PEOPLE v. CORONADO (1994)

OPINION

Defendant, Antonio Coronado, appeals from the sentence after conviction of Vehicle Code sections 23152, subdivision (a) and 23175 (driving while under the influence of alcohol with prior convictions).   He contends the trial court erred by using the same prior conviction to punish defendant under both Vehicle Code section 23175 ¹ and Penal Code section 667.5, subdivision (b).²

We will affirm, holding that the use of the same prior to elevate a charge to a felony and to enhance a sentence is neither prohibited by People v. Jones (1993) 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163, nor violative of section 654.

DISCUSSION 3

I. Cumulative use of the same prior conviction.

(a) Development of the law in the appellate courts.

In People v. Ancira (1985) 164 Cal.App.3d 378, 382, 210 Cal.Rptr. 527, the First District Court of Appeal held that a sentence enhancement could not be imposed pursuant to section 667.5 for a prior prison term which was the basis of a conviction for petty theft with a prior.  (§ 666.)   The court relied on People v. Edwards (1976) 18 Cal.3d 796, 800, 135 Cal.Rptr. 411, 557 P.2d 995, wherein the Supreme Court held:

“The court's reliance on defendant's prior conviction for the dual purpose of augmenting sentence and providing an essential element of the charged offense ․ runs afoul of the established rule that when a prior conviction constitutes an element of criminal conduct which otherwise would be noncriminal, the minimum sentence may not be increased because of the indispensable prior conviction.  [Citations.]”

Beginning with the Third District Court of Appeal opinion in People v. Bruno (1987) 191 Cal.App.3d 1102, 237 Cal.Rptr. 31, subsequent decisions departed from Ancira on the ground Ancira 's reliance on Edwards was flawed.   The court in Bruno reasoned that Edwards predated the Uniform Determinate Sentencing Act which included section 1170.   Although the original version of section 1170 provided, “ ‘In no event shall any fact be used twice to determine, aggravate, or enhance a sentence,’ ” this sentence was deleted by amendment before the act's operative date, effectively eliminating any prohibition against using the fact twice to determine, aggravate and enhance a sentence.  (Bruno, 191 Cal.App.3d at p. 1107, 237 Cal.Rptr. 31.)   Bruno found that this deletion precluded a construction of the existing section which would reinsert the deleted section.  (Ibid.)  Consequently, the same prior conviction which constitutes the underlying conviction for the section 666 charge may be used to enhance the sentence for that crime pursuant to section 667.5.  (Ibid.)   To so hold “carri[es] out the policies of both sections 666 and 667.5, imposing a greater punishment on a thief because of his recidivism and additional punishment on a felon whose prior prison term failed to deter future criminality.”  (Ibid.)

Many courts, including this court, have followed the Bruno analysis.   (People v. Price (1992) 4 Cal.App.4th 1272, 1276–1278, 6 Cal.Rptr.2d 263;  People v. Vega (1990) 224 Cal.App.3d 506, 511–515, 273 Cal.Rptr. 684;  People v. Rodriguez (1988) 206 Cal.App.3d 517, 520, 253 Cal.Rptr. 633;  People v. Levell (1988) 201 Cal.App.3d 749, 752–753, 247 Cal.Rptr. 489.)

However, in People v. Darwin (1993) 12 Cal.App.4th 1101, 15 Cal.Rptr.2d 894, the First District Court of Appeal recently disagreed with Bruno, concluding the original version of section 1170 did not codify the Edwards rule since the holding in Edwards was that if a prior conviction is an “element” of an offense, the prior may not be used for sentence enhancement;  the later deleted sentence in the original version of section 1170 did not address the dual use of a prior as an element of an offense and for sentence enhancement, but merely addressed sentencing, stating that a fact could not be used twice to determine, aggravate or enhance a sentence.   Since these two points are not the same, the legislative action did not abrogate the Edwards rule.  (12 Cal.App.4th at p. 1104, 15 Cal.Rptr.2d 891.)   The court in Darwin then noted,

