Opinion
NOT TO BE PUBLISHED
Superior Court Santa Barbara County of Ventura, No. 1176446, Timothy J. Staffel, Judge.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi, Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Ronald Lee Milligan appeals his conviction, by jury, of second degree robbery (Pen. Code, § 211) and evading arrest with willful disregard for the safety of persons or property. (Veh. Code, § 2800.2, subd. (a).) The trial court found that appellant had six prior "strike" convictions or juvenile adjudications (§§ 667, subd. (a)(1), (e)(2)(A); 1170.12, subd. (c)(2)(A), 1192.7, subd. (c)) and one qualifying prior prison term. (§ 667.5, subd. (b).) It sentenced appellant on count 1 to an indeterminate term of life with a minimum term of 36 years plus a consecutive determinate term of 31 years. It imposed a consecutive sentence on count 2 of life with a minimum term of 33 years plus a consecutive determinate term of 31 years. This results in a total, unstayed aggregate term of 131 years to life. Appellant's sole contention on appeal is that the trial court erred in imposing the 30-year enhancements on the evading count because the offense at issue is not a serious felony within the meaning of section 667, subdivision (a). Respondent concedes the error and contends the trial court erred by failing to impose court security fines.
All statutory references are to the Penal Code unless otherwise stated.
The abstracts of judgment fail to reflect accurately the three-strikes sentences and enhancements imposed by the trial court, causing appellant to conclude that his aggregate sentence was 69 years to life.
We agree that section 667, subdivision (a)(1) enhancements cannot be imposed for evading arrest in violation of Vehicle Code section 2800.2, subdivision (a), because that offense is not a "serious" felony within the meaning of section 1192.7, subdivision (c). We further agree that the trial court erred in failing to impose two court security assessments of $20 each pursuant to section 1465.8, subdivision (a)(1). However, our review of the record disclosed potential errors in sentencing that were not addressed by the parties. We requested and received supplemental briefs on those issues. We now conclude that the abstract of judgment fails to accurately reflect the sentence imposed by the trial court on count 1 and fails to impose the only authorized sentence on count 2. Appellant's sentence on count 1 is an indeterminate term of life with a minimum indeterminate term of 36 years plus a determinate term of 31 years, for a total term on count 1 of 67 years to life. His sentence on count 2 is a consecutive, indeterminate term of life with a minimum indeterminate term of 25 years, plus a determine term of one year, for a total consecutive term of 26 years to life. Appellant's total, unstayed aggregate term is 93 years to life. We direct the Clerk of the Superior Court to prepare and transmit to the Department of Corrections an amended abstract of judgment reflecting this sentence as detailed below. In all other respects, the judgment is affirmed.
Facts
Appellant took the wallet of a man he encountered on a country road near Guadalupe, California. After appellant drove away from the crime scene, the victim used a cell phone to report the robbery to police. Within minutes a Guadalupe police officer saw appellant driving the car described by the victim and started a pursuit. Appellant fled, driving at high speeds and causing a collision. No one was hurt. He ran from the scene and through a residential area, eventually hiding in a garage. After negotiating for about one hour, appellant left the garage and surrendered. Officers did not recover a gun from his person or from his car.
Because appellant is a "third strike" offender, the trial court sentenced him to two consecutive, indeterminate life terms. It calculated the minimum term of each indeterminate term as follows. On Count 1, the trial court selected the five-year upper term, to which it added 30 years pursuant to section 667, subdivision (a)(2) (the "five year priors") and one year pursuant to section 667.5, subdivision (b) (the prior prison term). (§1170.12, subdivision (c)(2)(A)(iii).) In addition to this minimum term of 36 years, it imposed a determinate term of 31 years, composed of the six five-year prior enhancement terms and a one-year prior prison term enhancement. As the trial court explained, "So the way the sentencing scheme works for count 1 is the 31 years sentencing followed by 36 years to life on count 1." Its sentencing on count 2 was essentially the same: two years for the evading plus 30 years pursuant to section 667, subdivision (a)(2), plus one year pursuant to section 667.5, subdivision (b), in addition to the same 31-year enhancement term. The trial court concluded, "As to count 2, it would be 31 years followed by 33 years to life in count 2."
