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The PEOPLE, Plaintiff and Respondent, v. Raymond L. DIAZ, Defendant and Appellant.
In this Three Strikes case, defendant stands convicted of attempted murder with premeditation and deliberation. We affirm the judgment of conviction. However, the finding of premeditation and deliberation is vacated since the information did not charge defendant with attempted premeditated murder as required by Penal Code 1 former section 664, subdivision 1. We decline to extend People v. Toro (1989) 47 Cal.3d 966, 254 Cal.Rptr. 811, 766 P.2d 577 (which held silence by a defendant can be interpreted as an implied consent to being charged with a lesser crime) to a situation where defendant stands to be convicted of a greater crime. The issue is not whether defendant had notice of the greater crime but, in the absence of a request to amend the information, whether he consented to the amendment. In this case, there is no evidence defendant expressly or impliedly consented to such an amendment.
We next determine defendant was properly sentenced to 75 years to life on his conviction for murder. In doing so, we hold the word “term” contained within section 667, subdivision (e) applies to both determinate and indeterminate sentences. Since defendant's normal term is 25 years to life, it was properly tripled to 75 years to life. In addition, we hold defendant was correctly sentenced under section 667, subdivision (e)(2)(B), which mandates a consecutive term be imposed on his conviction for attempted murder.
PROCEDURAL HISTORY
By information, defendant was charged with one count of murder (count one; § 187) and one count of attempted murder (count two; §§ 664, 187). It was further alleged defendant had four prior serious or violent felony convictions within the meaning of section 667, subdivisions (d) and (e).
Defendant pled not guilty and denied the allegations. The allegations were bifurcated from the substantive offenses. Following a jury trial, defendant was found guilty of first degree murder and of attempted premeditated murder. Defendant subsequently admitted the prior conviction allegations.
Probation was denied and defendant was sentenced to state prison for 75 years to life on count one, and 3 consecutive life sentences on count two.
Timely notice of appeal was filed.
FACTUAL HISTORY
On the early afternoon of June 29, 1994, Buel Skipper visited his friend David Vallelunga at Vallelunga's apartment in Madera, California. Skipper had spent about two hours at a local bar called the Ritz in Madera, where he drank a beer. Skipper and Vallelunga chatted and had a few beers, until they decided to take a nap. Skipper went to bed in the bedroom and Vallelunga lay down on the living room couch.
Skipper was subsequently awakened by the sound of two people arguing but could not make out what was being said. As Skipper listened from the bed, the voices became louder, and he recognized one voice as belonging to Vallelunga. By this point, Vallelunga and another person, subsequently identified as defendant,2 came into Skipper's view at the bedroom doorway. Both men entered the bedroom and the argument became physical. Vallelunga was waving his arms while defendant pounded him with his fists. Skipper noticed a knife blade in defendant's hand. The blade was about four inches in length, and defendant stabbed Vallelunga. Skipper did not see where the knife came from. Defendant stabbed Vallelunga in the neck and upper torso, causing Vallelunga to slump down by the side of the bed within seconds.
At this point, Skipper attempted to get out of bed. However, defendant turned the knife toward him and stabbed him, causing Skipper to lose consciousness. Skipper was stabbed a total of eight times in the neck and torso. The next thing Skipper remembered was waking up on the floor. He went next door, asked the neighbor to call for help, and was taken to the hospital where he stayed for 18 days receiving surgery and therapy. His attack lasted a few seconds, and began within 15 seconds after the argument between defendant and Vallelunga started. Skipper had no opportunity to defend himself.
Neighbor Maria Magdaleno saw defendant leave Vallelunga's apartment. She was able to recognize him because he had been staying at Vallelunga's apartment a few days before. Defendant had blood on his forehead and spots of blood on his face. Defendant also had a cloth covering his hand, which he touched to his forehead.
