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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Anthony Louis RIVERA, Defendant and Appellant.

No. H013569.

Decided: December 19, 1995

Law Offices of John F. Schuck, John F. Schuck, by appointment of the Sixth District Appellate Program, Palo Alto, for defendant/appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Asst. Atty. General, Ronald A. Bass, Senior Asst. Atty. General, Ronald E. Niver, Supervising Deputy Atty. General, David H. Rose, Deputy Atty. General, for plaintiff/respondent.

I. Statement of the Case

Defendant Anthony Louis Rivera appeals from a judgment entered after he pleaded guilty to two counts of robbery and admitted two prior serious felony conviction enhancement allegations within the meaning of Penal Code section 667, subdivisions (b) through (i) commonly referred to as the “three strikes” law.1  On appeal, he claims the trial court erred in concluding that under the “three strikes law” it lacked discretion to strike a prior serious felony conviction.   He also claims this law violates his right to equal protection by limiting the number of conduct credits he can earn.   Finally, he claims the court lacked authority to impose a restitution fine under Government Code section 13967.

We find no merit to defendant's claims and affirm the judgment.

II. Does the court have discretion to strike prior convictions? 2

In March 1994, the Governor signed into law Assembly Bill No. 971, an urgency measure, commonly known as the three strikes law.  (See stats.1994, ch. 12, pp. 56–57.)   It was codified as section 667, subdivisions (b) through (i).   Several months later, the voters passed Proposition 184, the “three strikes” initiative, which is codified in section 1170.12.   The evident intent and purpose of both the statute and initiative was to “ensure longer prison sentences and greater punishment” for recidivists with prior violent or serious felony convictions.  (§ 667, subd. (b).)  To achieve this purpose both the statute and initiative establish a separate sentencing scheme applicable to recidivist offenders.

The new scheme governed sentencing in this case because defendant pleaded guilty to two bank robberies and admitted having suffered two prior serious felony convictions.   Under these circumstances, defendant faced the provisions of section 667, subdivision (e)(2), which require that he receive an indeterminate term of life imprisonment with the minimum possible term of 25 years for his current offense.3

 At the sentencing hearing, however, defendant sought a lesser term by asking the court to exercise its discretion under section 1385, subdivision (a) (hereafter, section 1385(a)) to strike at least one of his prior convictions in furtherance of justice.4  The trial court denied the request, concluding that under section 667, it could strike a prior conviction on its own motion only on the ground of insufficient evidence, which was not the case here.

Defendant challenges the court's conclusion and claims the court had discretion under section 1170.12, the “three strikes” initiative, to strike prior convictions on its own motion in furtherance of justice.   Defendant first concedes, for purposes of argument only, that the court had no discretion to strike prior convictions in connection with sentencing under section 667 because subdivision (b) of section 1385 (hereafter, section 1385(b)) expressly prohibits striking prior convictions “for purposes of enhancement of a sentence under section 667.” 5  This prohibition does not apply to sentencing under section 1170.12.   Thus, defendant argues that the court retains its general discretion to strike prior convictions.6

Defendant further claims that although section 667 and by implication section 1170.12 may appear to restrict judicial discretion by giving the prosecutor control over whether a trial court may strike a prior conviction in the furtherance of justice, any such restriction violates the doctrine of separation of powers.

 We conclude that section 667 absolutely prohibits courts from striking a prior conviction allegation once it has been proved.7

A. Section 1385(b) does not restrict the court's discretion concerning nonenhancement provisions of section 667.

We first discuss defendant's concession that section 1385(b) prohibits courts from striking prior convictions in connection with sentencing him under section 667 but not under section 1170.12.

