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

The PEOPLE, Plaintiff and Appellant, v. Eric B. WEBB, Defendant and Respondent.

No. G014161.

Decided: June 27, 1995

Michael R. Capizzi, Dist. Atty., Maurice L. Evans, Chief Asst. Dist. Atty., Wallace J. Wade, Asst. Dist. Atty., Kathleen M. Harper and E. Thomas Dunn, Deputy Dist. Attys., for plaintiff and appellant. Alister McAlister, under appointment by the Court of Appeal, Wilton, for defendant and respondent. Ronald Y. Butler, Public Defender, Carl C. Holmes, Asst. Public Defender, Thomas Havlena and Kevin J. Phillips, Deputy Public Defenders, as amicus curiae on behalf of defendant and respondent.


 Eric B. Webb pleaded guilty to robbery, burglary, evading a police officer, and possession of narcotics paraphernalia.   He admitted he was armed with a knife during the robbery and burglary, and had suffered a prior conviction for residential burglary within the meaning of Penal Code section 667.1  The trial court sentenced Webb to three years on the burglary count (Pen.Code, § 461), one year for the knife arming enhancement associated with it (Pen.Code, § 12022, subd. (b)), and eight months consecutively on the evading charge (Veh.Code, § 2800.2;  Pen.Code, §§ 18, 1170.1, subd. (a)), for a total of four years, eight months.   The court stayed the sentence on the robbery count, the knife enhancement associated with it, the prior conviction enhancement, and the paraphernalia charges, those stays to become permanent after service of the other terms.2  The district attorney appeals from the sentence,3 contending that under section 667 the trial court had no power to stay the robbery sentence and the prior conviction enhancement.4  We reverse and remand.

 Webb argues the district attorney waived the issue by failing to raise it in the trial court.   He correctly asserts the district attorney objected only to the California Rehabilitation Center commitment.   He urges that sentencing error is waived unless it is brought to the trial court's attention, citing People v. Welch (1993) 5 Cal.4th 228, 19 Cal.Rptr.2d 520, 851 P.2d 802 and other cases.   But Welch reiterated the well-established principle that sentencing errors going to the jurisdiction of the court may be raised for the first time on appeal.  (Id. at p. 235, 19 Cal.Rptr.2d 520, 851 P.2d 802;  see also People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040 [party need not object to unauthorized sentence].)  The district attorney's issue is that type.5

The district attorney propounds two reasons the sentence was beyond the court's jurisdiction:  (1) the court's action, in the guise of a stay, constituted an unlawful striking of the punishment for the robbery and the prior conviction enhancement;  and (2) section 667 mandates imposition of the prior conviction enhancement notwithstanding any trial court discretion under section 654.   For the first proposition, the district attorney relies on People v. Santana (1986) 182 Cal.App.3d 185, 227 Cal.Rptr. 51.

In Santana, the court opined, “The terms ‘stay’ and ‘strike’ are not legally synonymous.  [Citation.]   A stay is a temporary suspension of a procedure in a case until the happening of a defined contingency.   In contrast, a striking is an unconditional deletion of the legal efficacy of the stricken allegation or fact for purposes of a specific proceeding.   It is tantamount to a dismissal.”  (Id. at p. 190, 227 Cal.Rptr. 51, fns. omitted.)   The Santana court discussed a trial court's authority to stay the execution of a sentence enhancement under section 667 and concluded that the trial court's purported stay of the enhancement had the effect of striking and not staying the enhancement.   It concluded that unless the prior serious felony was stricken under section 1385, the trial court was required to impose a five-year enhancement and lacked authority to stay the execution.  (Id. at pp. 191–193, 227 Cal.Rptr. 51.)

 A stay under section 654 is not unconditional.   It is temporary pending successful completion of the term imposed for the other crime or crimes.  (People v. Pearson, supra, 42 Cal.3d at pp. 360–361, 228 Cal.Rptr. 509, 721 P.2d 595.)   Although it usually becomes permanent, it is not unconditional at the time it is made.  People v. Santana, supra, 182 Cal.App.3d 185, 227 Cal.Rptr. 51 did not involve an application of section 654, and neither it nor any other case has suggested a stay of an enhancement under section 654 is tantamount to a striking.   The established rule is that where a count is stayed under section 654, an enhancement relating to it must be stayed as well.  (People v. Cole (1985) 165 Cal.App.3d 41, 53, 211 Cal.Rptr. 242;   People v. Guilford (1984) 151 Cal.App.3d 406, 411, 198 Cal.Rptr. 700.) 6

Even if the trial court effected a de facto striking of the enhancement, the question remains whether it had the power to do so.   Under certain circumstances a court may strike an enhancement.   In People v. Fritz (1985) 40 Cal.3d 227, 219 Cal.Rptr. 460, 707 P.2d 833, the Supreme Court held a trial court had the power to strike a prior conviction enhancement imposed under section 667.  (Id. at p. 231, 219 Cal.Rptr. 460, 707 P.2d 833.)   Although the Legislature eliminated this power by amending the statute which authorized that action (§ 1385, subd. (b)), the district attorney cites no case, and we are aware of none, indicating a trial court never has the power to strike a sentencing enhancement, particularly if the “striking” is accomplished by applying the mandates of section 654.

