PEOPLE v. JEFFERSON

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

The PEOPLE, Plaintiff and Respondent, v. Walter JEFFERSON et al., Defendants and Appellants.

No. B093816.

Decided: November 07, 1996

Jennifer Mack, Los Angeles, and John Steinberg, under appointments by the Court of Appeal, for Defendants and Appellants. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Jaime L. Fuster and Carol Frederick Jorstad, Deputy Attorneys General, for Plaintiff and Respondent.

Walter Jefferson and Andre Lavell Brown (collectively, appellants) appeal from their judgments entered following a jury trial that resulted in their convictions of attempted willful, deliberate, and premeditated murder (Pen.Code, §§ 664/187, subd. (a));  counts 1, and 2) 1 during which offenses Jefferson intentionally inflicted great bodily injury (GBI) on the victims while using a firearm (§§ 12022.5, subd. (a), 12022.7, subd. (a)), true findings on the criminal street gang (CSG) allegations (§§ 186.22, subds. (b)(1), (b)(2) [now (b)(4) ] ) as to each appellant, and appellants' admissions that each had suffered a prior serious felony conviction (§ 667, subd. (a)(1)), which also constitutes a prior conviction under the “Three Strikes” law (§ 667, subds. (b)-(i)).

Jefferson was sentenced to prison for the total term of three life terms with the possibility of parole plus 13 years, comprised of a sentence on count 1 of double the life term with the possibility of parole pursuant to the Three Strikes law, plus a three-year term, a five-year term, and another five-year term, respectively, for the GBI, use, and prior serious felony enhancements, and a sentence on count 2 of a consecutive life term with the possibility of parole.   Pursuant to the CSG finding, the court also imposed the mandatory minimum 15–year confinement term on both counts.

Brown was sentenced to prison for the total term of three life terms with the possibility of parole pursuant to the Three Strikes law plus five years, comprised of a sentence on count 1 of double the life term with the possibility of parole, plus a five-year term for the serious felony enhancement, and on count 2 to a consecutive life term with the possibility of parole.   Pursuant to the CSG finding, the court imposed the mandatory minimum 15–year confinement term on both counts.

Brown, joined by Jefferson, contends the trial court committed prejudicial error in denying their motions for severance or, alternatively, for separate juries.   They also contend the trial court committed reversible error in denying their motion for a continuance to secure witnesses.   Jefferson contends the trial court erred in refusing his request for a lineup.   He also contends, joined by Brown, that the trial court erred by extending the conspiracy beyond the shooting date and admitting postarrest taped telephone conversations and a taped conversation between him and Brown in the holding cells during a break in the trial.

Appellants attack the validity of the CSG findings on the grounds that there was insufficient evidence to support those enhancements and the trial court committed prejudicial error in using a special instruction which failed to define “criminal street gang[ ]” and “pattern of criminal gang activity,” which terms are necessary for a finding on those enhancements.   Brown, joined by Jefferson, further contends the trial court prejudicially erred in failing to give a unanimity instruction regarding which of two or more predicate acts constitute the requisite pattern of criminal gang activity under section 186.22, subdivision (b).

Appellants also challenge the validity of their sentences under the Three Strikes law.   They contend the dual use of a single prior to double the life term on count 1 and to enhance their sentences violates the multiple punishment bar of section 654.   Brown, joined by Jefferson, contends the trial court erred in applying subdivision (D)(1) of section 667 retroactively to include prior convictions antedating the Three Strikes law and that the use of such prior as a strike violated the proscription against ex post facto legislation.   Jefferson further contends the trial court erred in imposing three consecutive life terms because such terms were not authorized under subdivision (e)(1) of section 667.

Respondent contends the trial court committed sentencing error.   Specifically, respondent urges that 7 years is the mandatory minimum term for attempted willful, deliberate, and premeditated murder, which term is superseded by the greater 15–year minimum confinement term under the CSG statute, and that pursuant to the Three Strikes Law, the applicable minimum term for each count is 30 years, or double the 15–year minimum, for a 60–year total minimum confinement term on counts 1 and 2, which were imposed consecutively.

Based on our review of the record and applicable law, we find appellants' contentions are unpersuasive.   We find the trial court erred in sentencing appellants under the Three Strikes law and in imposing, as a sentencing matter, the 15–year minimum confinement period for eligibility of parole under the CSG statute (§ 186.22, subd. (b)(2) [now (b)(4) ].)   We therefore modify the judgment by striking one life term on count 1 and the 15–year minimum confinement period under the CSC statute on counts 1 and 2, and, as modified, we affirm the judgments.

