[Opinion certified for partial publication.
Effective March 7, 1994, the Legislature enacted the so-called "three strikes" law (Stats. 1994, ch. 12, §§ 1-2), as an urgency measure "to ensure longer prison sentences and greater punishment" for
Defendant appeals, challenging both the constitutionality and the application of the three strikes law. We reject all his contentions and affirm the judgment. In the published portion of this opinion, we first determine that an information was filed when the complaint was deemed an information. We uphold the three strikes law as valid urgency legislation and find it does not violate the prohibition against cruel and unusual punishment. Further, the same prior felony conviction may be used as a "strike" and as a five-year enhancement under Penal Code section 667, subdivision (a). Finally, the trial court properly sentenced defendant by selecting the greatest of the three alternatives under Penal Code section 667, subdivision (e)(2)(A) for each count of defendant's conviction. In the unpublished portion of this opinion, we reject defendant's contentions that the three strikes law is unconstitutionally vague, that convictions incurred before enactment of the three strikes law cannot be used as "strikes," and that the court erred in imposing a restitution fine without determining his ability to pay.
Defendant's crime spree began on the afternoon of March 22, 1994, when he ordered Mary H., a prostitute, out of a van and into a house in Oak Park. Defendant hit her and told her to go into his room. There he hit her with a board and said he would kill her. He pulled out a switchblade knife and ordered her to take her clothes off. Defendant ran the blade up and down her body, telling her he would cut her if she screamed. He told her to get on her knees and orally copulate him. She started to comply when someone knocked on the door. When defendant left the room, Mary ran naked and screaming to her cousin's house nearby.
That evening Edith M., who was also known as Marlena, introduced defendant to Michelle T. Both women were prostitutes and they smoked rock
They went to a house on Stockton Boulevard and into a bedroom. Defendant had a rifle and two guns. He told both women to take their clothes off. He searched their clothes and took money from each. When Marlena forgot to take off her earrings, defendant hit her. Defendant left, leaving someone to watch them. When he returned he had the two women take off his clothes and he got on the bed. Smoking rock cocaine, he told them to orally copulate him. The two women then orally copulated defendant's penis and scrotum, switching positions four times at his order. He told them whoever did the best job might get easier punishment. Defendant then ordered Michelle on top of him and had intercourse with her. He ordered her to orally copulate him and then again had intercourse with her. Defendant ejaculated, smoked some more drugs, and then got dressed and left.
Defendant was originally charged with nine felony counts stemming from his attack on Michelle and Edith. An amended complaint added 10 felony counts, including those arising from his attack on Mary. Defendant was charged as follows: three counts of assault with a deadly weapon (one assault upon each of the three women) (Pen. Code, § 245, subd. (a)(1); all further unspecified statutory references are to the Penal Code) (counts 1, 6 and 8); assault with intent to commit oral copulation upon Mary (§ 220), with a knife use enhancement (§ 12022, subd. (b)) (count 2); two counts of being a felon in possession of a firearm (§ 12021, subd. (a)) (counts 3 and 4); two counts of kidnapping with intent to commit rape (§ 208, subd. (d)), with firearm use enhancements (§ 12022.5, subd. (a) (counts 5 and 7); two counts of robbery (§ 211), with a firearm use enhancement on one count (§ 12022.5, subd. (a)) (counts 9 and 10); seven counts of forced oral copulation (§ 288a, subd. (c)), with firearm use enhancements (§ 12022.3, subd. (a)) (counts 11 through 16 and 18); and two counts of rape (§ 261, subd. (a)(2)), with firearm use enhancements (§ 12022.3, subd. (a)) (counts 17 and 19). It was further alleged defendant had three prior serious felony convictions (§ 667, subd. (a)) and had served two prior prison terms (§ 667.5, subd. (b)). And it was alleged defendant came within the three strikes law.
The jury returned a verdict of guilty on all counts and found the weapon use allegations true. In a bifurcated proceeding, the court struck the first
I. Filing of Information
Defendant objects that an information was never actually filed, and claims the trial court lacked jurisdiction to try him. The precise nature of defendant's objection is difficult to discern. He does not claim the document filed was insufficient as an information, nor does he challenge the cross-designation of the judge under the consolidation of Sacramento's municipal and superior courts. Instead, he appears to challenge the ability of the cross-designated judge to deem the amended complaint an information. In so doing, he relies upon People v. Smith (1986) 187 Cal.App.3d 1222 [232 Cal.Rptr. 619]. No information was filed in Smith, only a complaint. At the arraignment in superior court, the parties apparently treated the complaint as an information and the court accepted defendant's guilty plea. The reviewing court held the failure to file an information was an irregularity that could not be cured by consent. (Id. at pp. 1224-1225.)
