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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Jose Anthony LEDESMA, Jr., Defendant and Appellant.

Crim. B025396.

Decided: March 30, 1988

Arthur Lewis, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. John Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Robert F. Katz and Marc E. Turchin, Supervising Deputy Attys. Gen., for plaintiff and respondent.

All of the issues presented challenge the sentence imposed after appellant plead guilty to three 1986 offenses of selling heroin and one count of possession of heroin for sale (Health & Saf. Code, §§ 11352 and 11351 respectively) and admitted seven prior conviction allegations.   He was sentenced to the aggregate unstayed term of seventeen years.   He claims the maximum term permissible is double the base term, i.e., eight years 1 under Penal Code section 1170.1(g).   He also claims the court erred in imposing enhancements for both his prior prison term under Penal Code section 667.5 and his prior convictions under Health and Safety Code section 11370.2 for the same convictions and in failing to consider its discretion to strike the enhancements.   We find merit only in the first contention, modify the sentence accordingly and affirm.

Health and Safety Code section 11370.2, subdivision (a) provides in pertinent part that “[a]ny person convicted of a violation of section 11351 or 11352 shall receive, in addition to any other punishment authorized by law, including section 667.5 of the Penal Code, a full separate, and consecutive three year term for each felony conviction of section 11351, 11352 ․ whether or not the prior conviction resulted in a term of imprisonment.”

Penal Code section 1170.1 2 has two provisions pertinent here.   Subdivision (a) states that “[e]xcept as provided ․ and subject to Section 654 ․” certain rules must be followed for sentence ordering and limiting upon imposition of consecutive sentences on multiple convictions.

Subdivision (g) of section 1170.1 provides in pertinent part that:  “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 (c) of this section, or an enhancement is imposed pursuant to Section 12022, 12022.4, 12022.5, 12022.6, 12022.7, or 12022.9 or the defendant stands convicted of felony escape from an institution in which he is lawfully confined.” 3

 Base term is defined in the California Rules of Court, rule 405, subdivision (b), in pertinent part, as “the determinate prison term selected from among the three possible terms prescribed by statute․”  The terms provided by Health and Safety Code sections 11351 and 11352 are two, three and four years and three, four and five years respectively.   Appellant was sentenced to a principal term of four years on each of the section 11352 violations, two of which were concurrent to the first and to one-third the middle-term or one year on the section 11351 violation to be served consecutively.   The base term is therefore four years.

 Appellant first argues section 654 4 prohibits the imposition of sentence for a prior conviction under Health and Safety Code section 11370.2, subdivision (a) together with an unstayed prior prison term enhancement under section 667.5, subdivision (b) 5 imposed on that conviction.   Assuming arguendo section 654 applies to enhancements, Health and Safety Code section 11370.2, subdivision (b) expressly permits the imposition of both the 667.5 enhancement as well as that imposed by the subdivision.   Since both section 654 and Health and Safety Code section 11370.2 are statutory, the Health and Safety Code provision which is the more specific one would control the general Penal Code provision.   The Legislature by its express provisions has unambiguously permitted the imposition of both terms notwithstanding any possible bar otherwise imposed by section 654.

Penal Code section 1170.1, subdivision (g) does not expressly exempt Health and Safety Code section 11370.2 enhancements from the operation of its twice the base term limitation.   Respondent first argues the passage of Proposition 8 in 1982 adding article I, section 28, subdivision (f) (hereafter subdivision (f)) of the California Constitution impliedly repealed the double base limit of section 1170.1, subdivision (g).

 Subdivision (f) provides in pertinent part:  “Any prior felony conviction of any person in any criminal proceeding ․ shall subsequently be used without limitation for purposes of ․ enhancement of sentence in any criminal proceeding.”   Since 1170.1, subdivision (g) provides a limitation on the service of terms including those imposed for prior conviction enhancements, it is argued the constitutional provision impliedly repealed it.   While the argument has a superficial appeal, we are unable to so find.

The Supreme Court has addressed the language and effect of subdivision (f) in earlier cases.   In People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111 it held the “without limitation” language of subdivision (f), which also applies to the use of prior convictions for impeachment, did not abolish trial court discretion to exclude proof of prior convictions for enhancement.   In People v. Fritz (1985) 40 Cal.3d 227, 219 Cal.Rptr. 460, 707 P.2d 833, the court held the prior enhancement “without limitation” language of subdivision (f) did not restrict a court's power to strike the punishment term imposed for a prior conviction—even one imposed pursuant to a Proposition 8 statute.   In People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, the court did not uphold the Attorney General's contention that subdivision (f) had repealed the subdivision (g) double base term limit.   Rather it simply held the language of subdivision (f) was uncertain.   The court did not rely on it in determining whether a Penal Code section 667 enhancement was subject to the limitation.