In the published portion of the opinion, we hold that the Three Strikes law is inapposite to a defendant with one qualifying strike where the term otherwise provided by law for the current offense is life with the possibility of parole, which is an indeterminate sentence.   We explain that with regard to a sentence of life with the possibility of parole (as opposed to a specific number of years to life), there is no “minimum term” for the sentencing court to impose.   Thus, there is no “minimum term” to be doubled under the Three Strikes law.   In this regard, subdivision (e)(1) of section 667 provides:  “If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.”  (Italics added.)

We also explain that the minimum confinement period for determining a prisoner's eligibility for parole referred to in section 3046 is not the equivalent of the “minimum term” for purposes of the Three Strikes law.   The latter pertains to the minimum imprisonment term to be imposed by the court.   In pertinent part, section 3046 provides:  “No prisoner imprisoned under a life sentence may be paroled until he or she has served at least seven calendar years or has served a term as established pursuant to any other section of law that establishes a minimum period of confinement under a life sentence before eligibility for parole, whichever is greater.”  (Italics added.)

We further explain that the “minimum 15 calendar years” confinement period specified in the CSG statute, which supersedes the lesser specific 7–year period in section 3046, also is not a “minimum term for an indeterminate term” within the meaning of the Three Strikes law.   Subdivision (b)(2) (now (b)(4)) of section 186.22, provides:  “Any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life, shall not be paroled until a minimum of 15 calendar years have been served.”

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 that on September 11, 1994, around 10 p.m., Lamarsha Kelso drove her car to Church's Chicken at Mission and Hamilton.   Mary Jackson was in the front seat.   In the back were three members of the Crips, a Black criminal street gang.   The three were Damian Sharply and appellants.   They wore blue rags, the Crips' color.   The stuffed bear and the blue rag on the dashboard also reflected membership in the Crips.   Upon their arrival, Kelso went to the window to order food.   Appellants and Sharply jumped out and stood in front of the restaurant.

Meanwhile, three boys, Angel Rivera, Jose Hernandez, and Felix, were stopped at a red light at Hamilton and Mission when someone, apparently from the group of Blacks standing in front of the restaurant, yelled out “sin town.”   Hernandez recognized these words as a gang slogan and believed them to be threatening.   Although both he and Rivera glanced back, they did not see anyone walking toward them at that moment.

As Sharply and appellants approached, however, the three boys, who were afraid, began walking faster and crossed the street against the light.   Looking back, Hernandez saw one man with a gun in his hand.   When he was halfway across the street, one or more of the men shot at them seven or eight times.   Hernandez began running after the first shot and had just reached the sidewalk when he was shot in the hip.   He did not slow down until he was halfway down the block.   Felix fled on his bicycle upon hearing the shots.   Rivera ran off while pushing his bike but returned to assist Hernandez.

[[/]] **

At trial, evidence was presented to establish that appellants and Sharply were members of the Black criminal street gang, Southside Village Crips (SSV or SSVC);  that their territory included the shooting scene;  and that the shooting was gang-related.   Although neither Rivera nor Hernandez was shown to be a gang member, the evidence presented established that a month before the subject shooting there had been 17 violent incidents, including assault and murder, between Black and Mexican gangs in Pomona and occasionally a victim had been mistaken for a gang member.

On August 26, 1994, SSVC member Tony Taylor telephoned Brown and his brother Joey who were in Las Vegas and explained he was calling for help to deal with the gang-related attempted murder that month of Everett Watkins and the murder of Bobby McFadden, fellow gang members from their neighborhood, by Mexican gang members.   After further discussion about killings and guns, Brown stated, “Now you watch, I'll start killing the [Mexican gang members] like they're doing you all.”   He complained that “Every time [they] hit one of us Niggers, it's a Nigger notch.”  “Tre Dog,” who also joined in the conversation, informed Brown that he had been hit at Mission and Hamilton.

Brown stated he would be “out there” on August 31.   After describing the firearms he and Joey would bring, Brown said, “I swear to God, I'll kill them ․ Nigger, I'm killing eight, I'm killing eight.”   Joey directed Taylor to “go get some of those little homeys, ․ and from all over, Sin Town Niggers, too.”   Taylor responded, “It's Mexican on Black now, Cuz.   It's always been like that, but now they['re] trying to enforce it.”