This case is distinguishable. Here, the magistrate, acting as a superior court judge, accepted the document on file as an information. At that point the information was filed. Unlike People v. Smith, supra, 187 Cal.App.3d 1222, this is not a case where the parties consented in an after-the-fact attempt to cure the failure to file the proper document.
II. Urgency Legislation
"An urgency statute may not create or abolish any office or change the salary, term, or duties of any office, ..." (Cal. Const., art. IV, § 8, subd. (d).) Defendant contends the three strikes law changes the duties of judges by substantially restricting their discretion in sentencing. He contends the prosecutor's duties are likewise changed by the prohibition against plea bargaining and the requirement to plead and prove all qualifying prior convictions.
Defendant's contention is unavailing. In interpreting what is a "change of duties" within the meaning of the constitutional limitation on urgency legislation, the California Supreme Court explained, "[a]n addition or subtraction in relation to the volume of the duties required to be performed by an officer, which does not substantially affect the primary duties of his office, is not such a change of duties as would prevent immediate effectiveness of legislation properly declared to be urgent." (Martin v. Riley (1942) 20 Cal.2d 28, 37 [123 P.2d 488].)
The primary duties of the office of trial judge and prosecutor have not been changed by the three strikes law. Their discretion in sentencing or
Defendant relies upon Stockburger v. Jordan (1938) 10 Cal.2d 636 [76 P.2d 674], in which the Supreme Court found an act granting the director of finance the authority to lease public lands for the production of oil and gas changed the duties of the office. The court interpreted "change" as "`to alter; to make different.'" (Id. at p. 648.) The court, however, later made clear that "change" is not to be interpreted as broadly as that definition suggests. "[I]t was not intended that it should be inferred therefrom that every addition to the duties devolving upon public officers should be deemed to constitute a `change' of duties.... The new and special character of the additional duties imposed upon the director of finance under the act involved in [Stockburger] was entirely foreign to the duties theretofore devolving upon him by law." (Davis v. County of Los Angeles, supra, 12 Cal.2d at p. 424.) The change in the duties of judges and prosecutors under the three strikes law is neither "new and special" nor "entirely foreign" to their existing duties. Accordingly, the three strikes law is valid urgency legislation.
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IV. Cruel and Unusual Punishment
In arguing there is a violation of the Eighth Amendment proscription against "cruel and unusual punishments," defendant relies upon Solem v. Helm (1983) 463 U.S. 277 [77 L.Ed.2d 637, 103 S.Ct. 3001], in which the court found a life sentence without the possibility of parole for a seventh nonviolent felony was unconstitutional. In Solem, a bare majority of the court held "... a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the
Defendant's reliance on Solem is weakened by Harmelin v. Michigan (1991) 501 U.S. 957 [115 L.Ed.2d 836, 111 S.Ct. 2680], in which a life sentence without possibility of parole for possessing 672 grams of cocaine was upheld. The case produced five separate opinions. While seven justices supported a proportionality review under the Eighth Amendment, only four favored application of all three factors cited in Solem. As one court has concluded, "disproportionality survives; Solem does not." (McGruder v. Puckett (5th Cir.1992) 954 F.2d 313, 316.)
In Harmelin, Justice Scalia, joined by Chief Justice Rehnquist, determined Solem was wrongly decided and the Eighth Amendment contained no proportionality guarantee. (Harmelin v. Michigan, supra, 501 U.S. 957, 965 [115 L.Ed.2d 836, 846].) Justice Kennedy, joined by Justices O'Connor and Souter, found the Eighth Amendment encompassed "a narrow proportionality principle." (Id. at p. 997 [115 L.Ed.2d at p. 866].)
Moreover, in Solem v. Helm, supra, 463 U.S. 277, 296 [77 L.Ed.2d 637, 653] the court focused on the nonviolent nature of both the defendant's current offense of uttering a "`no account'" check ("`one of the most passive felonies a person could commit'") and his prior offenses. The majority acknowledged a life sentence for fourth time heroin dealers and other violent criminals would pass constitutional muster. (Id. at p. 299 and fn. 26 [77 L.Ed.2d 637, 655].) Therefore, even under Solem, defendant's sentence does not violate the Eighth Amendment.
A punishment may violate the California Constitution although not "cruel or unusual" in its method, if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424 [105 Cal.Rptr. 217, 503 P.2d 921], fn. omitted.) The Lynch court identified three techniques courts used to administer this rule. First, they examined the nature of the offense and the offender. (Id. at p. 425.) Second, they compared the punishment with the penalty for more serious crimes in the same jurisdiction. (Id. at p. 426.) Third, they compared the punishment to the penalty for the same offense in different jurisdictions. (Id. at p. 427.)
