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

The PEOPLE, Plaintiff and Respondent, v. Jesus Penuelas OCHOA et al., Defendants and Appellants.

No. B093831.

Decided: September 23, 1996

William J. Capriola, under appointment by the Court of Appeal, Oakland, for Defendant and Appellant Jesus Penuelas Ochoa. Dain and Li, Anthony J. Dain, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant Liborio Penuelas Ochoa. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Jaime L. Fuster, and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.

Brothers Jesus and Liborio Ochoa were convicted by a jury of multiple violations of the Health and Safety Code, relating to the sale of cocaine.   Appellant Liborio Ochoa had previously suffered two qualifying felony convictions under the Three Strikes law (Pen.Code, § 667, subds. (b)-(i)) and he was sentenced to life imprisonment.   In the unpublished portion of this opinion, we reject appellant Jesus's contention that the trial court considered improper aggravating factors and did not adequately consider mitigating factors at sentencing, and also reject appellant Liborio's contention that there was insufficient evidence to support the jury's determination that he had been previously convicted of a serious felony for purposes of punishment under Penal Code section 667, subdivisions (b) through (i).   We agree with both appellants and respondent that the trial court improperly applied an arming enhancement to appellants' conspiracy convictions.   In the published portion of the opinion, we discuss application of sentence enhancements to an indeterminate life term under the Three Strikes punishment scheme.


Because the main issues in this case relate to sentencing, we offer only this brief description of the facts underlying appellants' convictions.

In June of 1994, agents of the California Department of Justice, Bureau of Narcotics Enforcement, observed Jesus and Liborio Ochoa park a red Corsica in the driveway of a suspected “stash house”—a house used for the storage of drugs.   Appellants removed a number of small objects from a compartment in the back seat area of the car, spent 20 minutes in the residence, and left.

After appellants left the “stash house,” another red Corsica, identical to appellants' except for the license number, arrived.   Within 20 minutes, a third car arrived.   Occupants of the third car entered the residence with an empty diaper bag.   When they left, the bag appeared full.   A traffic stop of the third car revealed that the diaper bag contained $59,000.   A warranted search of the house and the second Corsica yielded four handguns, $4,000, and 670 grams of cocaine.

One week later, police officers observed appellant's red Corsica turn without signalling.   A computer check revealed the car was wanted by the Department of Justice, and the officers stopped the vehicle.   Appellants consented to a search of the car, and in a false compartment the police found two digital scales, two handguns, $20,774, and 1,104 grams of cocaine.

Both Ochoas were charged by information with possession of cocaine for sale (Health & Saf.Code, § 11351) [count 1], transportation of cocaine for sale (Health & Saf.Code, § 11352, subd. (a)) [count 2], conspiracy to possess and transport cocaine for sale (Pen.Code, § 182, subd. (a)(1)) [count 3], and false compartment activity (Health & Saf.Code, § 11366.8, subd. (a)) [count 6]. The People alleged that counts 1, 2, and 3 involved more than one kilogram of cocaine (Health & Saf.Code, § 11370.4, subd. (a)(1)), and that as to all counts both Ochoas were personally armed.  (Pen.Code, § 12022, subd. (c).)  The People further alleged as to all counts that a principal was personally armed (Pen.Code, § 12022, subd. (a)(1)), and that both Ochoas knew a principal was personally armed.  (Pen.Code, § 12022, subd. (d).) 1

It was additionally alleged that appellant Liborio Ochoa [hereafter we refer to appellants by their first names for clarity] had suffered two serious felony convictions within the meaning of Penal Code section 667, subdivisions (b) through (i) [the Three Strikes law].   Appellant Liborio also was charged with possession of a firearm by a felon.  (Pen.Code, § 12021, subd. (a)(1).)

The case was tried to a jury, which acquitted appellant Liborio on the felon-in-possession charge, but convicted both Ochoas on all other counts.   The jury found all enhancement allegations to be true.   It also found the allegations of appellant Liborio's prior convictions were true.

The trial court sentenced appellant Jesus as follows:  The court designated the high term of count 2—five years—as the base term, and added the middle term of four years for the personal arming enhancement, and three years for the weight enhancement.   The court imposed one-third the middle term on count 6—eight months—to run consecutively to the sentence on count 2, for a total imprisonment of twelve years, eight months.   The trial court stayed the sentences on all other counts and enhancements as duplicative (Pen.Code, § 654), and ordered appellant Jesus to pay $5,000 restitution.  (Gov.Code, § 13967, subd. (a).)