The uncertainty of the meaning of the enhancement “without limitation” language is easily demonstrated.   On its face it applies to “any prior felony conviction.”   However, many felony convictions have no Penal Code provision providing for an enhancement term.   Consequently, what is the meaning of referring to such nonexistent enhancements as being without limitation?

Further, many different penal provisions relate to enhanced terms.  (See §§ 667 through 668.)   All limit the term of the enhancement and provide for differing terms of punishment.  (Compare, e.g., § 667.7(b) (potential life sentence enhancement) to § 667.5, subd. (b) (one year prior prison term enhancement for nonviolent terms served within five years).)   Some of these existing statutes provide a limitation on the time within which the prior conviction must have been suffered (see § 667.5, subds. (a) and (b)).   All of the statutes limit their application to persons who committed only specified prior felonies and some are limited to where both the present and prior offenses were of a specified nature.  (See e.g., §§ 667 and 667.7.)

The patent ambiguity is which of these limitations were abolished by the enactment of subdivision (f).   Did it eliminate the term limitation and/or the offense limitation and/or the limitations on which present offenses call for the enhancement.   If so, does an enhancement apply to all prior felonies whether or not they resulted in prison term and, if so, what is the applicable term of imprisonment?

That subdivision (f) was not intended to wipe out all these limitations is indicated by the fact that another part of Proposition 8 added sections 667 and 11927 to the Penal Code.   Combined, these provisions mandate a five year serious felony enhancement whenever both the present and prior offenses are among the specified qualifying felonies.   Therefore, it is reasonable to assume the “without limitation” language was not intended to abolish limitations on either the felonies to which an enhancement would apply nor on the length of an enhancement term.   Otherwise these companion enhancement provisions would have been invalidated at the time of their passage.   As a consequence the “without limitation” language of subdivision (f) is so ambiguous and uncertain in this context as to be meaningless.  (See also People v. Fritz, supra, 40 Cal.3d at pp. 231–233, 219 Cal.Rptr. 460, 707 P.2d 833.)

 Respondent next argues we should imply a prior conviction exception to the base term limitation in the same manner the Supreme Court did when considering the five year enhancement imposed by section 667 in People v. Jackson, supra, 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736.   We cannot do this.

In Jackson the court construed several provisions of Proposition 8, a 1982 initiative.   The court held that enactment of section 667 indicated that the enhancements provided therein were exempt from the limitation of subdivision (g) by implication.   The rationales for implying the exemption were a presumed draftsman's oversight (id., at p. 838, fn. 15, 210 Cal.Rptr. 623, 694 P.2d 736) and the near impossibility of imposing the term required by section 667 if the double base term limitation applied.   Neither is applicable here.

Both sections we consider in this case were passed by the Legislature.   While draftsman's oversight in legislation by initiative measure may be easily excusable and inferable given the nature of the process, it is illogical to presume such an oversight in regular legislation.  “ ‘It is assumed that the Legislature has in mind existing laws when it passes a statute․’ ”  (Bailey v. Superior Court (1977) 19 Cal.3d 970, 977, fn. 10, 140 Cal.Rptr. 669, 568 P.2d 394.)   This assumption is particularly warranted here.

Since 1982 the Legislature has five times amended section 1170.1.  (Stats. 1985, ch. 463, § 3;  Stats. 1985, ch. 1375, § 2.5;  Stats 1986, ch. 248, § 162;  Stats. 1986, ch. 1299, § 10;  Stats. 1986, ch. 1429, § 1.)   On none of these occasions, including in 1985 when chapter 463, section 3 made changes in subdivision (g), were requisite modifications made to exempt these prior conviction enhancements from the general double base term limit.6  It would be an unwarranted intrusion into the legislative arena to imply such exception here.

Additionally, the imposition of the full three year term required by section 11370.2, subdivision (b) is not barred by the double base term rule in most cases which was the problem in Jackson.   In Jackson section 667 called for a five year enhancement whenever a person presently convicted of residential burglary in any degree had previously suffered any such conviction.   If the subdivision (g) limitation applied, the full five year enhancement mandated by section 667 could only be imposed if the defendant was convicted of first degree burglary and sentenced to the aggravated term of six years because of the shorter presumed terms specified for first and second degree burglary.   Consequently, unless an exception for the double base term limitation was implied, the five year enhancement could almost never be imposed.

