PEOPLE v. MICHAEL (1992)

Court of Appeal, First District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. John J. MICHAEL, Defendant and Appellant.

No. A051060.

Decided: August 14, 1992

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Sharon G. Birenbaum, Deputy Atty. Gen., Thomas A. Brady, Deputy Atty. Gen., San Francisco, for plaintiff and respondent. Quin Denvir, by appointment of the Court of Appeal, First Dist. Appellate Project, Sacramento, for defendant and appellant.

John J. Michael (appellant) appeals from a jury conviction of 18 counts of various sexual offenses against his minor stepdaughter.

STATEMENT OF FACTS **

I.–V.***

VI. PENAL CODE SECTION 654 DOES NOT PRECLUDE IMPOSITION AND EXECUTION OF BOTH THE PENAL CODE SECTION 667.5 AND PENAL CODE SECTION 667, SUBDIVISION (a) ENHANCEMENTS

Appellant was convicted of one count of first degree burglary on August 16, 1984.   He was sentenced to four years in state prison, but the sentence was suspended and appellant was placed on probation.   On April 27, 1988, after several probation violations, probation was ultimately revoked and appellant was committed to state prison.   Based on this record, the information alleged that on August 16, 1984, appellant had suffered a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a).   The information further alleged an enhancement for service of a prior prison term (Pen.Code, § 667.5, subd. (b)), based on the April 27 commitment to state prison, following revocation of probation.   Appellant contends that because both enhancements are based on facts relating to the same underlying conviction, that the court, pursuant to Penal Code section 654, should have stricken the one-year enhancement for service of a prior prison term.

 Assuming arguendo that Penal Code section 654 applies to the imposition of multiple enhancements,⁵ we hold that it does not preclude imposition of both the prior prison term and the prior serious felony enhancements, even where there is only one underlying conviction.  Section 654 prohibits multiple punishment for an “act or omission which is made punishable in different ways by different provisions of this code․”  The “acts” made punishable under Penal Code sections 667, subdivision (a), and 667.5 are different facts relating to appellant's status at the time of the commission of the current offense:  Section 667, subdivision (a) punishes the fact of having suffered a prior serious felony conviction and becoming a recidivist offender.  Section 667.5, subdivision (b) punishes the separate act of having served a prior prison term for any felony.  “The distinction between a prior felony conviction and a separate prison term served for such felony is obvious.   A prior felony conviction could well have resulted in something less than confinement in the state prison, in which event no enhancement would be called for under section 667.5, subdivision (b).”  (People v. Gaines (1980) 112 Cal.App.3d 508, 519, 169 Cal.Rptr. 381.)

This case perfectly illustrates why the acts punished by each of these enhancements are different even though they may relate to the same underlying conviction.   Appellant was convicted of first degree burglary in 1984.   His four-year prison term was suspended and, had appellant not committed a probation violation, he would never have served a prior prison term and would only have been subject to the prior serious felony enhancement.   There simply is no necessary correlation between having suffered a prior serious felony conviction and having served a prior prison term.   The fact that a defendant served the prior prison term reflects separate conduct beyond the mere fact of conviction warranting that a prison term be imposed.

We find the situation in this case to be closely analogous to that in People v. Melchor (1989) 211 Cal.App.3d 1485, 260 Cal.Rptr. 174.   In that case the appellant contended that imposition of a two-year commission of a crime while on bail enhancement (Pen.Code, § 12022.1) and a five-year serious felony enhancement (Pen.Code, § 667) violated Penal Code section 654 because the bail and the prior serious felony enhancement both related to the same underlying conviction.   The court rejected his argument, noting that the mere fact that the defendant would not have been subject to either enhancement if he hadn't suffered the underlying conviction, did not raise a section 654 problem because the enhancements related to different facts:  “The five-year enhancement was imposed because appellant was convicted of a serious felony after having been convicted of a prior serious felony.   The two-year enhancement was imposed because appellant committed an additional felony offense while released from custody on the earlier felony offenses.   Section 12022.1 thus requires an additional fact be shown before the enhancement is imposed, namely, that the defendant was released on bail at the time of the commission of the secondary offense․  Furthermore, the purpose underlying each of the two provisions are different.   The purpose of section 667 is to discourage persons who commit serious felonies from doing so again.   The bail enhancement, by contrast, reflects appellant's breach of the terms of his special custodial status and applies whether or not the felony offenses are serious.”  (Melchor, supra, at p. 1489, 260 Cal.Rptr. 174, citations omitted.)   Similarly, in this case, the prior prison term enhancement punishes the additional fact that appellant served a prison term in connection with any prior felony conviction.

 At least two decisions have squarely held that imposing both the prior serious felony enhancement and the prior prison term enhancement when there is a single underlying felony conviction does violate Penal Code section 654.   (See People v. Hopkins (1985) 167 Cal.App.3d 110, 117, 212 Cal.Rptr. 888;  People v. Carter (1983) 144 Cal.App.3d 534, 541–542, 193 Cal.Rptr. 193;  see also People v. Goodner (1990) 226 Cal.App.3d 609, 618, fn. 6, 276 Cal.Rptr. 542.) ⁶  The flaw in the reasoning in these cases is that they identify the “act” punished by each of these enhancements as the underlying conviction.   Neither the section 667 nor section 667.5 enhancements purport to punish the defendant again for the underlying offense.  (See People v. Johnson (1979) 95 Cal.App.3d 352, 357–358, 157 Cal.Rptr. 150.)   Rather, section 667 punishes the defendant for being a recidivist offender having suffered yet another prior serious felony conviction regardless of whether a prison term was served for that conviction, and section 667.5, subdivision (b) punishes a defendant for having served a prior prison term for any felony.   Each enhancement requires that some additional fact exist beyond the fact of an underlying conviction.   We therefore are not persuaded by the analysis in these decisions and decline to follow them.⁷