 That brings us to the district attorney's more cogent contention:  that section 667, by its terms, precludes invoking section 654 to stay—or de facto to strike—a prior conviction enhancement under section 667 by sentencing on the lesser crime.7  Resolution of that contention requires an examination of our opinion in People v. Salazar (1987) 194 Cal.App.3d 634, 239 Cal.Rptr. 746.

Salazar was convicted of robbery and assault with force likely to produce great bodily injury.   A prior conviction enhancement under section 667 was alleged in conjunction with the robbery count.   As here, the trial court sentenced Salazar on the assault count and stayed imposition of the sentence on the robbery and prior conviction enhancement, even though the robbery and enhancement would have involved a longer sentence.  (194 Cal.App.3d at pp. 636–637, 239 Cal.Rptr. 746.)   We held the trial court had the power to sentence on the lesser crime and stay sentence on the greater.   (Ibid.)  But the only issue before us was whether, in applying section 654's mandate against multiple punishment, a trial court must sentence on the offense carrying the greater punishment in general.   Because the point was not raised, we did not consider whether section 667's mandatory language overrides the court's power in that regard and requires the court to impose the term for a serious felony and the prior conviction enhancement.

The district attorney reasons that section 667's language “any person convicted” and “shall receive” preempts the more general language in section 654.8  We must construe this language using the applicable rules of statutory construction.

“The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law.  [Citations.]   In order to determine this intent, we begin by examining the language of the statute.  [Citations.]   But [i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.  [Citation.]  [¶] ․ [T]he plain meaning rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute.   The meaning of a statute may not be determined from a single word or sentence;  the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible.  [Citation.]   Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute.   The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.  [Citation.]”   (People v. King (1993) 5 Cal.4th 59, 69, 19 Cal.Rptr.2d 233, 851 P.2d 27, internal quotation marks omitted;  see also Martin v. Superior Court (1991) 230 Cal.App.3d 1192, 1196, 281 Cal.Rptr. 682 [same standard applies to constitutional and statutory provisions, whether enacted by the Legislature or electorate].)

“[T]he electorate's intent in enacting article I, section 28, subdivision (f) of the California Constitution and simultaneously promulgating section 667 was to increase sentences for recidivist offenders.   The more obdurate the offender, the greater the sentence to be imposed․  [T]he changes enacted under Proposition 8 were intended to achieve ‘increased punishment and effective deterrence ․ by increasing the total period of imprisonment for recidivist offenders.’  [Citation.]”  (People v. Jones (1993) 5 Cal.4th 1142, 1147, 22 Cal.Rptr.2d 753, 857 P.2d 1163;  see also People v. Prather (1990) 50 Cal.3d 428, 435–437, 267 Cal.Rptr. 605, 787 P.2d 1012 [discussing electorate's intent prior conviction enhancements be imposed without limitation].)  On the surface, that intent and the language of section 667 might lead to the conclusion the provisions of section 667 should override the court's power to sentence on the lesser crime when applying section 654.   But that conclusion depends on the assumption, which we conclude is erroneous, that a trial court may not impose a serious prior felony enhancement unless it imposes sentence on the present serious felony.9

In People v. Salazar, supra, 194 Cal.App.3d at 634, 239 Cal.Rptr. 746 we ordered the robbery conviction and the prior conviction enhancement stayed pursuant to section 654.   In a footnote, we observed, “The sentence on the enhancement has no life independent of the robbery count and must also be stayed,” citing People v. Guilford, supra, 151 Cal.App.3d at page 411, 198 Cal.Rptr. 700 without analysis.10  (194 Cal.App.3d at p. 640, 239 Cal.Rptr. 746.)   Analysis convinces us the enhancement need not be stayed.

Guilford involved an enhancement for the use of a dangerous or deadly weapon under section 12022, subdivision (b).11  The court held the enhancement necessarily had to be stayed where the sentence on the count to which it is added must be stayed.  (People v. Guilford, supra, 151 Cal.App.3d at p. 411, 198 Cal.Rptr. 700;  see also People v. Cole, supra, 165 Cal.App.3d at p. 53, 211 Cal.Rptr. 242.)   In the context of a weapons enhancement the conclusion makes sense.   The enhancement relates directly to a specific crime.   The weapon must be used “in the commission or attempted commission” of that crime.  (§ 12022, subd. (b).)  The sentence for a particular crime is enhanced because a weapon was used to perpetrate it.   In that context, an enhancement has no life of its own.  (See People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310, 28 Cal.Rptr.2d 172.)

