The PEOPLE, Plaintiff and Respondent, v. Lloyd MASON, Defendant and Appellant.
By information filed in June of 1986 in Kern County Superior Court, defendant and his wife, Joy Darlene Mason, were charged with multiple violations of the Penal Code 1 and Health and Safety Code.
In count one defendant, his wife, and other unnamed or unidentified coconspirators were charged with conspiracy to sell methamphetamine. (§ 182; Health & Saf. Code, § 11379.) The conspiracy allegedly took place between January 1, 1985, and November 8, 1985. Four overt acts were alleged: (1) On or about August 15, 1985, defendant sold 157 milligrams of methamphetamine to a police informant for $20; (2) on or about October 30, 1985, defendant agreed with the police informant to arrange the sale of one-eighth ounce of methamphetamine (an “eight-ball”); (3) on or about November 8, 1985, defendant and his wife possessed methamphetamine at their residence; (4) on or about November 8, 1985, defendant and his wife possessed over $5,000 in cash, three handguns, fourteen rifles, shotguns, and assorted illegal weapons at their residence.
In the second count, defendant, his wife, and unnamed or unidentified coconspirators were charged with conspiracy to manufacture amphetamine or methamphetamine. (§ 182; Health & Saf. Code, § 11379.6, subd. (a).) The conspiracy was alleged to have taken place between January 1, 1985, and November 8, 1985. Two overt acts were alleged to have occurred on or about November 8, 1985: (1) Defendant and his wife possessed chemicals which could be used to manufacture amphetamine; (2) defendant and his wife possessed equipment which could be used to manufacture amphetamine or methamphetamine.
Count three alleged defendant sold methamphetamine on or about August 15, 1985. (Health & Saf. Code, § 11379.)
Count four alleged defendant agreed to sell methamphetamine to a police informant, and in fact made such a sale on or about September 24, 1985. (Health & Saf. Code, § 11382.)
In count five, it was alleged that on or about October 30, 1985, defendant agreed to sell methamphetamine to a police informant, but ultimately provided the informant with a different substance in lieu of that agreed upon. (Health & Saf. Code, § 11382.)
In count six, it was alleged defendant offered to sell methamphetamine on or about October 30, 1985. (Health & Saf. Code, § 11379.)
Count seven alleged defendant and his wife possessed marijuana for the purpose of sale on or about November 8, 1985. (Health & Saf. Code, § 11359.) It was further alleged a principal in this offense was armed with a firearm within the meaning of section 12022, subdivision (a).
Count eight alleged defendant and his wife were in possession of LSD on or about November 8, 1985. (Health & Saf. Code, § 11377.)
In count nine, defendant and his wife were alleged to have been in possession of methamphetamine on or about November 8, 1985. (Health & Saf. Code, § 11377.) It was also alleged a principal in this offense was armed within the meaning of section 12022, subdivision (a).
Count ten alleged defendant, on or about November 8, 1985, was in possession of a throwing star (§ 12020, subd. (c)).
Count eleven alleged that on or about November 8, 1985, defendant and his wife maintained a place for the purpose of unlawfully selling, giving away or using a controlled substance. (Health & Saf. Code, § 11366.) It was further alleged that during the commission of this crime a principal was armed within the meaning of section 12022, subdivision (a).
The twelfth count alleged defendant and his wife endangered their three minor children. (§ 273a, subd. (2).)
In counts one through eleven, it was also alleged defendant committed the offenses while released from custody on bail or on his own recognizance pending trial on an earlier felony. (§ 12022.1.)
Defendant pled not guilty and denied all allegations. His motion to traverse and dismiss counts one, two, and seven through twelve pursuant to section 995, was denied. His motion to quash the search warrant pursuant to sections 1539 and 1540 was also denied. A jury trial followed.