“Nevertheless, a recent California Supreme Court decision indicates the Edwards rule, while not abrogated, does not apply in the present context, so that the result reached in the Bruno line of cases was correct.   In People v. Bouzas (1991) 53 Cal.3d 467 [279 Cal.Rptr. 847, 807 P.2d 1076] ․, the court held a defendant charged with petty theft with a prior may stipulate to the prior and thus preclude the jury from learning of it despite article I, section 28, subdivision (f), of the California Constitution, which states, ‘When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.’   The court reasoned that the prior ‘is a sentencing factor for the trial court and not an “element” of the section 666 “offense” that must be determined by the jury.’  (53 Cal.3d at p. 480 [279 Cal.Rptr. 847, 807 P.2d 1076].)  If a prior prison term underlying a conviction for petty theft with a prior is not an element of the offense but merely a sentencing factor, the Edwards rule against dual use of the prior as an element of an offense and for sentence enhancement does not apply.   Because the present uses of the prior prison term were limited to sentence enhancement purposes, they were proper under the mandate of article I, section 28, subdivision (f), of the California Constitution that a prior felony conviction ‘shall subsequently be used without limitation for purposes of ․ enhancement of sentence in any criminal proceeding.’  (See People v. Prather (1990) 50 Cal.3d 428, 440 [267 Cal.Rptr. 605, 787 P.2d 1012] ․ [prior felony conviction includes prior prison term under Pen.Code § 667.5, subd. (b) ].)

“With the Edwards rule inapplicable by virtue of Bouzas, we may properly agree with the observation in Bruno that, ‘Here the sentence pronounced properly carried out the policies of both sections 666 and 667.5, imposing a greater punishment on a thief because of his recidivism and additional punishment on a felon whose prior prison term failed to deter future criminality.’  (People v. Bruno, supra, 191 Cal.App.3d at p. 1107 [237 Cal.Rptr. 31].)”  (12 Cal.App.4th at p. 1104, 15 Cal.Rptr.2d 894, emphasis added.)

(1) People v. Jones.

Shortly after Darwin was decided, the California Supreme Court was confronted with a dual use issue somewhat related to that presented in Darwin.   In People v. Jones, supra, 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163, defendant's sentence was enhanced by three prior felonies under section 667.5, subdivision (b) (requiring service of a prison term for use as an enhancement), one of which also qualified as a “serious felony” under section 667, subdivision (a) (requiring only a conviction for use as an enhancement), for which an additional five-year term was imposed.   The court first considered whether both enhancements actually applied to the same facts.   Citing People v. Prather (1990) 50 Cal.3d 428, 267 Cal.Rptr. 605, 787 P.2d 1012,⁴ the Supreme Court found the distinction between prior conviction and prior prison term to be “untenable” and “hypertechnical.”   Accordingly, the court concluded both enhancements apply to the same facts.  (Jones, supra, 5 Cal.4th at pp. 1148–1149, 22 Cal.Rptr.2d 753, 857 P.2d 1163.)

However, this conclusion did not resolve the issue;  rather, it merely served as the threshold for the holding of the case.   After examining the voters' intent in the passage of Proposition 8 (which contained § 667, subd. (a)), the court held that it was the intent of the voters that only the greatest enhancement be imposed.  (Jones, supra, 5 Cal.4th at p. 1152, 22 Cal.Rptr.2d 753, 857 P.2d 1163.)   Although Jones established the first part of the equation, that it is a dual use of facts where the same prior is used to elevate and enhance, it left open the second part, whether the dual use is prohibited.

Here, unlike Jones, we are not confronting a penal statute which is a subgroup of another penal statute, such as in sections 667, subdivision (a) and 667.5, subdivision (b), which grouping facilitated resolution by allowing the court to look to the intent of the electorate in its passage of the statute(s) in question.   We are also unaware of any other provision of the law which may possibly prohibit cumulative imposition of the same prior conviction, except for section 654.⁵  We now turn to that code section.

(2) Section 654.

There is a long-standing split of authority among appellate districts as to whether section 654 applies to enhancements.

Although the majority in Jones found it unnecessary to reach this issue because the statutory scheme permitted a narrower resolution of the matter, the dissent in Jones opted to address the subject, and in so doing, drew extensively from the opinion of People v. Rodriguez, supra, 206 Cal.App.3d 517, 253 Cal.Rptr. 633, finding it illustrative of the line of authority finding section 654 wholly inapplicable to such enhancements.

Rodriguez involved a situation analogous to the instant case.   The defendant pled guilty to a charge of petty theft and admitted he suffered a previous conviction for robbery for which he had served a separate prison term.   Pursuant to section 666, the prior conviction and prison term served formed the basis for elevating a petty theft to a felony.   At sentencing the trial court struck a section 667.5 enhancement allegation on the ground that to impose a one-year prior prison term enhancement would violate the proscriptions against double punishment set forth in section 654 because the prior conviction/prison term already had been used to elevate the petty theft to a felony.  (206 Cal.App.3d at p. 518, 253 Cal.Rptr. 633.)

