PEOPLE v. CLINE

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Jimmie Lee CLINE, Defendant and Appellant.

Civ. CO11708.

Decided: July 30, 1992

Renee L. Berenson, San Mateo, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Acting, r. Asst. Atty. Gen., and Thomas Y. Shigemoto and James T. McNally, Deputy Attys. Gen., for plaintiff and respondent.

As defendant and his three accomplices approached victim Bethany Harp's home, Harp's 13–year–old son, Thomas Dusell, overheard her ask, “What's going on, Jimmie?”   Armed with a gun and rifle, the intruders forced their way inside and assaulted Harp, whom Dusell later saw lying in a pool of blood.   After placing Dusell in a bathroom, the intruders abducted Harp and killed her at a remote location.

Defendant was convicted of first degree murder (Pen.Code, §§ 187, subd. (a), 190;  further section references are to the Penal Code unless otherwise specified), kidnapping (§ 207, subd. (a)) and assault with a deadly weapon and by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)).   The trial court found defendant had suffered three prior serious felony convictions (§ 667, subd. (a)) and had served five prior separate prison terms (§ 667.5, subd. (b)).  Defendant was sentenced to an indeterminate term of 25 years to life for the murder;  the upper term for kidnapping was imposed and stayed pursuant to section 654;  a consecutive, upper term of four years was imposed for the assault conviction;  and the court enhanced defendant's sentence with consecutive terms totalling 20 years based on his three prior serious felony convictions and five prior prison terms.

On appeal defendant contends, inter alia, that the trial court improperly imposed section 667 and section 667.5 enhancements for the same underlying prior felony convictions.   According to defendant, these multiple enhancements are precluded by section 654.

In the published portion of this opinion, we conclude that imposition of both a five-year section 667, subdivision (a), enhancement and a one-year section 667.5, subdivision (b), enhancement based on a single prior conviction does not violate section 654 and is consistent with the purposes of the two enhancement statutes.   In the unpublished portion, we reject defendant's other contentions.

I–III **

IV

The trial court imposed three five-year enhancements (§ 667, subd. (a)) based on defendant's prior serious felony convictions in 1962 for residential burglary, in 1974 for attempted residential burglary, and in 1980 for residential burglary.   The court also imposed three one-year enhancements (§ 667.5, subd. (b)) based on the prior separate prison terms defendant served as a result of those convictions.

Defendant contends the three one-year section 667.5 enhancements must be stricken because section 654, the prohibition against multiple punishments for a single act or omission, precludes use of the same prior felony conviction to impose enhancements under both sections 667 and 667.5.2  According to defendant, the felony conviction is the act upon which both enhancements are based, thus, it may be punished under either statute, but not both.

In assessing defendant's contention, we turn first to the language of the enhancement statutes.   Section 667, subdivision (a), provides in pertinent part:  “any person convicted of a serious felony who previously has been convicted of a serious felony ․ shall receive, in addition to the sentence imposed for the present offense, a five-year enhancement for each such prior conviction․  The terms of the present offense and each enhancement shall run consecutively.”   Section 667.5, subdivision (b), provides in pertinent part:  where a “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.”

Nothing in the language of these sections precludes the imposition of section 667 and section 667.5 enhancements based on the same felony conviction.   To the contrary, the sections state that both enhancements “shall” be imposed.

This mandatory language is consistent with the provisions of section 1170.1, which governs the determination of aggregate terms for multiple convictions and enhancements.   Subdivision (d) of section 1170.1 provides in pertinent part:  “When the court imposes a prison sentence for a felony pursuant to Section 1170 the court shall also impose the additional terms [plural] provided in Sections 667, 667.5, [other enumerated Penal Code sections], and the additional terms provided in [specified Health and Safety Code sections], unless the additional punishment therefor is stricken pursuant to subdivision (h).”  (Italics added.)   The subdivision (h) exception authorizes the court to strike the punishment imposed by section 667.5 (but not § 667) if the court determines there are circumstances in mitigation which justify elimination of the additional punishment.3

Except where the trial court strikes a section 667.5 enhancement due to factors in mitigation, section 1170.1 compels the imposition of enhancements under sections 667 and 667.5 even though they are based on the same conviction.4

Despite the plain, mandatory language of sections 667, 667.5 and 1170.1, subdivision (d), defendant contends that imposition of section 667 and section 667.5 enhancements based on the same prior felony conviction is precluded by section 654, which 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.”

