PEOPLE v. PRATHER (1988)

Defendant was convicted by plea of one count of second degree burglary (Pen. Code, § 459) ¹ and two counts of possession of a firearm by one previously convicted of a felony (§ 12021).   At the same time, defendant admitted sentencing enhancement allegations that:  (a) When he committed the burglary, he had already served a prior term of incarceration within the meaning of section 667.5, subdivision (b);  and, (b) one of the firearm possession violations had occurred while he was “released from custody” within the meaning of section 12022.1.   The trial court subsequently sentenced defendant to an aggregate term of six years and four months in state prison.

FACTS

Inasmuch as defendant's sole contention on appeal is that the trial court erred in computing the aggregate term of imprisonment to be imposed, we need not discuss the details of either the charges to which defendant pled guilty or the sentencing enhancement allegations which defendant admitted.   Rather, our analysis in this case is focused on the actual “mechanics” of the trial court's sentencing calculations.

The trial court imposed a two-year, middle-term of imprisonment with respect to the burglary charge and designated this term as the sentencing base term.   (§ 1170, subd. (b), Cal. Rules of Court, rule 405(b).)   To this, the trial court added two consecutive eight-month subordinate terms, one for each of the firearm possession charges, pursuant to section 1170.1, subdivision (a).   As to the enhancements, the trial court imposed a one-year enhancement (in conjunction with the burglary term) pursuant to section 667.5, subdivision (b), and a single two-year enhancement (in conjunction with one of the firearm possession terms) pursuant to section 12022.1.²  In sum, defendant was sentenced to a two-year base term, plus two eight-month subordinate terms, plus a one-year enhancement, plus a two-year enhancement—resulting in an aggregate term of six years and four months.

Defendant contends that this aggregate term of imprisonment violates the “double the base term” limitation of section 1170.1, subdivision (g).   For the reasons set forth hereafter, we agree.

DISCUSSION

Our review begins with an analysis of section 1170.1, subdivision (g), which provides, in pertinent part:  “The term of imprisonment shall not exceed twice the number of years imposed by the trial court as the base term pursuant to subdivision (b) of section 1170 unless ․ [a lengthy list of exceptions to the basic rule, none of which directly applies to the case at hand].”  Inasmuch as the base term imposed in this case was two years, then, section 1170.1, subdivision (g), limits the aggregate term of imprisonment to which defendant can be subjected to four years unless there is an exception to that statutory limitation that must be applied under the circumstances of this case.

There are three categories of exceptions which exist with respect to the basic “double the base term” rule:  (1) Those exceptions expressly delineated in section 1170, subdivision (g), itself;  (2) those exceptions which consist of alternative sentencing schemes which are expressly excluded from the application of section 1170.1 (see, e.g., § 667.6, subd. (c):  “In lieu of the term provided in Section 1170.1, ․”);  and, (3) those exceptions which have been judicially found to exist by implication.   Of these three categories, only the third category—that of “implied” exceptions to section 1170, subdivision (g)—has any possible application to the matter at hand.   Further, in light of the fact that the sum of the base term and the two subordinate terms does not exceed four years, but that the addition of either one of the enhancement terms produces an aggregate term in excess of four years, we need examine only whether either of the enhancements which were imposed is impliedly excepted from the “double the base term” limitation of section 1170.1, subdivision (g).

A. The Section 12022.1 Enhancement.

 Respondent argues that the section 12022.1 enhancement should be applied in this case irrespective of the “double the base term” limitation.³  In large part, respondent bases its argument on the fact that section 12022.1, subdivision (b), states that the section 12022.1 enhancement “shall be served consecutive to any other term imposed by the court.”   (Emphasis added.)