Appellant Liborio was sentenced under the Three Strikes law to an indeterminate term of 25 years to life (Pen.Code, § 667, subd. (e)(2)(A)(ii)), to be served consecutive to a determinate term of seven years for the weight and arming enhancements.   The court ordered a $10,000 restitution fine, and stayed sentence on all other counts and enhancements.




Liborio OchoaA**B

Appellant Liborio's final contention is that his sentence was improperly calculated under the Three Strikes sentencing scheme.2  Appellant was sentenced under Penal Code section 667, subdivision (e)(2)(A)(ii), to an indeterminate term of 25 years to life, to be served consecutive to determinate terms of 3 years (Health and Saf.Code, § 11370.4, subd. (a)) and 4 years (Pen.Code, § 12022, subd. (c)).  Sentence on all other counts and allegations was stayed under Penal Code section 654.

Simply stated, appellant's argument is that the Three Strikes law expressly requires him to serve a minimum term of 25 years, so that his sentence to a minimum term of 32 years is error.   As we shall explain, appellant fails to distinguish between the minimum number of years he must serve under his indeterminate life sentence before being eligible for parole, and the length of his total aggregate sentence.

The core sentencing provision of the Three Strikes statute, subdivision (e), provides in relevant part:  “For purposes of subdivisions (b) to (i) inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction:  ․ [¶] (2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:  [¶] (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions. [¶] (ii) Imprisonment in the state prison for 25 years. [¶] (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. [¶]  (B) The indeterminate term described in subparagraph (A) shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law․”  (All further statutory references are to the Penal Code unless otherwise indicated.   The subdivision under discussion is referred to as subdivision (e).   The three methods of calculating potential minimum terms are referred to as alternative (i), alternative (ii), and alternative (iii).)

Appellant asserts the trial court erred in “engrafting” the use and weight enhancement terms onto the 25 year minimum term the court imposed pursuant to alternative (ii).   He recognizes that Courts of Appeal have consistently held enhancements must be imposed consecutive to a subdivision (e) indeterminate life term (see People v. Ingram (1995) 40 Cal.App.4th 1397, 48 Cal.Rptr.2d 256;  People v. Turner (1995) 40 Cal.App.4th 733, 47 Cal.Rptr.2d 42; People v. Cartwright (1995) 39 Cal.App.4th 1123, 46 Cal.Rptr.2d 351), but asks that we reconsider the issue specifically in the context of offense related enhancements.   While we do not find any indication in the Three Strikes law that offense and offender related enhancements should be applied differently, we do find appellant's argument merits consideration.

Under the sentencing scheme created by subdivision (e), a defendant who has two qualifying felony convictions receives an indeterminate life sentence.   The sentencing court must then calculate the appropriate minimum term for purposes of parole eligibility for the indeterminate life term under alternatives (i)-(iii).   Under alternative (i) the court simply triples the base term for the current offense.   Under alternative (ii) the minimum term is 25 years, and under alternative (iii) the court calculates the sentence defendant would receive under traditional determinate sentencing principles, including any enhancements.   The sentencing court must impose the greatest of the three alternatives as the minimum term of the indeterminate life sentence.   Appellant argues that the sentencing court cannot then impose a determinate enhancement term consecutive to the indeterminate life term, because that enhancement already has been “used” in the calculation under alternative (iii).   It may not have been part of the minimum term ultimately imposed, he argues, but “because the result of option (iii) must be compared with the results of options (i) and (ii), [it is] necessarily part of the ultimate determination that a particular option has resulted in the longest minimum term.”

Understandably, appellant does not argue that his sentence constitutes an impermissible dual use of the enhancements.   That argument has been repeatedly rejected.  (See People v. Nelson (1996) 42 Cal.App.4th 131, 49 Cal.Rptr.2d 361;  People v. Cartwright, supra, 39 Cal.App.4th at pp. 1137–1139, 46 Cal.Rptr.2d 351;  People v. Anderson (1995) 35 Cal.App.4th 587, 41 Cal.Rptr.2d 474;  People v. Ramirez (1995) 33 Cal.App.4th 559, 39 Cal.Rptr.2d 374.)   He argues, instead, that his sentence is inconsistent with the purpose and methodology of the Three Strikes law.   He supports this proposition by reference to People v. Jenkins (1995) 10 Cal.4th 234, 40 Cal.Rptr.2d 903, 893 P.2d 1224.   We turn to that decision.

