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PEOPLE v. MAGILL

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Court of Appeal, First District, Division 5, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Janet MAGILL, Defendant and Appellant. IN RE: Janet MAGILL on Habeas Corpus.

A027152, A022162.

Decided: April 17, 1985

Mark D. Greenberg, Berkeley, Cal., for defendant and appellant. John K. Van de Kamp, Atty. Gen., Ann K. Jensen, Dane R. Gillette, Deputy State Attys. Gen., San Francisco, Cal., for plaintiff and respondent.

Janet Magill appeals from a conviction of four counts of embezzlement (Pen.Code, §§ 487/504), and one count of obtaining money by false pretenses.  (Pen.Code, § 532.)   Allegations of excessive loss attached to three of the embezzlement counts were found to be true.  (Pen.Code, § 12022.6, subd. (a).)  Her primary contention on appeal involves sentencing error.   Appellant's petition for habeas corpus, which raises the identical sentencing issues, has been consolidated with her appeal.   We affirm the conviction, deny the petition, and remand for resentencing.*

Appellant also contends her sentence violates the double-base term limitation of Penal Code section 1170.1,1 subdivision (g) (hereafter subdivision (g)).   She was sentenced to the Department of Corrections for the mid-term of two years, plus a one-year enhancement under section 12022.6, subdivision (a), for count one, and eight months consecutively for each additional count, for a total of five years and eight months.   Subdivision (g) states, in part:   “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 ․ an enhancement is imposed pursuant to Section ․ 12022.6․”  Therefore, appellant contends, her sentence cannot exceed five years:  two years doubled plus one for the enhancement.

Decisions conflict in their interpretation of subdivision (g).  People v. Wright (1979) 92 Cal.App.3d 811, 813, 154 Cal.Rptr. 926 and People v. McClelland (1982) 136 Cal.App.3d 503, 508, 186 Cal.Rptr. 365, for example, hold the word “unless” establishes a general exception to the double-base term limitation when three specified circumstances, one of which is a section 12022.6 enhancement, are present.   When any one of these circumstances is present, they reason, the sentence may exceed the double-base term limitation.  People v. Sequeira (1981) 126 Cal.App.3d 1, 21, 179 Cal.Rptr. 249 concluded “that a more reasonable construction of the subdivision is that the Legislature intended by it to ensure that prison terms for certain enhancements would be includible in the overall sentence, notwithstanding the double-base term limitation.  [If read otherwise] the presence of a single enhancement under Penal Code section 12022.6 (taking property of great monetary value) would permit an otherwise unlimited number of consecutive prison terms.”  (Emphasis in original.)

 We arrive at the same ultimate conclusion as the Sequeria court, although not necessarily for the same reasons.   We agree that section 1170.1, along with the entire statutory panoply of sentencing schemes, is no model of clarity.2  The number of appellate decisions with varying conclusions and contrary results is evidence of that.   However, we conclude that subdivision (g) limits appellant's sentence to twice the number of years imposed as her base term.

Subdivision (g) sets forth four specific instances whereby consecutive sentences may be imposed which exceed the double-base term limitation:  (1) when the defendant is convicted of a “violent felony” as defined by section 667.5, (2) when the offense is committed by a person confined in the state prison, or subject to reimprisonment for escape, (3) when the defendant stands convicted of felony escape, and (4) when an enhancement is imposed pursuant to section 12022.6, et al.3

Other than the exception for the section 12022 series enhancements, the remaining listed exceptions all refer to existing statutory sentencing schemes which clearly provide for unlimited aggregate terms when consecutive sentences are imposed.   We discuss them in the order listed:

(1) Section 667.5, which defines certain offenses as “violent felonies” contains an express legislative finding and declaration that the crimes listed therein “merit special consideration when imposing a sentence to display society's condemnation for such extraordinary crimes of violence against the person.”  Section 1170.1, subdivision (a) sets forth the sentencing scheme for consecutive sentences and clearly distinguishes between section 667.5 “violent felonies” and those offenses which are not so classified.   A five-year limitation is imposed on subordinate terms which are not “violent felonies” and enhancements are excluded in calculating their individual terms.   For subordinate terms involving “violent felonies” enhancements are included and no limitation on the length of the terms is mandated.

(2) Crimes committed by persons confined in the state prison, or subject to reimprisonment for escape, are sentenced under subdivision (c) of section 1170.1, which specifically removes any limitation on the aggregate length of subordinate terms.

(3) Felonious escape is defined and punished by section 4530, et seq.   Those sections clearly and logically provide that any term for conviction of escape or attempted escape shall commence from the time the defendant “would otherwise have been discharged from [prison].”  (§ 4532, subd. (a).)  The entire sentencing scheme is designed to discourage escape attempts and maintain prison discipline.   If no limitation were imposed on the length of subordinate terms for escapes or escape attempts, sentenced prisoners could continue to attempt escape on a daily basis with no increase in penalty.   The consequences for institutional order and discipline are obvious, and a system of consecutive sentences for escapes, attempted escapes and offenses by inmates was part of our criminal justice system long before the determinate sentencing law.   The same logic applies to crimes committed by persons who are subject to reimprisonment for escape.

(4) Unlike the other listed exceptions, the section 12022 series enhancements do not constitute distinct crimes which can be singly charged and prosecuted.   Rather, they are satellite circumstances which can be alleged only in connection with a charged felony offense.   Their purpose is to increase the term for the felony to which they are annexed, and therein lies their sentencing function;  no other sentencing scheme is contained in the Penal Code.   The enhancements provide for specific, but varying, additional terms of confinement.

 The primary rule of statutory construction is to determine the intent of the Legislature;  to this end we must seek to harmonize the various portions of the statute and consider them within the overall sentencing scheme.   (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658–659, 147 Cal.Rptr. 359, 580 P.2d 1155;  Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)   We conclude that subdivision (g) merely restates what the Penal Code provides for elsewhere.   In cases involving any of the “violent felonies” defined by section 667.5, or offenses committed by imprisoned persons or those subject to reimprisonment for escape, the aggregate term of imprisonment is unrestricted by the double-base term provision of subdivision (g).   However, the addition of a section 12022.6 enhancement to offenses which do not otherwise constitute exceptions to the double-base term restriction of subdivision (g), permits no exception other than the additional term contained in the enhancement.   In the instant case, that equates to five years:  twice the number of years imposed as the base term, which was set at two years, plus one year for the section 12022.6 enhancement.

Resentencing is required for additional reasons set forth in the unpublished portion of the opinion.

The judgment is affirmed.   The matter is remanded for resentencing in accordance with this decision.   Appellant's petition for habeas corpus is denied.

FOOTNOTES

FOOTNOTE.   Portions of this opinion do not meet the standards for publication as set forth in California Rules of Court, rule 976(b), and have not been certified for publication.

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

2.   The statutes in question have undergone some revision and renumbering since Wright, McClelland and Sequeria, in part in response to People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396.   However, for purposes of this particular issue they remain substantively unchanged.   Former subdivision (f) of section 1170.1 as referred to in prior cases is now renumbered (in substance) as subdivision (g).

3.   This case arose prior to the passage of Proposition 8, and is therefore unaffected by that initiative, if it applies to these circumstances.  (People v. Smith (1983) 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149.)

HANING, Associate Justice.

LOW, P.J., and KING, J., concur.

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