The jury found defendant guilty as charged in counts one, two, three, four, seven, eight, nine, and ten. In counts one, two, four, seven, eight, nine, and ten, the enhancement pursuant to section 12022.1 was also found to be true. As to the conspiracy alleged in count one, the jury found overt acts numbered one and three to be true. In the conspiracy alleged in count two, both overt acts were found to be true. A mistrial was declared on the remaining counts and allegations. Defendant's motion for new trial was denied. His wife was acquitted on all counts.
Probation was denied and defendant was sentenced to state prison. Because he challenges the calculation of the sentence imposed and credits awarded, these portions of the procedural background of the case will be detailed later in this opinion. He appeals.
Due to the number of transactions involved, the facts will be subtitled by date and location.
August 15, 1985: 1112 Lamb Road Sale.
Police officer Aldin Fowler of the Ridgecrest Police Department drove Robert Martin to defendant's home on Lamb Road after Martin telephoned defendant and arranged to buy one-quarter gram of methamphetamine from him. Martin was an informant for the Ridgecrest Police Department and had known defendant for most of his life. Fowler dropped Martin off about a block from defendant's residence. Martin carried with him money provided by Fowler, and had been strip-searched earlier at the police station.
According to Martin, defendant's wife met him at the door and admitted him into their residence. Once inside, Martin was given a bindle by defendant, and in exchange Martin gave defendant $25. Martin then returned to Officer Fowler's police surveillance unit and gave him the bindle. The bindle later tested positive for methamphetamine and contained a usable amount.
September 24, 1985: Sign Shop Sale.
In August of 1985, defendant moved to 1821 Mike's Trail, also in Ridgecrest. Officer Fowler contacted Martin, who in turn contacted defendant in order to arrange a buy at the new residence. However, due to difficulties in surveillance at the new residence, the buy was to take place at defendant's business, the High Desert Sign Shop.
Again Martin went to the police station and telephoned defendant. He arranged to purchase methamphetamine at the sign shop, instead of at defendant's new residence. Martin was strip-searched and given money with which to make the buy. The sign shop was located at 341 Inyokern Road. Martin drove his vehicle to the sign shop, followed by Fowler and other officers. Martin entered the sign shop, gave defendant $80, and received two bindles purportedly containing methamphetamine. He returned to his own vehicle and drove back to the police station. All the while, he was under surveillance by Fowler and the other officers involved. Once more Martin was searched for drugs and money. The bindles contained 2.2 grams of powder. It was later determined the powder was not a controlled substance.
November 8, 1985: Search of 1821 Mike's Trail Residence.
Defendant's mobile-home residence was searched, pursuant to a warrant, by officers from the Ridgecrest Police Department, Kern County Sheriff's Department, and the state Bureau of Narcotics Enforcement.
Officers found 12 doses of LSD in a scale on a dresser in the master bedroom. At the foot of the bed, a small quantity of methamphetamine and marijuana was found in a canvas bag. In addition to the contraband, two scales, a folding knife, and over $5,000 in cash were discovered in the bedroom.
In the den, three bindles of methamphetamine, a baggie of marijuana, and white plastic bags containing approximately four pounds of marijuana were found.
Numerous weapons were found in the house: (1) an unloaded .38 caliber revolver in a desk in the den; (2) two folding knives in the den; (3) five throwing stars in a case in the den; (4) an unloaded revolver on top of a gun cabinet; and (5) an unloaded .357 caliber revolver in the living room.
In the master bedroom of the residence and in a trailer on the property, officers found chemicals and chemical containers. A criminalist with the California Department of Justice, present at the scene, testified the chemicals and equipment were capable of producing or manufacturing amphetamine and methamphetamine by the reduction process. According to the criminalist, almost all the necessary chemicals were present. However, other expert testimony indicated a methamphetamine lab did in fact exist but was not in operation.