In Jenkins, our Supreme Court construed another habitual offender sentencing scheme, section 667.7.   That statute, which is “similar to [the Three Strikes law] in several respects” (10 Cal.4th at p. 238, fn. 2, 40 Cal.Rptr.2d 903, 893 P.2d 1224;  see also People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 527, 53 Cal.Rptr.2d 789, 917 P.2d 628 [§ 667.7 is “extremely similar” to Three Strikes] ), creates a sentencing scheme for habitual violent offenders who are convicted of qualifying felonies involving the infliction of, or use of force likely to produce, great bodily injury.   (People v. Jenkins, supra, 10 Cal.4th at p. 241, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)   Under section 667.7, a sentencing court must calculate a minimum term to be served prior to parole eligibility under a scheme similar to subdivision (e) of the Three Strikes law:  “(1) A [qualifying] person who served two prior separate prison terms shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 20 years, or the term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement ․ or any period prescribed by Section 190 or 3046, whichever is greatest.” (§ 667.7, subd. (a).)

The Jenkins defendant argued, among other things, that the same prior felony convictions that qualified him as a habitual offender could not be used to enhance his sentence pursuant to section 667, subdivision (a)(1), which imposes a five year sentence enhancement for each prior serious felony conviction when the current offense is a serious felony.   The basis for his argument was the provision in section 667, subdivision (a)(2), which states that the enhancement does not apply when “other provisions of law would result in a longer term of imprisonment.”   The defendant argued that section 667.7 itself was another provision of law resulting in a longer term of imprisonment whose application precluded imposition of the section 667, subdivision (a)(1) enhancement.  (10 Cal.4th at p. 252, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)   The court rejected the argument.   It held that in calculating “the minimum period of imprisonment required [the sentencing court] must include as a component the term of any enhancement imposed under section 667, subdivision (a)․”  (Id. at p. 254, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)

Appellant relies on the following passage in the Jenkins opinion:  “The Attorney General does not dispute that the term of a section 667, subdivision (a), enhancement may not be imposed consecutively onto a section 667.7 life term.   Engrafting a term of enhancement onto the life term would lead to a result inconsistent with the statute's methodology for setting the minimum period of required imprisonment.   A court is required to use applicable enhancements to calculate the offender's hypothetical sentence apart from section 667.7—a sentence which, if greater than 20 years, defines the defendant's minimum period of required imprisonment.   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.”   (10 Cal.4th at p. 253, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)

Appellant points out that sections 667.7 and 667, subdivisions. (b) through (i) “are in pari materia and therefore the interpretation of a phrase in one controls the interpretation of the identical language in the other.”  (People v. Cartwright, supra, 39 Cal.App.4th at p. 1142, 46 Cal.Rptr.2d 351.)   Accordingly, he argues, just as enhancements cannot be imposed consecutive to a section 667.7 life term, they cannot be imposed consecutive to a section 667, subdivision (e) life term.

The problem with appellant's argument is that the Jenkins court was not interpreting language identical to the provision under which appellant was sentenced.   The Three Strikes statute expressly provides that the indeterminate life sentence shall be served “consecutive to any other term of imprisonment for which a consecutive term may be imposed by law” (§ 667, subd. (e)(2)(B)) and shall be imposed “in addition to any other enhancement or punishment provisions which may apply.” (§ 667, subd. (e).)  There is no corresponding provision in section 667.7.   The Jenkins court interpreted a “self-contained sentencing scheme” (People v. Jenkins, supra, 10 Cal.4th at p. 241, 40 Cal.Rptr.2d 903, 893 P.2d 1224) that mandated a particular punishment for qualifying offenders:  “Any person convicted of a felony in which the person inflicted ․ or personally used force which was likely to produce great bodily injury, who has served two or more prior separate prison terms ․ for the crime of [many enumerated serious or violent felonies] ․ is a habitual offender and shall be punished as follows:  [sentencing choices partially described above].” (§ 667.7.) Nothing in the statute contemplated coordination of the prescribed punishment with any other punishment provision.  (People v. Jenkins, supra, 10 Cal.4th at p. 253, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)   By contrast, at least two sections of the Three Strikes law do suggest the Legislature intended that enhancements be imposed consecutive to the subdivision (e)(2)(A) indeterminate life term. (§ 667, subds.(e), (e)(2)(B);  see People v. Anderson, supra, 35 Cal.App.4th at p. 597, 41 Cal.Rptr.2d 474.)

