PEOPLE v. DOMINGUEZ

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Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Efren Mijares DOMINGUEZ, Defendant and Appellant.

No. B093134.

Decided: April 01, 1996

Sylvia Whatley Beckham, Santa Barbara, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Sanjay T. Kumar, Supervising Deputy Attorney General, and Kyle S. Brodie, Deputy Attorney General, for Plaintiff and Respondent.

Efren Mijares Dominguez appeals from the judgment entered following his convictions by jury of second degree commercial burglary and petty theft with a prior conviction, having suffered two prior felony convictions and a prior felony conviction for which he served a separate prison term.  (Pen.Code, §§ 459, 666, 667, subd. (d), 667.5, subd. (b).)  He was sentenced to prison for 25 years to life and contends:  “I. This case must be remanded for resentencing since the robbery and kidnapping convictions were adjudicated in a single proceeding and resulted in a single term of imprisonment;  thus appellant has only one ‘strike’ for purposes of Penal Code section 667.   II. Assuming, arguendo, that appellant is properly sentenced as a third strike offender, the concurrent 25 years to life term must be stricken from the judgment or at least stayed.   III. This case must be remanded because the trial court erred in concluding that it lacked jurisdiction to strike the prior ‘strike’ conviction of robbery and kidnapping;  therefore the trial court's announcement that it would not strike the prior even if empowered to do so was not the result of meaningful judicial evaluation.  [IV.] The ‘Three Strikes' Law is unconstitutional since the Legislature's mandate to the executive branch to allege all prior convictions violates the separation of powers doctrine.   V. The Three Strikes Law is unconstitutionally vague by failing to give adequate notice of the specific punishment to be imposed;  appellant's sentence must be vacated.”

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103), the evidence established on December 27, 1994, appellant stole shampoo from an El Monte store after entering it for that purpose, having suffered a prior theft-related conviction.   Appellant presented no defense evidence.

DISCUSSION

1. Appellant suffered two prior felony convictions under the Three Strikes Law.

 Appellant contends the case must be remanded for resentencing since robbery and kidnapping convictions, adjudicated in a single proceeding and resulting in a single term of imprisonment, constituted only one qualifying prior conviction for purposes of Penal Code section 667.   We reject the contention.   The jury found appellant suffered August 9, 1990, convictions for robbery, and kidnapping with firearm use, in case No. KA004165 pursuant to Penal Code section 667, subdivisions (b) through (i).   The court sentenced appellant to prison for 25 years to life.   Appellant claims remand for resentencing is required because the charges underlying the robbery and kidnapping convictions were not “brought and tried separately” within the meaning of Penal Code section 667, subdivision (a).   However, the Three Strikes Law does not require otherwise qualifying prior convictions be based on charges “brought and tried separately,” and a remand for resentencing is not required.  (People v. Superior Court (Arevalos) (1996) 41 Cal.App.4th 908, 911–916, 48 Cal.Rptr.2d 833;  People v. Allison (1995) 41 Cal.App.4th 841, 844–845, 48 Cal.Rptr.2d 756.)

2. Multiple punishment on the current convictions is improper.

 Appellant contends a concurrent term of 25 years to life must be stayed or stricken.   We agree a term of 25 years to life must be stayed.   At the outset, we note Penal Code section 654 has been applied to stay punishment that otherwise would have been imposed pursuant to the Three Strikes Law upon a current conviction.  (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1139–1140, 1143–1144, 46 Cal.Rptr.2d 351;  People v. Dominguez (1995) 38 Cal.App.4th 410, 414–416, 420, fn. 6, 45 Cal.Rptr.2d 153.)   In the present case, appellant committed burglary to effect the subsequent theft and, therefore, his course of conduct constituted an indivisible transaction with one objective:  theft.   Absent the Three Strikes Law, Penal Code section 654 would apply to bar multiple punishment on appellant's current convictions (In re Maurice H. (1980) 107 Cal.App.3d 305, 312, 166 Cal.Rptr. 213);  respondent does not contend otherwise.

 Respondent claims the phrase “Notwithstanding any other law” in Penal Code section 667, subdivision (c), and/or subdivision (c) itself,1 creates an exception to Penal Code section 654.   We disagree.   First, when statutory language is clear, the court should follow its plain meaning.  (People v. Vessell (1995) 36 Cal.App.4th 285, 289, 42 Cal.Rptr.2d 241.)   Moreover, the meaning of a statute may not be determined from a single word or sentence;  the words must be construed in context.   (People v. Superior Court (Arevalos), supra, 41 Cal.App.4th at p. 912, 48 Cal.Rptr.2d 833.)

