the same operative set of facts for purposes of multiple punishment.  (People v. Samuels, supra, 42 Cal.App.4th at p. 1026, 50 Cal.Rptr.2d 157;  cf. People v. James (1977) 19 Cal.3d 99, 119, 137 Cal.Rptr. 447, 561 P.2d 1135;  People v. O'Keefe (1990) 222 Cal.App.3d 517, 522, 271 Cal.Rptr. 769.)   Accordingly, the trial court properly fulfilled its obligation to impose consecutive sentences on counts 2 and 3.  (People v. Samuels, supra, 42 Cal.App.4th at p. 1026, 50 Cal.Rptr.2d 157.)

B. Are Consecutive Life Terms Required?

 The Three Strikes statute provides that the term for a felony conviction after two or more strikes is “an indeterminate term of life imprisonment.” (§ 1170.12, subd. (c)(2)(A).) 5  Defendant contends that the statute does not contemplate consecutive life terms for multiple current felony convictions.

Based on subdivisions (a)(6) and (a)(7) quoted above, as well as subdivision (c)(2),6 courts have unanimously concluded that section 1170.12 and the parallel provisions in section 667 mandate imposition of consecutive indeterminate life terms for each current felony conviction following two or more prior strikes.  (People v. Ingram (1995) 40 Cal.App.4th 1397, 1406–1409, 48 Cal.Rptr.2d 256 [involving § 667];  People v. Carter, supra, 41 Cal.App.4th at pp. 688–689, 48 Cal.Rptr.2d 726 [involving § 667];  People v. Samuels, supra, 42 Cal.App.4th at p. 1026–1029, 50 Cal.Rptr.2d 157 [involving § 667];  People v. Nelson (1996) 43 Cal.App.4th 329, 334–336, 51 Cal.Rptr.2d 9, review granted May 29, 1996 (S053008) [involving § 667];  People v. Miles (1996) 43 Cal.App.4th 364, 368–369, 51 Cal.Rptr.2d 87 [involving § 667];  People v. Ayon (1996) 46 Cal.App.4th 385, 393, 53 Cal.Rptr.2d 853 [involving § 1170.12].)

Defendant asserts discovery of a flaw in this unbroken line of precedent.   None of these decisions has realized that a defendant suffers but one conviction of multiple current felonies.   Defendant bases this argument in part on the phrase “the term for the current felony conviction” in section 1170.12, subdivision (c)(2)(A).

Defendant would have a better argument if this subdivision stated “the term for the current felony convictions.”   That would suggest a single term for multiple current convictions.  People v. Hendrix, supra, rejected the same argument.  (47 Cal.App.4th at pp. 23, 27, 54 Cal.Rptr.2d 755.)

Defendant claims his argument is reinforced by language common to both subdivisions (a)(6) and (a)(7) stating, “If there is a current conviction for more than one ․ felony․”  This introductory clause, according to defendant, posits a single “current conviction” of more than one felony.

Defendant contends that the drafters of section 1170.12 would have expressly stated “each current felony conviction” in subdivisions (a)(6) and (a)(7), as they did in subdivision (c)(2)(A)(i),7 if that was their meaning.   We think the same meaning is expressed by saying “each count,” as subdivision (a)(6) 8 does, and “each conviction,” as subdivision (a)(7) 9 does.   While these subdivisions employ differing language, each clearly contemplates a current conviction and a consecutive sentence for each current felony.   If subdivisions (a)(6) and (a)(7) actually contemplated only one current conviction for multiple current felonies, then their provision for consecutive sentencing would be virtually meaningless.

We see nothing in either subdivision that limits its application to the minimum term calculations discussed in the next part of this opinion.

Defendant argues that it creates an anomaly to have mandatory consecutive sentences under the Three Strikes law, when an earlier habitual offender statute, section 667.7, merely allows, but does not require, consecutive life sentences.  (People v. Jenkins (1995) 10 Cal.4th 234, 255–256, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)   We perceive no anomaly in enacting greater penalties when existing penalties do not appear to be serving their purpose.