Appellant suggests that if Jenkins does not control on this point, there is a logical inconsistency embedded in the Three Strikes law's minimum term selection criteria.   He finds in People v. Ingram, supra, 40 Cal.App.4th 1397, 48 Cal.Rptr.2d 256, the proposition that when the greatest minimum term is reached under alternative (iii), enhancements cannot be imposed consecutive to that term, because they already make up an element of that term.   The court said:  “Because the [trial] 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' [subd. (e) ] which must be added to the minimum term.”  (Id. at p. 1410, 48 Cal.Rptr.2d 256.)   According to appellant, this statement causes serious difficulties in the case of a defendant who has heavy enhancements.

He posits a first degree robber with two serious felony priors and an allegation of first degree gun use.   Assuming high terms are selected, under alternative (i) the robber's minimum term would be 27 years [triple the base term of 9 years, (§ 213) ];  under alternative (ii) the minimum would be 25 years;  under alternative (iii) the minimum would be 29 years [9 years for the robbery, plus 10 years for the priors (§ 667, subd. (a)(1)), plus 10 years for the gun use (§ 12022.5, subd. (a)(1)) ].   As appellant reads Ingram, the court would impose a term of 29 years to life, but could not enhance that sentence any further.  (See People v. Ingram, supra, 40 Cal.App.4th at p. 1410, 48 Cal.Rptr.2d 256.)   If the court is permitted, or required, to impose all enhancements when the defendant is sentenced under alternatives (i) or (ii), however, the actual “minimum terms” under those options are 47 and 45 years, respectively.   The longer term yielded by alternative (iii) is illusory, appellant argues, and “the requirement that the longest minimum term be imposed [is] effectively ․ subverted where the longest minimum initially [results] under option (iii).”   According to appellant this is at odds with the express purpose of the Three Strikes law—“to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” (§ 667, subd. (b).)

 Appellant misconstrues the function of subdivisions (e)(2)(A)(i)-(iii).   Under subdivision (e)(2)(A), defendants who are convicted of a felony and who previously have suffered two or more serious or violent felony convictions, are sentenced to life imprisonment.  “Those defendants who are sentenced to life become eligible for parole on a date calculated by reference to a ‘minimum term.’   The ‘minimum term’ is the greater of:  [alternatives (i), (ii), or (iii) ].”  (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 506, 53 Cal.Rptr.2d 789, 917 P.2d 628, citations omitted.)   Once the minimum term is selected pursuant to alternatives (i)—(iii), it is the final minimum term.   The determinate enhancements are not “added to the minimum term.”   The life term is served consecutive to the enhancement terms.

In People v. Anderson, supra, 35 Cal.App.4th 587, 41 Cal.Rptr.2d 474, the court rejected an argument very similar to the position advanced by appellant in our case.   The Anderson defendant offered a technical construction of alternatives (i)—(iii) to support his claim that enhancements could not be used when a defendant was sentenced under section 667, subdivision (e)(1).3  The Anderson court observed that “[s]ubdivision (e)(2)(A) is designed solely to calculate the minimum term of an indeterminate life sentence.   To that end, the statute sets forth three options, the greatest of which must be chosen as the minimum term, which then acts merely as a gauge of parole eligibility.”  (Id. at p. 596, 41 Cal.Rptr.2d 474.)   Once the minimum term has been calculated, the statute “mandate[s] the inclusion of enhancements as a separate determinate sentence ․ in addition to the indeterminate sentence.”  (Ibid.)

In the portion of the Ingram opinion we have quoted, the court was addressing the claim that a defendant who is sentenced under alternative (ii) could not also be sentenced to enhancement terms for the serious or violent felonies that triggered sentencing under subdivision (e)(2)(A).   It rejected the argument.   To the degree that the court's statement may be read to mean that a defendant whose minimum term is measured by alternative (iii) is relieved from serving the enhancement terms for the predicate serious or violent felonies, we do not agree.   It bears emphasis that subdivision (e)(2)(A) deals with the determination of the minimum time a defendant must serve on account of the indefinite life term.   That time is “in addition to any other enhancement or punishment provisions that may apply.”  (Subd. (e).)

