PEOPLE v. TAVERNETTI

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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Gregory Allen TAVERNETTI, Defendant and Appellant.

No. C020794.

Decided: August 29, 1996

Alan S. Yockelson, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Roger E. Venturi and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant of first degree robbery (Pen. Code, § 211), obtaining a signature by threat (Pen. Code, §§ 518 & 522), and battery (Pen. Code, § 242).   The trial court found defendant had incurred three serious felony convictions (Pen. Code, § 667, subds. (d) and (e)) and served three prison terms for violent offenses (Pen. Code, § 667.5, subd. (a)) and one prison term for a nonviolent offense (Pen. Code, § 667.5, subd. (b)).1  He was sentenced to an aggregate prison term of twenty-five years to life for the robbery and a consecutive nineteen-year prison term consisting of a five-year term for each of the three serious felony convictions and a one-year term for each of the four prison term enhancements.   Sentence for obtaining a signature by threat and battery was imposed and stayed.  (§ 654.)

On appeal, defendant contends:  (1) the trial court inadequately instructed the jury on “reasonable doubt”;  (2) section 667, subdivision (d) does not apply because he incurred his serious felony convictions before the statute's effective date;  (3) section 667, subdivision (d) is unconstitutionally vague;  (4) the court erred in imposing five-year enhancements for the three serious felony convictions because the prosecutor failed to plead and prove them under section 667, subdivision (a);  (5) the trial court engaged in a prohibited dual use of facts;  and (6) two of defendant's convictions are not “strikes” under section 667, subdivision (d) as they were not brought and tried separately.   The People contend the trial court erred in awarding presentence conduct credits and imposing one-year terms on the section 667.5, subdivision (a) enhancements.

We shall strike two of the five-year terms imposed under section 667, subdivision (a) and two of the one-year terms imposed under section 667.5, subdivision (a) and modify the term imposed on the remaining section 667.5, subdivision (a) enhancement from one year to three years.   As modified, we shall affirm the judgment.

I.–III.***

IV. Section 667, subdivision (a)

 Defendant was charged by information with first degree robbery, “a serious felony conviction within the meaning of Penal Code Section 1192.7(c)(19),” false imprisonment by violence, obtaining a signature by threat, misdemeanor battery and four prison term enhancements.   The information further alleged defendant had suffered convictions for rape by force, sodomy by force, and oral copulation by force “within the meaning of Penal Code Section 667(d) and (e).”

Before trial, the court found each of the section 667, subdivision (d) and (e) allegations true.   At sentencing, the trial court imposed not only a life term under section 667, subdivision (e) based on these allegations, but also three five-year terms under section 667, subdivision (a).

On appeal, defendant contends, and the People concede, the five-year terms must be stricken as the prosecutor failed to plead and prove the convictions were serious felonies under section 667, subdivision (a).3  We requested supplemental briefing, inquiring what more was required to plead and prove section 667, subdivision (a) enhancements in this case.   Noting “nothing more need have been presented,” the People nevertheless contend “at a minimum the information should have alleged that the convictions were ‘serious felonies' within the meaning of Penal Code sections 667, subdivisions (a)(1) and 1192.7, subdivision (c).”   Defendant contends imposition of the five-year term would violate his right to due process by failing to provide notice of the potential penalty and the separation of powers doctrine by usurping the prosecutor's charging discretion and would render section 667, subdivision (a) unconstitutionally vague.   We are unpersuaded.

 Our Supreme Court has defined a defendant's due process right to notice as follows:  “ ‘No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.’  ‘A criminal defendant must be given fair notice of the charges against him in order that he may have a reasonable opportunity properly to prepare a defense and avoid unfair surprise at trial.’ ”  (People v. Toro (1989) 47 Cal.3d 966, 973, 254 Cal.Rptr. 811, 766 P.2d 577, italics added, citations omitted.)

 “[I]t is clear that a valid accusatory pleading need not specify by number the statute under which the accused is being charged.”  (People v. Thomas (1987) 43 Cal.3d 818, 826, 239 Cal.Rptr. 307, 740 P.2d 419.)   Rather, “an accusatory pleading must [ ] allege each fact required for imposition of an enhanced term.”  (People v. Shoaff (1993) 16 Cal.App.4th 1112, 1118, 20 Cal.Rptr.2d 464.)  “ ‘[T]he specific allegations of the accusatory pleading, rather than the statutory definitions of offenses charged, constitute the measuring unit for determining what offenses are included in a charge.’ ”   (People v. Thomas, supra, 43 Cal.3d at p. 826, 239 Cal.Rptr. 307, 740 P.2d 419, citations omitted.)   Furthermore, “[n]o accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.”  (Pen. Code, § 960.)

Penal Code section 667, subdivision (a) provides in pertinent part:  “(1) [A]ny person convicted of a serious felony who previously has been convicted of a serious felony in this state ․ shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately․  (4) As used in this subdivision, ‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7.”

In the present case, the information alleged that defendant committed a serious felony within the meaning of section 1192.7, to wit, robbery, and had incurred three convictions “within the meaning of Penal Code section 667(d) and (e).”  Section 667, subdivision (d) provides in pertinent part:  “[A] prior conviction of a felony shall be defined as:  (1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state.” 4  Defendant was on notice that he was charged with a serious felony offense and three serious felony convictions within the meaning of section 1192.7.   Hence, he received notice of “each fact required for imposition of an enhanced term” under section 667, subdivision (a).   (People v. Shoaff, supra, 16 Cal.App.4th at p. 1118, 20 Cal.Rptr.2d 464.)