As we shall explain, section 654 is inapplicable to section 667 and section 667.5 enhancements.

Section 654 was enacted in 1872, long before the adoption of determinate sentencing and the enactment of section 667 and section 667.5 enhancements.   It remains virtually unchanged since its enactment over a century ago.   By its terms, section 654 applies to an “act or omission” for which a defendant is currently prosecuted and convicted.  (People v. Harrison (1989) 48 Cal.3d 321, 334–338, 256 Cal.Rptr. 401, 768 P.2d 1078;  Neal v. State of California (1960) 55 Cal.2d 11, 18–19, 9 Cal.Rptr. 607, 357 P.2d 839.)   In other words, section 654 pertains to present criminal misconduct, precluding a defendant from suffering multiple punishment for a single act or omission which could be punished under more than one statute or from suffering multiple punishment for a course of criminal misconduct in which all the offenses were incidental to or the means of accomplishing or facilitating one criminal objective.  (Ibid.)  Nothing in the language of section 654 prohibits imposition of sentencing enhancements based on prior circumstances, e.g., the defendant's status as a convicted felon who had served a prison term prior to committing the current offense.  (People v. Rodriguez (1988) 206 Cal.App.3d 517, 519–520, 253 Cal.Rptr. 633;  People v. Warinner (1988) 200 Cal.App.3d 1352, 1355–1356, 247 Cal.Rptr. 197;  cf. People v. Tassell (1984) 36 Cal.3d 77, 90, 201 Cal.Rptr. 567, 679 P.2d 1.)

That section 654 is not intended to prevent a trial court from imposing enhanced sentences based on a defendant's prior felony conviction and service of a prior prison term is readily apparent from the final sentence of section 654 as enacted in 1872.   That sentence read:  “In the cases specified in Sections 648, 667, and 668, the punishments therein prescribed must be substituted for those prescribed for a first offense, if the previous conviction is charged in the indictment and found by the jury.”   As enacted in 1872, section 648 provided that uttering or passing of counterfeit paper was a misdemeanor for the first offense, but was punishable as a felony if the defendant had a prior conviction for this offense.   As enacted in 1872, section 667 provided:  “Every person who, having been convicted of petit larceny [a misdemeanor as specified in sections 484 and 490], or of an attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the State Prison, commits any crime after such conviction is punishable as follows:  [¶] 1.   If the subsequent offense is such that, upon a first conviction, the offender would be punishable by imprisonment in the State Prison for life, at the discretion of the Court, such person is punishable by imprisonment in such prison during life.  [¶] 2.   If the subsequent offense is such that, upon a first conviction, the offender would be punishable by imprisonment in the State Prison for any term less than for life, such person is punishable by imprisonment in such prison for the longest term prescribed, upon a conviction for such first offense.  [¶] 3.   If the subsequent conviction is petit larceny, or for an attempt to commit an offense which, if perpetrated, would be punishable in the State Prison, then such person is punishable by imprisonment in such prison not exceeding five years.”   As enacted in 1872, section 668 provided that a defendant who had been convicted in another jurisdiction for an offense which, if committed in California, was punishable by imprisonment in state prison could be punished for any subsequent crime committed in this state in the manner prescribed by law as if the prior conviction had occurred in California.5

The final sentence of section 654 was an awkward way of stating that a person would be punished more severely for criminal misconduct if he or she had been convicted previously of a crime or attempted crime and said prior conviction was pleaded and proved.   Consequently, under California's then-existing indeterminate sentence law, an enhanced term based on a defendant's prior conviction was permissible without violating section 654 because, as enacted in 1872, section 654 applied only to preclude multiple punishment for a current offense or indivisible course of conduct and explicitly allowed, in fact compelled, the enhancement of a sentence based on a prior conviction.

