PEOPLE v. MORGAN

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

The PEOPLE, Plaintiff and Respondent. v. Woodrow Foyosa MORGAN, Defendant and Appellant.

No. A044293.

Decided: April 30, 1990

Donald Thomas Bergerson, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Martin S. Kaye, Herbert F. Wilkinson, Supervising Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Defendant Woodrow Foyosa Morgan appeals from a judgment of conviction entered upon a jury verdict finding him guilty of soliciting an undercover police officer, Edward Louis Montgomery, to commit the murder of Deputy District Attorney Mark Geiger (Pen.Code, § 653f, subd. (b)),1 a crime committed while defendant was released on bail (§ 12022.1).   Sentenced at the same time were the separately tried crimes which allegedly were the motive for the instant offenses:  four counts of selling unqualified securities (Corp.Code, §§ 25110, 25540;  and one count each of purchasing unqualified securities (Corp.Code, § 25541), false impersonation (§ 529, subd. 3), perjury (§ 118), offering a forged instrument to be filed of record (§ 115), and willfully filing a false income tax return (Rev. & Tax Code, § 19405).

I.–VI. ***

VII. Sentencing.

The trial court denied defendant's application for probation, and imposed the middle term of four years for solicitation, enhanced by two years for committing the crime while released from custody during the pendency of the other charges.   That six-year sentence was deemed the principal term, and the securities charges were deemed the subordinate term for purposes of the consecutive sentencing scheme of section 1170.1, subdivision (a).   The subordinate term came to three years and eight months, for a total term of nine years and eight months.

A. Double-the-Base–Term Rule.

Defendant objects to the nine year eight month sentence on the ground that it is more than twice the base term of four years in violation of section 1170.1, subdivision (g).8  Defendant is correct, enhancements per section 12022.1 are not specifically included among the enhancement exceptions to the double-the-base-term limitation of section 1170.1, subdivision (g).   The limitation thus applies to the sentence at hand.

The Attorney General argues in effect that an exception for section 12022.1 enhancements should be implied in the statute as a recognition of a legislative oversight.   There was no oversight.   The Legislature has spelled out section 12022.1 enhancements when it wants to in section 1170.1.  (See § 1170.1, subd. (f) [“The enhancements provided in Sections ․ 12022.1 ․ shall be pleaded and proved as provided by law.].)   Conversely, the Legislature has omitted section 12022.1 from numerous subdivisions of section 1170.1.  (See § 1170.1, subds. (a), (b), (d), (e), (g) and (h).)   Thus, the Legislature knows how to include section 12022.1 when it wants to.

Further, we note that section 1170.1, subdivision (g), has been amended to include other enhancements within its scope (see Stats.1987, ch. 1423, § 3.7, p. –––– [No. 12 West's Cal.Legis.Service, pp. 311–313] );  section 12022.1 was not included.   The general rule of statutory exception—expressio unius est exclusio alterius (where exceptions to the general rule are specified by statute, other exceptions are not to be implied or presumed (In re Lance W. (1985) 37 Cal.3d 873, 888, 210 Cal.Rptr. 631, 694 P.2d 744))—governs here.   We will not create statutory exceptions where the Legislature has not done so itself.  (Cf. County of Los Angeles v. Frisbie (1942) 19 Cal.2d 634, 644, 122 P.2d 526.)

Nothing in the recent pronouncements or the California Supreme Court on the double-the-base-term limitations and prior prison term enhancements under section 667.5, subdivision (b), alters this conclusion.  (See People v. Prather (1990) 50 Cal.3d 428, 267 Cal.Rptr. 605, 787 P.2d 1012.)   In that context, the high court was required to interpret the meaning of the constitutional requirement that all prior felony convictions shall be used “without limitation” for purposes of sentencing.  (Cal. Const., art. I, § 28, subd. (f).)  Not surprisingly, the high court held that to give full force and effect to the intent of the electorate the “without limitation” constitutional language had to read as barring application of the double-the-base-term limitation of section 1170.1, subdivision (g), to sentence enhancements for prior prison terms under section 667.5, subdivision (b).

Here, of course, we are not faced with an overriding constitutional provision.   Instead, our only job is to interpret the statutory omission.   Prather is thus inapposite.

The double-the-base-term limitation applies.9  The court erred in imposing a sentence of more than eight years.   We will modify the judgment accordingly.

B.–C.****

The judgment is modified in the following particulars:  (1) all reference to an 8–month term for a section 12022.6 enhancement is stricken;  (2) the term 2 years for the section 12022.1 enhancement is deleted and the term “1” year is substituted therefore;  and (3) the term “9” years and “8” months is deleted from the “Total Term Imposed” and the term “8” Years and “0” months is substituted therefore.   The Clerk of the Solano County Superior Court is directed to prepare a corrected abstract of judgment reflecting these modifications and to forward a certified copy of it to the Department of Corrections.   As modified, the judgment is affirmed.

FOOTNOTES

1.   Unless otherwise indicated, all further statutory references are to the Penal Code.

FOOTNOTE.   See footnote *, ante.

8.   Subdivision (g) of section 1170.1 provides in relevant part:  “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’ ․, 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.”   (Emphasis added.)

9.   We note in passing that a section 12022.6 enhancement on the securities fraud case was imposed in the initial sentence.   But as we note infra, that enhancement was erroneously imposed and must be stricken.  (See § 1170.1, subd. (a) [subordinate terms for nonviolent felonies exclude enhancements];  People v. Mitchell (1988) 199 Cal.App.3d 300, 306–307, 244 Cal.Rptr. 803.)   Thus, because that enhancement was not “imposed”, the double-the-base-term limitation applies here.  (See § 1170.1, subd. (g);  cf. People v. Magill (1986) 41 Cal.3d 777, 780–781, 224 Cal.Rptr. 702, 715 P.2d 662 [if one enhancement listed in section 1170.1, subdivision (g) is imposed, the double-the-base-term limitation is completely eliminated.].)

FOOTNOTE.   See footnote *, ante.

POCHÉ, Associate Justice.

ANDERSON, P.J., and CHANNELL, J., concur.