PEOPLE v. JOHNSON (1985)

STATEMENT OF THE CASE

In a two count information filed by the District Attorney of Los Angeles County, appellants Johnson and Anderson were charged in Count I with rape and rape in concert, in violation of Penal Code sections 261 and 264.1.   It was further alleged in the commission of the offense charged in Count I, that appellant Anderson personally used a dangerous and deadly weapon, to wit, a knife, within the meaning of Penal Code section 12022, subdivision (b).

Count II charged both appellants with first degree burglary in violation of Penal Code section 459.   It was further alleged in Count II that Anderson personally used a dangerous and deadly weapon, to wit, a knife, within the meaning of Penal Code section 12022, subdivision (b).

It was further alleged that each appellant had suffered two prior convictions, within the meaning of Penal Code section 667, subdivision (a).

Pursuant to Penal Code section 995, Anderson's motion to strike the use allegations pursuant to Penal Code section 12022, subdivision (b) was granted as to each count.   Johnson's motion to strike the allegations concerning his prior convictions was granted.

After a jury trial both appellants were found guilty as charged in the information.   As to the matter of Anderson's prior convictions, which had been bifurcated at his request at an earlier time, and submitted for the court's determination, such allegations were found to be true.

Each appellant submitted a motion for a new trial which was denied.   As to Anderson, the court denied probation and sentenced him as follows:

As to Count II, the conviction for a violation of Penal Code section 459, burglary, which was selected as the base term, the court imposed the upper term of six years.   As to Count II, the conviction for Penal Code sections 261.2, 264.1, rape and rape in concert, the court imposed the upper term sentence of nine years, and made the sentence consecutive to that in Count II, pursuant to Penal Code section 667.6, subdivision (c).   In addition, the court imposed a five year sentence for each prior conviction, those sentences to be consecutive to each other, and consecutive to Counts I and II, for a total sentence of 25 years.

STATEMENT OF FACTS 1

DEFENSE 1

ISSUES

Appellant Anderson additionally raises the following issues on appeal:

1.  The evidence produced at trial was insufficient to show a specific intent to commit larceny, and therefore his conviction for burglary must be set aside;  and

2.  Various sentencing errors require that the matter be remanded for resentencing, including:

a.  The trial court's failure to state the reasons for imposing the high term in Count II, and to state reasons for imposing consecutive sentences;  and

b. The trial court's failure to exercise its discretion by ruling that Penal Code section 667, subdivision (a) mandates a consecutive sentence.

DISCUSSION

IANY ERROR IN NOT GIVING CALJIC INSTRUCTION 2.15 WAS HARMLESS 2

II

THE TRIAL COURT DID NOT COMMIT MISCONDUCT AND DID NOT UNFAIRLY LIMIT CROSS–EXAMINATION OR THE PRESENTATION OF DEFENSE EVIDENCE 2IIITHE EVIDENCE WAS SUFFICIENT TO SUPPORT A CONVICTION FOR BURGLARY WITH AN UNDERLYING INTENT OF LARCENY 2IVTHE TRIAL JUDGE'S FAILURE TO STATE REASONS FOR SELECTING CERTAIN SENTENCE CHOICES, AND THE GROUNDS FOR HIS REASONS IN SELECTING OTHER SENTENCE CHOICES DOES NOT REQUIRE A REMAND AS TO APPELLANT ANDERSON 2VTHE TRIAL COURT DID NOT ERR BY REFUSING TO STAY THE ENHANCEMENT FOR THE PRIOR CONVICTIONS

At the time of sentencing, Anderson's counsel requested the trial court to stay imposition of the sentence on the two prior convictions.   The trial judge stated as follows:

“And the court has found that the prior convictions were valid, and under sections 667(a), as I read it, it says that there is no discretion.   The code section says:  ‘Shall’ and therefore as to the prior conviction of rape in 1967, the court will enhance the term by five years, to run consecutive to the other, the four years and the nine years.

“As to the prior conviction of robbery in 1982, pursuant to 667(a), that will be a five year enhancement, which is to run consecutive to the four years, the nine years, and the five years—or, strike that—six years, the nine years and the other five year enhancement, for a total of 25 years.”

Anderson contends that under the reasoning of People v. Williams (1981) 30 Cal.3d 470, 179 Cal.Rptr. 443, 637 P.2d 1029, wherein the California Supreme Court held that mandatory provisions in Penal Code sections 190–190.5 were still subject to the trial court's discretion and power under Penal Code section 1385, the trial court does have the power to stay any enhancements pursuant to Penal Code section 667(a) which states as follows:

“Penal Code section 667(a).   Any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five year enhancement for each such prior conviction on charges brought and charged separately.   The terms of the present offense and each enhancement shall run consecutively.”

While we are aware that our Supreme Court has granted hearings in several cases (People v. Fritz, Crim. No. 23838;  People v. Golodrina, Crim. No. 24170;  People v. Eberhardt, Crim. No. 24504, 165 Cal.App.3d 1151, 211 Cal.Rptr. 280;  People v. Weaver, Crim. No. 24503) in order to consider the issue of whether or not the trial court has the power to stay enhancements pursuant to Penal Code section 667(a), and that the published case of People v. Lopez (1983) 147 Cal.App.3d 162, 195 Cal.Rptr. 27, supports Anderson's position, we are of the belief that the term shall in Penal Code section 667(a) means shall in the mandatory sense.

We perceive no problem or ambiguity with Penal Code section 667(a) when read in conjunction with Penal Code section 1170.1, which authorizes a trial court to strike certain enhancements.  Penal Code section 1170.1 does not make reference to Penal Code section 667(a).

Penal Code section 667(a) is based upon an initiative passed by the voters, as part of Proposition 8.   The People have spoken, and we see no problems with the section.

In addition, we note that this is Anderson's third conviction for rape.   One conviction resulted from a rape (sodomy) he committed while incarcerated awaiting trial on another rape.   Along with other convictions for violent crimes, the picture painted by Anderson's past is not a pretty one.

Even if we were to remand this matter to allow the trial judge to state how he would sentence if he felt he had discretion, we have no doubt whatsoever the same sentence would be imposed.

Given Anderson's past record it would border on an abuse of discretion for the trial judge to stay sentence on the enhancements.   As we have pointed out in our discussion in People v. Dunnahoo (1984) 152 Cal.App.3d 561, 199 Cal.Rptr. 796, where we can determine what the sentence would be if remanded, there is no need to issue a remand.   Such a situation exists in this case.

VI

DISPOSITION

Both judgments are affirmed.

FOOTNOTES

FOOTNOTE.  

1.   Not certified for publication.

2.   See footnote 1, ante.

FIDLER, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

LUI, Acting P.J., and DANIELSON, J., concur.