Defendant grossly understates the seriousness of his brutal and degrading acts. "The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape." (§ 263.) Further, defendant ignores an examination of the nature of the offender.
Defendant's comparison of his punishment to that of a murderer is misguided. He ignores that the three strikes law punishes not only his current offenses, but also his recidivism. California statutes imposing more severe
V. Use of Pre-March 7, 1994, Prior Convictions
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VI. Dual Use of Prior as "Strike" and Enhancement
Subdivision (a)(1) of section 667 provides a five-year enhancement for a prior conviction of a serious felony when the current conviction is a serious felony. Subdivision (a)(2) provides in part: "This subdivision shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment." Defendant argues since his sentence under the three strikes law results in a longer term of imprisonment, the enhancement of subdivision (a) does not apply.
Defendant's reading of section 667 results in confusion and absurdity. For example, take the case of a defendant convicted of residential burglary, who had one prior serious felony conviction, and who received the midterm of four years (§ 461). Without application of the three strikes law, his sentence would be nine years, the four-year midterm plus a five-year enhancement. Calculating his sentence under three strikes without the enhancement would result in an eight-year term, double the midterm. Since this is a shorter term of imprisonment, under defendant's reasoning the five-year enhancement can apply. If it applies in lieu of the three strikes provisions, then the defendant receives the same nine-year sentence as before and the express intent to provide longer sentences under three strikes has been thwarted.
If instead, the mandate of section 667, subdivision (f)(1) is followed and the four-year term is first doubled and then the enhancement added, the result is an anomaly under defendant's reading. Five-year serious felony enhancements would be applied only where the current felony conviction results in a term of five years or less. In short, only the less serious of the serious felonies will be enhanced.
We recognize that the language "any other enhancement or punishment provisions that may apply" is a less than precise directive to apply section 667, subdivision (a) enhancements.
VII. Restitution Fine
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VIII. Calculation of Defendant's Sentence
Prior to sentencing, the People submitted a sentencing statement. The statement noted a number of aggravating factors and no mitigating factors. It stated that while it was "arguable" that consecutive sentencing was not required under three strikes, it was appropriate in this case. The statement concluded that defendant should be sentenced under the provisions of section 667, subdivision (e)(2)(A)(ii), for a life term with a minimum term of 400 years, plus a determinate term of 53 years.
The trial court accepted most of the People's recommendations. It denied probation and noted five factors in aggravation and found none in mitigation. It found execution of sentence on count 1 (the assault upon Mary), count 4 (the second firearm possession), and counts 5 and 7 (the two kidnapping counts) should be stayed pursuant to section 654. On the issue of whether the sentences on the remaining counts should be consecutive or concurrent, the court noted pursuant to rule 425(a)(2) of the California Rules of Court that "these various crimes involved separate and distinct acts of violence and threats of violence." It further noted the lack of any mitigating factors argued in favor of consecutive sentences and that consecutive sentences might be required under section 667.6, subdivision (d) to the extent the violent sex crimes involved different victims.
In a petition for rehearing, for the first time, defendant challenges the calculation of his sentence. He contends consecutive sentences were not mandatory and argues the court erroneously calculated his sentence by applying the options of section 667, subdivision (e)(2)(A) to each count separately rather than to his entire sentence as a whole.
A. Consecutive Sentences
Defendant argues this subdivision does not require consecutive sentences in this case because all his offenses were committed on only two occasions. In his petition for rehearing, defendant concedes consecutive sentences were "permissible in the discretion of the trial judge." In his supplemental brief, however, defendant backs away from this concession and argues the court erred in imposing consecutive sentences. Noting that section 667, subdivision (c)(6) requires consecutive sentences in certain cases, defendant argues: "By implication, it seems equally clear that the Legislature intended that consecutive sentences should not be imposed if the offenses in question were committed on the same occasion or arose from the same set of operative facts."
In his petition for rehearing defendant urges the matter must be remanded for resentencing on the issue of consecutive sentences. This assertion must rest on the unstated premise that the trial court misunderstood the scope of its discretion in this matter. Defendant offers no evidentiary support for this premise and the record indicates otherwise. First, we presume the court properly performed its duty. (Evid. Code, § 664.) Second, the People's sentencing statement suggested consecutive sentences might not be required, but argued they were appropriate. Third, the trial court took care to state reasons for its choice of consecutive sentences. Nothing indicates the court misunderstood the discretionary choices before it. Defendant does not challenge the reasons the court gave for consecutive sentences and does not otherwise show they were improper. We find the court properly imposed consecutive sentences and no remand is required.