The trial court properly imposed a consecutive indeterminate life term for each of defendant's three current felony convictions.

2. Calculating the Minimum Terms

A. Should Current Convictions Be Considered Subordinate Terms?

 In imposing an indeterminate life sentence under the Three Strikes statute, the sentencing court must also calculate the minimum term of this sentence.   It is at least 25 years, as provided by section 1170.12, subdivision (c)(2)(A)(ii).   It may be more under options (i) or (iii) of subdivision (c)(2)(A):  “(i) [T]hree times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions, or [¶] ․ (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.” 10  The sentencing court is required to impose the greatest minimum term among these three options.   Here, the sentencing court employed option (iii).

Options (i) and (iii) both refer to prison terms available under other statutes.   Comparing options (i) and (iii) with an otherwise applicable sentencing scheme is instructive.   Section 1170.1, subdivision (a), sets out the general sentencing scheme of the Determinate Sentencing Law for multiple current felony convictions.   It states a three-step formula for determining an aggregate sentence.   First, determine the principal or base term, which is the longest sentence for one of the underlying crimes plus certain specified “enhancements.”   Second, add to the principal term a “subordinate” term for each other current crime, consisting generally of one-third its middle term, excluding enhancements.   Third, add in other specified enhancements.11

Comparing options (i) and (iii) with this earlier sentencing scheme reveals two pertinent differences.   Neither option mentions subordinate terms.   Option (i), unlike option (iii) and the earlier statute, does not mention enhancements.   This omission from option (i) supports the conclusion that enhancements are not a factor in option (i) calculations.  (See People v. Ingram, supra, 40 Cal.App.4th at p. 1406, 48 Cal.Rptr.2d 256;  People v. Anderson (1995) 35 Cal.App.4th 587, 596, 41 Cal.Rptr.2d 474.)   Because option (i) refers to “each current felony conviction,” it is clear that the other current felony convictions are not aggregated as subordinate terms in the option (i) calculation.  (See People v. Ingram, supra, 40 Cal.App.4th at pp. 1407–1408, 48 Cal.Rptr.2d 256;  People v. Hendrix, supra, 47 Cal.App.4th at p. 25, 54 Cal.Rptr.2d 755;  People v. Cartwright (1995) 39 Cal.App.4th 1123, 1143, 46 Cal.Rptr.2d 351.)

Option (i) is inapplicable here.   The upper term for first degree burglary is six years. (§ 461.)   Three times the term for each current felony conviction amounts to less than 25 years.

Defendant contends that the trial court's option (iii) calculations should have employed the subordinate terms on counts 2 and 3, notwithstanding the absence of an express provision therefor.   We disagree.   Option (iii) refers to “the term determined by the court pursuant to Section 1170 for the underlying conviction.”   It does not refer to “the underlying convictions.”   (People v. Ayon, supra, 46 Cal.App.4th at p. 392, 53 Cal.Rptr.2d 853.)   This phrase does not refer to the multiple conviction sentencing scheme of section 1170.1 (quoted above in fn. 11 on p. 10).   Instead it refers to fixing the term for a single felony conviction as described in section 1170.  (See People v. Ingram, supra, 40 Cal.App.4th at p. 1410, 48 Cal.Rptr.2d 256.)   Under that statute, a sentencing court selects the middle term when three terms are available unless mitigating or aggravating circumstances are present.12

We agree with People v. Ayon, supra.  “Under option (iii), determinate sentencing rules are properly applied singularly to each current conviction.   Nothing in the language of option (iii) suggests the ‘aggregate’ term should be calculated.   Nor does option (iii) in any way indicate multiple current felony convictions must be combined.”  (46 Cal.App.4th at p. 392, 53 Cal.Rptr.2d 853.)   There is nothing in option (iii) invoking the subordinate term aggregation described in section 1170.1, subdivision (a).13

In the option (iii) calculations at issue here, the trial court properly avoided treating any of the current felony convictions as a subordinate term.   We conclude that option (iii) does not contemplate aggregating subordinate terms for current felony convictions.   This conclusion is consistent with our conclusion above (in part 1) that the statute mandates consecutive sentences for each current felony conviction.

