THE PEOPLE v. FUHRMAN

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Court of Appeal, Fourth District, California.

THE PEOPLE, Plaintiff and Respondent, v. Scott Robert FUHRMAN, Defendant and Appellant.

No. E016122.

Decided: August 02, 1996

Roberta K. Thyfault, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Sacramento, Gary W. Schons, Senior Assistant Attorney General, M. Howard Wayne and Laura Whitcomb Halgren, Deputy Attorneys General, San Diego, for Plaintiff and Respondent.

OPINION

Defendant Scott Robert Fuhrman appeals after he was convicted of robbery (Pen. Code, § 211) and driving or taking a vehicle (Veh. Code, § 10851), and sentenced under the “three strikes” law.   We affirm.

FACTS

The Current Charges

At 6 a.m. on May 24, 1994, Lisa Hughes discovered that her primer gray Volkswagen Rabbit had been taken from the driveway of her Temecula home.   She had parked and locked the car in the driveway the night before.   She reported the theft.

Just after 10 a.m. on the same morning, May 24, 1994, a man wearing a black motorcycle helmet walked into a bank in Murrieta.   The man wore blue jeans, a green or turquoise shirt or sweatshirt, a multi-colored scarf, and a lightweight denim jacket.

The man approached the window of teller Casey Gregg and placed an envelope on the counter.   Gregg looked at the empty envelope and then at the man.   He lifted his shirt and showed her a black gun tucked into the top of his pants.   He handed her a plastic grocery bag and told her to put the money in the bag.   Gregg placed money from her drawer into the bag, including a packet of “bait money,” i.e., money that has been marked by the bank and the serial numbers recorded.   Gregg noticed that the man had blond or reddish eyebrows, he was about five feet, ten inches tall, medium build, with a light complexion and distinctive blue eyes.

Between about 10:15 and 10:30 a.m., Joseph Berge was driving when he saw a man run from the bank, wearing a motorcycle helmet and carrying something close to his body.   The man was wearing dark pants, a denim jacket, and a scarf.   Berge thought it odd that the man was running from the bank, and that a man wearing a motorcycle helmet would get into a car—a Volkswagen Rabbit.   Berge dialed 9–1–1 on his car telephone and decided to follow the Volkswagen.   Berge tailed the Volkswagen until he saw the driver park in a shopping center parking lot.   The driver, who was no longer wearing a helmet, got out and went into a pet food store.   When police arrived, Berge pointed out a primer gray Volkswagen Rabbit as the car he had followed.

A pet store employee saw a man come into the store and head toward the back.   She saw the man again, approximately ten minutes later, but now he was wearing a turquoise sweatshirt and baggy shorts instead of jeans and a denim jacket.   The man walked fast and acted nervous as he went to the cat food aisle.   He came back toward the cash register carrying a bag of cat food.   The man—defendant—was apprehended by police as he approached the register.   Defendant told police he was at the store to buy dog food.

A search of the area turned up a pair of jeans and a belt in the trash in the men's restroom in the pet store.   Plastic grocery bags were hidden in the toilet tank.   Inside the pet food store, the bank's money was found in an opened bag of cat food.   Outside the store, police found a denim jacket and a backpack.   The backpack contained a multi-colored scarf, a screwdriver, a container of BB's and a handgun case.   About 10 feet away lay a black BB gun.   The black motorcycle helmet was recovered alongside the road between the bank and the pet food store.

Teller Casey Gregg identified defendant as the robber at the scene of the arrest, at a jailhouse lineup, and in court.   Another teller identified defendant as the bank robber at a lineup and in court.   Motorist Berge identified defendant at a lineup and in court.   The pet store employee also identified defendant in court.

The Volkswagen defendant drove belonged to Lisa Hughes, and was returned to her.   The ignition switch was missing, as well as some items that had previously been in her car.   A search of defendant's apartment turned up a tool for opening locked cars, a dent-puller with an ignition attached (the ignition switch fit the Volkswagen), and a wind-wing knob that was missing from the Volkswagen.