Neither the phrase “Notwithstanding any other law” in subdivision (c) nor subdivision (c) itself creates an exception to Penal Code section 654.   Subdivision (c) only states, notwithstanding any other law, in specified circumstances the court must adhere to eight subsequently enumerated requirements;  the plain meaning of subdivision (c) does not address Penal Code section 654 issues.  (People v. Vessell, supra, 36 Cal.App.4th at p. 289, 42 Cal.Rptr.2d 241.)   Moreover, what the court must adhere to is determinable only by reference to the eight subsequently enumerated requirements.   Since fully half of the requirements are applicable absent multiple current convictions,2 these requirements do not necessarily implicate multiple punishment considerations.   In context, it makes no sense to impute to subdivision (c) an exception to Penal Code section 654 that would be irrelevant when that subdivision is read together with various of the eight subsequently enumerated requirements.  (People v. Superior Court (Arevalos), supra, 41 Cal.App.4th at p. 912, 48 Cal.Rptr.2d 833.)

Respondent, citing People v. Martin (1995) 32 Cal.App.4th 656, 38 Cal.Rptr.2d 776, improperly divorces the phrase “notwithstanding any other law” in subdivision (c), and subdivision (c) itself, from the rest of the relevant subdivision of which that phrase and subdivision are a part, i.e., subdivision (c)(6).   In so doing, respondent seeks to invest subdivision (c) with independent dispositive significance.  Martin did not do this.   In Martin, the court observed without the “same set of operative facts” “provision” of subdivision (c)(6), a “strong argument” could be made the “statute” allowed multiple punishment which previously had been impermissible.   The court also observed that strong argument would be based on the introductory “Notwithstanding any other law” “provision” of subdivision (c).   The court further observed the most obvious “ ‘other law’ addressed in this context is section 654.”  (People v. Martin, supra, 32 Cal.App.4th at p. 664, 38 Cal.Rptr.2d 776.)

The court in Martin was obviously analyzing the impact of the omission of the “same set of operative facts” provision from subdivision (c)(6) upon the multiple punishment considerations implicated by the “statute” of subdivision (c)(6) in its entirety (i.e., subdivisions (c) and (c)(6)).   The court was not suggesting subdivision (c) alone implicated multiple punishment considerations.   It is equally clear the court, by the phrase “this context,” was referring to the context of subdivision (c)(6), not just subdivision (c).  As mentioned, nothing in subdivision (c) per se would point to Penal Code section 654 as an “other law,” since that subdivision alone does not address Penal Code section 654 issues, and even some of the eight subsequently enumerated requirements with which subdivision (c) is to be read do not necessarily implicate multiple punishment considerations.

In sum, respondent's argument turns Martin on its head.  Martin concluded the “same set of operative facts” provision of subdivision (c)(6) made applicable the principle of Penal Code section 654 to that subdivision.   Respondent, based on Martin, argues the “Notwithstanding any other law” provision of subdivision (c) and/or subdivision (c) alone makes inapplicable the principle of Penal Code section 654 to the entire Three Strikes Law.   Moreover, and importantly, respondent ignores Martin's conclusion—the principle of Penal Code section 654 applies to subdivision (c)(6)—was compelled to avoid “overly harsh results and possible constitutional issues” that would otherwise arise simply from that subdivision.  (People v. Martin, supra, 32 Cal.App.4th at p. 664, 38 Cal.Rptr.2d 776.)   These considerations of overly harsh results and possible constitutional issues no less compel the conclusion the principle of Penal Code section 654 is not by Penal Code section 667, subdivision (c) rendered inapplicable to the entire Three Strikes Law.

Finally, conceding subdivision (c)(6) does not apply to compel mandatory consecutive sentencing in the present case, respondent argues the first sentence of subdivision (e)(2)(B) does mandate consecutive sentencing.   We reject the argument.   That sentence states, “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.”   As earlier discussed, Penal Code section 654 normally would bar multiple punishment on appellant's two indeterminate terms.  (In re Maurice H., supra, 107 Cal.App.3d at p. 312, 166 Cal.Rptr. 213.)   Respondent claims a different conclusion is compelled under the Three Strikes Law because the phrase “any other term of imprisonment for which a consecutive term may be imposed by law” is applicable to one of the indeterminate terms.3  However, application of that phrase to one of the indeterminate terms begs the question of whether Penal Code section 654 applies in the present case.   The plain meaning of the phrase simply assumes a consecutive term “may be imposed by law.”   (People v. Vessell, supra, 36 Cal.App.4th at p. 289, 42 Cal.Rptr.2d 241.)   However, the question of whether Penal Code section 654 applies in a given context presents the anterior issue of whether a term can be imposed (People v. Wiley (1995) 9 Cal.4th 580, 590, 38 Cal.Rptr.2d 347, 889 P.2d 541;  People v. Hernandez (1988) 46 Cal.3d 194, 205, 249 Cal.Rptr. 850, 757 P.2d 1013), i.e., whether any term (determinate or indeterminate, consecutive or concurrent) “may be imposed by law.”

