PEOPLE v. ZAVALKOFSKY

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

The PEOPLE, Plaintiff and Respondent, v. Milton ZAVALKOFSKY, Defendant and Appellant.

Crim. B006368.

Decided: April 07, 1986

Philip Clarkson, San Luis Obispo, under appointment by the Court of Appeal, for defendant and appellant. John Van de Kamp, Atty. Gen., Gary R. Hahn, Supervising Deputy Atty. Gen.;   Marc E. Turchin, Deputy Atty. Gen., for plaintiff and respondent.

Appellant was convicted by jury of six felonies.   Each of two groups of three counts involved a different victim and occasion but identical charges:  burglary (Pen.Code, § 459, 460(1)) 1 assault with intent to commit rape (§ 220) and assault with a deadly weapon (§ 245).   As to each count the jury found appellant used a deadly or dangerous weapon (§ 12022, subd. (b)) and that he inflicted great bodily injury (§ 12022.7).   In a bifurcated court trial appellant was found to be an habitual offender within the meaning of section 667.7 as he had been convicted of and served separate prison terms for robbery in 1960, forcible rape in 1975 and forcible rape in 1978.   Appellant was sentenced to two unstayed consecutive terms of life on the burglary counts with great bodily injury.   As to each such term he was sentenced to an additional consecutive one year term for personal use of a deadly weapon.   The life terms imposed on all other counts were stayed pursuant to section 654.

Appellant contends the court erred in using the same prior offenses in determining he was an habitual offender for purposes of calculating his consecutive life terms.   He claims (1) the statute permits only one life term, (2) that the use of the same convictions to determine the sentence on both offenses is foreclosed by the Supreme Court decision in People v. Tassell (1984) 36 Cal.3d 77, 90, 201 Cal.Rptr. 567, 679 P.2d 1 (hereafter Tassell) and (3) the dual use of the priors is prohibited by Penal Code section 654.   We find no merit in any of these contentions.

Two consecutive life terms were imposed by the court pursuant to section 667.7 which provides, in pertinent part:  “Any person convicted of a felony in which such person inflicted great bodily injury as provided in Section 12022.7 ․ who has served two or more prior separate prison terms ․ for the crime of ․ rape by force or ․ robbery involving the use of force or a deadly weapon ․ is a habitual offender and shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 20 years, or 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, ․ whichever is greatest․”  (Emphasis added.)

 Appellant's first contention is that the emphasized phrase permits only a unitary life term and only if it is the greatest term of the alternatives.   The statute is not reasonably susceptible to this interpretation.   The emphasized phrase which is separated from the preceding words by a comma obviously provides an alternative term for the preceding term, that of parole eligibility, and not an alternative for the term of life which is specified as punishment.   The section imposes a life term with parole eligibility in no less than 20 years.   The trial court then needs to determine what sentence it would impose if it could impose a determinate term on the count under section 1170.1.   If that term plus any applicable enhancements would exceed 20 years then parole eligibility will be delayed until the expiration of the longer period and the abstract of judgment should so state.   Since here the determinate term, including enhancements, would not exceed 20 years appellant is eligible for parole as specified in the statute.

 Nothing in the Tassell decision precludes the use of appellant's prior convictions to determine he is an habitual offender as to each of the substantive counts upon which a prison term is imposed.  Tassell involved the imposition of enhancements for prior convictions set forth in Penal Code sections 667.5 pursuant to the determinate sentencing provisions set forth in section 1170.1, which is part of chapter 4.5 of title 7 of part 2 of the code.   That case construed only determinate sentencing provisions for recidivist enhancements.   Indeterminate terms such as that imposed here are not effected by the determinate sentencing provisions of the pertinent chapter and are not enhancements within the meaning of Tassell.

Section 1170, the first section of article 1, of chapter 4.5 of title 7 of part 2 provides in pertinent part:  “․ Nothing in this article shall affect any provision of law which ․ expressly provides for imprisonment in the state prison for life․”  Consequently, any interpretation of the sentencing provisions of section 1170.1, which is contained in the same article, is inapplicable.

Our determination that the decision in Tassell does not prohibit the use of appellant's priors to determine the sentence on more than one count is also based on the fact that the life term imposed by section 667.7 is not an “enhancement” within the meaning used in that case.  Tassell distinguished two kinds of enhancements:  those which go to the nature of the offender which are based on prior convictions and those which go to the nature of the present offense which are based on the conduct of the offender in committing the offense.  (Id., 36 Cal.3d p. 90, 201 Cal.Rptr. 567, 679 P.2d 1.)   It construed section 1170.1 as prohibiting enhancements to each count for the first type, i.e., imposed on prior convictions, holding they can be added only once to determine the aggregate term.

California Rules of Court, rule 405, subdivision (c) defines “enhancement” as “an additional term of imprisonment added to the base term.”  “Base term” is in turn defined as “the determinate prison term selected from among the three possible terms prescribed by statute or the determinate prison term prescribed by law if a range of three possible terms is not prescribed.”  (Id. (subd. (b).)  The term of life prescribed by section 667 is an indeterminate prison term.   The section does not impose an additional term to be added to a base term like those set forth in sections 667.5 and 667.6, nor does it constitute a base term such as those set forth in section 1170, subdivision (a)(2).   Rather it establishes the single term of imprisonment to be imposed on a new offense committed by certain recidivists.  (See also § 667.51, subd. (c).)