 Section 1385(b) specifically prohibits striking prior convictions to avoid imposing enhancements under section 667.  Rule 405(c) of the California Rules of Court (hereafter rule 405(c)) was adopted in 1977 and defines an “enhancement” as “an additional term of imprisonment added to the base term.”  (See People v. Rayford (1994) 9 Cal.4th 1, 9, 36 Cal.Rptr.2d 317, 884 P.2d 1369, and People v. Hernandez (1988) 46 Cal.3d 194, 207, 249 Cal.Rptr. 850, 757 P.2d 1013, quoting this definition.)   We presume that the Legislature was aware of this definition when it enacted section 1385(b) in 1986.  (People v. Martin (1995) 32 Cal.App.4th 656, 665, 38 Cal.Rptr.2d 776;  see Viking Pools, Inc. v. Maloney (1989) 48 Cal.3d 602, 609, 257 Cal.Rptr. 320, 770 P.2d 732.)   We further note that in 1986, section 667 only provided enhancements as defined in rule 405(c).  (See former § 667, added by Prop. 8, an initiative measure, on June 8, 1982;  see also stats.1986, ch. 85, § 1.5, p. 211.)   Given the legal definition of an enhancement and the provisions of section 667 in 1986, we conclude that the section 1385(b) prohibition applies only to striking prior convictions for enhancement purposes, that is, to avoid imposing additional prison time to a base term.   Indeed, in People v. Valencia (1989) 207 Cal.App.3d 1042, 1045, 255 Cal.Rptr. 180, the court stated that section 1385(b) “was enacted by the Legislature as an emergency measure expressly for the purpose of abrogating People v. Fritz (1985) 40 Cal.3d 227 [219 Cal.Rptr. 460, 707 P.2d 833],” in which the court held that section 667 itself did not prohibit courts from striking prior convictions to avoid imposing section 667 enhancements.

 With the scope of section 1385(b) in mind, we turn to the “three strikes” provisions of section 667 to see whether they prescribe enhancements.   We find they do not.   They neither expressly nor implicitly set forth prison terms to be added to the base term initially imposed for an offense.   Rather, subdivision (e) of section 667 (hereafter section 667(e)) prescribes the term to be imposed for a current offense when the perpetrator has one or more qualifying prior convictions.   In other words, section 667(e) sets forth base terms to be imposed on recidivists.  (Cf. People v. Decker (1988) 199 Cal.App.3d 694, 245 Cal.Rptr. 40 [same conclusion re § 667.51, subd. (c) ];  People v. Skeirik (1991) 229 Cal.App.3d 444, 280 Cal.Rptr. 175 [same conclusion re § 667.7].)   Thus, since these base terms are not enhancements, section 1385(b) does not apply.

We acknowledge that section 1170.1 refers to “any additional term” and “enhancements” imposed under various statutes, including section 667.  (See § 1170.1, subds. (a), (d), (f), and (g)(1).)   However, when originally incorporated by reference into section 1170.1, section 667 set forth only enhancements.   Thus, as the court aptly observed in People v. Martin, supra, 32 Cal.App.4th 656, 38 Cal.Rptr.2d 776, “It would be a perverse reading of the law to conclude that by not amending section 1170.1, subdivision (a) the Legislature intended the reference to section 667 in that provision to characterize the entire new [‘three strikes'] statute as an enhancement.”   (Id. at p. 668, 38 Cal.Rptr.2d 776.)

The People agree that section 667(e) base terms are not enhancements within the meaning of rule 405(c).   However, they submit that the Legislature intended “ ‘enhancement’ ” in section 1385(b) to mean any sort of increased sentence over what would normally be imposed.   They argue that the base terms in section 667(e) come within this broader meaning of “ ‘enhancement’ ” because they are greater than what would normally be imposed under the sentencing scheme for non-recidivists.   However, the People provide no legislative history to support this broad interpretation of “enhancement,” and we reject it.   As noted above, section 1385(b) was expressly enacted in response to a Supreme Court decision holding that courts retained discretion to strike prior convictions to avoid imposing enhancements as defined by rule 405(c).

In sum, section 1385(b) does not restrict the court's discretion to strike prior convictions for non-enhancement purposes in connection with sentencing under section 667.   Thus, we reject defendant's claim that courts have more discretion to strike priors under section 1170.2 than under section 667.