We conclude multiple punishment on appellant's convictions is barred by Penal Code section 654.  (People v. Cartwright, supra, 39 Cal.App.4th at pp. 1139–1140, 1143–1144, 46 Cal.Rptr.2d 351;  People v. Dominguez, supra, 38 Cal.App.4th at pp. 414–416, 420, fn. 6, 45 Cal.Rptr.2d 153;  People v. Martin, supra, 32 Cal.App.4th at p. 664, 38 Cal.Rptr.2d 776;  In re Maurice H., supra, 107 Cal.App.3d at p. 312, 166 Cal.Rptr. 213.) 4

3. Imposition of sentence pursuant to the Three Strikes Law was proper.

 Appellant contends the case must be remanded because the trial court erroneously concluded it lacked jurisdiction to strike a prior conviction and, therefore, the trial court erroneously announced it would not strike the prior conviction if it had been empowered to do so.   We disagree.   After the jury found true the allegations appellant suffered the above mentioned qualifying prior convictions under the Three Strikes Law, appellant filed a motion to strike them pursuant to Penal Code section 1385, subdivision (a).   After argument, the court stated, “1385 is the court's motion.   The court is not making a 1385 motion․  I am not exercising my discretion to strike any of the priors.   If I exercised my discretion, I would deny it anyway.”

 Appellant claims the court erroneously concluded it lacked discretion to strike a prior conviction pursuant to Penal Code section 1385, subdivision (a).   Initially, we acknowledge a sentence imposed pursuant to the Three Strikes Law is not an enhancement (People v. Martin, supra, 32 Cal.App.4th at pp. 666–667, 38 Cal.Rptr.2d 776), therefore the trial court was not precluded from striking the prior conviction allegations by the provisions of Penal Code section 1385, subdivision (b).   Turning to Penal Code sections 667, subdivision (f)(2) and 1170.12, subdivision (d)(2), we find nothing in a literal reading of those subdivisions authorizing the court, on its own motion, to dismiss or strike a prior conviction on any ground.   Moreover, we are left with the clear inference the Legislature and the people of this state, by employing the language of those respective subdivisions restricting the power to strike or dismiss a prior conviction to instances where the prosecuting attorney makes the motion, must have intended to prohibit the court from doing so on its own motion pursuant to Penal Code section 1385, subdivision (a).  (See People v. Rodriguez (1986) 42 Cal.3d 1005, 1019, 232 Cal.Rptr. 132, 728 P.2d 202;  People v. Tanner (1979) 24 Cal.3d 514, 519–521, 156 Cal.Rptr. 450, 596 P.2d 328.)

Nor do Penal Code sections 667, subdivision (f)(2) and 1170.12, subdivision (d)(2) violate the separation of powers doctrine.   Neither Penal Code section, viewed as a whole, grants the prosecutor unfettered authority.   Moreover, the clear intent of the Legislature and the people of this state as to those respective subdivisions was to remove from the court all discretion to strike or dismiss, on motion of the court, a prior conviction.   For these reasons, cases such as People v. Tenorio (1970) 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993 and Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140, that might suggest Penal Code sections 667, subdivision (f)(2) and 1170.12, subdivision (d)(2) violate the separation of powers doctrine, are distinguishable.

Further, the unrestrained power to strike a prior serious felony conviction alleged pursuant to Penal Code section 667 already had been taken from the trial court when the Legislature enacted Penal Code section 1385, subdivision (b) in 1986, and that subdivision has withstood constitutional challenge.  (People v. Valencia (1989) 207 Cal.App.3d 1042, 1045, 255 Cal.Rptr. 180;  see People v. Williams (1987) 196 Cal.App.3d 1157, 1160, 242 Cal.Rptr. 421.)   Under these circumstances, we conclude Penal Code sections 667, subdivision (f)(2) and 1170.12, subdivision (d)(2) do not violate the separation of powers doctrine.   Therefore, we further conclude the trial court lacked discretion to strike the prior convictions in the interests of justice.5  Further still, since the court clearly would not have stricken the prior convictions even if the court had discretion to do so, any erroneous failure to exercise discretion was not prejudicial.  (People v. Crandell (1988) 46 Cal.3d 833, 864–865, 251 Cal.Rptr. 227, 760 P.2d 423.)