The fact that this final sentence of section 654 was deleted in 1977 (Stats.1977, ch. 165, § 11, p. 644) as part of the Uniform Determinate Sentence Act (Stats.1977, ch. 165, § 100, p. 680;  Stats.1976, ch. 1139, § 350, p. 5175) does not alter the aforesaid intent of section 654.   By then, numerous penal statutes had been amended, renumbered, and added as part of California's determinate sentence law.   These statutes included section 667.5 (Stats.1976, ch. 1139, § 268, p. 5137) which, similar to the indeterminate sentence laws noted above, provided enhanced punishment for offenders who previously had served prison terms.   Hence, the final sentence of section 654 as enacted in 1872 no longer was necessary to express the Legislature's intent that the enhancement of a sentence based on the offender's prior prison term does not violate section 654.

In 1982, the electorate adopted section 667 to impose an additional enhancement for offenders who have prior serious felony convictions.  (Prop. 8, Primary Elec. (June 8, 1982), amended by Stats.1986, ch. 85, § 1.5, p. 211 & Stats.1989, ch. 1043, § 1.)   Just as the limitation on multiple punishment for a current offense or indivisible course of criminal misconduct does not preclude the imposition of a section 667.5 sentence enhancement, section 654 does not prohibit the additional imposition of a section 667 enhancement even though it is based on the same conviction underlying the section 667.5 enhancement.   In fact, as we have noted, the Legislature amended section 1170.1 to explicitly provide that the trial court shall in all cases impose an enhancement under section 667 and shall impose an enhancement under sections 667.5, unless the court strikes the section 667.5 enhancement due to factors in mitigation.  (§ 1170.1, subds. (d), (h).)

Simply stated, section 654 does not prohibit the imposition of section 667 and section 667.5 enhancements based on the same prior serious felony conviction because that conviction is not the act or omission for which the enhanced penalties are imposed.  “The law is well established that ․ the increased penalty for a prior [conviction] is attributable solely to the new, rather than the former, crime and its purpose is to discourage recidivist criminal conduct [citations].   As stated in People v. Biggs (1937) 9 Cal.2d 508, 512 [71 P.2d 214, 116 A.L.R. 205], ‘it is the second or subsequent offense which is punished, not the first’;  and as amplified in People v. Dutton (1937) 9 Cal.2d 505, 507 [71 P.2d 218], ‘the increased punishment provided for subsequent offenders is not an additional disability attaching to the first offense, but an appropriate penalty for the person who, after conviction of one crime commits another.’ ”  (People v. Johnson (1979) 95 Cal.App.3d 352, 357–358, 157 Cal.Rptr. 150;  italics in original;  People v. Mink (1985) 173 Cal.App.3d 766, 770–771, 219 Cal.Rptr. 291.)

Neither the language nor policies of sections 654, 667 and 667.5 preclude the imposition of both enhancements based on the same prior felony conviction.   Sections 667 and 667.5 serve different statutory purposes.  “The purpose of section 667 is to punish repeat offenders regardless of whether they were imprisoned for their previous felony․  The purpose of section 667.5, subdivision (b) is to impose a one-year enhancement to the offender's sentence for each separate term of imprisonment served as a continuous period of time by the offender․  [¶] The policies of each section are distinct.   The purpose of section 667 is to impose greater punishment upon recidivists who commit serious felonies.   The purpose of section 667.5 is to impose additional punishment upon a felon whose prior prison term failed to deter him or her from future criminal conduct.”  (People v. Medina (1988) 206 Cal.App.3d 986, 990–991, 254 Cal.Rptr. 89;  italics in original.)