 Appellant's final contention is that use of the same prior convictions to determine his sentence as an habitual offender on each unstayed count violates section 654.  Section 654 provides:  “An 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:  an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”   He claims that section prevents the use of his prior convictions to determine more than one term of imprisonment.   We disagree.   Nothing in the section prohibits the use of the same priors to determine the appropriate sentence on more than one present offense.

 Section 667.7, like other recidivist punishment statutes which impose increased sentences for repeat offenders, merely specifies the applicable sentence upon the present conviction for one with a certain criminal history.   It is the subsequent offense which calls for the penalty, the magnitude of which is attributable to appellant's status as a repeat offender.  (People v. Jackson (1985) 37 Cal.3d 826, 833, 210 Cal.Rptr. 623, 694 P.2d 736.)   That status, which is based on prior convictions, existed at the time he committed each offense.   While the status calls for the increased sentence it is the new criminal conduct not the status which is being punished.   Therefore, section 654 does not apply.

The cases relied on by appellant are inapposite.   While each of the three types of cases do indicate section 654 has been construed beyond its literal language, none of them require a different result here.

Many of the cases cited involve whether multiple sentences can be imposed for substantive criminal offenses occurring during a single course of criminal conduct or incidental to a single criminal objective.3  Here the substantive counts on which the unstayed life sentences were imposed occurred months apart and involved different locations and victims.   None of those cases are applicable.

Other cases relied on by appellant deal with enhancements which go to the nature of the offense such as those set forth in sections 12022.5 and 12022.7 and the circumstances under which more than one enhancement term can be imposed.4  Those enhancements are based on the conduct of the accused in committing the offense.   Therefore, even assuming section 654 was applicable to some enhancements (compare People v. Boerner (1981) 120 Cal.App.3d 506, 511, 174 Cal.Rptr. 629 with People v. Moringlane (1982) 127 Cal.App.3d 811, 179 Cal.Rptr. 726) it has no such applicability here since, as noted above, section 667.7 does not provide for an enhancement.

The third type of case upon which appellant relies is that which relates to whether a prior conviction enhancement can be imposed upon a person found guilty of the substantive offense prohibiting a felon from possessing certain weapons.  (See e.g., § 12021.)   At the time the sentence enhancement provision was set forth at section 3024 5 it imposed a two year term on “a person previously convicted of a felony.”   At that time both the penal statute and the recidivist enhancement statute operated on a single fact, i.e., a previous felony conviction.   The cases uniformly held that both provisions could not be applied to determine the term on a single offense.  (See e.g., People v. Wilks (1978) 21 Cal.3d 460, 470, 146 Cal.Rptr. 364, 578 P.2d 1369 and People v. Edwards (1976) 18 Cal.3d 796, 800, 135 Cal.Rptr. 411, 557 P.2d 995.)

Subsequently the sentence enhancement provisions were based upon prior prison terms served rather than merely on felony convictions.  (See e.g., § 667.5.)   Now that the substantive offense under section 12021 is based on a different fact, i.e., felon status, than the enhancement is under section 667.5, i.e., prior prison term, it is permissible to impose both terms.   (People v. Faught (1981) 124 Cal.App.3d 848, 177 Cal.Rptr. 637.)   Consequently neither the reasoning nor the result of those cases pose a bar to the terms imposed here.

 Unlike the circumstances in cases relied on by appellant, section 667.7 does not impose an enhancement nor rely on the same fact more than once in setting a single term nor apply to a continuous course of criminal conduct.   As to each new qualifying offense it states the only applicable term set forth in the code for an habitual offender who inflicts great bodily injury.   The purpose of such an habitual offender statute is to deter recidivism.   When its deterrent purpose has failed, as in appellant's case, it imposes a more severe sentence upon each offense subsequently committed.   Appellant's status as an habitual offender did not cease upon his commission of the first new offense.   Nothing in the statute or case law or in section 654 prohibits the imposition of the life term as to each qualifying offense.

The judgment (order imposing sentence) is affirmed.

FOOTNOTES

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

3.   People v. Miller (1977) 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 558 P.2d 552;  In re Adams (1975) 14 Cal.3d 629, 634, 122 Cal.Rptr. 73, 536 P.2d 473;  People v. Beamon (1973) 8 Cal.3d 625, 636–637, 105 Cal.Rptr. 681, 504 P.2d 905;  Neal v. State of California (1960) 55 Cal.2d 11, 18–19, 9 Cal.Rptr. 607, 357 P.2d 839;  People v. Perez (1979) 23 Cal.3d 545, 551, 153 Cal.Rptr. 40, 591 P.2d 63.

4.   See e.g., In re Culbreth (1976) 17 Cal.3d 330, 130 Cal.Rptr. 719, 551 P.2d 23;  People v. Cardenas (1982) 31 Cal.3d 897, 184 Cal.Rptr. 165, 647 P.2d 569;  People v. Moringlane (1982) 127 Cal.App.3d 811, 179 Cal.Rptr. 726.

5.   Repealed as part of the DSL effective July 1, 1977.   (Stats.1976, ch. 1139, § 279, p. 5151.)

ABBE, Associate Justice.

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

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