Pedro Rodriguez was visiting Magdaleno and also observed defendant leave the apartment. Like Magdaleno, he noticed defendant had a bloody towel wrapped around his hand, and appeared to have blood spattered on his face. Rodriguez noticed defendant had a tattoo on his right forearm.
Both Rodriguez and Magdaleno saw Skipper, who was bleeding heavily, leave the apartment and go to the neighbor's apartment a short time after defendant left.
Gina Carrillo, who lived next door to Vallelunga's apartment, heard a lot of noise from Vallelunga's bedroom. A short time later, she answered Skipper's knock on her door and called 911. Skipper then returned to Vallelunga's apartment. Carrillo testified that beginning in May of 1994, she had seen defendant many times at Vallelunga's apartment, and he had been living there the “last week” before the stabbing. The morning of the stabbing, Vallelunga told her defendant was no longer staying there.
Madera Police Officer Louis Reyes responded to Vallelunga's apartment at 6:09 p.m. on June 29, 1994, where he observed the injured victims. There was blood in the bedroom, the living room, and in and around the toilet and sink. Defendant's fingerprint was discovered near a light switch by the front door.
That night, around 9:30 p.m., defendant appeared at Dennis Wisener's house and asked if he could spend the night in Wisener's backyard. Wisener, who had worked with defendant many years earlier, responded affirmatively and provided defendant an old quilt and a pillow. Defendant left the next morning. Wisener did not notice any blood on defendant or his clothing, nor did he notice anything unusual about defendant's behavior. Wisener had spoken to defendant a week before and defendant told him he was staying at the Rescue Mission.
Defendant was arrested at the Rescue Mission on June 30, 1994, the day after the stabbings. He had no visible injuries.
An autopsy revealed Vallelunga had five stab wounds-three in the chest area, one in the neck and one in the upper abdomen. The fatal stab wound entered Vallelunga's rib cage and penetrated the right ventricle of his heart, which caused a large amount of bleeding into the chest cavity. There were no wounds indicating Vallelunga attempted to defend himself.
At trial, Skipper did not recall telling Officer Ciapessoni that he had helped Vallelunga evict defendant and his girlfriend from Vallelunga's apartment before the day of the attack.
DISCUSSION
I. Substantial evidence supports the conviction of murder.**
II. Based on the language used in the information, defendant's conviction must be modified to reflect a conviction of attempted murder.
Defendant contends his conviction for premeditated attempted murder cannot stand because he was never charged with that offense. He concludes his conviction must be reduced to attempted murder. The Attorney General contends a charge may be added without altering the information itself, and defendant's failure to object constitutes a waiver of any claim of lack of notice. In addition, the Attorney General argues any error in the failure to amend the information to encompass the charge of premeditated attempted murder was harmless beyond a reasonable doubt.
Under former section 664, subdivision 1, an attempted murder is punishable by a term of five, seven, or nine years, except “that if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punishable by imprisonment in the state prison for life with the possibility of parole .…” However, section 664, subdivision 1, requires: “The additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact.”
Defendant was charged in count two, in pertinent part, as follows:
“ ․ the said defendant ․ on or about June 29, 1994, commit a FELONY, namely, violation of Section 664/187(a) of the Penal Code of the State of California, in that the said defendant(s) did willfully, unlawfully, and with malice aforethought attempt to murder Buel Skipper, a human being.”
Thus, the information did not allege the attempted murder committed by defendant was willful, deliberate and premeditated. It appears, however, the court and the parties mistakenly believed the information had, in fact, alleged a premeditated attempted murder.3 Based on this erroneous assumption, the court suggested instructions and verdict forms which would permit the jury to make a specific finding that the attempted murder committed by defendant was premeditated. Upon inquiry by the court, defense counsel stated he had no objections to the court's proposed jury instructions. Following a discussion of these instructions and verdict forms, defense counsel made a motion for acquittal on the ground there was insufficient evidence to support a finding of premeditation with regard to both the murder and attempted murder counts. The court and the parties also discussed the attempted murder charge in terms of it being divided into first and second degree attempted murder. From the record, we cannot tell whether the parties mistakenly believed the information had specifically alleged premeditation or whether they believed the charging language was sufficient to allege both “degrees” of attempted murder.