Defendant was charged in count one with the robbery of the bank teller.   It was also alleged he personally used a deadly weapon in the commission of the offense.  (Pen. Code, § 12022, subd. (b).)  He was charged in count two with the driving or taking of an automobile.   As to both counts it was alleged that defendant had previously suffered two prior prison terms (Pen. Code, § 667.5, subd. (b)) one prior serious felony (Pen. Code, § 667, subd. (a)), and two “strikes” within the meaning of the “three strikes” law (Pen. Code, § 667, subds.(c) and (e)).

A jury found defendant guilty as charged and found the use enhancement allegation true.   At a bifurcated trial, the court found true the additional (prior prison term, prior serious felony, prior “strike” conviction) allegations.   The court sentenced defendant to an indeterminate term of 25 years to life on count one, plus a one-year term for the weapon use, an indeterminate term of 25 years to life on count two, plus two one-year terms for the prior prison terms, and a five-year term for the prior serious felony.   Each term was consecutive, resulting in a total prison term of 58 years to life.

The “Strike” Priors

In 1989, defendant was charged by information with 11 counts of criminal activity.   The probation report regarding those offenses shows that, while defendant was driving a stolen car, he collided with another car.   When the victim of the collision wanted to call police, defendant pointed a gun at the victim and began yelling.   Defendant then forced his way at gunpoint into a truck which was stopped because of the collision.   Defendant ordered the driver of the truck to take him from the scene.   A short distance later, defendant told the driver to stop and then ordered her from the truck.   Defendant and the truck were found later.   Defendant was charged with kidnapping (carrying a life sentence), robbery of the truck, assault with a firearm on the collision victim, taking and driving a vehicle (with a prior vehicle theft), another count of taking and driving a vehicle, ex-felon in possession of a firearm, hit-and-run (leaving the scene of an accident), driving with a suspended license, possession of a hypodermic needle, possession of a “slim jim” to break into cars, and resisting arrest.

Defendant was allowed to plead guilty to the robbery of the truck and the assault with a weapon on the collision victim;  the remaining counts, including the kidnapping, were dismissed as part of the plea bargain.   Defendant was sentenced to the middle term of three years on the robbery count, with a two-year enhancement for gun use.   He received a term of three years (middle term) for the assault with a firearm, but the court stayed both the term and the enhancement “on the basis I think there's a 654.   I think it's one simple transaction.  [¶] The enhancement ․ I cannot impose because I can only impose one enhancement for one transaction.”   The court also imposed an additional one-year enhancement under Penal Code section 667.5, subdivision (b), for a prior prison term.

DISCUSSION

I. Two “Strikes” for Two Crimes in Prior Trial**

II. Is a Prior Stayed under Section 654 a Strike?

Defendant argued below that he should not be sentenced as a “three-striker” because the sentence imposed for one of the “strikes” had been stayed pursuant to Penal Code section 654.

Penal Code section 654, which applied in defendant's previous case, prohibits multiple punishment, but not multiple convictions for two or more crimes that result from one episode of crime.  (People v. Thompson (1990) 50 Cal.3d 134, 172, 266 Cal.Rptr. 309, 785 P.2d 857;  In re Wright (1967) 65 Cal.2d 650, 653, 56 Cal.Rptr. 110, 422 P.2d 998.)   The trial court determined that assault and robbery constituted essentially “one simple transaction;” accordingly, the court stayed the sentence for the assault count pursuant to section 654.

Defendant now urges that, if he is allowed to be punished as a third-striker (i.e., by counting the conviction accompanying the stayed assault sentence as a “strike”), he will now be dually punished for the assault, when such punishment was prohibited in the previous case by section 654.

Penal Code section 654 provides that “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;  an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”   The purpose of the prohibition against double punishment for a single act is to ensure that a defendant's punishment is commensurate with his or her culpability.   Use of both prior convictions as “strikes” accords with the statutory purpose of section 654:  because defendant's convictions represent separate criminal acts against separate victims, use of both to establish the level of his recidivist status ensures recidivist punishment commensurate with his actual culpability.   Use of both prior convictions as “strikes” also comports with the purpose and language of Penal Code section 667, subdivisions (b) through (i), which was intended to ensure longer sentences and greater punishment for those who have previously been convicted of one or more serious or violent felonies.  (See Pen. Code, § 667, subd. (b).)