Here the full three year term called for by subdivision (g) can be imposed in all but one unusual case, i.e., when the present offense is a violation of Health and Safety Code section 11351 and a mitigated sentence is imposed.   Since Health and Safety Code section 11351 provides a mid-term of three years and 11352 a low term of three years, in all other cases the full three year enhancement will equal or be exceeded by the base term.   Therefore, we cannot imply from the length of the enhancement term a legislative purpose to exclude it from the base term limitation.

If the mere fact that some part of an enhancement sentence would exceed the double base term limitation was sufficient to imply its exception from the provision, the provision itself would become meaningless.   Subdivision (f) implicitly acknowledges that various provisions of the sentencing scheme originated by the determinate sentencing law in 1976 (Pen.Code, § 1170 et seq., as enacted by ch. 1139, p. 5140, § 273) would lead to sentences in cases of both single habitual and multiple offenders the length of which would exceed twice the base term imposed on the principal offense.   The obvious purpose of the subdivision is to ameliorate those sentences.   The provisions of subdivision (g) as well as those contained in other subdivisions (see, e.g., § 1170.1, subd. (a) limitations on subordinate terms and offense based enhancements) significantly reduce the maximum length of terms which would otherwise be imposed.   To imply an exception whenever the limit is in any way exceeded would defeat its purpose and is illogical.

We therefore hold that the enhancement provided by Health and Safety Code section 11370.2, subdivision (a) is subject to the double base term limitation of section 1170.1, subdivision (g).7

 The record fails to support appellant's claim the court erred in failing to consider exercising its discretion to strike or stay any or all of the enhancements pursuant to section 1385.   At no time was any suggestion made that the court consider such action.   Nor was there any indication the court believed it had no such discretion.   Given the clear language of People v. Fritz (1985) 40 Cal.3d 227, 219 Cal.Rptr. 460, 707 P.2d 833 that the court retains such power absent clear language from the Legislature to the contrary, we decline to presume the court was unaware of its power.

Additionally the comments made by the court at the time of sentencing indicate no request for the exercise of mitigating discretion would have been fruitful.   The court made it clear that it believed appellant's repeated and blatant recidivism warranted the longest possible sentence.

The judgment is modified to stay nine years, i.e., the portion of the sentence on the prior conviction enhancements which exceeds the double base term limit of section 1170.1, subdivision (g).   The stay is to become permanent upon completion of service of the remaining terms.   The trial court is ordered to prepare an amended abstract of judgment reflecting the corrected sentence and to forward the same to the Department of Corrections.   As modified the judgment is affirmed.


1.   Actually both parties on appeal and appellant below argued ten years was the limitation.   Since the principle term was the four year mid-term on one 11352 offense, that is the base term.  (Cal.Rules of Court, rule 405(b);  Cal. Judicial Counsel's Fixed Term Worksheet, line 12.)

2.   All further statutory references are to this code unless otherwise specified.

3.   Effective January 1, 1988, the Legislature amended this subdivision to exempt from the double base term limit enhancements pursusant to Health and Safety Code section 11370.2 among others.   (Stats. 1987 ch. 1423, § 3.7;  Gov.Code, § 9605.)   The effect of these amendments is to significantly increase the term of imprisonment served.   The ex post facto clauses of the United States and California Constitutions preclude the application of the amendment to offenses occurring prior to their effective date.  (See People v. Smith (1983) 34 Cal.3d 251, 259–262, 193 Cal.Rptr. 692, 667 P.2d 149.)

4.   Section 654 provides:  “Any 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;  and acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”

5.   Section 667.5, subdivision (b) provides:  “Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony;  provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”

6.   The Legislature finally made this and other term increasing amendments effective January 1, 1988.  (See fn. 3, supra.)

7.   We find for the reasons stated that the same is true of the enhancement set forth in section 667.5, subdivision (b).  (Contra. People v. Traina (1985) 168 Cal.App.3d 305, 214 Cal.Rptr. 213;  People v. Poole (1985) 168 Cal.App.3d 516, 214 Cal.Rptr. 502;  People v. Hall (1985) 168 Cal.App.3d 624, 214 Cal.Rptr. 289.)   Under the holding of People v. Magill (1986) 41 Cal.3d 777, 224 Cal.Rptr. 702, 715 P.2d 662, if either statutory enhancement was excepted from the base term limiting provisions of section 1170.1, subdivision (g), the entire sentence would be exempt from the limitation, not just the part imposed for the exception.

ABBE, Associate Justice.

STONE, P.J., and GILBERT, J., concur.

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