Other items seized from the trailer included a mortar and pestle which had methamphetamine residue on them, and laboratory glassware containing an intermediate compound used in the manufacture of amphetamine. Defendant's wife's fingerprints were on the mortar and pestle. Also found was a bindle containing methamphetamine, more than six pounds of marijuana in various locations in the trailer, and two prescription pill bottles with the name Angel Bautista on the labels. According to expert testimony, the amount of marijuana present indicated it was possessed for the purpose of distribution or sale.
According to defendant and witnesses testifying in his behalf, he was in lawful possession of the money: It was rent collected from trailer rentals and his numerous businesses. Some of the equipment and scales belonged to his father, who was in the gold mining business. Defendant was merely storing the equipment for his father, who used the reduction process to separate the gold.
Other equipment and the chemicals belonged to Mike Warnocke. Defendant testified he (defendant) was an informant for the Kern County Sheriff's Department. He was involved in the location of methamphetamine laboratories, and worked with Deputy Soliz. Warnocke brought the chemicals and equipment to defendant's property on November 7, 1985 (the day before the search). Warnocke intended only to store the property, equipment and chemicals on defendant's property until he could find a location for a methamphetamine laboratory. Defendant intended to inform authorities when Warnocke found the location for this laboratory.
Defendant also testified that on the night before the search, Angel Bautista brought four pounds of marijuana, LSD, and methamphetamine to defendant's residence. It was defendant's understanding the marijuana came from Tyrone Stanton. Bautista brought it to defendant's home so defendant could sell it. Again, defendant intended to turn all the drugs over to authorities. Defendant testified he told Deputy Soliz about the marijuana. As for the guns, knives, and throwing stars, defendant testified he was a collector, although he knew the throwing stars were illegal.
In direct contradiction to defendant's testimony was the testimony of Deputy Soliz. Soliz testified he never told defendant to keep the equipment and chemicals. Soliz was unsatisfied with defendant's performance as an informant because none of the information defendant provided ever resulted in removing narcotics from the streets. Soliz was of the opinion informants regularly pretended to possess information in order to have their own court dates continued.
I.–III. SUBSTANTIAL EVIDENCE ***
IV. EX POST FACTO SENTENCE.
Defendant next argues the court erred by imposing a mid-term sentence of five years on count two. According to defendant, if the court elected to impose a middle term sentence on count two, the correct mid term was three years. Purportedly, Health and Safety Code section 11379.6 was amended to provide for the higher mid-term sentence after the alleged conspiracy began. As a result, to impose the higher mid-term sentence on count two violated the prohibitions against ex post facto laws.
Defendant allegedly conspired to manufacture methamphetamine between January 1, 1985, and November 8, 1985 (count two). The jury found him guilty as charged, and also found to be true the two overt acts alleged in the count: defendant was in possession of chemicals used for the manufacture of methamphetamines on November 8, 1985, and laboratory equipment which could be used for the manufacture of methamphetamine was also in his possession on this date.
As previously noted, at the time the conspiracy was alleged to have begun, section 11379.6, subdivision (a), provided:
“Except as otherwise provided by law, every person who manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance specified in Section 11054, 11055, 11056, 11057 or 11058 shall be punished by imprisonment in the state prison for three, four, or five years.” (Stats.1985, ch. 3, § 8, No. 1 West's Cal.Legis.Service, p. 10, emphasis added.)
The Legislature also provided:
“If this bill and any other bill adding Section 11379.6 to the Health and Safety Code are chaptered during the first year of the 1985–86 Regular Session of the Legislature, the version of Section 11379.6 which contains the higher penalties for the conduct prohibited by that section shall prevail, regardless of the order of chaptering.” (Stats.1985, ch. 3, § 17, No. 1 West's Cal.Legis.Service, p. 15.)
Higher penalties were later exacted that same year:
“Except as otherwise provided by law, every person who manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance specified in Section 11054, 11055, 11056, 11057, or 11058 shall be punished by imprisonment in the state prison for three, five, or seven years.” (Stats.1985, ch. 323, § 1, No. 6 West's Cal.Legis.Service, p. 229, emphasis added.)