Because sections 667 and 667.5 prescribe different punishments for different classes of offenders, it follows that an offender who is a member of both classes should receive the punishments prescribed for each.   An offender who commits a prior serious felony, incurs a prison term therefor, and then commits another serious felony within five years from his or her release from prison custody is more culpable than an offender who has a prior serious felony but either served no prison term therefor or did not reoffend within five years of release from prison.   The apparent intent to punish more severely those offenders who are members of both classes would be thwarted if membership in either class were construed to be an “act” within the meaning of section 654.

We acknowledge our analysis is contrary to People v. Hopkins, supra, 167 Cal.App.3d 110, 212 Cal.Rptr. 888 and People v. Carter, supra, 144 Cal.App.3d 534, 193 Cal.Rptr. 193, a decision of this court on which Hopkins relied.   Our examination of those cases persuades us they were incorrectly decided and should not be followed.

In Carter, the defendant previously was convicted of rape and had served a prison term therefor.   The trial court imposed a five-year enhancement for the prior rape conviction (§ 667.6, subd. (a)) and a three-year enhancement for the prior prison term (§ 667.5, subds. (a), (c)).  Carter reversed, holding:  “The same prior may not be punished under both sections 667.5 and 667.6 ․ because it would be double punishment for the same act.  (§ 654.)”  (144 Cal.App.3d at p. 541, 193 Cal.Rptr. 193.)   The Carter court rejected the People's assertion that “sections 667.5 and 667.6 punish different things;  section 667.5, subdivision (a), provides an enhancement for each ‘prior separate prison term,’ whereas section 667.6, subdivision (a), provides an enhancement where the defendant ‘has been convicted previously of any’ enumerated forcible sex offense.”  (Id., at p. 541, 193 Cal.Rptr. 193;  italics in original.)  Carter concluded:  “The fact one statute talks of a ‘prison term’ while the other talks of a ‘conviction’ is a distinction without a difference.   It is the prior sex offense that is the ‘act’ for purposes of section 654.   The fact that some forcible sex convictions might result in a prison term (punishable under § 667.5) while others may not, does not alter the circumstances of this case, in which defendant's prior rape resulted in both a conviction and a prison term.   The prior sex offense is the act which is the object of both statutes and therefore may be punished under either section, but not both.”  (Id., at p. 542, 193 Cal.Rptr. 193;  italics added.)

Carter 's reasoning is not persuasive because it overlooks the second clause of section 654 and fundamental principles of double jeopardy.   Under the second clause of section 654, a prior conviction “bars a prosecution for the same act or omission under any other [provision of law].”   Because this clause and the principle of double jeopardy prevent an accused from being punished again for an act or omission which previously resulted in a conviction and sentence, defendant's prior serious felony conviction cannot be among the “acts” which the first clause of section 654 permits to be punished in one, but not more than one, way.

Therefore, contrary to the Carter court's assertion, Carter's “prior sex offense” was not the “act” which was the “object of” the section 667 and section 667.5 enhancement statutes because said offense could not be “punished under” section 667.5, section 667.6, or any such statute or other provision of law.  (§ 654.)  Carter disregarded established law that enhancements are attributable to present crimes rather than past offenses.  (Johnson, supra, 95 Cal.App.3d at pp. 357–358, 157 Cal.Rptr. 150;  Mink, supra, 173 Cal.App.3d at pp. 770–771, 219 Cal.Rptr. 291.)   Sections 667, 667.5 and 667.6 do not punish prior acts, nor could they do so as we have pointed out.   In order to discourage recidivist criminal conduct, these enhancement statutes simply focus on the status of the offender in providing additional penalties for new criminal conduct by repeat offenders described therein.