At the time this case was charged and tried, attempted murder was not divided into degrees. (See People v. Jones (1991) 234 Cal.App.3d 1303, 286 Cal.Rptr. 163; People v. Douglas (1990) 220 Cal.App.3d 544, 269 Cal.Rptr. 579, but also see People v. Dominguez (1992) 4 Cal.App.4th 516, 523, fn. 10, 6 Cal.Rptr.2d 55.) This case law was reaffirmed by the California Supreme Court in People v. Bright (1996) 12 Cal.4th 652, 667, 669, 49 Cal.Rptr.2d 732, 909 P.2d 1354. At all pertinent times the accusatory pleading requires a specific allegation of premeditation and deliberation in order to trigger application of the higher penalty provision. (§ 664, subd. 1.)
Further, a person may not be convicted of an offense (except a lesser included offense) not charged in the indictment or information, even if there was evidence at trial which proved he or she committed the offense. (See In re Hess (1955) 45 Cal.2d 171, 174-175, 288 P.2d 5.) “It is fundamental that ‘When a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime.’ ” (People v. Lohbauer (1981) 29 Cal.3d 364, 368, 173 Cal.Rptr. 453, 627 P.2d 183.) This maxim was recently expanded to permit conviction of lesser related offenses based on the exception that a defendant may consent, expressly or impliedly, to such a conviction. (People v. Toro, supra, 47 Cal.3d at p. 973, 254 Cal.Rptr. 811, 766 P.2d 577.)
In Toro, the defendant was charged with attempted murder. The jury was also instructed on the uncharged offense of battery with serious bodily injury as an alternative offense. The jury convicted the defendant of battery with serious bodily injury. The issue before the court was whether the defendant's due process right to be notified of criminal charges rendered invalid a conviction for a lesser related crime when no objection was raised at trial. The court concluded the defendant's consent could be inferred from the circumstances. In explaining the rationale behind the development of the consent exception for conviction on lesser related offenses, the court said:
“In summary, the due process notice requirement precludes conviction for a lesser related offense when the defendant has not consented to its consideration by the trier of fact, but fundamental fairness also requires that the trier of fact be permitted to consider the lesser related offense when the defendant requests it. Thus the law recognizes that instructions on lesser related offenses may be highly beneficial or prejudicial to the defendant, depending on the defendant's trial preparation, the nature of the defense presented, and other matters of trial strategy. Because the defendant, assisted by counsel, is the only person who can assess the impact of lesser related offense instructions in a given case, the decision to permit or preclude consideration of the lesser related offense is a right accorded to the defendant.” (People v. Toro, supra, 47 Cal.3d at p. 975, 254 Cal.Rptr. 811, 766 P.2d 577.)
The court recognized the general rule that a defendant may not wait until after the verdict to claim unfair surprise, and must act at the earliest possible moment. Otherwise the claim of lack of notice is waived. The court then stated:
“In accordance with these principles, it has been uniformly held that where an information is amended at trial to charge an additional offense, and the defendant neither objects nor moves for a continuance, an objection based on lack of notice may not be raised on appeal. [Citations.] There is no difference in principle between adding a new offense at trial by amending the information and adding the same charge by verdict forms and jury instructions․ The risk of unfair surprise to the defendant is the same in either case, as is the potential benefit to the defendant of affording the jury a wider range of verdict options. To prevent speculation on a favorable verdict, a reasonable and fair rule in both situations is that a failure to promptly object will be regarded as a consent to the new charge and a waiver of any objection based on lack of notice.