One of the attackers yelled out the slogan “Sin Town Loc,” a reference to a Crips subset.   It was common for a Crips subset to yell out the name of another to divert attention from the actual perpetrators while giving credit to the Crips generally.

Based on the various telephone conversations taped pursuant to a Federal Bureau of Investigation (FBI) wiretap following appellants' arrest, Special Agent Parlave opined that appellants and Sharply were involved in the shooting that night;  that Sharply apparently eluded the police;  that the three were concerned that one of the guns thrown out the car window during the pursuit had been found;  and that appellants were convinced there would be no witnesses because Jackson, who was with appellants at the crime scene, would be taken care of and none of the victims would show up at court.

In view of the numerous different expended shell casings found at the scene, Pomona Police Detective Greg Collins, an expert on Black gangs in Pomona, opined that two guns had been shot by the same person or that two or more of the Crips attackers were the shooters.

Hernandez and Rivera each testified that he was not a gang member and did not call out a gang slogan.   Each denied that he had said anything or responded at all to the challenge.   They and Felix just kept walking across the street against the light.   Each also denied carrying any weapons or that Felix was carrying one.   No gun was found on or near Hernandez or his friends by Pomona police sergeant Joseph Waltman after he was flagged down by Rivera.

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DISCUSSION

1–11 ***12. Three Strikes Law Inapposite to Life With Possibility of Parole Term

Respondent contends the trial court erred in imposing a mandatory minimum term of 15 years on each count and urges the mandatory minimum term, instead, is 30 years, or double the 15–year term, on each count, and thus, a total of 60 years for both counts 1 and 2, which were imposed consecutively.   We agree that the trial court committed sentencing error but not as contended by respondent.

The court sentenced each of the appellants, with his respective enhancements under the Three Strikes law, to three terms of life imprisonment with possibility of parole, comprised of a sentence on count 1 of double the life term with the possibility of parole and a sentence on count 2 of a life term with the possibility of parole.   Pursuant to the CSG findings, the court also ordered that each appellant shall not be paroled until a minimum of 15 calendar years have been served on each count.

The trial court erred in imposing a “double life term” on count 1.   Where, as here, “a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.”  (§ 667, subd. (e)(1).)   As we previously pointed out, “[i]t is only the determinate term (and minimum sentence for an indeterminate term) that may be doubled, since that is what is ‘provided as punishment for the current felony conviction.’ ”  (People v. Martin (1995) 32 Cal.App.4th 656, 666, 38 Cal.Rptr.2d 776 (review den.).)

Appellants were each convicted in counts 1 and 2 of attempted willful, deliberate and premeditated murder.  “[I]f the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole[.]” (§ 664.)   Section 189 provides in pertinent part that a murder which is carried out by a “willful, deliberate, and premeditated killing ․ is murder of the first degree.”   The penalty for a person convicted of first degree murder who is not sentenced to death or life without the possibility of parole is “confinement in the state prison for a term of 25 years to life.”  (§ 190, subd. (a).)  Subdivision (d) of section 664 provides:  “If a crime is divided into degrees, an attempt to commit the crime may be of any of those degrees, and the punishment for the attempt shall be determined as provided by this section.”   Our Supreme Court, however, held that attempted murder is not divided into degrees.  (People v. Bright (1996) 12 Cal.4th 652, 668–669, 49 Cal.Rptr.2d 732, 909 P.2d 1354.)   Accordingly, for that reason alone, the minimum term for attempted willful, deliberate and premeditated murder cannot be construed to be the 25 years minimum term for first degree murder.

Section 664 provides that if the offense attempted carries a maximum sentence of life imprisonment or death, then the person convicted of that attempt shall be subject to a punishment of imprisonment for the determinate term of five, seven, or nine years;  however, where the crime attempted is willful, deliberate and premeditated murder, the punishment is imprisonment for life with the possibility of parole.   In amending section 664 in 1986 to distinguish the punishment for attempted willful, deliberate and premeditated murder, the Legislature imposed a greater punishment for that offense than for other kinds of attempted murder.  (People v. Bright, supra, 12 Cal.4th at pp. 655–656, 668, 49 Cal.Rptr.2d 732, 909 P.2d 1354.)