B. Section 667 prohibits courts from striking a prior conviction allegation after the allegation has been proved.

It is settled that trial courts have discretion to strike prior convictions under section 1385(a) “in any situation where the Legislature has not clearly evidenced a contrary intent.”  (People v. Williams (1981) 30 Cal.3d 470, 482, 179 Cal.Rptr. 443, 637 P.2d 1029;  People v. Thomas, supra, 4 Cal.4th at p. 211, 14 Cal.Rptr.2d 174, 841 P.2d 159;  People v. Fritz, supra, 40 Cal.3d at p. 230, 219 Cal.Rptr. 460, 707 P.2d 833;  see People v. Tanner (1979) 24 Cal.3d 514, 520, 156 Cal.Rptr. 450, 596 P.2d 328;  People v. Superior Court (Howard ) (1968) 69 Cal.2d 491, 502–503, 72 Cal.Rptr. 330, 446 P.2d 138.)

Thus, we examine the “three strikes” provisions to see whether they clearly manifest a legislative intent to restrict judicial discretion to strike prior convictions in furtherance of justice.8

 Subdivision (e) simply provides the base terms for recidivist offenders that “shall apply” when qualifying prior convictions have been pleaded and proved.   Standing alone, such mandatory language does not reflect a clear intent to prohibit the exercise of discretion under section 1385(a).  (See, e.g., People v. Fritz, supra, 40 Cal.3d at p. 230, 219 Cal.Rptr. 460, 707 P.2d 833.)

 Subdivision (f)(1), however, provides, in relevant part, “Notwithstanding any other law, subdivisions (b) to (i), inclusive, shall be applied in every case in which a defendant has a prior felony conviction as defined in subdivision (d).”   The People claim that this language eliminates judicial discretion under section 1385(a).   We agree.

In People v. Thomas, supra, 4 Cal.4th at p. 211, 14 Cal.Rptr.2d 174, 841 P.2d 159, the court explained that “it is not necessary that the Legislature expressly refer to section 1385 in order to preclude its operation.”   For example, the phrase “notwithstanding the provisions of section 1203, probation shall not be granted,” in former section 1203.066 and section 1203.07, has been interpreted to preclude the exercise of discretion under section 1385(a).  (People v. Tanner (1979) 24 Cal.3d 514, 520, 156 Cal.Rptr. 450, 596 P.2d 328;  People v. Enriquez (1985) 173 Cal.App.3d 990, 994–995, 219 Cal.Rptr. 325.)   In People v. Hesslink (1985) 167 Cal.App.3d 781, 793, 213 Cal.Rptr. 465, the court interpreted the phrase “ ‘notwithstanding any other provision of law,’ ” which is essentially identical to the introductory phrase in subdivision (f)(1).   The court found the phrase “manifestly broader and more inclusive than the language” found in former sections 1203.066 and 1203.07.  “Section 1385 is an ‘other provision of law,’ and the Legislature must be deemed to have intended to foreclose the application of section 1385 by its use of the expression ‘Notwithstanding any other provision of law.’ ”

In our view, the introductory phrase and the mandatory language of subdivision (f)(1) clearly reflect an intent to prohibit courts from using “any other law,” including section 1385(a), to avoid applying the “three strikes” provisions.

 We note however, that subdivision (f)(1) makes the “three strikes” provisions mandatory only when “a defendant has a prior felony conviction as defined in subdivision (d).”   Since one does not “have” a prior conviction unless and until it has been proved or admitted, the only reasonable interpretation of subdivision (f)(1) is that it prohibits courts from striking prior convictions after their existence has been formally established.   Such an interpretation comports well with subdivisions (c) 9 and (e), which prescribe the penal consequences of having qualifying prior convictions.   Both subdivisions expressly apply only when allegations have been “pled and proved.”

We also acknowledge that the prefatory phrase in subdivision (f)(1) refers only to “any other law.”  (Emphasis added.)   Impliedly, the “three strikes” provisions are not mandatory if section 667 itself permits courts to strike prior convictions after they have been properly established.   However, section 667 does not do so.

Subdivision (f)(1) further provides that “[t]he prosecuting attorney shall plead and prove each prior felony conviction except as provided in paragraph (2).”   Subdivision (f)(2) provides, “The prosecuting attorney may move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to Section 1385, or if there is insufficient evidence to prove the prior conviction.   If upon the satisfaction of the court that there is insufficient evidence to prove the prior felony conviction, the court may dismiss or strike the allegation.”