“Consent to the trier of fact's consideration of a nonincluded offense has been similarly inferred from a failure to object in cases involving submissions on preliminary hearing transcripts. For example, in People v. Francis, supra, [(1969)] 71 Cal.2d 66[, 75 Cal.Rptr. 199, 450 P.2d 591], the defendant submitted on the transcript without offering additional evidence or argument and, when the trial court announced its finding of guilty on a lesser related offense, counsel thanked the court. In upholding the conviction we quoted from an earlier case presenting similar facts: ‘․ defendant, represented by competent counsel, stood by and acquiesced in a procedure whereby he was forever discharged on the serious counts included in the information as originally filed, and convicted of a less serious offense. Had defendant felt that he was in any way prejudiced by the action of the trial court, he could have prevented the error now relied on by a simple objection․ [D]efendant's failure to object must be regarded as an implied consent to treat the information as having been amended to include the offense on which the sentence was imposed, and thus to be a waiver of the only objection-lack of notice of the offense charged-which was available to defendant.’ [Citations.]
“Here also, defendant was represented at trial by competent counsel and there was no objection to the procedure which resulted in defendant's acquittal of the serious charges against him. The record shows that after an unreported conference on jury instructions the trial judge, in the absence of the jury, listed by CALJIC number each of the instructions he proposed to give ‘absent any objection.’ No objection was made to the proposed instructions on battery with serious bodily injury, nor was any objection thereafter raised to the jury's consideration of this uncharged offense. Defendant offered no evidence in his own behalf at the trial and in argument to the jury defense counsel conceded that defendant had stabbed the victim; thus, as in Francis, ‘neither [defendant] nor his attorney could rationally have anticipated anything other than a finding of guilt of some offense.’ [Citation.]” (People v. Toro, supra, 47 Cal.3d at pp. 976-977, 254 Cal.Rptr. 811, 766 P.2d 577, fn. omitted.)
Based on Toro, the Attorney General contends a charge may be added without altering the information itself, and the failure to object to such an addition constitutes a waiver of any claim of lack of notice. The Attorney General further argues any error was harmless because defendant cannot claim surprise due to lack of notice. Notably, the Attorney General does not argue the record supports an inference that defendant consented to conviction of the uncharged offense.
We reject the Attorney General's waiver argument. The crux of the holding in Toro is that a failure to object is evidence of consent to conviction of an uncharged offense, and bars any contention based on lack of notice. Here, the issue is not lack of notice, but lack of consent. Without defendant's consent to conviction on an uncharged offense, the court lacks jurisdiction to so convict him. (People v. West (1970) 3 Cal.3d 595, 612, 91 Cal.Rptr. 385, 477 P.2d 409.) If the court lacks jurisdiction to convict, the issue cannot be subject to a harmless error analysis. When a court acts in excess of its jurisdiction in entering the judgment, the judgment of conviction is itself unlawful. (In re Hess, supra, 45 Cal.2d at p. 175, 288 P.2d 5.) It is not simply a trial error.
The Attorney General contends the premeditation allegation was “added” to the accusatory pleading by the verdict forms and the jury instructions. The Attorney General appears to argue defendant's lack of objection to the verdict forms and jury instructions constituted an implied consent to add the premeditation allegation to the information. We reject this argument since the record does not show defendant intended to consent to the addition of the premeditation allegation. To the contrary, the record shows defense counsel believed, as did the court and the prosecutor, that premeditation was already alleged in the information. Further, the inference of consent by lack of objection is refuted by defendant's motion for acquittal with respect to the nonexistent premeditation allegation. It makes no sense to infer defendant agreed to have the jury resolve the factual issue of the existence of premeditation and deliberation when he also made a motion to remove that option from the jury's consideration.4
The Attorney General wants this court to disregard the fact Toro was decided in the context of a lesser related offense conviction. We cannot do so since this factor was critical to the result of the case. As pointed out in Toro, the reason for permitting convictions on lesser related offenses is because it benefits the defendant in situations where the evidence shows he or she is guilty of some offense, but not necessarily the charge chosen by the prosecutor. Giving the jury an option to convict on a lesser related offense relieves pressure on the jury. Otherwise a jury could be forced to choose between outright acquittal and convicting on an offense about which it entertains a reasonable doubt. (People v. Toro, supra, 47 Cal.3d at p. 974, 254 Cal.Rptr. 811, 766 P.2d 577.) There is no comparable benefit to a defendant convicted of a greater offense than that charged. A defendant would have no incentive to fail to object in the hope of being convicted of a greater crime. As a result, in defendant's situation, inferring consent based on a lack of objection defies common sense. (People v. Ramirez (1987) 189 Cal.App.3d 603, 623, 236 Cal.Rptr. 404 [“Conviction for an uncharged greater offense not only raises the problem of notice but makes the inference of consent more difficult, as there is no reason why a defendant should acquiesce in substitution of a greater for a lesser offense”].) Given this factual distinction, we decline to extend Toro to a greater uncharged offense case.