The Legislature intended the higher penalties should take effect immediately:
“This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are:
“In order to prevent the further manufacture of controlled substances at the earliest possible time, it is necessary that this act take effect immediately.” (Stats.1985, ch. 323, § 4, No. 6 West's Cal.Legis.Service, p. 231.)
Significantly, the present case is not one in which the overt act or acts found true by the jury took place prior to the effective date of the higher punishments, which in this case would be July 29, 1985. (Stats.1985, ch. 323, No. 6, West's Cal.Legis.Service, p. 229.)
Therefore, the question presented is: Where a conspiracy is charged to have begun prior to a new legislative enactment affecting the punishment for the conspiracy alleged, and the overt acts found to be true took place after the effective date of the new legislative enactment, does application of the later enactment violate the ex post facto law prohibitions? Federal courts have responded in the negative when interpreting the United States Constitution. As stated in United States v. Giry (1st Cir.1987) 818 F.2d 120, 135:
“The only question is whether a statutory amendment that becomes effective during the running time of a conspiracy is applicable to members whose participation in the conspiracy began before that date. [The defendant's] contention that such application of the amendment violates the constitution rests on an overexpansive reading of the ex post facto clause. The ex post facto clause prohibits any law ‘which makes more burdensome the punishment for a crime, after its commission,’ Beazell v. Ohio, 269 U.S. 167, 169, 46 S.Ct. 68, 68, 70 L.Ed. 216 (1925), quoted in Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977) (emphasis added). Here, by contrast, the amendment had the effect of increasing [the defendant's] penal liability during the conspiracy's commission. ‘[B]ecause conspiracy is a continuing crime, a statute increasing the penalty for a conspiracy beginning before the date of enactment but continuing afterwards does not offend the Constitution,’ United States v. Baresh, 790 F.2d 392, 404 (5th Cir.1986); see also United States v. Campanale, 518 F.2d 352, 365 (9th Cir.1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976) (‘It is well established that a statute increasing a penalty with respect to a criminal conspiracy which commenced prior to, but was continued beyond the effective date of the statute, is not ex post facto as to that crime.’). We therefore find no ex post facto clause violation in [the defendant's] sentencing.” (United States v. Giry, supra, 818 F.2d at p. 135; see also United States v. Gibbs (3d Cir.1987) 813 F.2d 596, 601–602; United States v. Todd (5th Cir.1984) 735 F.2d 146, 149–151.)
As in federal law, conspiracy in California is viewed as a continuing crime. (People v. Zamora (1976) 18 Cal.3d 538, 546, 134 Cal.Rptr. 784, 557 P.2d 75; People v. Crosby (1962) 58 Cal.2d 713, 727–729, 25 Cal.Rptr. 847, 375 P.2d 839.) In fact, the statute of limitations for conspiracy runs from the commission of the first overt act until the last overt act has taken place. (People v. Zamora, supra, 18 Cal.3d at p. 546, 134 Cal.Rptr. 784, 557 P.2d 75; People v. Fujita (1974) 43 Cal.App.3d 454, 471, 117 Cal.Rptr. 757; People v. Goldberg (1957) 152 Cal.App.2d 562, 568, 314 P.2d 151.)
We conclude the same rationale applies whether viewed under the United States or California Constitutions. (See, e.g., People v. Smith (1983) 34 Cal.3d 251, 259–262, 193 Cal.Rptr. 692, 667 P.2d 149; People v. Stanworth (1982) 33 Cal.3d 176, 187 Cal.Rptr. 783, 654 P.2d 1311; In re Paez (1983) 148 Cal.App.3d 919, 196 Cal.Rptr. 401.)
V. JAIL TIME AND CONDUCT CREDITS.†
VI. VIOLATION OF THE DOUBLE–THE–BASE–TERM LIMITATION.
Defendant argues the sentence imposed violates his reading of sections 669, 1170.1, subdivisions (a) and (g), and section 12022.1 on the double-the-base-term limitation. He received a two-year enhancement for violation of section 12022.1 (commission of a felony while released on bail, etc., after having committed a previous felony). The pertinent parts of the sections upon which defendant relies have been collected and are provided below.