In People v. Hopkins, supra, 167 Cal.App.3d 110, 212 Cal.Rptr. 888, the trial court imposed a five-year section 667 enhancement based on four 1972 prior serious felony convictions and a one-year section 667.5 enhancement based on a prior prison term imposed as a result of the 1972 convictions.  (Id., at p. 117, 212 Cal.Rptr. 888.)   The defendant contended the trial court's use of the same 1972 convictions to enhance his sentence under sections 667 and 667.5 violated the multiple-punishment proscription of section 654.  Hopkins agreed.   After quoting Carter at length, Hopkins concluded:  “The acts which are being punished under two different statutes are defendant's 1972 offenses of robbery, assault, and possession of a firearm.”  (Id., at p. 118, 212 Cal.Rptr. 888.)   For the reasons we already have stated, Hopkins' reasoning is unsound:  the defendant was being punished for his subsequent offenses, not those for which he was tried, convicted and punished in 1972.

Defendant notes that in People v. Vaughn (1989) 209 Cal.App.3d 398, 257 Cal.Rptr. 229 this court, in dictum, cited Hopkins for the proposition that “the same prior cannot be used to impose both a five-year enhancement and a one-year enhancement.   The prior is one ‘act’ only within the purview of section 654.”  (Id., at p. 402, 257 Cal.Rptr. 229.)   As we have explained, Hopkins was incorrectly decided.   Nothing in the Vaughn dictum alters our conclusion.   Section 654 does not prohibit imposition of the additional penalties set forth in both sections 667 and 667.5 based on the same prior conviction.

The trial court properly enhanced defendant's sentence pursuant to section 667, subdivision (a), and section 667.5, subdivision (b).

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

2.   Defendant does not challenge two other section 667.5 enhancements which were unrelated to his prior serious felony convictions.

3.   Section 1170.1, subdivision (h), provides in full:  “Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in Sections 667.5, 667.8, 667.85, 12022, 12022.2, 12022.4, 12022.6, 12022.7, 12022.75, and 12022.9, or the enhancements provided in Section 11370.2, 11370.4, or 11379.8 of the Health and Safety Code, if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment.”

4.   Section 1170.1, subdivision (a), provides in pertinent part:  “Except as provided in subdivision (c) and subject to Section 654, when any person is convicted of two or more felonies ․ and a consecutive term of imprisonment is imposed ․, 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, 667.5, 667.6, or 12022.1, and pursuant to Section 11370.2 of the Health and Safety Code․”Viewed in its context with sections 667, 667.5, and 1170.1, subdivision (d), which specifies that the enhancements for section 667 “and” 667.5 shall be imposed, the Legislature's use of the word “or” in that portion of section 1170.1, subdivision (a), quoted above does not preclude the imposition of both section 667 and section 667.5 enhancements.  (People v. Carter (1983) 144 Cal.App.3d 534, 541, 193 Cal.Rptr. 193;  see Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299 [“The meaning of a statute may not be determined from a single word or sentence;  the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible.”];  Arnold v. Hopkins (1928) 203 Cal. 553, 563, 265 P. 223.)

5.   Although not mentioned in the last sentence of section 654 as enacted originally, section 666, as enacted in 1872, provided:  “Every person who, having been convicted of any offense punishable by imprisonment in the State Prison, commits any crime after such conviction, is punishable therefor, as follows:  [¶] 1.   If the offense of which such person is subsequently convicted is such that, upon a first conviction, an offender would be punishable by imprisonment in the State Prison for any term exceeding five years, such person is punishable by imprisonment in the State Prison not less than ten years.  [¶] 2.   If the subsequent offense is such that, upon a first conviction, the offender would be punishable by imprisonment in the State Prison for five years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the State Prison not exceeding ten years.  [¶] 3.   If the subsequent conviction is for petit larceny, or any attempt to commit an offense which, if committed, would be punishable by imprisonment in the State Prison not exceeding five years, then the person convicted of such subsequent offense is punishable by imprisonment in the State Prison not exceeding five years.”

SCOTLAND, Associate Justice.

DAVIS, Acting P.J., and NICHOLSON, J., concur.