In determining the meaning of subdivision (f)(2), we must read it with reference to the other “three strikes” provisions.  (See People v. Thomas, supra, 4 Cal.4th at p. 210, 14 Cal.Rptr.2d 174, 841 P.2d 159.)   As noted above, subdivisions (c) and (e) make their sentencing and penalty provisions mandatory after prior conviction allegations have been “pled and proved.”   The first sentence of subdivision (f)(1) does likewise, albeit implicitly.   Clearly, these provisions reflect a legislative intent that recidivists suffer the consequences of prior convictions provided by the “three strikes” law after those prior convictions have been formally established.   However, by making these consequences mandatory only after the allegations have been proved, these provision imply a distinction between pre- and post-trial stages of the proceedings on prior conviction allegations.  (See People v. O'Donnell (1995) 40 Cal.App.4th 943, 47 Cal.Rptr.2d 333.)

 With this legislative distinction in mind, we conclude that the Legislature's use of the term “allegation” in subdivision (f)(2) was intended to refer only to the pleading, i.e., pretrial, stage of the proceedings, when prior convictions and the defendant's status as a potential recidivist have not yet been established.   Thus, whatever discretionary authority subdivision (f)(2) confers on prosecutors and courts may have in dealing with prior conviction allegations, that authority may only be exercised before allegations have been proved and become findings.10  A contrary conclusion that courts could strike priors after they have been proved would, in effect, nullify the mandatory language of subdivisions (c), (e), and (f)(1).   Such a conclusion is also inconsistent with the intent of section 667 to ensure longer sentences for recidivist offenders.

 Turning to the circumstances in this case, we note that defendant admitted he had prior convictions within the meaning of subdivision (d).   The record does not suggest that defendant's admission was induced by any agreement or representation that the prior convictions would later be stricken in furtherance of justice.   Only after admitting the prior convictions did defendant request that they be stricken.   At that time, however, the trial court lacked discretion to strike them under section 1385(a).

Although the trial court did not reject defendant's request for the reasons explained above, its ultimate conclusion that it lacked discretion to strike the prior convictions was correct.   Thus, there is no reason to remand the matter for reconsideration.

III. Section 667, subdivision (c)(5), does not deny defendant equal protection under the law.11

Defendant notes that under section 667, subdivision (c)(5) (hereafter subdivision (c)(5)), he will be able to reduce his prison term by no more than one-fifth for good conduct or participation in work programs.   Citing In re Diaz (1993) 13 Cal.App.4th 1755, 17 Cal.Rptr.2d 395, he notes that a murderer with qualifying prior convictions is sentenced under section 190 and thus would be able to earn credits up to one-third of his term.   He argues there is no rational basis to treat a recidivist robber, like himself, more harshly than recidivist murderer.   Thus, he contends that subdivision (c)(5) denies him equal protection under the law.   This claim is meritless.

 Recidivist murderers are subject to the provisions of the “three strikes” amendment the same as recidivist robbers.  (Cf. People v. Jenkins (1995) 10 Cal.4th 234, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)   Defendant's reliance on In re Diaz, supra, 13 Cal.App.4th 1755, 17 Cal.Rptr.2d 395 is misplaced primarily because that case was reversed recently in People v. Jenkins, supra, 10 Cal.4th 234, 40 Cal.Rptr.2d 903, 893 P.2d 1224.12  Moreover, defendant's claim has been repeatedly rejected when raised by other defendants.  (See, e.g., People v. Sipe (1995) 36 Cal.App.4th 468, 483–484, 42 Cal.Rptr.2d 266;  People v. McCain (1995) 36 Cal.App.4th 817, 819–822, 42 Cal.Rptr.2d 779.)

To the degree defendant's claim is based on a difference in the treatment accorded first time murderers and recidivist robbers, it also fails.

“The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.”  (In re Eric J. (1979) 25 Cal.3d 522, 530, 159 Cal.Rptr. 317, 601 P.2d 549, italics omitted.)

