PEOPLE v. MEADOWS (1988)

The issue in this appeal is whether the double the base term limitation in subdivision (g) of Penal Code section 1170.1 is applicable to enhancements for the service of prior separate prison terms under subdivision (b) of Penal Code section 667.5.   We hold that it is.

Defendant pled guilty to petty theft with a prior conviction for theft (Pen.Code, § 666) and admitted the service of three prior separate prison terms (Pen.Code, § 667.5, subd. (b)).  (Further statutory references to sections of an undesignated code are to the Penal Code.)

The trial court had indicated it would sentence defendant to the lower base term of 16 months with 36 additional months for the three prior prison terms.   However, when defendant's counsel pointed out to the court that section 1170.1, subdivision (g) limited the aggregate term of imprisonment to twice the base term, the court stayed the excess of 20 months, reducing the sentence to 32 months.

Approximately seven months later the court received a letter from the Department of Corrections urging it to review the stay of 20 months for possible error.   Relying upon People v. Poole (1985) 168 Cal.App.3d 516, 214 Cal.Rptr. 502, which held that the double the base term limitation of subdivision (g) of section 1170.1 was no longer applicable to enhancements under subdivision (b) of section 667.5, the court vacated the stay and ordered the original term of 52 months into effect.

On appeal defendant contends Poole was incorrectly decided.   For the reasons which follow we agree with defendant and shall order the appropriate sentence modification.

In 1986, when the present offense was committed, section 1170.1, subdivision (g) provided:  “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 the defendant stands convicted of a ‘violent felony’ as defined in subdivision (c) of Section 667.5, or a consecutive sentence is being imposed pursuant to subdivision (c) of this section, or an enhancement is imposed pursuant to Section 12022, 12022.4, 12022.5, 12022.6, 12022.7, or 12022.9 or the defendant stands convicted of felony escape from an institution in which he or she is lawfully confined.”

Since violation of section 666 is not one of the violent felonies defined in subdivision (c) of section 667.5, and because none of the other exceptions listed in subdivision (g) of section 1170.1 is applicable, that section appears to require that defendant's sentence be limited to no more than twice the base term.   However, on similar facts, People v. Poole, supra, at pp. 522–524, 214 Cal.Rptr. 502, relying on People v. Jackson (1985) 37 Cal.3d 826, 838, 210 Cal.Rptr. 623, 694 P.2d 736 and People v. Rivera (1984) 162 Cal.App.3d 141, 151–152, 207 Cal.Rptr. 756, concluded otherwise.

In Jackson, the defendant pled guilty to burglary of a residence, a serious felony (§ 667, subd. (a)), and admitted a prior conviction also for residential burglary.   The trial court imposed a sentence of two years with a five-year enhancement for the prior serious felony.   On appeal defendant contended the enhancement term was limited to two years, twice the base term, since none of the listed exceptions in subdivision (g) of section 1170.1 applied.

The Attorney General argued that the double the base term limitation had been superseded by section 28(f) of article I of the California Constitution (hereafter § 28(f)), which mandates that “[a]ny prior felony conviction of any person in any criminal proceeding ․ shall subsequently be used without limitation for purposes of ․ enhancement of sentence․” ¹  (See People v. Jackson, supra, 37 Cal.3d at p. 837, 210 Cal.Rptr. 623, 694 P.2d 736.)

The Jackson court rejected the Attorney General's reasoning because it found the meaning of section 28(f) to be “uncertain.”  (37 Cal.3d at p. 837, 210 Cal.Rptr. 623, 694 P.2d 736.)   Nevertheless, the court reasoned that section 667, subdivision (a), was intended to impose an enhancement unaffected by the double the base term limitation because, aside from the upper term, sentences for first degree burglary are all less than five years.²  Therefore, if applicable, the double the base term limitation would render imposition of the five-year enhancement a nullity in most cases.   The court attributed the failure of Proposition 8 (of which § 28(f) is a part) to amend subdivision (g) of section 1170.1 to except serious felony enhancements to “draftsman's oversight,” (37 Cal.3d at p. 838, 210 Cal.Rptr. 623, 694 P.2d 736, fn. 15) and concluded that subdivision (g) must be read as if it contained such an exception in order to carry out the intent of Proposition 8.  (Id., at pp. 837–838, 210 Cal.Rptr. 623, 694 P.2d 736.)

In People v. Rivera, supra, 162 Cal.App.3d 141, 207 Cal.Rptr. 756, a case which preceded Jackson by approximately three months, the court held that section 667, subdivision (a) constituted an additional exception to the double the base term limitation.  (At p. 149, 207 Cal.Rptr. 756.)   This conclusion is based on a finding that this was the intent of the electorate in passing Proposition 8, as shown by the analysis in the ballot pamphlet presented to the voters in the June 1982 election.   The pamphlet stated:  “ ‘This measure includes two provisions that could increase prison sentences for persons convicted of specified felonies.   First, upon a second or subsequent conviction for one of these felonies, the defendant could receive, on top of his or her sentence, an additional five-year prison term for each such prior conviction, regardless of the sentence imposed for the prior conviction.   This provision would not apply in cases where other provisions of law would result in even longer prison terms.   Second, any prior felony conviction could be used without limitation in calculating longer prison terms․'  (Ballot Pamp., Proposed Initiative Stats. & Amend. to Cal. Const. with arguments to voters, Primary Elec. (June 8, 1982) Analysis by Legislative Analyst, pp. 54–55, original emphasis.)”  (Supra, 162 Cal.App.3d at p. 151, 207 Cal.Rptr. 756.)