But enhancements for prior convictions are fundamentally different, as the Supreme Court explained in People v. Tassell (1984) 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1.   There are “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.”  (36 Cal.3d at p. 91, 201 Cal.Rptr. 567, 679 P.2d 1, fn. omitted.)

 Webb stresses that the Tassell court was not concerned with the issue we face here.   But nothing in the Tassell opinion suggests the Supreme Court would alter its perception of the nature of prior conviction enhancements depending on the issue before it.12  Logic and predictability in the law dictate that it should not.   And, there is nothing in the language of section 667 that mandates a contrary construction.   The section provides for an enhancement “in addition to the sentence imposed by the court for the present offense․”  (§ 667, subd. (a), emphasis added.)   Use of that language, instead of “in addition to the sentence imposed for the present serious felony,” allows for the enhancement to be imposed even if no sentence is imposed on the present serious felony.13

 Webb argues we should invoke the concept of lenity and construe section 667 to allow enhancement by prior convictions only when sentence is imposed on the present serious felony.   Lenity was described in Keeler v. Superior Court (1970) 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617 as “the policy of this state to construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit;  just as in the case of a question of fact, the defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute.  [Citation.]”   (Id. at p. 631, 87 Cal.Rptr. 481, 470 P.2d 617.)   But “[t]he rule only applies to an ambiguous statute which is subject to two reasonable but conflicting interpretations.   As Witkin notes, ‘this “doctrine of lenity” is only an aid to construction, and cannot be invoked at all unless the statute is ambiguous.’  [Citation.]”  (People v. Camillo (1988) 198 Cal.App.3d 981, 991, 244 Cal.Rptr. 286.)

We have concluded the electorate intended the enhancement for prior serious convictions should be applied whenever possible.   That intent resolves any ambiguity in the statute, rendering the concept of lenity inapplicable.14

 Webb urges that because section 1170.1, which dictates how enhancements under section 667 are to be applied, is expressly made “subject to [s]ection 654,” such enhancements must be stayed whenever the sentence on the present serious felony is stayed.   That begs the question we have already answered adversely to him.

Because imposition of a section 667 prior serious felony enhancement does not depend on imposition of the sentence on the present serious felony, the invocation of section 654 to sentence on the lesser crime does no violence to the operation of section 667.   The court may invoke it to sentence on the lesser offense, but must impose the enhancement for any prior serious felony conviction.

That conclusion has a salutary effect.  “[S]tandard rules of statutory construction ․ obligate the court to attempt to reconcile or harmonize conflicting statutory provisions in an effort to give effect to all provisions if it is possible.”  (Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com. (1990) 51 Cal.3d 744, 764, 274 Cal.Rptr. 787, 799 P.2d 1220.)   We have accomplished that goal in this case.

The judgment is reversed and the matter is remanded for resentencing consistent with this opinion.

Penal Code section 667 was amended a number of times after People v. Salazar (1987) 194 Cal.App.3d 634, 239 Cal.Rptr. 746, People v. Cole (1985) 165 Cal.App.3d 41, 211 Cal.Rptr. 242, and People v. Guilford (1984) 151 Cal.App.3d 406, 198 Cal.Rptr. 700 appeared.   Charged as it is with knowledge of appellate opinions, the Legislature apparently had no problem with the rather pedestrian notion that enhancements cannot be imposed in a vacuum.   Indeed, our Supreme Court has recently held that enhancements are not offenses in and of themselves and derive their existence from the crime to which they attach.  (People v. Wims, 10 Cal.4th 293, 41 Cal.Rptr.2d 241, 895 P.2d 77.)

Also, I take issue with the majority's analysis per People v. Tassell (1984) 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1.  (Maj. opn., pp. 219–220.)   We do not deal with a pure category one or category two enhancement.   The prior serious felony enhancement relates to both the offender and the new offense.   The recidivist serious offender has that cloud over his head, to be sure;  but the new offense must also be a serious felony to qualify for this particular enhancement.   Thus, it cannot, in effect, be reattached to some other count that is not a serious felony.  (See, e.g., People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310, 28 Cal.Rptr.2d 172 [“Under the sentencing scheme an enhancement may not be imposed as a subordinate term on its own.”].)  True category two enhancements “do not attach to particular counts but instead are added just once as the final step in computing the total sentence.”   (Tassell, supra, at p. 90, 201 Cal.Rptr. 567, 679 P.2d 1.)

Also, it seems to me that “the present offense” in section 667, subdivision (a) can only refer to the predicate serious felony to which it attaches.   The majority's analysis of this issue is, to be kind, unpersuasive.   I would affirm.1


1.   All statutory references are to the Penal Code unless otherwise noted.  Section 667, subdivision (a) provides in relevant part, “[A]ny person convicted of a serious felony who previously has been convicted of a 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․”   Robbery and residential burglary are both serious felonies.  (§ 667, subd. (d);  § 1192.7, subd. (c)(18) & (19).)

