The PEOPLE, Plaintiff and Respondent, v. Jonathan WHITE EAGLE, Defendant and Appellant.
Appellant, Jonathan White Eagle, appeals from his sentence following his plea of guilty to theft with a prior conviction for robbery. (Pen.Code,1 § 666.) He admitted he was convicted in 1981 of robbery and he served a prison term for that offense. The aggravated term under section 666 of three years was doubled pursuant to section 667, subdivision (e)(1) for a total term of six years in prison. The prior prison term enhancement pursuant to section 667.5, subdivision (b) was stayed pursuant to section 654.
The underlying facts of appellant's current conviction are undisputed and not relevant to the issues he raises on appeal. All issues pertain to the interpretation and application of the sentencing provisions of section 667, subdivisions (b) through (i), commonly referred to as the “Three Strikes” legislation.
Two of the claims appellant makes with respect to Three Strikes have been previously rejected by this court. In Gonzales v. Superior Court (1995) 37 Cal.App.4th 1302, as mod. 39 Cal.App.4th 583a, 44 Cal.Rptr.2d 144, we held the determination of whether a prior conviction is a “strike” is made at the time the defendant is sentenced on the current offense under section 667, subdivision (e); convictions occurring prior to the effective date of section 667 are counted as “strikes.” In People v. Applin (1995) 40 Cal.App.4th 404, 407, 46 Cal.Rptr.2d 862, we held the limitation of section 667, subdivision (c) on the ability of a three strike prisoner to earn conduct credits while in prison does not violate principles of equal protection.
Although we have addressed issues concerning dual or multiple use of prior convictions under section 667 (see People v. Ingram (1995) 40 Cal.App.4th 1397, 48 Cal.Rptr.2d 256), appellant raises a variation on the issue which we have yet to decide. Is it permissible to use the same prior conviction to elevate petit theft to a felony under section 666 and to invoke the sentencing provisions of section 667, subdivision (e)? 2
Respondent adds another layer to the discussion; it claims the order staying imposition of the one-year prior prison term enhancement is not authorized by section 654 because use of the prison term for the 1981 robbery conviction to enhance is not a prohibited dual use of facts.
Thus, the question is whether the same 1981 robbery conviction can be used: (1) to convert the current offense to a felony under section 666; (2) to invoke the punishment provisions of section 667, subdivision (e)(1); and (3) to impose a prior prison term enhancement pursuant to section 667.5, subdivision (b).
The remaining issue which appellant raises is whether the passage of Proposition 184, the initiative version of Three Strikes, empowered the court to exercise its discretion to strike prior convictions in the furtherance of justice pursuant to section 1385.
I. Multiple Use of the 1981 Robbery Conviction a. Jones and Prather
Appellant contends People v. Jones (1993) 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163 and People v. Prather (1990) 50 Cal.3d 428, 267 Cal.Rptr. 605, 787 P.2d 1012 compel us to conclude that his 1981 robbery conviction cannot be used to elevate the current offense to a felony, double his term under section 667, subdivision (e)(1) and enhance under section 667.5, subdivision (b). His reliance upon these cases is misplaced.
The issue in Prather was whether language in the California Constitution, article I, section 28, subdivision (f), which provides that prior convictions should be used “without limitation,” effectively removed prior prison term enhancements (§ 667.5, subd. (b)) from the double-the-base-term limitation of section 1170.1, subdivision (g). The Court previously held that prior felony conviction enhancements under section 667, subdivision (a) were excluded from the limitation of section 1170.1, subdivision (g) in People v. Jackson (1985) 37 Cal.3d 826, 837–838, 210 Cal.Rptr. 623, 694 P.2d 736. In Prather, the Court found no meaningful distinction between a prior felony conviction and service of a prison term based upon that conviction, and held both enhancements were excluded from the double-the-base-term limitation of section 1170.1, subdivision (g). (People v. Prather, supra, 50 Cal.3d at pp. 439–440, 267 Cal.Rptr. 605, 787 P.2d 1012.)
Relying in part upon Prather's conclusion there was no meaningful distinction between the prior conviction and resulting prison term, Jones held double enhancement under both section 667, subdivision (a) and section 667.5, subdivision (b) could not be imposed based upon the same prior conviction absent a clear legislative intent that both should apply. (People v. Jones, supra, 5 Cal.4th at pp. 1150–1152, 22 Cal.Rptr.2d 753, 857 P.2d 1163.)
Appellant's reliance upon Jones is based upon the faulty premise that his sentence included multiple enhancements. An enhancement is an additional term of imprisonment added to the base term. (People v. Hernandez (1988) 46 Cal.3d 194, 207, 249 Cal.Rptr. 850, 757 P.2d 1013; Cal. Rules of Court, rule 405(c).) The only enhancement in this case is the prior prison term enhancement under section 667.5, subdivision (b). Unlike the sentencing provisions at issue in Jones and Prather, section 666 and section 667, subdivision (e) are not enhancements.