Section 669 provides, in pertinent part:
“When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he is sentenced shall run concurrently or consecutively; ․
“․ Upon the failure of the court to so determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently.
“The Department of Corrections shall advise the court pronouncing the second or other subsequent judgment of the existence of all prior judgments against the defendant, the terms of imprisonment upon which have not been completely served.”
Section 1170.1 provides, in pertinent part:
“(a) Except as provided in subdivision (c) and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term and any additional term imposed pursuant to Section 667.5, 667.6, or 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any enhancements imposed pursuant to Section 12022, 12022.3, 12022.4, 12022.5, 12022.6, 12022.7, 12022.8, or 12922.9. The subordinate term for each consecutive offense which is not a ‘violent felony’ as defined in subdivision (c) of Section 667.5 shall consist of one-third of the middle term of imprisonment prescribed for each other such felony conviction for which a consecutive term of imprisonment is imposed, and shall exclude any enhancements. In no case shall the total of subordinate terms for such consecutive offenses which are not ‘violent felonies' as defined in subdivision (c) of Section 667.5 exceed five years. The subordinate term for each consecutive offense which is a ‘violent felony’ as defined in subdivision (c) of Section 667.5, including those offenses described in paragraph (8) of subdivision (c) of Section 667.5, shall consist of one-third of the middle term of imprisonment prescribed for each other such felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of any enhancements imposed pursuant to Section 12022, 12022.4, 12022.5, 12022.7, or 12022.9.
“(d) When the court imposes a prison sentence for a felony pursuant to Section 1170 the court shall also impose the additional terms provided in Sections 667.5, 12022, 12022.4, 12022.5, 12022.6, 12022.7, and 12022.9, unless the additional punishment therefore is stricken pursuant to subdivision (g). The court shall also impose any other additional term which the court determines in its discretion or as required by law shall run consecutive to the term imposed under Section 1170. In considering the imposition of such additional term, the court shall apply the sentencing rules of the Judicial Council.
“(f) The enhancements provided in Sections 667.5, 667.6, 12022, 12022.1, 12022.3, 12022.4, 12022.5, 12022.6, 12022.7, 12022.8, and 12022.9 shall be pleaded and proven as provided by law.
“(g) 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 stand as convicted of felony escape from an institution in which he is lawfully confined.”
Section 12022.1 now provides, in pertinent part:
“(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.
“(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.”
An earlier version of the section provided, in pertinent part:
“Any person convicted of a felony offense which was committed while that person was released from custody on bail or on his or her own recognizance pending trial on an earlier felony offense shall, upon conviction of the later felony offense, be subject to a penalty enhancement as follows:
“(a) If the person is convicted of a felony for the earlier offense, is sentenced to state prison for the earlier offense, and is convicted of a felony for the later offense, any state prison sentence for the later offense shall be consecutive to the earlier sentence. In addition, the sentence for the later offense shall be enhanced by an additional term of two years.” (5 Stats.1982 (Reg.Sess.) ch. 1551, § 2, p. 6050.)
This version, which created section 12022.1, was enacted along with an earlier version of section 1170.1. (5 Stats.1982 (Reg.Sess.) ch. 1551, § 1, pp. 6046–6050.)
Defendant was convicted and sentenced on the previous felonies prior to sentencing in the present case; as a result, the earlier case (Super.Ct. No. 31185) became the primary offense(s) and the present case (Super.Ct. No. 31585) the secondary offense(s) under section 12022.1, subdivision (a). Also, according to the section, the enhancement for the secondary offense(s) was to run consecutive to any other prison term imposed (§ 12022.1, subd. (b)), and the secondary offense(s) was to run consecutive to the primary offense(s).