B. Application of Section 667, subdivision (e)(2)(A)
"(i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions.
"(ii) Imprisonment in the state prison for 25 years.
"(iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046."
Relying on People v. Jenkins (1995) 10 Cal.4th 234 [40 Cal.Rptr.2d 903, 893 P.2d 1224], defendant contends the trial court was required to calculate
In People v. Jenkins, supra, 10 Cal.4th 234, the high court construed section 667.7, a similar habitual criminal statute. In relevant part section 667.7 provides: "Any person convicted of a felony in which the person inflicted great bodily injury as provided in Section 12022.7, or personally used force which was likely to produce great bodily injury, who has served two or more separate prison terms [for certain enumerated offenses] is a habitual offender and shall be punished as follows: [¶] (1) A person who served two prior separate prison terms shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 20 years, or the term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046, whichever is greatest."
The Jenkins court held enhancements should be included in calculating a defendant's sentence under the third alternative (the period prescribed by section 190 or 3046) as well as under the second (the term determined under section 1170). (People v. Jenkins, supra, 10 Cal.4th at p. 254.) The court interpreted the language of the second alternative under section 667.7, which is identical in wording to alternative (iii) under section 667. "The language of the second alternative — referring to persons who otherwise would be sentenced under the determinate sentencing provisions of section 1170 et seq. — makes clear that the Legislature intended that the minimum sentence under section 667.7 be calculated with reference to the entire sentence (including any applicable enhancements) that a defendant would face if he or she were not being sentenced under section 667.7, so as to ensure that a defendant who qualifies for habitual offender sentencing does not receive treatment more lenient than that accorded a nonhabitual offender who commits the same offense." (10 Cal.4th at p. 250.)
Defendant reads "calculated with reference to the entire sentence" to mean that a defendant's sentence is calculated as to all counts. He argues since the same language is used in the three strikes law, it should be interpreted the same. We agree the two habitual criminal statutes are in pari materia and therefore the interpretation of a phrase in one controls the interpretation of the identical language in the other. (In re Phyle (1947) 30 Cal.2d 838, 845 [186 P.2d 134].) Our quarrel is with his interpretation of "entire sentence"; his reading is not supported by People v. Jenkins, supra, 10 Cal.4th 234.
This conclusion is reinforced by the provisions of section 667, subdivision (c)(6), which directs the court, in certain situations, to "sentence the defendant consecutively on each count pursuant to subdivision (e)." (§ 667, subd. (c)(6).) In determining whether a subordinate term should be doubled for a "second strike" defendant, the court in People v. Anderson (1995) 35 Cal.App.4th 587 [41 Cal.Rptr.2d 474], looked to this provision. It found: "The statute clearly mandates that each count of a multiple count conviction will be sentenced independently under subdivision (e)." (Id. at p. 602.) Thus, defendant's argument that the doubling and tripling provisions of "three strikes" must be applied to all counts together is not persuasive.
The Attorney General contends the trial court erred in calculating defendant's sentence in three respects. First, he questions the stay of execution of the two kidnapping counts since the sentence for kidnapping with the intent to commit a sexual offense is greater than the sentence for an individual sexual offense. This argument ignores the fact that there were several sex offenses, so the total sentence on the sex offenses exceeded that for kidnapping and the stay was proper. (See People v. Latimer (1993) 5 Cal.4th 1203 [23 Cal.Rptr.2d 144, 858 P.2d 611] [proper to stay kidnapping count where two rape counts].)
Second, the Attorney General questions the calculation of the sentence on these two stayed counts. While the court stated it was applying alternative
Lastly, the Attorney General computes the sentences for the sex offenses using a 10-year enhancement for the firearm use. Section 12022.3 now provides for an enhancement of three, four, or ten years for use of a firearm or deadly weapon in the commission of certain sex offenses. Previously, the term of the enhancement was three, four, or five years. (Stats. 1993, ch. 299, § 2.) The increase in the length of the enhancement was enacted in the first extraordinary session in the fall of 1994. (Stats. 1994, First Ex. Sess. 1993-1994, ch. 31, § 2, ch. 33, § 5.) It was not in effect when defendant committed his offenses in March 1994. The trial court properly used the previous lesser enhancement.
The trial court was faced with sentencing defendant on 19 counts, with multiple enhancements, under a new sentencing scheme prior to resolution of the many questions such scheme presents. We have found no error in the court's sentencing and commend it on a fine job.
The judgment is affirmed.
Puglia, P.J., and Sims, J., concurred.
The petition of both respondent and appellant for review by the Supreme Court was denied February 15, 1996. Mosk, J., was of the opinion that the petition should be granted.