PEOPLE v. WEATHEROY

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Court of Appeal, Third District, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Gregory D. WEATHEROY, Defendant and Appellant.

No. C006490.

Decided: July 30, 1990

Catherine C. Czar, Carmel, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., J. Robert Jibson, Alison Elle Aleman, Deputy Attys. Gen., for plaintiff and respondent.

Defendant pleaded no contest to three counts of committing a petty theft with a prior theft conviction (Pen.Code, § 666),1 and he admitted committing two of those offenses while released on bail and before final judgment on other offenses (§ 12022.1).   Sentenced to an aggregate term of seven years and four months, consisting of a two-year principal base term, two 8–month consecutive terms, and four years for the enhancements, defendant appeals raising sentencing error.   Among defendant's contentions are that his sentence violates the double-the-base-term limitation of section 1170.1, subdivision (g).   We agree and hold in Part III of this opinion that section 12022.1 enhancements are not exempt from the double-the-base-term limitation.   We shall modify defendant's sentence to stay the amount in excess of four years.   In other matters we shall modify defendant's sentence to reflect the proper allocation of presentence custody credits.   We will also direct that the abstract be amended as required by this opinion.   As modified we shall affirm the judgment.

I–II **

III

Defendant contends his sentence violates the double-the-base-term limitation of section 1170.1, subdivision (g).2  The People assert, as a result of Proposition 8,3 enhancements under section 12022.1 are exempt from the double-the-base-term limitation, and the Legislature's failure to explicitly exempt section 12022.1 was a drafting oversight.

Section 1170.1 sets forth the general sentencing scheme for multiple convictions.   When the Legislature enacted section 12022.1, it also amended section 1170.1, subdivision (a) to include section 12022.1 enhancements as part of the aggregate sentence.  (Stats.1982, ch. 1551, §§ 1.5, 2, pp. 6048, 6050.)   The Legislature did not at that time amend section 1170.1, subdivision (g) to exclude section 12022.1 enhancements from the double the base term limitation.

In 1987 the Legislature amended section 1170.1, subdivision (g) to exclude from the double the base limitation enhancements for violating sections 667, 667.8, 667.85, 12022.2, 12022.75, and several Health and Safety Code provisions.  (Stats.1987, ch. 1423, § 3.7.)   The Legislature, significantly, did not add section 12022.1.   In 1988 the Legislature added section 12022.55 to the exceptions (Stats.1988, ch. 1487, § 2) but once again did not add section 12022.1.   With the Legislature having had not only one, but three chances to add section 12022.1 to the list of exclusions, we cannot conclude that the exclusion of section 12022.1 was a drafting oversight.   (People v. Prather (1990) 50 Cal.3d 428, 433–434, 267 Cal.Rptr. 605, 787 P.2d 1012.)

In People v. Prather, supra, 50 Cal.3d 428, 267 Cal.Rptr. 605, 787 P.2d 1012, after the appellate court determined that both section 12022.1 and section 667.5, subdivision (b) enhancements were not exempt from the double the base term limitation, the People sought review of the court's decision on the section 667.5, subdivision (b) enhancement.  (Id. at p. 432, 267 Cal.Rptr. 605, 787 P.2d 1012.)   The Supreme Court interpreted the “without limitation” language of article I, section 28(f) as superseding the twice the base term rule with respect to enhancements based on prior felony convictions.  (Id. at pp. 432, 435–437, 439, 440, 267 Cal.Rptr. 605, 787 P.2d 1012.)   The court then concluded that section 667.5, subdivision (b) enhancements are enhancements based upon prior felony convictions within the meaning of article I, section 28(f).  (Id., at p. 440, 267 Cal.Rptr. 605, 787 P.2d 1012.)

The issue before us is whether section 12022.1 enhancements are based upon prior felony convictions within the meaning of article I, section 28(f).  Section 12022.1 provides for a two-year enhancement to any person who commits a felony offense (the secondary offense) while released on bail and prior to judgment on another felony offense (the primary offense) and that person is convicted of both felony offenses.4  The two-year enhancement “shall be served consecutive to any other term imposed by the court” (§ 12022.1, subd. (b)) and “any state prison sentence for the secondary offense shall be consecutive to the primary sentence” (§ 12022.1, subd. (e)).