Subdivision (e) provides for an alternate sentencing scheme when the defendant has a prior serious or violent felony conviction; it is not an enhancement (People v. Nobleton (1995) 38 Cal.App.4th 76, 81, 44 Cal.Rptr.2d 611; People v. Sipe, supra, 36 Cal.App.4th at p. 485, 42 Cal.Rptr.2d 266; People v. Anderson (1995) 35 Cal.App.4th 587, 594–595, 41 Cal.Rptr.2d 474; People v. Ingram, supra, 40 Cal.App.4th at p. 1411, 48 Cal.Rptr.2d 256.) While section 666 has been characterized as a “sentence-enhancing statute” (see People v. Bouzas (1991) 53 Cal.3d 467, 479, 279 Cal.Rptr. 847, 807 P.2d 1076), in light of the definition of the term “enhancement,” section 666 is more precisely a statute which gives the court discretion to treat the offense as either a misdemeanor or a felony for the purpose of punishment. (Id. at p. 471, 279 Cal.Rptr. 847, 807 P.2d 1076.) It is not an enhancement. (People v. Martin (1995) 32 Cal.App.4th 656, 666–667, 38 Cal.Rptr.2d 776.)
Furthermore, the statutory provisions interpreted in Jones were enacted pursuant to Proposition 8. The Court found the clear intent of that voter initiative was to increase sentences for recidivist offenders, but there was no provision for imposing the two enhancements cumulatively, only the greater of the two enhancements. (People v. Jones, supra, 5 Cal.4th at pp. 1150–1152, 22 Cal.Rptr.2d 753, 857 P.2d 1163.) The drafters of Three Strikes have clearly provided that its punishment provisions apply “in addition to any other enhancement or punishment provisions which may apply.” (§ 667, subd. (e), emphasis added.) Applying the sentencing provisions of Three Strikes to the term of imprisonment provided by section 666 is not only consistent with the stated legislative and initiative goals of ensuring longer prison sentences and greater punishment for repeat offenders, it is provided for by the express terms of the statute. (§ 667, subd. (b).)
To conclude that subdivision (e)(1) does not apply to section 666 recidivists with a single prior conviction would be to maintain essentially the status quo and exclude this class of repeat offenders from the purview of Three Strikes. To hold that appellant's 1981 conviction could be used only once would not merely force a choice between terms of punishment or compel punishment under the greater of the two provisions, it would prohibit sentencing under subdivision (e)(1) unless the section 666 offender has suffered two prior convictions—one to establish section 666 status and one to use as a first strike. The same would follow with respect to subdivision (e)(2) which would require section 666 offenders to have three prior convictions. This would establish a three and four strikes scheme for defendants currently charged under section 666. We find nothing to support such a construction of this statute.
In light of a clear legislative directive, imposition of the prior prison term enhancement is not prohibited by Jones. Nor does Jones prohibit use of the 1981 robbery conviction to elevate the current offense to a felony under section 666 and to invoke double punishment under section 667, subdivision (e)(1).
People v. Edwards (1976) 18 Cal.3d 796, 135 Cal.Rptr. 411, 557 P.2d 995, held the same prior felony conviction could not be used for the dual purpose of establishing an essential element of the crime of being a felon in possession of a firearm and enhancing the sentence. (Id. at p. 800, 135 Cal.Rptr. 411, 557 P.2d 995.) Edwards is readily distinguishable because appellant's prior conviction is not an element of the crime as defined in section 666. (People v. Bouzas, supra, 53 Cal.3d at p. 479, 279 Cal.Rptr. 847, 807 P.2d 1076).
c. Section 654
“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․” (§ 654.)
This statutory prohibition against double punishment for a single act or omission has no application in this context because the existence of the 1981 conviction is neither an act nor an omission—it is a fact which establishes appellant's status as a repeat offender. (People v. Sipe, supra, 36 Cal.App.4th at pp. 468, 488, 42 Cal.Rptr.2d 266.) A single prior felony conviction and resulting prison term can be used both to upgrade a subsequent petit theft from a misdemeanor to a felony and to enhance the term under section 667.5, subdivision (b). (People v. Rodriguez (1988) 206 Cal.App.3d 517, 519, 253 Cal.Rptr. 633; cited with approval in People v. Coronado (1995) 12 Cal.4th 145, 157, 48 Cal.Rptr.2d 77, 906 P.2d 1232.)
Furthermore, by providing that its sentencing provisions apply “in addition to any other enhancement or punishment provisions which may apply ․”, the Legislature created a recognized exception to section 654. (People v. Ramirez (1995) 33 Cal.App.4th 559, 572–573, 39 Cal.Rptr.2d 374.)
Therefore, section 654 does not prohibit multiple use of the 1981 robbery conviction.
d. Double Jeopardy
Appellant claims the use of his prior conviction to impose multiple punishment violates double jeopardy because he is being cumulatively punished for the same act. We assume the “same act” to which appellant refers is the robbery which underlies his prior conviction.
As explained in North Carolina v. Pearce (1969) 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656:
“[The Fifth Amendment guarantee against double jeopardy] consist[s] of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishment for the same offense.” (Fns. omitted)
The most obvious flaw in appellant's argument is that he is not currently being punished for the robbery he committed in 1981. He is being punished under the sentencing provisions of section 667, subdivision (e) for the petit theft he committed in 1994. The 1994 offense is made a felony under section 666 as a result of his having suffered the 1981 conviction, but the 1994 petit theft and the 1981 robbery are two distinct offenses.