Respondent's position, however, ignores section 1170.1.   Section 1170.1 “sets forth ‘the general sentencing scheme for multiple convictions.’ ”  (People v. Jackson (1987) 192 Cal.App.3d 209, 219, 237 Cal.Rptr. 373, citing People v. Belmontes (1983) 34 Cal.3d 335, 343, 193 Cal.Rptr. 882, 667 P.2d 686.)   At the same time that the Legislature enacted section 12022.1, the Legislature also amended section 1170.1, subdivision (a), to include section 12022.1 enhancements as one of the constituent elements of an overall “aggregate term of imprisonment.”  (Stats. 1982, ch. 1551, §§ 1.5 and 2.)   Significantly, the Legislature did not amend section 1170.1, subdivision (g), at that same time (or any other time) so as to delineate a section 12022.1 enhancement as an exception to the “double the base term” rule.   Presumably, the Legislature could have, and would have, made such an amendment to section 1170.1, subdivision (g), had that been its legislative intent.   In essence, respondent has asked us to judicially amend section 1170.1, subdivision (g), for reasons of social policy.   This we will not do.   As our Supreme Court has said in a different context:  “It is not the province of this court to consider the arguments of social policy ․;  these are matters which must be, and no doubt were, addressed to the legislature.”  (Bodinson Mfg. Co. v. California Emp. Com. (1941) 17 Cal.2d 321, 325, 109 P.2d 935.)⁴

B. The Section 667.5, Subdivision (b), Enhancement.

 We are faced with a more troublesome issue with regard to the section 667.5, subdivision (b), enhancement which was applied in this case.⁵  As is discussed in greater detail immediately hereafter, there is appellate authority for the position that section 667.5, subdivision (b), is to be included by implication among the enhancement provisions listed by section 1170.1, subdivision (g), as exceptions to the “double the base term” rule.   We conclude, however, that such an implicit inclusion is unwarranted and that section 667.5, subdivision (b), enhancements are subject to the “double the base term” limitation.

The entire issue of what is, or is not, included by implication in section 1170.1, subdivision (g), arose with the 1982 adoption of the initiative measure known as Proposition 8 (“The Victims' Bill of Rights”).   This measure encompasses, among other things, a state constitutional provision that permits the use of prior felony convictions for enhancement purposes “without limitation” (art. I, § 28, subd. (f)) and a statutory provisions which mandates a five-year enhancement for persons with a prior “serious felony” conviction who are subsequently convicted of yet another such felony.  (§ 667, subd. (a).)

After reviewing and interpreting these provisions of Proposition 8, our Supreme Court concluded in People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736 that the initiative measure evinced a clear intent to have the full five-year enhancement of section 667 applied irrespective of the “double the base term” limitation of section 1170.1, subdivision (g).⁶  (Id. at pp. 837–838, 210 Cal.Rptr. 623, 694 P.2d 736.)   This conclusion was reached on a twofold basis:  (1) If the five-year enhancement of section 667 were subject to the “double the base term” limitation, the full term of the enhancement would rarely be imposed—contrary to the intent of Proposition 8 (Id., at p. 838, 210 Cal.Rptr. 623, 694 P.2d 736);  and, (2) the failure of Proposition 8 to amend section 1170.1, subdivision (g), so as to except section 667 from the “double the base term” limitation appeared to have been merely an initiative “draftsman's oversight.”  (Ibid., fn. 15.)   Since the Jackson decision in 1985, then, section 667 enhancements have been impliedly excepted from the “double the base term” rule.⁷

Relying on the reasoning set forth in the Supreme Court's Jackson decision, at least two Court of Appeal decisions have concluded that section 667.5, subdivision (b), enhancements are also excepted from the “double the base term” rule of section 1170.1, subdivision (g):  People v. Poole (1985) 168 Cal.App.3d 516, 214 Cal.Rptr. 502 (which relies on the Rivera decision (ante, fn. 6) as well as the Jackson decision) and People v. Hall (1985) 168 Cal.App.3d 624, 214 Cal.Rptr. 289 (which reached its conclusion as an alternative holding).