B. Do Section 667, Subdivision (a), Enhancements Apply to Minimum Term Calculations?

 Subdivision (c)(2)(A)(iii) calls for calculating “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). ”  (Our emphasis.)   Notably, this is not the only part of the Three Strikes statute that provides for adding enhancements.   Introductory language in subdivision (c) states that the sentences specified in subdivisions (c)(1) and (c)(2) are “in addition to any other enhancements or punishment provisions which may apply.”   Subdivision (c)(1) provides for sentencing a defendant with a single strike.   Subdivision (c)(2) provides for sentencing a defendant with two or more prior strikes.

From this introductory language, it appears that applicable enhancements should be added after any indeterminate term resulting from the Three Strikes statute.   Section 667, subdivision (a), mandates a consecutive five-year sentence “enhancement” for each prior serious felony conviction.14  (People v. Valencia (1989) 207 Cal.App.3d 1042, 1046–1047, 255 Cal.Rptr. 180;  People v. Cortez (1992) 6 Cal.App.4th 1202, 1214–1215, 8 Cal.Rptr.2d 580.)   Courts have accordingly held that it is mandatory to add each section 667, subdivision (a), five-year enhancement consecutive to indeterminate terms resulting from two or more strikes (People v. Cartwright, supra, 39 Cal.App.4th at pp. 1137–1139, 46 Cal.Rptr.2d 351;  People v. Turner (1995) 40 Cal.App.4th 733, 741–742, 47 Cal.Rptr.2d 42;  People v. Ingram, supra, 40 Cal.App.4th at pp. 1409–1412, 48 Cal.Rptr.2d 256;  People v. Purata (1996) 42 Cal.App.4th 489, 497–498, 49 Cal.Rptr.2d 664;  People v. Ayon, supra, 46 Cal.App.4th at p. 395, 53 Cal.Rptr.2d 853) as well as to the doubled terms resulting from single strikes (People v. Ramirez (1995) 33 Cal.App.4th 559, 566–569, 39 Cal.Rptr.2d 374;  People v. Anderson, supra, 35 Cal.App.4th at pp. 592–594, 41 Cal.Rptr.2d 474;  People v. Dominguez (1995) 38 Cal.App.4th 410, 425, 45 Cal.Rptr.2d 153;  cf. People v. Murillo (1995) 39 Cal.App.4th 1298, 1306–1307, 46 Cal.Rptr.2d 403).

The Three Strikes statute calls for serving any determinate enhancements before any indeterminate terms.   But the determinate enhancements are usually imposed after calculating the minimum of the indeterminate term.   For contrast, we will call it a “front end” enhancement if it is used in a minimum term calculation under option (iii) and a “back end” enhancement if it is imposed in addition to any indeterminate term.

The trial court here declined to add defendant's seven section 667, subdivision (a), enhancements to the back end of defendant's three consecutive indeterminate terms.   But the court did add each of the seven enhancements three times, once for each of the three current felony convictions, in calculating the front end minimum terms.

Defendant contends essentially that section 667, subdivision (a), enhancements are not available to add to the front end under option (iii).   This contention is based on a distinction between types of enhancements.  People v. Tassell (1984) 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1, (overruled on another ground by People v. Ewoldt (1994) 7 Cal.4th 380, 401, 27 Cal.Rptr.2d 646, 867 P.2d 757) explained:  “Section 1170.1 refers to two kinds of enhancements:  (1) those which go to the nature of the offender;  and (2) those which go to the nature of the offense.   Enhancements for prior convictions—authorized by sections 667.5, 667.6 and 12022.1—are of the first sort.   The second kind of enhancements—those which arise from the circumstances of the crime—are typified by sections 12022.5 and 12022.7:  was a firearm used or was great bodily injury inflicted?   Enhancements of the second kind enhance the several counts;  those of the first kind, by contrast, have nothing to do with particular counts but, since they are related to the offender, are added only once as a step in arriving at the aggregate sentence.