Although his status as a repeat offender subjects him to harsher punishment under section 667, subdivision (e), and service of the prison term results in an enhancement of that term, he is not being punished for the 1981 robbery conviction. Recidivist statutes do not impose a second punishment for the first offense in violation of the Double Jeopardy Clause. (Moore v. Missouri (1895) 159 U.S. 673, 677, 16 S.Ct. 179, 181, 40 L.Ed. 301.) Moreover, the Double Jeopardy Clause does not prohibit the imposition of multiple punishment for the same offense where the Legislature has authorized multiple punishment. (Missouri v. Hunter (1983) 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535.) Even if we were to accept appellant's multiple punishment argument, multiple use of the 1981 robbery conviction survives constitutional challenge because of legislative authorization. (People v. Sipe, supra, 36 Cal.App.4th at pp. 468, 489, 42 Cal.Rptr.2d 266.)
e. The Correct Term of Imprisonment
Having concluded the multiple use of the 1981 robbery conviction is not barred and the prior prison term enhancement is not subject to section 654, the question is whether the sentence can be corrected on appeal.
Appellant argues that regardless of section 654, the prior prison term enhancement is discretionary, not mandatory, and the case should be remanded for the lower court to decide whether to impose the prior prison term enhancement. According to appellant, even if a stay is unauthorized as a matter of law, imposition of the enhancement is not compelled. He refers to the language of section 667, subdivision (e) which states that its provisions apply “in addition to any other enhancement provisions which may apply” and argues that use of the term “may” is permissive and connotes discretion. In other words, as we understand appellant's argument, subdivision (e) makes the imposition of a prior prison term enhancement discretionary.
To the extent appellant is suggesting the enhancement may not apply in this case, his argument is absurd. Appellant was charged and admitted having served a prison term within the meaning of section 667.5, subdivision (b). There is no question whether the enhancement may apply—it does apply. The question is whether, upon determining that imposition of the enhancement is not prohibited, there is any discretionary basis for not imposing the enhancement. Appellant offers no such basis.
Pursuant to section 1170.1, subdivision (d), when the court imposes a determinate sentence, the imposition of an additional term under section 667.5 is mandatory unless the additional term is stricken. The term may be stricken properly only if the court determines there are circumstances in mitigation of the additional punishment and the court states its reasons for striking the additional punishment. (§ 1170.1, subd. (h).) Appellant points to nothing in this record suggesting a basis for the court to strike the prior prison term enhancement.
Given the absence of a factual or legal basis for the court to strike or stay the enhancement, the order staying imposition of the prior prison term enhancement is an unauthorized sentence and is subject to correction on appeal. (People v. Menius (1994) 25 Cal.App.4th 1290, 1295, 31 Cal.Rptr.2d 15.)
II. Discretion to Strike Prior Conviction
Appellant contends the passage of Proposition 184, the initiative version of Three Strikes which is codified in section 1170.12, restores the trial court's discretion to dismiss a prior conviction allegation in the furtherance of justice pursuant to section 1385 to the extent the legislative version of the law, specifically section 667, subdivision (f)(2), effectively deprives the court of such discretion.3
We do not decide the correctness of appellant's assertion. There is nothing in this record to indicate the trial court was asked to exercise its discretion to dismiss pursuant to section 1385.4 The issue is waived. (See People v. Peel (1995) 17 Cal.App.4th 594, 598–599, 21 Cal.Rptr.2d 449.)
The trial court is directed to enter an order vacating the order staying imposition of the section 667.5, subdivision (b) enhancement, to prepare a new abstract of judgment incorporating the modification, and to forward a copy of the new abstract of judgment to the California Department of Corrections. In all other respects, the judgment is affirmed.
FN1. All further statutory references are to the Penal Code unless otherwise indicated.. FN1. All further statutory references are to the Penal Code unless otherwise indicated.
2. People v. Hill (1995) 37 Cal.App.4th 220, 223, 44 Cal.Rptr.2d 11, rejected the defendant's claim that such multiple use was prohibited. The court stated, without further discussion, that it previously had rejected the same claim in People v. Sipe (1995) 36 Cal.App.4th 468, 42 Cal.Rptr.2d 266. (Id. at p. 223, 44 Cal.Rptr.2d 11.) However, this precise issue was not raised in Sipe. The issue in Sipe was whether the same prior felony conviction could be used to convict the defendant of felony escape under section 4532, subdivision (b) and to increase his punishment under section 667, subdivision (e)(1). (Id. at p. 484, 42 Cal.Rptr.2d 266.)
3. Section 667, subdivision (f)(2) provides:“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.”
4. Appellant moved to strike the prior conviction on the grounds that it was unconstitutional under People v. Sumstine (1984) 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904. The trial court denied the motion on the merits.
STONE, (WM. A.), Acting Presiding Justice.
THAXTER and BUCKLEY, JJ., concur.