On appeal by the People, the appellate court rejected defendant's argument that section 654 prohibited the use of his prior robbery conviction and imprisonment to both elevate the petty theft to a felony and enhance his sentence pursuant to section 667.5 reasoning as follows:  “Section 654 applies to an ‘act or omission,’ i.e., criminal conduct or neglect.   Both sections 666 and 667.5 apply to facts, not acts;  they relate to the status of the recidivist offender engaging in criminal conduct, not to the conduct itself.”  (People v. Rodriguez, supra, 206 Cal.App.3d at p. 519, 253 Cal.Rptr. 633.)   The court in Rodriguez concluded, “We therefore find the Legislature intended to permit a single qualifying conviction and sentence to be used both to make petit theft a felony and to enhance any prison term therefor for the prior prison term.”  (Id. at p. 520, 253 Cal.Rptr. 633.)   The dissent in Jones found the reasoning in Rodriguez convincing, stating, “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 an ‘act or omission’ for which the enhanced penalties are being imposed.”  (People v. Jones, supra, 5 Cal.4th at p. 1165, 22 Cal.Rptr.2d 753, 857 P.2d 1163.)

Those cases concluding to the contrary, People v. Hopkins (1985) 167 Cal.App.3d 110, 117, 212 Cal.Rptr. 888 and People v. Carter (1983) 144 Cal.App.3d 534, 541–542, 193 Cal.Rptr. 193, did not recognize this act versus fact distinction, i.e., that the enhancements do not relate to the underlying conviction or the prior conviction but relate to the status of the recidivist, a fact, not an act or omission.

Moreover, none of the cases cited by defendant and none of the cases we have reviewed which apply section 654 to enhancements involve a situation in which a sentence-elevating prior is also used to enhance, such as in Rodriguez.

This distinction is particularly significant in cases such as presented here, where sentence elevating priors are also used to enhance a sentence.   The term enhancement is narrowly defined as an “ ‘additional term of imprisonment added to the base term.’ ”  (People v. Whitten (1994) 22 Cal.App.4th 1761, 1766, 28 Cal.Rptr.2d 123, citing Cal.Rules of Court, rule 405(c).)   In a situation allowing charges under section 666 or Vehicle Code section 23175, the prior conviction is used to ascertain the initial charge out of which the base term will then issue.   Therefore, to be precise, in circumstances such as presented here, only one enhancement (§ 667.5, subd. (b)) is involved.  (Cf. Whitten, 22 Cal.App.4th at p. 1766, 28 Cal.Rptr.2d 123.)   There is no dual use of enhancements, as enhancements are defined.

II. The restitution fine.**

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   In pertinent part, Vehicle Code section 23175, subdivision (a) states:  “If any person is convicted of a violation of Section 23152 and the offense occurred within seven years of three or more separate violations of Section 23103, as specified in Section 23103.5, or Section 23152 or 23153, or any combination thereof, which resulted in convictions, that person shall be punished by imprisonment in the state prison, or in the county jail for not less than 180 days․”

2.   In pertinent part, Penal Code section 667.5 states:  “Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows:“․“(b) ․ where the 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;  ․”All statutory references are to the Penal Code unless otherwise noted.

3.   No recitation of facts is necessary because of the nature of the issues presented.

4.   In People v. Prather, supra, 50 Cal.3d 428, 267 Cal.Rptr. 605, 787 P.2d 1012, the California Supreme Court held that application of the double-the-base-term limitation for enhancements arising from prior convictions was barred by article I, section 28, subdivision (f) of the California Constitution.  (At p. 439, 267 Cal.Rptr. 605, 787 P.2d 1012.)   The essential rationale was that for purposes of the double-the-base term, reference in article I, section 28, subdivision (f) to the use, without limitation “of any ‘prior felony conviction[s ]’ for enhancement purposes, necessarily includes the lesser category of enhancements based on prior felony convictions for which imprisonment was imposed.”  (Id. at p. 440, 267 Cal.Rptr. 605, 787 P.2d 1012.)

5.   Section 654 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.”

FOOTNOTE.   See footnote *, ante.

BUCKLEY, Associate Justice.

MARTIN, Acting P.J., and HARRIS, J., concur.