“Section 1170.1, subdivision (a) starts out by stating the basic rule that when a person is convicted of two or more felonies, the total sentence consists of (1) the principal term, (2) the subordinate term, and (3) any enhancements for prior convictions.   In so doing, it makes it very clear that enhancements for prior convictions do not attach to particular counts but instead are added just once as the final step in computing the total sentence.  [Fn. omitted.]”  (Id. at p. 90, 201 Cal.Rptr. 567, 679 P.2d 1.)

Defendant argues that a section 667, subdivision (a), enhancement is the kind of enhancement that does not attach to a particular count.   Thus, it is not an enhancement “applicable” to “the underlying conviction” within the meaning of section 1170.12, subdivision (c)(2)(A)(iii).

We do not agree.   Cases arising under the Three Strikes statutes (People v. Ingram, supra, 40 Cal.App.4th at p. 1410, 48 Cal.Rptr.2d 256;  People v. Ayon, supra, 46 Cal.App.4th at pp. 393–394, 53 Cal.Rptr.2d 853;  cf. People v. Anderson, supra, 35 Cal.App.4th at pp. 595–597, 41 Cal.Rptr.2d 474) and under the identical language in section 667.7 (People v. Jenkins, supra, 10 Cal.4th at p. 250, 40 Cal.Rptr.2d 903, 893 P.2d 1224;  People v. Victor (1991) 227 Cal.App.3d 518, 523, fn. 2, 278 Cal.Rptr. 7) have repeatedly indicated that section 667, subdivision (a), enhancements are used in the type of minimum term calculations described by option (iii).   Defendant distinguishes these cases because he contends that they did not consider the Tassell distinction between types of enhancements.   Defendant further distinguishes these Three Strikes cases because none of them based its minimum term on option (iii).

However, the main difficulty with defendant's position, as the Attorney General pointed out at oral argument, is the narrow construction it gives to the phrase “any applicable enhancement” in section 1170.12, subdivision (c)(2)(A)(iii).   We do not believe that this phrase was used in the Three Strikes statutes by the Legislature (in § 667, subds. (b)–(i)) or the voters (in § 1170.12) with the intent to limit application of enhancements.   Specifically, this phrase was not intended to implicitly restrict usage of section 667, subdivision (a), five-year enhancements.   While we do not believe that this phrase was intended to invalidate the Tassell distinction between types of enhancements, the distinction is simply irrelevant for purposes of minimum term calculations under option (iii).   Both types of enhancements are “applicable.”

Defendant contends alternatively, even if section 667, subdivision (a), enhancements can be used in minimum term calculations under option (iii), the same enhancement cannot be used again or recycled in a second minimum term calculation in the same case.   Here each of defendant's seven five-year enhancements was imposed three times, once for each current felony conviction.   This effectively resulted in defendant receiving 15 years per enhancement. 105 years of defendant's total minimum term resulted from these seven enhancements.15

We see nothing in the statute prohibiting use of the same section 667, subdivision (a), enhancement to calculate the minimum term under option (iii) for each current felony conviction.   These enhancements do not attach to a particular count.   In dictum, People v. Ayon, supra, approved use of this type of enhancement in this manner.  (46 Cal.App.4th at pp. 393–394, 53 Cal.Rptr.2d 853.)

Defendant relies on People v. Ingram, supra, to support his contention that a section 667, subdivision (a), enhancement can be used only once in an option (iii) calculation.

The holding of Ingram was essentially that back end enhancements are mandatory under section 667, subdivision (a), when the minimum term is 25 years under option (ii).  (40 Cal.App.4th at pp. 1406, 1409–1412, 48 Cal.Rptr.2d 256.)   In reaching this conclusion, Ingram rejected an argument that a five-year enhancement can only be used under option (iii) at the front end and not as a back end enhancement.   In so doing, Ingram stated:  “Because the court must first determine the longest minimum term under either option (i), (ii) or (iii), if it 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.  (Subd. (e).)   However, if the court finds the longest minimum term is provided under either option (i) or (ii) without including enhancements, any enhancements not so included are ‘other enhancement or punishment provisions' which must be added to the minimum term.  (Subd. (e).)  [¶] Under this construction of the prefatory language of subdivision (e) vis-à-vis the three options, there is no surplusage, redundancy, or conflict.   Enhancements are imposed only once, either in determining the minimum term under option (iii) or after the minimum term is determined under either option (i) or (ii).”  (40 Cal.App.4th at p. 1410, 48 Cal.Rptr.2d 256;  emphasis in original.)