 It is established that the court is not empowered to construe a statute which is clear and unambiguous on its face.   (See, e.g., People v. Bunyard (1988) 45 Cal.3d 1189, 1237–1238, 249 Cal.Rptr. 71, 756 P.2d 795.)   Moreover, in interpreting “any particular provision of a statute, we do not insert words into it as such would ‘violate the cardinal rule that courts may not add provisions to a statute․’  Nor are we permitted to rewrite the statute to conform to an assumed intent that does not appear from its plain language.”  (People v. Superior Court (Perez ) (1995) 38 Cal.App.4th 347, 357, 45 Cal.Rptr.2d 107;  citations omitted;  review den.)   A plain reading of section 664 reveals that the Legislature did not specify any minimum term in designating the punishment of life with the possibility of parole for attempted willful, deliberate, premeditated murder.   (Compare, § 217.1, subd. (b) [punishment for attempted murder of certain designated public officials is “a term of 15 years to life.”].)

Appellants and respondent, however, urge that because no minimum term for attempted willful, deliberate, premeditated murder is set forth in section 667, the minimum term for such offense must be determined by reference to the minimum confinement term to be served by a prisoner pursuant to section 3046, and that it is this term which is doubled under the Three Strikes law.   Jefferson urges that the seven-year minimum confinement period of section 3046 is the minimum term for attempted willful, deliberate, and premeditated murder and argues that pursuant to the Three Strikes law (§ 667, subd. (e)(1)), “the greatest minimum determinate term for the indeterminate sentence of life with parole for attempted premeditated murder is 14 years, consisting of twice the determinate portion of the punishment for the current convictions.”   Brown takes the same position.11

Respondent urges that “[b]ecause the term for attempted first degree murder is life without an established minimum term, the presumptive minimum term would be seven years, doubled, as to each count for a total of 28 years to life.  (§§ 667, subd. (e)(1), 3046.[) ]  In this case, however, the gang association and purpose finding mandated that appellants serve a 15–year minimum term on their life terms, as to each count.  (§ 186.22, subd. (b)(4).)   Because appellants each had one prior serious felony, they were each punishable as second-strike felons.   Hence, the trial court was required to double their minimum terms and sentence them consecutively. (§ 667, subds.(c)(7), (e)(1).)   Properly calculated, their total terms should have been 60 years (15 years doubled on count 1, plus a consecutive 15 years doubled on count 2), plus the applicable enhancements.”

 We find the positions of appellants and respondent to be unavailing.   We hold that the Three Strikes law is inapposite to a defendant with one qualifying strike where the term otherwise provided by law for the current offense is life with the possibility of parole, which is an indeterminate sentence.   A sentence of life with the possibility of parole has no “minimum term” for the sentencing court to impose.   In the absence of an applicable “minimum term,” there is no “minimum term” which can be doubled under the Three Strikes law.   In this regard, subdivision (e)(1) of section 667 provides:  “If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.” 12  (Italics added.)

The minimum confinement period, which must be served by a prisoner prior to eligibility for parole, referred to in section 3046, is not the equivalent of that minimum term, which specifies the minimum imprisonment term to be imposed by the court.   In pertinent part, section 3046 provides:  “No prisoner imprisoned under a life sentence may be paroled until he or she has served at least seven calendar years or has served a term as established pursuant to any other section of law that establishes a minimum period of confinement under a life sentence before eligibility for parole, whichever is greater.” 13  (Italics added.)   In pronouncing judgment, the court does not impose this seven-year period as part of the sentence.   Instead, this minimum confinement period concerns the calculation of a prisoner's parole eligibility, a matter for the Board of Prison Terms, not the courts.14

Imposition of the “minimum term,” as well as the doubling of such minimum term under the Three Strikes law, is a judicial function which is carried out when the trial court sentences a defendant.   In contrast, the determination of when a prisoner is eligible for parole is determined by the Board of Prison Terms as an administrative function.  (See People v. Norrell (1996) 13 Cal.4th 1, 10, 51 Cal.Rptr.2d 429, 913 P.2d 458 [“[T]he trial court is not required to base its sentencing decisions on mechanical calculations about eligibility for parole or earliest possible release dates considered in the abstract.”].)