Although decided before Toro, in People v. Ramirez, supra, 189 Cal.App.3d 603, 236 Cal.Rptr. 404, a similar argument was rejected. There, the defendant was charged with, among other offenses, one count of penetration by foreign object (§ 289, subd. (a)). The jury was instructed on and was provided verdict forms which permitted a finding the penetration was committed in concert with other perpetrators (§ 264.1). The jury found defendant guilty of penetration by foreign object and that he acted in concert pursuant to section 264.1. The appellate court rejected application of the implied consent rule, or implied amendment of the information, holding:
“This case presents no active acquiescence in the greater charge [citations], nor benefit from dismissal of a greater charge from which consent may be inferred. [Citations.] The only basis for inferring consent is appellants' failure to object to verdicts including the in concert allegations. We decline to hold that a consent is established by the absence of objection [citation] especially where, as here, appellant could have no incentive to object and risk amendment of the information to charge the greater offense.
“Accordingly, the convictions under Penal Code section 264.1 must be reduced to simple penetration under section 289, subdivision (a).” (People v. Ramirez, supra, 189 Cal.App.3d at p. 624, 236 Cal.Rptr. 404.)
Even if we were to hold Toro applied to greater uncharged offenses, any implied consent inferable from defendant's failure to object is dispelled by defendant's motion for acquittal based on the greater penalty provision. The only logical inference is defense counsel erroneously assumed the premeditation allegation was properly alleged, not that defendant was consenting to an implied amendment of the information.
The judgment on count two is modified by striking the jury's finding the attempted murder was committed willfully, deliberately and with premeditation. Since this modification will affect sentencing (see infra), a remand for resentencing is ordered.
In light of our decision, we do not address defendant's argument that there was insufficient evidence to support the jury's finding of premeditation and deliberation with respect to count 2.
III.-IV.***
V. Sentencing issues.
Both defendant and the Attorney General agree the trial court incorrectly calculated defendant's sentence under the Three Strikes law. They disagree, however, on how the sentence should be recalculated. Defendant contends his sentence should be no more than 50 years to life. He argues, however, the trial court erred by determining a consecutive term on count two was mandatory instead of discretionary. The Attorney General argues the court correctly determined the term for the murder count should be 75 years to life, based on a tripling of the normal 25 years to life term applicable to first degree murder. The Attorney General agrees with defendant that the appropriate term for count two should have been 25 years to life instead of three life sentences. He disagrees with defendant on the question of whether the court had discretion to run the count two term concurrently or consecutively. Instead, the Attorney General agrees with the trial court that any term on count two has to run consecutive to the term on count one.
Calculating the term for count one
The applicable provisions are contained in section 667, subdivision (e), which provides, in pertinent part:
“(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction.
“․
“(2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of:
“(i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions.
“(ii) Imprisonment in the state prison for 25 years.
“(iii) 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, or any period prescribed by Section 190 or 3046.6
“(B) The indeterminate term described in subparagraph (A) shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law. Any other term imposed subsequent to any indeterminate term described in subparagraph (A) shall not be merged therein but shall commence at the time the person would otherwise have been released from prison.”