The People contend a serious felony conviction allegation must contain the words “serious felony.”   Defendant contends his right to due process is violated unless the allegation contains the potential penalty.   However, neither party provides authority to support these respective contentions.   People v. Hernandez (1988) 46 Cal.3d 194, 249 Cal.Rptr. 850, 757 P.2d 1013, on which defendant relies, is distinguishable.   There, the defendant was convicted by jury of kidnapping and rape.  (Id. at p. 199, 249 Cal.Rptr. 850, 757 P.2d 1013.)   Without notice to the defendant before the probation report was prepared, the sentencing court imposed an additional three-year term under section 667.8, which provides for such a term where defendant kidnaps for the purpose of rape.  (Ibid., italics added.)   The California Supreme Court struck the three-year term, concluding section 667.8 created an enhancement requiring a specific intent which the trial court could not find as a “sentencing fact” but which must be pleaded and proven.  (Id. at pp. 204–08, 249 Cal.Rptr. 850, 757 P.2d 1013.)   Here, however, the requisite factual allegations to establish a serious felony conviction under section 667, subdivision (a) were both pleaded and proven.

We find People v. Neal (1984) 159 Cal.App.3d 69, 205 Cal.Rptr. 384, cited with approval in People v. Thomas, supra, 43 Cal.3d 818, 239 Cal.Rptr. 307, 740 P.2d 419, instructive.   In Neal, the information charged the defendant with various sex crimes and a one-year enhancement for using a deadly weapon within the meaning of section 12022, subdivision (b).   After finding defendant used a deadly weapon, the trial court sentenced him under section 12022.3, a more specific statute which applied only to enumerated violent sex offenses and provided for a three-year term.   On appeal, the court held the misstatement of the code section did not require a reduction of the enhancement, concluding:  “[W]here the information puts the defendant on notice that a sentence enhancement will be sought, and further notifies him of the facts supporting the alleged enhancement, modification of the judgment for a misstatement of the underlying enhancement statute is required only where the defendant has been misled to his prejudice.   In the present case appellant makes no claim of prejudice, nor can we conceive of any in the circumstances of [this] case.”   (Id. at pp. 73–74, 205 Cal.Rptr. 384, citations omitted.)

While the pertinent statutory reference was omitted, not misstated, in the present case, defendant, like Neal, makes no claim of prejudice.   Nor can we conceive of any basis for such a claim.

 Defendant contends imposition of a five-year term under the facts of this case would violate the separation of powers doctrine by usurping the prosecutor's ability to define the potential sentence through his charging discretion.   He further contends that, if a five-year term may be imposed here, trial courts will violate the separation of powers doctrine by implementing the Three Strikes sentencing scheme whenever a prosecutor charges a serious felony under section 667, subdivision (a), but fails to charge under section 667, subdivision (b) through (i).   Both contentions lack merit.   First, while the prosecutor may delimit the potential sentence in an attenuated sense through his charging discretion, “[t]he imposition of sentence and the exercise of sentencing discretion are fundamentally and inherently judicial functions.”  (People v. Navarro (1972) 7 Cal.3d 248, 258, 102 Cal.Rptr. 137, 497 P.2d 481.)   Second, the provisions of § 667, subdivisions (b) to (i) (the “Three Strikes Law”) must be applied in cases in which the defendant has a serious or violent felony conviction, and the prosecutor must plead and prove each prior serious or violent felony conviction. (§ 667, subd. (f).)

 Defendant next contends dispensing with the pleading and proof requirement of Penal Code section 667, subdivision (a) would render the statute unconstitutionally vague because “the statute will fail to give specific notice of the punishment it entails, violating the due process clauses of both the state and federal constitution [sic ], because it makes it impossible for counsel to render effective assistance of counsel in determining whether a defendant should enter into a plea-bargaining arrangement or proceed to trial.”   However, we do not dispense with the pleading and proof requirement.   Rather, we find it satisfied under the present circumstances.   Defendant has failed to provide any authority for the proposition that the information must allege the potential penalty for the offenses charged therein, and we are satisfied there is none.

However, defendant correctly contends his three serious felony convictions were not “brought and tried separately,” hence only one five-year term may be imposed.  (Pen. Code, § 667, subd. (a);  In re Harris (1989) 49 Cal.3d 131, 260 Cal.Rptr. 288, 775 P.2d 1057.)   Hence, we shall strike two of the five-year terms.

V.–VIII.†

DISPOSITION

The judgment is modified to strike two of the five-year terms imposed under section 667, subdivision (a) and two of the one-year terms imposed under section 667.5, subdivision (a);  the term imposed on the remaining section 667.5, subdivision (a) enhancement is modified from one year to three years.   The trial court is directed to amend the abstract of judgment to reflect these modifications and defendant's battery conviction and to send a copy of the amended abstract of judgment to the Department of Corrections.   As modified, the judgment is affirmed.

FOOTNOTES

1.   All undesignated statutory references are to the Penal Code.

FOOTNOTE.   See footnote *, ante.

3.   The abstract of judgment incorrectly reflects the statutory designation of the five-year terms as section 667, subdivision (d) and (e), rather than section 667, subdivision (a) and fails to reflect defendant's battery conviction.

4.   The serious felonies listed in section 1192.7, subdivision (c) include the violent felonies listed in section 667.5.

FOOTNOTE.    See footnote *, ante.

RAYE, Associate Justice.

PUGLIA, P.J., and MORRISON, J., concur.

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