2.   The court did not say so, but the parties assume the court stayed those sentences under section 654.   That section states in relevant 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․”   When section 654 applies, the proper procedure is to stay imposition of sentence on one of the crimes, with the stay to become permanent on completion of the term imposed on the other.  (People v. Pearson (1986) 42 Cal.3d 351, 360, 228 Cal.Rptr. 509, 721 P.2d 595.)

3.   The district attorney's appeal challenging the application of section 654 is authorized by section 1238, subdivision (a)(5).  (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 2, 153 Cal.Rptr. 40, 591 P.2d 63;  see also § 1238, subd. (a)(10) [unlawful sentence];  People v. Vergara (1991) 230 Cal.App.3d 1564, 1568, 282 Cal.Rptr. 90.)

4.   Webb was originally sentenced to seven years, two years for the robbery (Pen.Code, § 213) and five years for the prior conviction (Pen.Code, § 667, subd. (a)).   Sentences on all other counts were stayed, presumably under Penal Code section 654.   The seven-year sentence was suspended pending consideration of a commitment to the California Rehabilitation Center (CRC) for narcotics treatment under Welfare and Institutions Code section 3051.   When the court realized Webb was not eligible for a CRC commitment if his sentence exceeded six years (see Welf. & Inst.Code, § 3052, subd. (a)(2)), it resentenced him to the four-year, eight-month term, suspended the term and ordered him committed to CRC.   The parties implicitly agree the commitment does not affect the appeal.   The district attorney does not challenge the stay of the disposition of the knife enhancement associated with the robbery or the paraphernalia charge.

5.   In any event, both Welch and Scott were decided after the sentencing here and apply only prospectively.  (People v. Welch, supra, 5 Cal.4th at p. 238, 19 Cal.Rptr.2d 520, 851 P.2d 802;  People v. Scott, supra, 9 Cal.4th at pp. 357–358, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)

6.   In People v. Harvey (1991) 233 Cal.App.3d 1206, 1231, 285 Cal.Rptr. 158 and People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1121–1124, 231 Cal.Rptr. 387, we stated as a general proposition that a court may not stay a sentence enhancement but must impose or strike it.   Neither of those cases involved application of section 654, so they should not be read as a comment on the court's power under that statute.   They only hold a court has no inherent power to stay an enhancement apart from statutory authority.   Later in this opinion, we consider whether the established rule of Cole and Guilford applies to prior conviction enhancements.

7.   We use the term “lesser crime” to refer to the crime carrying the lowest sentence, not to a “lesser included” or “lesser related” offense.

8.   Implicit in his argument is the impact of the language in California Constitution, article I, section 28, subdivision (f), which provides:  “Any prior felony conviction ․ shall subsequently be used without limitation for purposes of ․ enhancement of sentence in any criminal proceeding.”

9.   This issue was not raised by the parties, but arose during our consideration of the case after oral argument.   Both parties were given the opportunity to address the issue in supplemental briefing and did so.

10.   Neither party in Salazar addressed the propriety of that conclusion.

11.   That section reads in relevant part:  “Any person who personally uses a deadly or dangerous weapon in the commission or attempted commission of a felony shall, upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term․”

12.   People v. Wims, 10 Cal.4th 293, 41 Cal.Rptr.2d 241, 895 P.2d 77 does not affect this conclusion.   In Wims the Supreme Court held instructional error in describing the elements of an enhancement is tested by a lower standard than similar error involving a substantive offense because enhancements are not substantive offenses.  (Id. at p. 246, 41 Cal.Rptr.2d 241, 895 P.2d 77.)   The court said nothing about the distinction between various types of enhancements, nor was it required to do so.   Enhancements relating to the offender are no more or less substantive offenses than those relating to the substantive offenses themselves.

13.   We hesitate to infer the language used was consciously selected for that purpose.   Probably, no one thought about it.   But the language used obviates any direct conflict between the language of the statute and the clear intent to impose the five-year enhancement whenever possible.

14.   Another way of looking at it would be to conclude that even if the statute is ambiguous, the electorate's plain intent overrides the concept of lenity.

1.   I cannot resist a comment on the so-called lenity doctrine which the majority recognizes but finds inapplicable.   A better analysis would conclude the doctrine simply does not exist.   Although the appellate reports are replete with new and old Supreme Court recognitions of the notion, it is completely spurious—and has been since 1872.  Penal Code section 4 provides, “The rule of the common law, that penal statutes are to be strictly construed, has no application to this Code.   All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.”   The law is probity, not lenity.

WALLIN, Acting Presiding Justice.

BEDSWORTH, J.*, concurs.