Defendant's reliance on People v. Pearson (1986) 42 Cal.3d 351, 228 Cal.Rptr. 509, 721 P.2d 595, is misplaced.   Although the California Supreme Court there held that Penal Code section 654 prohibits use of a 654–stayed conviction for purposes of a future enhancement, the court also observed that “ ‘increased penalties for subsequent offenses are attributable to the defendant's status as a repeat offender and arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense’ (In re Foss (1974) 10 Cal.3d 910, 922 [112 Cal.Rptr. 649, 519 P.2d 1073] ).”   In addition, “a defendant's status as a repeat offender relates to the number of wrongful acts he committed, not to the number of his convictions.”  (Id. at p. 363, 228 Cal.Rptr. 509, 721 P.2d 595.)   Here, defendant's assault conviction, for which the punishment was stayed, related to a different wrongful act from the robbery of which he was also convicted.

The fact of defendant's prior conviction, even though the punishment was stayed, establishes his status as a recidivist offender subject to the “three strikes” law.   The fact of conviction is not an “act” and therefore does not implicate section 654 for purposes of determining whether defendant has been convicted of the requisite prior felony offenses.  (See People v. Cartwright (1995) 39 Cal.App.4th 1123, 1139, 46 Cal.Rptr.2d 351.)   In other words, the “three strikes” law enacts a separate sentencing scheme for recidivist offenders, and is not an enhancement provision.

Moreover, the Pearson court indicated that “convictions for which service of sentence was stayed may not be ․ used [as a later sentence enhancement] unless the Legislature explicitly declares that subsequent penal or administrative action may be based on such stayed convictions.”  (People v. Pearson, supra, 42 Cal.3d 351, 361, 228 Cal.Rptr. 509, 721 P.2d 595, italics added.)   Here, the Legislature has so provided.

Penal Code section 667, subdivision (d)(1), defining a prior “strike” felony conviction, provides in pertinent part that:  “․ None of the following dispositions shall affect the determination that a prior conviction is a prior felony for purposes of subdivisions (b) to (i) [the “three strikes” law], inclusive:  [¶] (A) The suspension of imposition of judgment or sentence.  [¶] (B) The stay of execution of sentence.  [¶] (C) The commitment to the State Department of Mental Health Services as a mentally disordered sex offender following a conviction of a felony.  [¶] (D) The commitment to the California Rehabilitation Center or any other facility whose function is rehabilitative diversion from the state prison․”  (Italics added.)

Defendant contends the provision that a stay of sentence does not prevent the prior conviction from being counted as a strike only applies to stays, e.g., for the purpose of granting probation, but not to other stays of execution of sentence.   In essence, he urges that section 667, subdivision (d)(1)(B), does not constitute an “express” exception to section 654 because it does not refer to section 654 explicitly.   We discern no such limitation in the language of Penal Code section 667, subdivision (d)(1)(B).   It expressly provides that a stay of execution of a sentence does not prevent the conviction from being used as a “strike.”   In an analogous context, the Court of Appeal recognized that, “It is a well-established rule, however, that the Legislature may create an express exception to section 654's general rule against double punishment by stating a specific legislative intent to impose additional punishment.  [Citations.]  A statute which provides that a defendant shall receive a sentence enhancement in addition to any other authorized punishment constitutes an express exception to section 654.  [Citation.]”  (See People v. Ramirez (1995) 33 Cal.App.4th 559, 572–573, 39 Cal.Rptr.2d 374, review den.   June 1, 1995.)   Here also, the Legislature's intent can hardly be clearer that increased punishment and longer sentences are to be imposed “Notwithstanding any other law,” (Pen. Code, § 667, subd. (d)) and that a “stay of execution of sentence” shall not affect the determination whether a prior conviction is a qualifying “strike.”  (Pen. Code, § 667, subd. (d)(1)(B).)

Defendant here was proven to be convicted of two qualifying prior felonies, committed against different victims.   The trial court correctly found defendant had two prior “strikes.”

III., IV.***

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

RICHLI, Associate Justice.

McKINSTER, Acting P.J., and McDANIEL, J.,† concur.

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