4. The Three Strikes Law does not violate the separation of powers doctrine.

 Appellant contends the Three Strikes Law is unconstitutional since the Legislature's mandate to the executive branch to allege all prior convictions violates the separation of powers doctrine.   We find no constitutional violation.   Appellant claims Penal Code section 667, subdivision (f)(1) improperly restricts prosecutorial discretion with respect to charging prior convictions.   Nonetheless, it is settled the Legislature may place reasonable restrictions upon the constitutional functions of a coordinate branch provided they do not defeat or materially impair the exercise of those functions.  (Hustedt v. Workers' Comp. Appeals Bd. (1981) 30 Cal.3d 329, 338, 178 Cal.Rptr. 801, 636 P.2d 1139.)

Although appellant presents a separation of powers challenge to subdivision (f)(1), People v. Cartwright, supra, which involved a different constitutional challenge to the Three Strikes Law and subdivision (f)(1) in particular, is illuminating.   Rejecting a challenge to the law and subdivision on the ground, as urgency legislation, it impermissibly changed the duties of prosecutors and judges in violation of article IV, section 8, subdivision (d) of the California Constitution, Cartwright observed, “The primary duties of the office of trial judge and prosecutor have not been changed by the three strikes law.   Their discretion in sentencing or prosecuting defendants has never been absolute.  (See, e.g., §§ 969 [requiring that all previous convictions be charged];  1192.7 [limitation on plea bargaining];  1203.06 [no probation for certain offenses];  1385, subd. (b) [restriction on court's power to strike prior conviction for serious felony].)   Since the new restrictions in the three strikes law are not unduly or materially and substantially different from those already imposed, they do not constitute a ‘change’ in duties.   [Citation.]”  (People v. Cartwright, supra, 39 Cal.App.4th at pp. 1133–1134, 46 Cal.Rptr.2d 351.)

Moreover, we note the mandate to plead and prove is not absolute;  subdivision (f)(2) authorizes, in specified circumstances, the prosecutor to move to dismiss or strike a prior felony conviction allegation.   Accordingly, we conclude Penal Code section 667, subdivision (f)(1) places reasonable restrictions upon the prosecutorial function that do not defeat or materially impair the exercise of that function, and subdivision (f)(1) does not violate the separation of powers doctrine.  (Hustedt v. Workers' Comp. Appeals Bd., supra, 30 Cal.3d at p. 338, 178 Cal.Rptr. 801, 636 P.2d 1139;  People v. Kilborn (1996) 41 Cal.App.4th 1325, 1332–1333, 49 Cal.Rptr.2d 152.)

5. The Three Strikes Law is not unconstitutionally vague.

 Appellant contends his sentence must be vacated because the Three Strikes Law is unconstitutionally vague by failing to give adequate notice of the specific punishment to be imposed.   We conclude otherwise.   Appellant identifies numerous alleged ambiguities regarding the Three Strikes Law. However, one of the issues has been resolved in this decision.   Others have no application to the facts of appellant's case.   In any event, the Three Strikes Law is not unconstitutionally vague in violation of appellant's rights to due process and effective assistance of counsel.  (People v. Sipe (1995) 36 Cal.App.4th 468, 479–482, 42 Cal.Rptr.2d 266.)

DISPOSITION

The judgment is modified by staying execution of sentence on appellant's conviction for petty theft with a prior conviction pending completion of sentence on his conviction for second degree commercial burglary, such stay then to become permanent, and, as modified, is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   Penal Code section 667, subdivision (c) states, “Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following: ․”  Subdivision (c)(6) later states:  “If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e).”

2.   See Penal Code section 667, subdivision (c)(2), (3), (4), and (5).

3.   We note the phrase “any other term of imprisonment for which a consecutive term may be imposed by law” does not expressly state whether the phrase “any other term” is to be construed inclusively or exclusively, i.e., to refer to “any other term” including another “indeterminate term described in subparagraph (A)” or “any other term” excluding another “indeterminate term described in subparagraph (A).”   An exclusive construction would compel rejection of respondent's argument.   In light of our disposition of appellant's contention, there is no need to decide the issue.

4.   Although the court sentenced appellant to prison for 25 years to life, the reporter's transcript does not reflect the court then expressly referred to the current convictions for burglary or petty theft with a prior conviction.   The sentencing minute order and abstract of judgment reflect the court imposed concurrent terms of 25 years to life for both convictions.   Based on our discussion above, the trial court was required to stay punishment on one current conviction pursuant to Penal Code section 654;  accordingly, we will modify the judgment to refer expressly to both convictions and indeterminate terms and to stay punishment on one conviction without remanding the case for resentencing.  (People v. Menius (1994) 25 Cal.App.4th 1290, 1294–1295, 31 Cal.Rptr.2d 15.)

5.   The issue of the trial court's discretion to strike prior convictions alleged pursuant to the Three Strikes Law is pending before our Supreme Court in People v. Superior Court (Romero) (S045097).

THE COURT: * FN* Klein, P.J., and Croskey and Kitching, JJ.