 Recidivist offenders under the “three strikes” amendments are distinguishable from first time murderers by the fact of their having previously been convicted of serious or violent felonies.   The Legislature could rationally find that offenders with such convictions have demonstrated their contempt for peaceful and lawful society and an inability and unwillingness to conform their behavior thereto.   Based on such a finding, the Legislature could reasonably require that such offenders serve longer terms of imprisonment than first time offenders, not only to punish them more harshly but to provide society with a greater measure of protection from them.   Since there is a rational basis to distinguish recidivists from first time offenders, defendant cannot reasonably maintain he and a first time offender, whatever the offense, are similarly situated.  (See In re Rosencrantz (1928) 205 Cal. 534, 539, 271 P. 902;  People v. Villasenor (1984) 152 Cal.App.3d 30, 33–34, 199 Cal.Rptr. 349.)

IV. The court may require restitution.

Defendant was ordered to pay a restitution fine and direct restitution to the victim under former Government Code section 13967, subdivisions (a) and (c), which, at the time he committed his offenses authorized such restitution.  (See stats.1992, ch. 682, § 4, pp. 2557–2558.)   Prior to sentencing, however, this section was amended to eliminate the authorization for restitution and provide only for an appropriation of funds to indemnify claims for restitution.

Defendant asserts that a presumption arises from the amendment that the Legislature intended to change the law, specifically to prevent courts from imposing restitution directly on defendants.   He further asserts that generally a defendant is entitled to the benefit of a change in the law that occurs prior to the entry of final judgment.   Thus, he argues he was entitled to the benefit of the amendment, and, the court erred in imposing restitution.   We disagree.

 Defendant essentially argues a form of abatement.   California has long followed the common law rule that when a criminal statute is repealed, all proceedings against an accused not reduced to final judgment are terminated unless there is a savings clause or legislative intent to the contrary.   (People v. Alexander (1986) 178 Cal.App.3d 1250, 1260, 224 Cal.Rptr. 290.)   The common law rule “is based on presumed legislative intent, it being presumed that the repeal was intended as an implied legislative pardon for past acts.”   (Sekt v. Justice's Court (1945) 26 Cal.2d 297, 304, 159 P.2d 17.)  “Where the Legislature has seen fit to repeal a statute making certain acts a crime it is reasonable to assume that in the absence of a saving clause the Legislature would not have desired that anyone should be punished for what, by the repeal, it has now determined is not a crime.”  (Id. at p. 308, 159 P.2d 17.)  “This rationale applies even where, instead of repealing a criminal statute, the Legislature decreases the punishment for violating it.   Thus, it is presumed that the Legislature intended that the benefits of such legislation apply immediately wherever possible.   Hence, a defendant is entitled to be sentenced under the new statute, reducing the punishment for his offense.”  (People v. Alexander, supra, 178 Cal.App.3d at p. 1260, 224 Cal.Rptr. 290;  In Re Estrada (1965) 63 Cal.2d 740, 745–748, 48 Cal.Rptr. 172, 408 P.2d 948;  see, e.g., Governing Board v. Mann (1977) 18 Cal.3d 819, 135 Cal.Rptr. 526, 558 P.2d 1;  People v. Benefield (1977) 67 Cal.App.3d 51, 136 Cal.Rptr. 465.)

We point out, however, that because the rule is based on a presumed legislative intent, it does not apply automatically upon the repeal or amendment of a statute.  “Where the reason for the rule ceases the rule should not apply.”  (Sekt v. Justice's Court, supra, 26 Cal.2d at p. 308, 159 P.2d 17.)   Thus, where the circumstances of the legislative action do not give rise to or rebut the presumption that it was to benefit the defendant, the former statute may apply even in the absence of a savings clause.  (See Sekt v. Justice's Court, supra, 26 Cal.2d at pp. 305–309, 159 P.2d 17;  People v. Alexander, supra, 178 Cal.App.3d at p. 1261, 224 Cal.Rptr. 290;  Sobey v. Molony (1940) 40 Cal.App.2d 381, 385, 104 P.2d 868.)   For example, “where the Legislature repeals a criminal statute but reenacts it in substantially the same form, with either an increased or decreased punishment, it is more reasonable to presume that the Legislature intended to punish people who committed crimes under the old statute than to presume an intent to let such persons go free.”  (People v. Alexander, supra, 178 Cal.App.3d at p. 1261, 224 Cal.Rptr. 290;  see Sekt v. Justice's Court, supra, 26 Cal.2d at pp. 305–309, 159 P.2d 17;  see also In Re Estrada, supra, 63 Cal.2d at p. 747, 48 Cal.Rptr. 172, 408 P.2d 948;  Sobey v. Molony, supra, 40 Cal.App.2d at p. 385, 104 P.2d 868.)  “Indeed, the reenactment rebuts any presumed intent to pardon such persons.”  (People v. Alexander, supra, 178 Cal.App.3d at p. 1261, 224 Cal.Rptr. 290.)