Defendant argues the aggregate term imposed cannot exceed ten years: the five-year principal term on count two in the secondary offense (the principal term) plus a total of five years for all subordinate terms. In so doing, he takes the position the court imposed consecutive sentences pursuant to section 669 and 1170.1, subdivision (a), and that no double-the-base-term exceptions exist in this case.
The Attorney General responds by arguing the court imposed a 10–year term (thereby taking into account the double-the-base-term limitation), and added to it the 2–year enhancement pursuant to section 12022.1, for a total sentence of 12 years. A 12–year sentence was possible, the argument goes, because section 12022.1 falls outside the double-the-base-term limitation of section 1170.1.
Under the Attorney General's analysis, the omission of section 12022.1 from section 1170.1, subdivision (g), was a drafting oversight. Therefore, contrary to the view of defendant, the enhancement could be added to the 10–year term despite the fact it is not a specifically listed exception in section 1170.1, subdivision (g).
In support of this argument, the Attorney General reminds us that under subdivision (f) of article I, section 28, of the California Constitution (Prop. 8):
“Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of ․ enhancement of sentence in any criminal proceeding.”
The Attorney General cites two cases which have read into section 1170.1, subdivision (g), additional exceptions to the double-the-base-term limitation.
In People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, the court found the meaning of Prop. 8 uncertain, “but agree[d] that section 667 was intended to impose an enhancement unlimited by the double base term rule.” (Id. at p. 837, 210 Cal.Rptr. 623, 694 P.2d 736.) The Attorney General had argued in Jackson that the provisions of section 667 necessarily contemplated an enhancement unlimited by the length of the base term because burglary usually has a base term of less than five years. The position was taken that Prop. 8 eliminated the double-the-base-term limitation for serious felony enhancements. (Id. at p. 837, 210 Cal.Rptr. 623, 694 P.2d 736.)
The high court noted application of the double-the-base-term limitation would prevent imposition of the full five-year enhancement except in a very few limited cases—a first-degree burglary conviction with the upper term imposed. As a result, the court reached the conclusion serious felony enhancements pursuant to section 667 were not intended to be subject to the double-the-base-term limitation:
“To carry out the intention of the enactment, we read section 1170.1, subdivision (g), as if it contained an exception for enhancements for serious felonies pursuant to section 667, comparable to the explicit exception for enhancements for violent felonies under section 667.5. [15” (Id. at p. 838, 210 Cal.Rptr. 623, 694 P.2d 736)
Footnote 15 of the Jackson opinion provides:
“Proposition 8's failure to amend section 1170.1, subdivision (g) appears to be a draftsman's oversight comparable to the failure to amend subdivision (f) discussed earlier in this opinion (see fn. 12, ante ).” (Id. at p. 838, 210 Cal.Rptr. 623, 694 P.2d 736.)
An approach similar to that in Jackson was developed by the Court of Appeal in People v. Rivera (1984) 162 Cal.App.3d 141, 149–151, 207 Cal.Rptr. 756.
In People v. Poole (1985) 168 Cal.App.3d 516, 522–524, 214 Cal.Rptr. 502, the court held section 667.5, subdivision (b) enhancements were also an exception to the double-the-base-term limitation of section 1170.1, subdivision (g), even though that enhancement section was not specifically listed in subdivision (g). The Poole court relied upon the analysis in Jackson and Rivera, and disapproved its earlier holding to the contrary in People v. Whigam (1984) 158 Cal.App.3d 1161, 205 Cal.Rptr. 227. (People v. Poole, supra, at pp. 522, 524, fn. 7, 214 Cal.Rptr. 502.)
We agree with the Attorney General, to the extent the enhancement could be imposed in addition to the maximum term otherwise allowable by law. We reach this conclusion, however, without relying solely upon the legislative oversight—Prop. 8—analysis found in Jackson and Poole. Instead, we look as well to the plain meaning of the words found in the statutes, and interpret those words in a manner which renders them necessary and meaningful. (See, e.g., Bowland v. Municipal Court (1976) 18 Cal.3d 479, 484, 134 Cal.Rptr. 630, 556 P.2d 1081.)