In stating that enhancements are imposed only once, Ingram indicates that an enhancement can be used either on the front end under option (iii) or on the back end under options (i) and (ii), but not on both the front and back ends.   Ingram did not address the situation before us, namely multiple option (iii) calculations for multiple current felony convictions.  Ingram does not undermine our conclusion that a section 667, subdivision (a), enhancement can be used in multiple option (iii) calculations.

In fact, this passage in Ingram lends support to the trial court's decision not to impose the same enhancements at the back end, adding another 35 years to defendant's sentence.   As Ingram indicates, when an enhancement is used in a front end calculation, it no longer qualifies as a back end enhancement within the introductory language of section 1170.12, subdivision (c), “any other enhancements ․ which may apply.”   Back end use of a section 667, subdivision (a), enhancement was mandatory in Ingram and other cases cited above (on p. 708) because they were not option (iii) cases.   Here, since this is an option (iii) case, the trial court properly declined to use these same enhancements on the back end.

Section 667, subdivision (a), provides in part that “each enhancement shall run consecutively.”   Defendant recognizes that this usually mandates consecutive imposition.   Nevertheless, defendant suggests that it somehow loses its meaning when this enhancement is used on the front end of a minimum term calculation.   Further, defendant contends that since consecutive imposition on the front end is discretionary, the trial court must state its reasons for doing so.

We see nothing in the Three Strikes statute that nullifies the mandatory consecutive nature of section 667, subdivision (a), enhancements when used in front end calculations.   Because the trial court had no discretion other than to impose section 667, subdivision (a), enhancements consecutively, no statement of reasons was required.   Trial courts have never been required to state reasons for imposing consecutive sentences that are mandated by other sentencing statutes.  (People v. Craft (1986) 41 Cal.3d 554, 559, 224 Cal.Rptr. 626, 715 P.2d 585 [§ 667.6, subd. (d) ];  People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1553–1555, 258 Cal.Rptr. 75 [§ 4532, subd. (b) ].)  As explained by Gulbrandsen, supra, “When a consecutive sentence or enhancement is mandatory there is no choice to be made and hence a statement of reasons justifying the selection of the compelled sentence is not required.   [Citations.]  In short, a mandatory sentence cannot in any sense be a sentence ‘choice.’ ”  (209 Cal.App.3d at p. 1553, 258 Cal.Rptr. 75.)

We conclude that the trial court did not err in using defendant's seven section 667, subdivision (a), enhancements in each option (iii) calculation for each of defendant's current felony convictions.

C. Should Minimum Terms Be Aggregated?

 Defendant contends that the law does not authorize an aggregation or totaling of minimum terms on his three consecutive indeterminate life terms.

We agree with defendant that nothing in section 669 16 requires an aggregation of minimum terms.   We disagree with defendant that section 3046 also contains no direction.   It states in pertinent part:  “Where two or more life sentences are ordered to run consecutively to each other pursuant to Section 669, no prisoner so imprisoned may be paroled until he or she has served at least seven calendar years, or has served a term as established pursuant to any other section of law that establishes a minimum period of confinement under a life sentence before eligibility for parole, on each of the life sentences which are ordered to run consecutively, whichever is greater.”   This section requires a defendant to serve the minimum term, if greater than seven years, on each consecutive life sentence.   In other words, the minimum terms on each are added together to yield a total minimum term of confinement.  (Cf. People v. Ingram, supra, 40 Cal.App.4th at p. 1409, 48 Cal.Rptr.2d 256;  People v. Carter, supra, 41 Cal.App.4th at p. 690, 48 Cal.Rptr.2d 726.)