“The purpose of section 12022.1 is to meet public concern over offenders who are arrested then allowed back on the street a short time later only to commit more crimes.  [Citations.]   Section 12022.1 deters this conduct by enhancing the punishment of persons who commit new felonies [prior to judgment becoming final] on an earlier felony.  [Citation.]”  (People v. Lewis (1986) 185 Cal.App.3d 923, 927, 230 Cal.Rptr. 115.)

Section 12022.1 enhancements are not imposed because of defendant's status as having suffered a prior conviction, and the enhancement has nothing to do with the offense defendant was released on.   Rather, the enhancement solely relates to defendant committing an offense while released and prior to judgment on another offense.   The fact that imposition of the enhancement requires a prior conviction does not render the enhancement based upon that prior conviction.

We are aware of People v. Tassell (1984) 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1, where the Supreme Court held in dictum that section 12022.1 enhancements are enhancements for prior felony convictions.   That reference was made in a discussion regarding the differences between enhancements which go to the nature of the offender and can only be imposed once, and enhancements which go to the nature of the offense and enhance the particular count.   (Id. at p. 90, 201 Cal.Rptr. 567, 679 P.2d 1.)  “Section 1170.1 refers to 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.”  (Ibid.)

The court's use of the language, “[e]nhancements for prior convictions—authorized by sections 667.5, 667.6, and 12022.1 ․” merely referred to enhancements that go to the nature of the offender in a generic sense.   The court was not making a determination that section 12022.1 enhancements are enhancements based on prior felony convictions.

We therefore hold that the double-the-base-term limitation applies to section 12022.1 enhancements.   We note the same conclusion was reached in People v. Morgan (1990) 219 Cal.App.3d 1367, 269 Cal.Rptr. 140.   Here, for the principal base term the court imposed a two-year sentence.   Defendant's total sentence cannot exceed twice that term.   We shall direct the trial court to stay three years and four months of defendant's sentence, with such stay to become permanent upon completion of the four-year term.  (People v. Benton (1979) 100 Cal.App.3d 92, 100–101, 161 Cal.Rptr. 12.)   On the facts of this case we cannot say that violation of the double-the-base-term proscription fundamentally infected defendant's entire sentencing scheme thereby justifying a remand for resentencing.  (See People v. Stevens (1988) 205 Cal.App.3d 1452, 1455–1457, 253 Cal.Rptr. 173.)

IV

Defendant contends he was denied one day of presentence custody credits.   Defendant was in custody from October 16, 1988, until sentencing on April 4, 1989.   The total number of these days is 171.   The probation report shows, and the court awarded defendant, 170 actual days.   However, the court awarded defendant 85 good time credits pursuant to section 4019.   Defendant was only entitled to 84 good time credits.  (People v. Smith (1989) 211 Cal.App.3d 523, 527, 259 Cal.Rptr. 515.)   Thus, defendant received the correct total of 255 presentence custody credits.   We shall modify the judgment to reflect the proper allocation of credits and direct that the abstract be amended accordingly.

CONCLUSION

The trial court is directed to modify the judgment to reflect a stay of three years and four months of defendant's sentence, that stay to become permanent upon completion of defendant's four-year term, and to modify the judgment to give defendant credit for an additional day of presentence custody, for a total of 171, but to subtract a day of conduct credit, for a total of 84.   The trial court is directed to amend the abstract as follows:  first, to show that defendant's section 12022.1 enhancements are status enhancements;  second, to reflect a stay of defendant's sentence of three years and four months, with that stay to become permanent upon completion of defendant's four-year term;  and third, to reflect 171 days of actual time and 84 days of conduct credits.   The trial court shall forward a copy of the amended abstract to the Department of Corrections.   As modified, the judgment is affirmed.