Relying on Jackson and Rivera, People v. Poole, supra, 168 Cal.App.3d 516, 214 Cal.Rptr. 502 held:  “Because specific statutory language prevails over general language and because constitutional provisions prevail over conflicting legislative provisions (13 Cal.Jur.3d, Const. Law, § 27, pp. 63–64), we read section 1170.1, subdivision (g) as if it contained an exception for enhancements pursuant to section 667.5, subdivision (b) comparable to the exception now recognized pursuant to section 667.”  (At p. 524, 214 Cal.Rptr. 502, fn. omitted.)

We believe extension of the Jackson/Rivera formulation to encompass enhancements for prior separate prison terms under subdivision (b) of section 667.5 is unwarranted.  Jackson found that it must have been the intent in enacting section 667 to exclude it from the double the base term limitation because to hold otherwise would in most instances, and particularly in the case of residential burglary, frustrate the enactment.  (Jackson, supra, 37 Cal.3d 837–838, 210 Cal.Rptr. 623, 694 P.2d 736.)   The same reasoning does not apply to enhancements for prior separate prison terms under subdivision (b) of section 667.5 because the term for these enhancements is one year.   Under determinate sentencing most, if not all, of the minimum sentences exceed one year.   Thus, even when the lower or mitigated base term is imposed, the double the base term limitation presents no impediment to enhancing that sentence by one year for a prior separate prison term under section 667.5, subdivision (b).

Jackson found the “without limitation” language of section 28(f) to be “uncertain.”  (Supra, 37 Cal.3d at p. 837, 210 Cal.Rptr. 623, 694 P.2d 736.)   This characterization is at odds with Rivera which concluded that the same language “unambiguously modif[ied]” (162 Cal.App.3d at p. 150, 207 Cal.Rptr. 756) subdivision (g) of section 1170.1 to create an additional exception to the double the base term limitation for prior serious felonies.   Since we necessarily accept the high court's characterization of the “without limitation” language, we are unable to determine whether it conflicts with, let alone prevails over, other statutory language.³

The history of subdivision (g) of section 1170.1 following the passage of Proposition 8 is of particular significance to the question of whether it should be read as containing an implied exception for enhancements for prior separate prison terms.   On five occasions since 1982 the Legislature has amended section 1170.1.  (Stats.1985, ch. 463, § 3;  Stats.1985, ch. 1375, § 2.5;  Stats.1986, ch. 248, § 162;  Stats.1986, ch. 1299, § 10;  Stats.1986, ch. 1429, § 1.)   Although chapter 463, section 3 of the 1985 statutes made changes in subdivision (g), no attempt was made to modify the double the base term limitation to except prior separate prison terms under section 667.5.   Thus the legislative history argues against finding an exception by implication.

We hold that notwithstanding section 28(f), the double the base term limitation in subdivision (g) of section 1170.1, remains applicable to enhancements for the service of prior separate prison terms under subdivision (b) of section 667.5.

The judgment is modified to stay 20 months of the term of imprisonment and the trial court is directed to prepare an amended abstract of judgment reflecting that modification and to forward a copy thereof to the Department of Corrections.   In all other respects the judgment is affirmed.

FOOTNOTES

1.   Both section 28(f) and section 667 were enacted as part of Proposition 8, and became and operative June 9, 1982.  Sections 667.5 and 1170.1 were added to the Penal Code as part of the Determinate Sentencing Act (Stats.1976, ch. 1139, §§ 268, 273, pp. 5137, 5140;  operative July 1, 1977;  Stats.1977, ch. 165, §§ 13, 15, pp. 644, 647;  effective June 29, 1977) and remain unchanged in all relevant respects.

2.   First degree burglary is punishable by imprisonment in the state prison for two, four, or six years (§ 461, subd. (1));  second degree burglary carries terms of sixteen months, two, or three years (§ 461, subd. (2) and § 18).

3.   People v. Traina (1985) 168 Cal.App.3d 305, 214 Cal.Rptr. 213 involved the applicability of the double the base term limitation to a three-year sentence for robbery enhanced five years under section 667, subdivision (a) for a prior robbery.   We followed Jackson's holding that “ ‘enhancements for serious felonies under section 667 were not intended to be subject to the double base term limitation of section 1170.1, subdivision (g).’ ”  (Supra, at p. 309, 214 Cal.Rptr. 213, quoting from People v. Jackson, supra, 37 Cal.3d at p. 838, 210 Cal.Rptr. 623, 694 P.2d 736.)   There was no issue before the court concerning enhancements for prior separate prison terms under section 667.5, subdivision (b).   Discursive dicta in Traina does not alter the fact the issue before the court was identical to that considered in Jackson and was therefore controlled by Jackson.

PUGLIA, Presiding Justice.

BLEASE and DEEGAN *, JJ., concur.