As the earlier quotation from section 12022.1 demonstrates, the Legislature intended violations of the section to carry a two-year sentence to be imposed in addition, and consecutive to, any other term imposed. (See, also, Legis. Counsel's Dig., Assem. Bill No. 692, 6 Stats.1982 (Reg.Sess.) Summary Dig., p. 577.) The only way this language can have meaning, and deter further felonies by a defendant the court has released, is to allow the two-year term to be imposed without the double-the-base-term limitation being applied. (People v. Davis (1985) 166 Cal.App.3d 760, 766, 212 Cal.Rptr. 673.) It is well settled statutes should be interpreted reasonably and with common sense which is consistent with the apparent purpose of the statute and the intent of the Legislature when it created the statute. (Herbert Hawkins Realtors, Inc. v. Milheiser (1983) 140 Cal.App.3d 334, 338, 189 Cal.Rptr. 450.)
The Legislature created section 12022.1, with its mandatory “shall be served” language, fully aware of the double-the-base-term limitation imposed by section 1170.1. (See Estate of McDill (1975) 14 Cal.3d 831, 837–839, 122 Cal.Rptr. 754, 537 P.2d 874.) Indeed, as previously noted, section 12022.1 was added to the Penal Code in conjunction with an amendment to section 1170.1. Section 12022.1 was later itself amended, after Prop. 8 was in effect, as was section 1170.1, subdivision (g). (See People v. Smith (1983) 34 Cal.3d 251, 257–258, 193 Cal.Rptr. 692, 667 P.2d 149; Stats.1985, ch. 533, No. 7 West's Cal.Legis.Service, pp. 205–206; see, e.g., Stats.1987, ch. 939, § 1, No. 9 West's Cal.Legis.Service, p. 1002.)
VII. DELEGATING RECOMPUTATION OF SENTENCE
This court asked the parties to address the question of whether the lower court properly delegated its duty of recalculating the sentence imposed when it stated the following:
“Now, this case will be served consecutive to the sentences imposed in case number 31185. The court grants the motion to take judicial notice of the sentencing in case number 31185. When the defendant reaches the Department of Corrections, it appears that the Department will recompute the sentences, so the present case, the one he is sentenced on now will become the principal term and the previous case will become the subordinate term, that being number 31185.”
There is no doubt it was the court's duty to make this calculation. (People v. Montalvo (1982) 128 Cal.App.3d 57, 65, 183 Cal.Rptr. 242.) The Attorney General concedes this point, at least to the extent the court is required to calculate the aggregate term. However, the Attorney General argues the court made the proper calculations because it arrived at the 12–year term, even though this is not reflected in the abstract of judgment, and instead must be derived from the reporter's transcript of the sentencing hearing. As a result, only the abstract need be amended.
Although we have earlier agreed with the Attorney General that a 12–year sentence could be imposed, we have great difficulty with the current state of the sentencing record in this case. At best, we can only speculate about what the court did. As a result, we must remand with instructions to the court that it recompute clearly, and on the record, the sentence to be imposed. Special consideration should be given to the sentencing rules discussed in this opinion, including designation of the offenses as primary and secondary, and the statutory basis or reasons for offenses and enhancements being imposed consecutively. For effective appellate review, this court must know how the court below arrived at the sentencing figures, including which sentences are being adjusted, and how, in order to comply with which sentencing limitations.
The judgment of conviction is affirmed. The judgment insofar as it relates to sentencing is vacated and the matter is remanded for resentencing in accordance with the views expressed herein.
1. All statutory references are to the Penal Code unless otherwise indicated.
FOOTNOTE. See footnote *, ante.
FOOTNOTE. See footnote *, ante.
WOOLPERT, Acting Presiding Justice.
MARTIN and ARDAIZ, JJ., concur.