VII. THE COURT FAILED TO STATE REASONS FOR SELECTING THE UPPER TERM WHEN IMPOSING SENTENCE UNDER PENAL CODE SECTION 667.6, SUBDIVISION (d)

 The trial court sentenced appellant to a fully consecutive upper term on counts 3, 6, 7, 9, 10 and 16.   It also selected the upper term to be served concurrently on counts 11, 12, 17 and 18.   The court gave no reason for selecting the upper term as to any of these counts noting only that, with respect to counts 3, 6, 7 and 9, section 667.6, subdivision (d) required “a mandatory full term.”

Under Penal Code section 667.6, subdivision (d), “[a] full, separate, and consecutive term shall be served for each violation of ․ subdivision (2) ․ of Section 261 ․ if the crimes ․ involve the same victim on separate occasions.”  Section 667.6 does not require that the term selected be the aggravated term.   It requires only that whatever term is imposed, it shall be fully consecutive instead of one-third the base term.   The court is therefore still required to state the reasons for imposing an aggravated term.  (Cal. Rules of Court, rule 420(e);  People v. Jones (1984) 155 Cal.App.3d 153, 187, 202 Cal.Rptr. 162.)

This error requires a remand for resentencing because the court's comments provide no insight into why the aggravated terms were imposed, and it may be that the court incorrectly believed it had to impose the aggravated terms.   Thus, despite the presence of numerous aggravating factors listed in the probation report, we cannot be sure that the court would have selected the aggravated term in the proper exercise of its discretion.

CONCLUSION

The matter is remanded for resentencing in accordance with this opinion.   In all other respects the judgment is affirmed.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

5.   The courts are divided on this issue.  (Compare People v. Dobson (1988) 205 Cal.App.3d 496, 500–501, 252 Cal.Rptr. 423 [holding that § 654 applies], and People v. Rodriguez (1988) 206 Cal.App.3d 517, 519, 253 Cal.Rptr. 633 [listing cases holding that it does not].)

6.   Dicta in People v. Vaughn (1989) 209 Cal.App.3d 398, 401–402, 257 Cal.Rptr. 229, and People v. Medina (1988) 206 Cal.App.3d 986, 990, 254 Cal.Rptr. 89, also suggests that it is impermissible to impose both the section 667, subdivision (a) and section 667.5 enhancements when the prior prison term relates to the same conviction that is the basis for the section 667 enhancement.   In the recent decision, People v. Cline (1992) ––– Cal.App.4th ––––, ––– Cal.Rptr.2d –––– [92 C.D.O.S. 6705], the Third Appellate District expressly disapproved of its own reasoning in People v. Carter, supra, 144 Cal.App.3d 534, 193 Cal.Rptr. 193, and its dicta in People v. Vaughn, and held that it does not violate Penal Code section 654 to impose both the section 667 and the section 667.5 enhancements based on the same underlying conviction.   The court in Cline held that “section 654 is inapplicable to section 667 and section 667.5 enhancements.”  (People v. Cline, supra, –––Cal.App.4th at p. ––––, ––– Cal.Rptr.2d –––– [92 C.D.O.S. at p. 6706], emphasis added.)   Although we agree with the conclusion in Cline that it does not violate Penal Code section 654 to impose both enhancements based on the same underlying conviction, we think it is unnecessary to reach the broader question of whether section 654 applies at all to enhancements based on the status of the offender and, instead, hold only that assuming arguendo that section 654 applies, sections 667 and 667.5 punish different acts.

7.   The prior prison term/prior serious felony distinction has been consistently recognized in the context of “dual use of facts,” and the courts have held that there is no dual use of facts when different facts, which happen to relate to the same underlying conviction, are used to aggravate and enhance a sentence or are used as an element of an offense and to impose an enhancement.  (See, e.g., People v. Gaines (1980) 112 Cal.App.3d 508, 515, 169 Cal.Rptr. 381 [no dual use of facts to use prior convictions as an element of offense and to impose prior prison term enhancement];  People v. Hurley (1983) 144 Cal.App.3d 706, 708–713, 192 Cal.Rptr. 805 [no dual use to aggravate term based on numerous prior convictions and to impose a prior prison term enhancement relating to one of the same convictions];  People v. Jerome (1984) 160 Cal.App.3d 1087, 207 Cal.Rptr. 199 [no dual use of facts to aggravate the term because the defendant was on parole for a prior rape conviction when he committed the new offense, and to impose a consecutive term under § 667.6, subd. (a), for repeated commission of forcible sex offenses based in part on the same prior rape conviction].)   This is so even when, for example, the aggravating factor and the enhancement relate to the same underlying conviction.  (People v. Jerome, supra, 160 Cal.App.3d at pp. 1098–1099, 207 Cal.Rptr. 199.)   Although not identical, the principle behind the prohibition against dual use of facts and section 654 are similar.   (See People v. Flores (1981) 115 Cal.App.3d 67, 76, 171 Cal.Rptr. 365 [policy prohibiting dual use of facts is reflected in Pen.Code, § 654].)   It defies reason and logic to permit a sentence to be aggravated and enhanced based on different facts which happen to relate to the same underlying conviction and yet to hold that section 654 prohibits the imposition of two enhancements based on different facts which happen to relate to the same underlying conviction.

STEIN, Associate Justice.

STRANKMAN, P.J., and NEWSOM, J., concur.