I respectfully dissent from that portion of the opinion concluding that Penal Code section 12022.1 enhancements are not exempt from the double-the-base-term limitation.  People v. Prather (1990) 50 Cal.3d 428, 267 Cal.Rptr. 605, 787 P.2d 1012, holds that in light of article I, section 28, subdivision (f), of the California Constitution, all prior felony conviction enhancements are exempt from the double-the-base-term limitation of Penal Code section 1170.1, subdivision (g).  (Id., at pp. 439, 440, 267 Cal.Rptr. 605, 787 P.2d 1012.)   I believe the reasoning of Prather logically should follow here.   Section 12022.1 enhancements require felony convictions on both the primary and secondary offenses.   As with other prior felony conviction enhancements, “[t]he legislative intent of section 12022.1 was to punish recidivists with additional penalties.”  (People v. Warinner (1988) 200 Cal.App.3d 1352, 1356, 247 Cal.Rptr. 197.)

I would affirm the sentence of seven years and four months.

FOOTNOTES

1.   Further statutory references to sections of an undesignated code are to the Penal Code.

FOOTNOTE.   See footnote *, ante.

2.   Section 1170.1, subdivision (g), provides:  “The term of imprisonment shall not exceed twice the number of years imposed by the trial court as the base term pursuant to subdivision (b) of Section 1170 unless the defendant stands convicted of a ‘violent felony’ as defined in subdivision (c) of Section 667.5, or a consecutive sentence is being imposed pursuant to subdivision (b) or (c) of this section, or an enhancement is imposed pursuant to Section 667, 667.8, 667.85, 12022, 12022.2, 12022.4, 12022.5, 12022.55, 12022.6, 12022.7, 12022.75, or 12022.9, or an enhancement is being imposed pursuant to Section 11370.2, 11370.4, or 11379.8 of the Health and Safety Code, or the defendant stands convicted of felony escape from an institution in which he or she is lawfully confined.”

3.   Article I, section 28, subdivision (f) of the California Constitution (hereinafter article I, section 28(f)), enacted by popular vote of the people in 1982, provides:  “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.   When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”

4.   Section 12022.1 provides:  “(a) For the purposes of this section only:“(1) ‘Primary offense’ means a felony offense for which a person has been released from custody on bail or on his or her own recognizance prior to the judgment becoming final, including the disposition of any appeal, or for which release on bail or his or her own recognizance has been revoked.“(2) ‘Secondary offense’ means a felony offense alleged to have been committed while the person is released from custody for a primary offense.“(b) Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court.“(c) The enhancement allegation provided in subdivision (b) shall be pleaded in the information or indictment which alleges the secondary offense and shall be proved as provided by law.   The enhancement allegation may be pleaded in a complaint but need not be proved at the preliminary hearing for the secondary offense.“(d) Whenever there is a conviction for the secondary offense and the enhancement is proved, and the person is sentenced on the secondary offense prior to the conviction of the primary offense, the imposition of the enhancement shall be stayed pending imposition of the sentence for the primary offense.   The stay shall be lifted by the court hearing the primary offense at the time of sentencing for that offense and shall be recorded in the abstract of judgment.   If the person is acquitted of the primary offense the stay shall be permanent.“(e) If the person is convicted of a felony for the primary offense, is sentenced to state prison for the primary offense, and is convicted of a felony for the secondary offense, any state prison sentence for the secondary offense shall be consecutive to the primary sentence.“(f) If the person is convicted of a felony for the primary offense, is granted probation for the primary offense, and is convicted of a felony for the secondary offense, any state prison sentence for the secondary offense shall be enhanced as provided in subdivision (b).“(g) If the primary offense conviction is reversed on appeal, the enhancement shall be suspended pending retrial of that felony.   Upon retrial and reconviction, the enhancement shall be reimposed.   If the person is no longer in custody for the secondary offense upon reconviction of the primary offense, the court may, at its discretion, reimpose the enhancement and order him or her recommitted to custody.”

MARLER, Associate Justice.

DAVIS, J., concurs.

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