The court sentenced defendant to 75 years to life on count one under option (i) by tripling the normal term of 25 years to life. (See § 190.) Defendant does not contend sentencing under option (i) does not result in the greater punishment of the three options as done by the trial court. However, defendant contends option (i) is not applicable to his current felony conviction of first degree murder. He takes this position by concluding the word “term” in option (i) refers only to “determinate” terms and not indeterminate terms such as in his current felony conviction. Defendant argues:
“․ The word ‘term’ is used in the language of option (iii) to refer to the term in a determinate sentence, as demonstrated by its reference to Penal Code section 1170. The word ‘period’ is used in the language of option (iii) to refer to the date of minimum parole eligibility in an indeterminate sentence situation, as demonstrated by its reference to Penal Code sections 190 and 3046. Option (i) uses the word ‘term’, not the word ‘period.’
“Thus, if one is to interpret the [statute] as a whole, and hold to the rule of consistent terminology, the use of the word ‘term’ in option (i) must mean the same thing as the word ‘term’ in option (iii); that is, the time of a determinate sentence. Since option (i) does not use the word ‘period’, then it does not refer to the minimal parole date in an indeterminate sentence. Consequently, option (i) refers only to determinate sentencing situations, and is inapplicable to indeterminate ones.” (Fn.omitted.)
Under defendant's proposed construction, only options (ii) and (iii) are applicable to third strike defendants whose sentence would otherwise be an indeterminate term. Under either of these calculations, defendant's sentence on count one would be 25 years to life.
The Attorney General maintains that such a hypertechnical parsing of the three strikes law is insupportable. The stated purpose of the statute is to “ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” (§ 667, subd. (b).) Defendant's proposed construction would result in the exemption of first degree murderers (or other persons who commit crimes for which indeterminate sentences are provided) from the sentence-increasing effect of the three strikes law. Nothing in the statute evidences such an intent. To the contrary, the statute is written and has been consistently construed with its stated purpose of ensuring longer sentences. (See, e.g., People v. Samuels (1996) 42 Cal.App.4th 1022, 1029-1030, 50 Cal.Rptr.2d 157; People v. Superior Court (Arevalos) (1996) 41 Cal.App.4th 908, 915-916, 48 Cal.Rptr.2d 833; People v. Ingram (1995) 40 Cal.App.4th 1397, 1410, 48 Cal.Rptr.2d 256; People v. Ramirez (1995) 33 Cal.App.4th 559, 566-569, 39 Cal.Rptr.2d 374.)
Section 4 requires:
“The rule of the common law, that penal statutes are to be strictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.” (See People v. Martin (1995) 32 Cal.App.4th 656, 662, 38 Cal.Rptr.2d 776.)
Applying this rule of construction requires rejection of defendant's proposed interpretation. As a result, the Legislature's use of the word “period” in option (iii) may be construed to generically include: 1) indeterminate terms (including the minimum and maximum); 2) minimum terms before parole eligibility under section 3046; and 3) sentences of death or life imprisonment without the possibility of parole. Consequently, the all-encompassing word “period” was obviously meant to require that a Three Strikes sentence not be imposed where a greater penalty would otherwise be required, such as death or life without parole. Additionally, option (iii) does not even remotely suggest the word “term” excludes the minimum term of an indeterminate sentence.
Moreover, the word “term” is used in subparagraph (2)(A) three times in reference to indeterminate sentences. The first time, it relates to both the minimum and maximum terms. The second time, it concerns an indeterminate term of life imprisonment. The third time, it pertains to the minimum term of the indeterminate sentence calculated under the Three Strikes law. The subparagraph also uses the word “sentence” interchangeably with the first use of the word “term,” referring to the combined minimum and maximum terms. As a result, we conclude the Legislature did not intend to limit the applicability of the word “term” to only determinate terms, to the exclusion of indeterminate terms.