The trial court properly added together defendant's three minimum terms.17

Disposition

The judgment is affirmed.

FOOTNOTES

1.   All section references are to the Penal Code.   Unspecified subdivision references are to section 1170.12.

2.   Five of his prior strikes were burglaries of inhabited dwellings, two were robberies, two were assaults with personal use of a deadly weapon, and one was battery with infliction of great bodily injury.

3.   Subdivisions (a)(6) and (a)(7) of section 1170.12 are essentially identical to subdivisions (c)(6) and (c)(7) of section 667, the original Three Strikes statute.

4.   Section 654 provides in part:  “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.”

5.   Section 1170.12, subdivision (c)(2)(A), provides in part:  “If a defendant has two or more prior felony convictions, as defined in paragraph (1) of subdivision (b), that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment․”

6.   Subdivision (c)(2)(B) of section 1170.12 provides in part:  “(B) The indeterminate term described in subparagraph (A) of paragraph (2) of this subdivision shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law.”This is essentially identical to subdivision (e)(2)(B) of section 667, the original Three Strikes statute.

7.   Quoted in full below on page 706.

8.   Subdivision (a)(6) states in part:  “If there is a current conviction for more than one felony count ․, the court shall sentence the defendant consecutively on each count pursuant to this section.”

9.   Subdivision (a)(7) states in part:  “If there is a current conviction for more than one serious or violent felony ․, 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.”Subdivision (a)(7) does not apply here, since only one of defendant's current felony convictions, first degree burglary, qualifies as a serious felony.

10.   The underlined language also appears in section 667, subdivision (e)(2)(A)(iii), the original Three Strikes statute.   It has also been part of an earlier habitual offender statute, section 667.7, since its enactment in 1982.  (Stats.1981, ch. 1108, § 1, p. 4331.)

11.   Section 1170.1, subdivision (a) states:  “Except as provided in subdivision (c) and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed pursuant to Section 667, 667.5, 667.6, or 12022.1, and pursuant to Section 11370.2 of the Health and Safety Code.   The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any enhancements imposed pursuant to subdivision (c) of Section 186.10 or Section 667.15, 667.8, 667.83, 667.85, 12022, 12022.2, 12022.3, 12022.4, 12022.5, 12022.55, 12022.6, 12022.7, 12022.75, 12022.8, or 12022.9 of this code, and an enhancement imposed pursuant to Section 11370.4 or 11379.8 of the Health and Safety Code.   The subordinate term for each consecutive offense which is not a ‘violent felony’ as defined in subdivision (c) of Section 667.5 shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for an offense that is not a violent felony for which a consecutive term of imprisonment is imposed, and shall exclude any enhancements.”

12.   Section 1170, subdivision (b), states in part:  “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.”

13.   As we discuss in the next part, option (iii) does contemplate aggregating applicable enhancements.

14.   Section 667, subdivision (a), states in pertinent part:“(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.”

15.   Actually, it may be said that only 30 years of defendant's minimum term resulted from these seven enhancements.   Without these seven front end enhancements, defendant's minimum term would have been 75 years, three times the basic 25–year minimum.When enhancements are added to the back end, each year of enhancement adds a year of imprisonment.   In contrast, front end enhancements have no effect on imprisonment when added to the underlying term until their total exceeds the 25–year minimum.

16.   Section 669 provides in pertinent part:  “When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively.   Life sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another or with any other term of imprisonment for a felony conviction.”

17.   By letter brief, defendant asks for a remand pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628.   We deny this request.   Defendant did not ask the trial court to strike any of his ten strikes and there is no indication that the trial court misunderstood its authority to do so.  (People v. Rocha (1996) 48 Cal.App.4th 1060, 1072, fn. 7, 56 Cal.Rptr.2d 212.)

BAMATTRE–MANOUKIAN, Associate Justice.

COTTLE, P.J., and MIHARA, J., concur.

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