 Of course, as a practical matter the enhancements, which must be served first, postpone a defendant's parole eligibility.4  That is why appellate courts and sentencing judges occasionally refer to the enhancements as being “added to the minimum term.”   Technically, however, the determinate enhancements are a separate component of the total sentence, a component that must be fully served before the indeterminate life sentence begins.   In this case, appellant will not be eligible for parole for 32 years.5  He must first serve 7 years of determinate enhancements, and then serve the minimum term of 25 years on his indeterminate life sentence.   At that point, at the earliest, he will be eligible for parole. (§ 3046.)  Ingram accurately describes the practical application of subdivision (e).   To the extent appellant relies on it for the notion that determinate enhancements become part of the subdivision's “minimum term” calculation, his reliance is unavailing.

Nonetheless, we are still met by appellant's hypothetical defendant.   Appellant asserts that this individual will receive an indeterminate prison term of 29 years to life with no further enhancements.   If the trial court was not obligated to choose the greatest of alternatives (i)-(iii), the sentence theoretically could be a composite of 20 years of determinate enhancements, plus 27 years to life (under alternative (i)), a sentence that would require the robber spend an additional 18 years in prison before becoming eligible for parole.   Appellant claims this result conflicts with the legislative intent expressed in section 667, subdivision (b), and thus implies the Three Strikes statute is being improperly applied.   The problem with appellants' analysis is that the defendant is still subject to a determinate term of 20 years for the enhancements.   Alternative (iii) merely uses those enhancements to measure the minimum time the person must serve on the life term imposed for the current felony.

 Before the enactment of the Three Strikes law, this individual would have received a maximum sentence of 29 years—the high term of 9 years for the robbery and 20 years for the enhancements. (§ 1170, et seq.)   The sentence is now life.   In addition, the court must impose enhancements, and may not grant probation, suspend execution or imposition of sentence, divert the defendant, or commit the defendant to any facility other than state prison.  (See People v. Superior Court (Romero), supra, 13 Cal.4th 497, 506, 53 Cal.Rptr.2d 789, 917 P.2d 628, citations omitted.)  Section 667, subdivision (b), is satisfied.   Other constructions of the statute might be supposed that would yield even longer sentences, but we do not find in the legislative statement of purpose an express demand that all future sentences be as long as constitutionally permissible.   Rather, the statute simply prescribes longer prison sentences than offenders would have received prior to its enactment.



Respondent points out the abstracts of judgment for both Ochoas do not reflect the restitution fines imposed by the trial court.   We direct the superior court to amend the abstracts to reflect fines of $5,000 and $10,000 against appellants Jesus and Liborio, respectively.   We also direct the superior court to strike the section 12022, subdivision (c), arming enhancement from each Ochoa's stayed conspiracy sentence.   As so modified, the judgment is affirmed.


1.   We infer the Penal Code section 12022, subdivision (d), allegations were dropped at some point during trial, because the jury was not asked to determine if the allegations were true.   In addition, despite the language of the information, the personal arming enhancement was not applied to count 6.

FOOTNOTE.   See footnote *, ante.

2.   Appellant's offenses, committed in June and July of 1994, arise under the legislative version of the Three Strikes law (Pen.Code, § 667, subds. (b)-(i)), and not the subsequently approved voter initiative version.  (Pen.Code, § 1170.12, approved Nov. 8, 1994.)

3.   Defendants with one prior qualifying felony conviction are punished under subdivision (e)(1).   For these defendants “the determinate term or minimum term for an indeterminate term [is] twice the term otherwise provided as punishment for the current felony conviction.” (§ 667, subd. (e)(1).)

4.   “Whenever 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․” (§ 669.)

5.   These numbers do not reflect credit that appellant has earned for presentence custody or conduct credit that he may earn while in prison.  (See §§ 667, subd. (c)(5);  2930 et seq.).

FOOTNOTE.  See footnote *, ante.

EPSTEIN, Acting Presiding Justice.

BARON and ARANDA,† JJ., concur.

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