Thus, the “minimum 15 calendar years” confinement period for eligibility for parole in the CSG statute, which supersedes the lesser specific 7–year period in section 3046, also is not a “minimum term for an indeterminate term” within the meaning of the Three Strikes statute for a second striker.   Subdivision (b)(2) (now (b)(4)) of section 186.22, provides:  “Any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life, shall not be paroled until a minimum of 15 calendar years have been served.”   This 15–year period merely delineates the minimum period of confinement before parole eligibility in the CSG context.

To construe the minimum confinement period for parole eligibility under section 3046 as the “minimum term” for the sentence of life with the possibility of parole would contravene the Legislature's intent in amending section 664 in 1986 and constitute an impermissible judicial rewriting of a statute which is clear on its face.   We therefore reject both appellants' and respondent's positions as untenable.

 We further conclude that the trial court erred not only in sentencing appellants under the Three Strikes law, but also in ordering appellants to serve the 15–year minimum confinement period before eligibility for parole under subdivision (b)(2) (now (b)(4)) of the CSG statute.   Although that 15–year period of confinement applies, as discussed ante, this is not a matter which the trial court imposes in sentencing the convicted felon.   Instead, it is a matter addressed by the Board of Prison Terms in determining the prisoner's parole eligibility status.

We therefore modify each judgment by striking one life term from count 1 and the 15–year minimum confinement period of the CSG statute as to counts 1 and 2, and, as modified, we affirm each judgment.

DISPOSITION

The judgments are modified by striking from each judgment one life term from count 1 and the 15–year mandatory minimum confinement term as to counts 1 and 2, and, as modified, the judgments are affirmed.   The trial court is directed to prepare an amended abstract of judgment accordingly.

FOOTNOTES

1.   All further section references are to the Penal Code unless otherwise indicated.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

11.   As support, appellants rely on People v. Jackson (S051863).  Such reliance is misplaced for the reason that review had been granted in the case, and on October 23, 1996, review was dismissed, and the matter remanded without directions to publish the opinion.   Accordingly, that case is not citable authority.  (Cal.Rules of Court, rule 977.)

12.   The “minimum term” for a third strike defendant is different.   In that situation, the statute defines the minimum term by reference to the greatest of three specified periods.  (See People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 507, 53 Cal.Rptr.2d 789, 917 P.2d 628;  see also, People v. Jenkins (1995) 10 Cal.4th 234, 238, at fn. 2, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)

13.   In the case of murder, for instance, a minimum term is specified for the life term to be imposed.   The minimum term for first degree murder is 25 years.   The minimum term for second degree murder of a peace officer killed while engaged in the performance of his or her duties is 25 years.   The minimum term for second degree murder where the killing was perpetrated by means of shooting a firearm from a motor vehicle is 20 years.   In all other instances, the minimum term for second degree murder is 15 years. (§ 190.)Except for the second degree murder of a peace officer engaged in the performance of his or her duties, “[a]rticle 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce any minimum term of 15, 20, or 25 years in the state prison imposed pursuant to this section, but the person shall not otherwise be released on parole prior to that time.”   In contrast, such article “shall not apply to reduce any minimum term of 25 years in the state prison when the person is guilty of murder in the second degree and the victim was a peace officer, as defined in this subdivision, and the person shall not be released prior to serving 25 years confinement.”   From the foregoing, it is clear that in the case of a defendant convicted of the second degree murder of a peace officer killed while engaged in his or her duties, the minimum term is the equivalent of the minimum confinement term which a prisoner must serve prior to eligibility for parole.   For all other murders, the minimum term and such minimum confinement term are not synonymous.

14.   In contrast, in sentencing a person who has served two prior separate prison terms and is sentenced to life under the self-contained habitual offender sentencing scheme of section 667.7, subdivision (a)(1), the court must determine the applicability of the minimum confinement period referred to in section 3046 for the reason that the habitual offender statute expressly requires the court to determine and impose the greatest of various options as the minimum term before the convicted felon shall be “eligible for release on parole.”  (See generally, People v. Jenkins, supra, 10 Cal.4th 234, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)   The applicable minimum term, however, is not the minimum confinement term which the prisoner must serve prior to release.   Subdivision (a)(1) of section 667.7 further provides that “[a]rticle 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce any minimum term in a state prison imposed pursuant to this section, but the person shall not otherwise be released on parole prior to that time.”

CHARLES S. VOGEL, Presiding Justice.

EPSTEIN and ARANDA, JJ.†, concur.