 The same reasoning applies in this case.   At the very same time the Legislature amended Government Code section 13967 to its present form, it transferred the provisions of the former section to Penal Code section 1202.4.  (Stats.1994, ch. 1106, §§ 2, 3, p. 5448.)   Doing so manifested a clear intent that the substance of the law remain in force without a break.   Under these circumstances, we do not presume the Legislature intended to prohibit judicially imposed direct restitution as authorized under the former Government Code section.   Thus, we see no impediment to the imposition of restitution under that section, which, as noted above, was in effect when defendant committed his offense.

V. Disposition

The judgment is affirmed.


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

2.   The facts concerning the robberies to which defendant pleaded guilty are not relevant to the issues raised on appeal.   It suffices to say that defendant robbed two banks, the tellers identified him from photo lineups and when he was caught by police, he waived his rights and confessed.

3.   Section 667, subdivision (e)(2) provides in part:  “For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction:  [¶] (2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:  [¶] (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions.  [¶] (ii) Imprisonment in the state prison for 25 years.  [¶] (iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.”

4.   Section 1385(a) provides, in pertinent part, “The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.”   Under this section courts may strike prior felony convictions.  (People v. Thomas (1992) 4 Cal.4th 206, 209, 14 Cal.Rptr.2d 174, 841 P.2d 159.)

5.   Section 1385(b) provides, “This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under section 667.”

6.   Defendant believes the trial court was unaware of its discretion under section 1170.12 because that section was enacted only days before the sentencing hearing.In response, the People assert that defendant committed his crime, was convicted, and sentenced between March 7, 1994, “and November 7, 1994, the passage date of the three strikes initiative.”   The People are incorrect.   The initiative was passed on November 8, 1994, and the court denied defendant's motion to strike on November 22, 1994.

7.   The issue of whether the court has independent discretion to strike prior conviction allegations in furtherance of justice is currently before our Supreme Court in People v. Superior Court (Romero) (1995) –––Cal.4th ––––, 40 Cal.Rptr.2d 308, 892 P.2d 804 review granted April 13, 1995.

8.   Unless otherwise specified, all further statutory references are to section 667.

9.   Subdivision (c) provides, in relevant part, “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 ․,” the court shall follow subdivisions (c)(1) through (c)(8).”Subdivisions (c)(1) to (c)(8) abrogate aggregate term limitations (subd. (c)(1));  prohibit probation and the suspension of execution or imposition of sentence on the prior convictions (subd. (c)(2));  require commitment to prison (subd. (c)(4));  limit credit earned while in prison (subd. (c)(5));  require imposition of consecutive sentences (subds. (c)(6), (c)(7) and (c)(8)).

10.   Given the circumstances of this case, we need not discuss the scope of a trial court's discretion to strike allegations before they have been proved.

11.   Subdivision (c)(5) provides, in relevant part, that “․ 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 ․ [¶] [t]he total amount of credits awarded pursuant to Article 2.5 (commencing with Section 2930) ․ shall not exceed one-fifth of the total term of imprisonment imposed․”

12.   Diaz concluded that all murderers, first time and recidivists, were punished exclusively under the provisions of section 190.  Jenkins disagreed and concluded that recidivist murderers were subject to the provisions of the habitual offender statute applicable at the time.

WUNDERLICH, Associate Justice.


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