We must decline to agree with the Poole and Hall decisions on this issue.   We do not find the Jackson/Rivera rationale applicable to section 667.5, subdivision (b), enhancements for two reasons:  First, section 667.5, subdivision (b), was not adopted as a part of Proposition 8, but, rather, was enacted by the Legislature several years prior to the adoption of Proposition 8—thus eliminating any need to analyze Proposition 8's intent or inartful draftsmanship in interpreting section 667.5, subdivision (b);  second, the fact that the section 667.5, subdivision (b), enhancement is only one year in length means that the “double the base term” limitation will not often serve to preclude the application of that enhancement.

Further, we are also persuaded by recent legislative action that section 667.5, subdivision (b), enhancements are to be limited by the “double the base term” rule of section 1170.1, subdivision (g).   Effective on January 1, 1988, section 1170.1, subdivision (g), was amended so as to expressly except section 667, subdivision (a), enhancements from the “double the base term” rule.   (Stats.1987, ch. 1423, § 3.7.)   Thus, the Legislature has now made the Jackson ruling an express provision in the overall statutory sentencing scheme.   The Legislature, however, did not amend section 1170.1, subdivision (g), at that same time so as to expressly except section 667.5, subdivision (b), from the “double the base term” rule.   It would be an unwarranted intrusion into the legislative arena to imply such an exception here.   Our Legislature, having just addressed itself to the specific issue of which enhancement provisions are excepted from the “double the base term” rule, must be presumed to have made all of the statutory amendments deemed necessary.

DISPOSITION

 The judgment is modified to stay two years and four months of the sentence—that portion of the aggregate sentence which exceeds the four-year “double the base term” limit of section 1170.1, subdivision (g).   The stay is to become permanent upon completion of service of the remaining terms.   The trial court is ordered to prepare an amended abstract of judgment reflecting the corrected sentence and to forward the same to the Department of Corrections.   As so modified, the judgment is affirmed.

FOOTNOTES

1.   Unless otherwise indicated, all statutory section-number citations refer to the Penal Code.

2.   We do not mean to suggest that these enhancements were imposed so as to enhance only the specific term of imprisonment rendered with respect to each particular count or charge.   Enhancements imposed pursuant to section 667.5 or section 12022.1 “․ are added only once as the final step in computing the total sentence.”  (People v. Tassell (1984) 36 Cal.3d 77, 90, 201 Cal.Rptr. 567, 679 P.2d 1.)

3.   This, in spite of the fact that respondent apparently has acceded to the contrary position on at least two occasions.  (See People v. Jackson (1987) 192 Cal.App.3d 209, 221, 237 Cal.Rptr. 373, and People v. Warinner (1988) 200 Cal.App.3d 219, 223, 247 Cal.Rptr. 197.)

4.   We also note that our conclusion with regard to section 12022.1 comports with the general conclusion reached in People v. Jackson, supra, 192 Cal.App.3d 209, at 219, 237 Cal.Rptr. 373, that “․ the literal language of section 12022.1 is not controlling when it conflicts with section 1170.1.”

5.   Defendant acquiesced to the imposition of a section 667.5, subdivision (b), enhancement in this case.   However, we may not give effect to an enhancement which is unauthorized by law.  (People v. Harvey (1980) 112 Cal.App.3d 132, 139, 169 Cal.Rptr. 153.)   Consequently, we must determine whether a section 667.5, subdivision (b), enhancement can be imposed properly in this instance, notwithstanding defendant's position on the matter.   We note in passing that were we to accept defendant's position on this issue the entire sentence would be exempt from the “double the base term” limitation—not just that part imposed pursuant to section 667.5, subdivision (b).  (People v. Magill (1986) 41 Cal.3d 777, 780, 224 Cal.Rptr. 702, 715 P.2d 662.)

6.   This interpretation of Proposition 8 by our Supreme Court had been preceded by an analogous interpretation in People v. Rivera (1984) 162 Cal.App.3d 141, 150–151, 207 Cal.Rptr. 756.

7.   That this implicit exception has since been made statutorily explicit is a matter which is discussed at length hereafter in this opinion.

CAMPBELL, Presiding Justice.

McDANIEL and DABNEY, JJ., concur.