“ ‘ “․ 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. [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the [statute.]” ’ [Citation.] ‘The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.] An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be read not in isolation but in light of the statutory scheme [citation]․’ [Citation.]” (People v. Ramirez, supra, 33 Cal.App.4th at p. 563, 39 Cal.Rptr.2d 374.)
In brief, defendant's proposed interpretation would lead to absurd results. A first degree murderer with only one prior strike would receive an indeterminate term of 50 years to life under section 667, subdivision (e)(1), but the same murderer with two or more prior strikes could only receive an indeterminate term of 25 years to life. Conversely, an interpretation which does not limit the use of the word “term” to determinate terms would perpetuate the objective of the Three Strikes law, to provide longer sentences for those with histories of serious or violent recidivism. Concomitantly, it promotes justice among recidivists of varying degrees, as well as criminals with no prior strikes. This construction does no violence to the language of the statute, but instead harmonizes the language with the obvious intent of the legislation. For these reasons, the trial court did not err by applying option (i) and tripling defendant's applicable term of 25 years to life for an indeterminate sentence of 75 years to life on count one.
Mandate for consecutive sentencing on count two
On count two, the sentencing court determined a consecutive sentence was mandated by section 667, subdivision (e)(2)(B), previously quoted above. Since section 664 requires a life sentence for attempted willful, deliberate, and premeditated murder, the court imposed three consecutive life terms on this count. The parties agree this was error, arguing the appropriate term on count two was 25 years to life under option (ii). Because we have determined defendant could not properly be convicted of an uncharged count of attempted willful, deliberate, and premeditated murder, the matter must be remanded for resentencing based on a conviction for attempted murder. The penalty range for attempted murder under section 664, subdivision (a) is a term of five, seven or nine years in prison. Thus on remand, the sentencing court will have to determine which of these terms to impose. “Where warranted by the facts, the trial court could select the lower term or the upper term.” (People v. Ayon (1996) 46 Cal.App.4th 385, 393, fn. 6, 53 Cal.Rptr.2d 853.) After making its selection, the court must then determine whether tripling the selected term, e.g., 27 years to life based on an upper term selection, as directed under option (i), will result in a term greater than 25 years to life. If so, the court must impose the tripled term. If not, the appropriate term will be 25 years to life under option (ii).
The next question is whether the court has discretion to impose a concurrent term on count two, or whether a consecutive term is mandatory under section 667, subdivision (e)(2)(B) as found by the court.7 A reading of the language of that paragraph clearly indicates a consecutive term must be imposed when a defendant is sentenced under subdivision (e)(2)(A) if a consecutive term may be imposed by law. (See People v. Miles (1996) 43 Cal.App.4th 364, 369, 51 Cal.Rptr.2d 87.) In the instant case, because defendant committed crimes of violence against two separate victims, the law permits the imposition of consecutive sentencing. (Ibid.; People v. Carter (1995) 41 Cal.App.4th 683, 689, 48 Cal.Rptr.2d 726.) Defendant appropriately concedes that under the facts of this case a consecutive term may be imposed by law. We conclude section 667, subdivision (e)(2)(B) mandates a consecutive term on count two in this case.
Defendant argues that section 667, subdivisions (c), parts (6) and (7) 8 and (e)(2)(B) overlap, and the language of (c)(6) should control on the question of whether mandatory consecutive sentencing applies. He argues the requirement of (c)(6), i.e., that the “count not [] committed on the same occasion,” takes precedence over subdivision (e)(2)(B), and must be satisfied before consecutive sentencing becomes mandatory. We disagree.
Defendant attempts to turn subdivision (c)(6) on its head by arguing that by mandating consecutive sentencing in certain circumstances, mandatory sentences under any other circumstances are precluded. The only authority cited for defendant's position is the general rule of statutory construction that ambiguities in statutory language must be resolved in favor of defendant. However, this is not an ambiguous language situation. Rather, there are simply two provisions that govern the same subject-mandatory consecutive sentencing-which overlap. Section 667, subdivision (c)(6), merely requires consecutive sentences in certain circumstances. It does not provide that mandatory consecutive sentencing is precluded unless those circumstances are present.