Further complicating appellant's fate is the fact that the abstract of judgment fails accurately to reflect the sentence pronounced by the trial court. It lists the ordinary (e.g., non-three strikes) base term for each offense and it lists the determinate enhancement terms imposed under sections 667 and 667.5. The abstract of judgment does not, however, reflect the minimum indeterminate terms for each count as calculated under section 1170.12, subdivision (c)(2)(A)(iii). It also does not impose the court security assessments mandated by section 1465.8, subdivision (a)(1).
Discussion
Section 1170.12 requires the trial court to sentence a "third strike" defendant, such as appellant, to an indeterminate term of life imprisonment with a "minimum term of the indeterminate term calculated as the greater" of three options. (§ 1170.12, subd. (c)(2)(A)(i)-(iii).) Here, the trial court calculated appellant's minimum terms for both counts using the third option: "the term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement . . . ." (§1170.12, subd. (c)(2)(A)(iii).) As our Supreme Court explained in People v. Dotson (1997) 16 Cal.4th 547, under this option, "the defendant's minimum indeterminate term is calculated . . . by adding applicable enhancements to the term selected for the current conviction." (Id., at p. 553.) Once that term is calculated, the trial court also imposes a separate determinate term for enhancements under section 667, subdivision (a). "[T]he three strikes law expressly subjects a defendant to a separate determinate term for enhancements, even when those enhancements are used in calculating the minimum indeterminate life term." (Id. at p. 560.)
Thus, the term imposed by the trial court on count 1, as articulated at the sentencing hearing, was correct. The minimum indeterminate term on count 1 is 36 years. This is comprised of five years for the robbery (§ 213, subdivision (a)(2)), plus 30 years (six terms of five-years each pursuant to section 667, subdivision (a)), plus one year. (§ 667.5, subdivision (b).) To this is added a determinate term of 31 years, reflecting the enhancement terms imposed pursuant to sections 667, subdivision (a) and 667.5, subdivision (b). The total term properly imposed on count 1, then, is 67 years to life.
The sentence imposed by the trial court on count 2 was, however, incorrect. As the parties agree, section 667, subdivision (a)(1) enhancements may not be imposed on count 2. These enhancements "apply only when the defendant's current offense is a 'serious felony' within the meaning of section 1192.7, subdivision (c) . . . ." (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529. See also People v. Thomas (1999) 21 Cal.4th 1122, 1129; People v. Dotson, supra, 16 Cal.4th at p. 555 ["Under section 667(a), however, the current felony offense must be 'serious' within the meaning of section 1192.7, subdivision (c) for the five-year enhancement to apply."].) Evading arrest is not a "serious felony" within the meaning of section 1192.7, subdivision (c).
Under section 1170.12, subdivision (c)(2)(A), the trial court was required to choose the sentencing option for count 2 that yields the "greater" term. Here, that option is subdivision (ii), which yields a sentence of 25 years. To this is added a one-year enhancement term pursuant to section 667.5, subdivision (b). The total term properly imposed on count 2 is 26 years to life.
The trial court also erred when it failed to impose court security assessments pursuant to section 1465.8. The statute provides that a fee of $20 "shall be imposed on every conviction for a criminal offense, including a traffic offense . . . ." (§ 1465.8, subd. (a)(1).) Appellant had two such convictions, mandating a total assessment of $40. (See, People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2.)
Disposition
We direct the clerk of the superior court to prepare and forward to the Department of Corrections modified and corrected abstracts of judgment reflecting: on count 1, an indeterminate term of life with a minimum indeterminate term of 36 years, plus a determinate term of 31 years, composed of six, five-year enhancement terms under section 667, subdivision (a)(1) and one, one-year enhancement term under section 667.5, subdivision (b) for a total term of 67 years to life. On count 2, a consecutive indeterminate term of life with a minimum indeterminate term of 25 years, plus a determinate term of one year under section 667.5, subdivision (b) for a total term of 26 years to life; restitution fines as originally imposed by the trial court and a court security assessment of $40 pursuant to section 1465.8, subdivision (a)(1). In all other respects, the judgment is affirmed.
We concur: COFFEE, J., PERREN, J.