The rule of statutory construction that defendant is urging applies only when two statutory provisions are inconsistent, i.e., when a general and particular provision are inconsistent, the more specific prevails. (People v. Price (1991) 1 Cal.4th 324, 385, 3 Cal.Rptr.2d 106, 821 P.2d 610.) However, two provisions “dealing with the same subject are given concurrent effect if they can be harmonized, even though one is specific and the other general.” (Ibid.) The possible overlapping application of subdivision (e)(2)(B) and subdivision (c), parts (6) and (7), of section 667 presents no conflict in the provisions regarding consecutive sentencing. As noted earlier, under its plain language, section 667, subdivision (e)(2)(B) requires all terms which may be imposed consecutively to be imposed consecutively to any indeterminate term imposed under subdivision (e)(2)(A). Subdivision (e)(2)(A), in turn, only applies to defendants convicted of a felony with two or more prior strikes.9 Although the issue is not directly before us, given this requirement, it is possible the Legislature intended that section 667, subdivision (c), parts (6) and (7), come into play only where the defendant has a single prior strike conviction. Construing the overlapping provisions in this manner avoids conflict, and is consistent with the dictates of the rules for statutory construction that each provision of a statute be applied according to its terms. (People v. Western Air Lines (1954) 42 Cal.2d 621, 637, 268 P.2d 723 [if possible, provisions should be construed to avoid repugnancy]; People v. Trimble (1993) 16 Cal.App.4th 1255, 1259, 20 Cal.Rptr.2d 495 [statutory provisions should be construed to avoid conflict].)
For all these reasons, the trial court properly determined the Three Strikes law mandates consecutive sentencing with respect to count two. Although urged to do so by the Attorney General, we need not decide whether mandatory consecutive sentencing under section 667, subdivision (c)(7), is also required on the grounds the crimes involved two violent felonies committed against separate victims.
VI.-IX.†
DISPOSITION
The judgment of convictions is affirmed. The finding of premeditation with respect to the attempted murder charged in count two is ordered vacated. The matter is remanded for resentencing so the trial court may exercise its discretion to determine whether defendant's mandatory consecutive term on count two should be 25 years to life under option (ii), or 27 years to life, based on an upper base term calculation, under option (i).
FOOTNOTES
1. All statutory references are to the Penal Code unless otherwise noted.
2. Skipper identified defendant at trial and had previously identified him from four or five photographs a police officer had shown him.
FOOTNOTE. See footnote *, ante.
3. The complaint filed in the municipal court did include the following allegation:“It is further alleged that the aforesaid attempted murder was committed willfully, deliberately and with premeditation within the meaning of Penal Code Section 664(1) ․”
4. This is undoubtedly why the Attorney General does not argue a finding of consent as a basis for upholding the judgment, and instead urges an analysis based on waiver principles.
FOOTNOTE. See footnote *, ante.
6. We shall refer to the calculation pursuant to section 667, subdivision (e)(2)(A)(i) through (iii) as “option (i),” “option (ii),” and “option (iii),” respectively.
7. The court found “the two acts were on different victims on a single occasion, but constituted a divisible course of criminal conduct” and that “consecutive sentences are mandatory for both counts pursuant to 667(e)(2)(b) [sic] of the Penal Code.”
8. Section 667, subdivision (c) provides, in pertinent part:“(c) Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following:“․“(6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e).“(7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.”
9. We note a similar holding, based on a similar analysis, was reached in People v. Newsome (1997) 53 Cal.App.4th 1476, 1484-1485, 62 Cal.Rptr.2d 574.
FOOTNOTE. See footnote *, ante.
WISEMAN, Associate Justice.
STONE (WM.A.), Acting P.J., and THAXTER, J., concur.
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Docket No: No. F024902.
Decided: May 15, 1997
Court: Court of Appeal, Fifth District, California.
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