Opinion
No. A076392 (Napa County Super. Ct. Nos. CR26236, CR26237)
Filed January 8, 1998 Certified for Partial Publication
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II, III, IV, and VI.
Trial court: Napa County, Superior Court
Trial judge: W. Scott Snowden
Counsel for appellant Johnny Barra: Ross Thomas
Counsel for appellant Josiah Barra: Sandra Gillies
Counsel for respondent: Daniel E. Lungren, Attorney General; George Williamson, Chief Assistant Attorney General; Ronald A. Bass, Senior Assistant Attorney General; Catherine A. Rivlin, Supervising Deputy Attorney General; Christina V. Kuo, Deputy Attorney General.
Under the "Three Strikes" law, when a defendant has one qualifying prior, "the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction." (Pen. Code, §§ 667, subd. (e)(1); 1170.12, subd. (c)(1).) The question we consider in the published portion of this opinion is the applicability of this doubling provision when the defendant's current conviction is attempted willful, deliberate, and premeditated murder, a crime punishable by "life with the possibility of parole." (§ 664. subd. (a).)
All subsequent statutory references are to the Penal Code unless otherwise indicated.
I. INTRODUCTION
A jury convicted Josiah Cheston Barra of two counts of attempted willful and premeditated murder and one count of second degree robbery (Pen. Code, §§ 664, 187, 211), each count with personal knife use and great bodily injury enhancements. (Pen. Code, §§ 12022, subd. (b)(1), 12022.7, subd. (a).)
The same jury convicted Johnny Barra, Jr., of one count of attempted willful and premeditated murder, with personal knife use and great bodily injury enhancements, one count of second degree robbery, with a personal knife use enhancement, and one count of assault with a deadly weapon (§ 245, subd. (a)(1)), with a great bodily injury enhancement. In bifurcated proceedings, the trial court found that he had suffered a prior serious felony conviction within the meaning of the "Three Strikes" law. (§§ 667, subds. (b)-(j); 1170.12, subds. (a)-(d).)
Part II of this opinion is not certified for publication. (See fn., ante, at p. 1.)
On December 30, 1995, brothers Josiah Cheston Barra (Josiah) and Johnny Barra, Jr. (Johnny), were staying with their uncle in St. Helena. Their father, Johnny Barra, Sr. (Barra), arrived and drank beer with his sons. They drove to Yountville to visit a friend, Filemon Martinez. They all drank more beer at Martinez's house on Washington Street. Josiah was wearing a red 49ers jacket that day, and Johnny, a black jacket. Each brother had a partially shaved head with a pony tail in the back.
Sometime during the evening, Martinez saw Josiah and Johnny go out through the back of the house. Barra saw his sons head toward the street but didn't know where they were going; they told him they'd be right back.
Meanwhile, Richard Lafferty, Sr. (Lafferty), his wife, their son, Richard Jr. (Rick), their daughter, and their son-in-law, Darryl Ross (Ross), had dinner at a Yountville restaurant, finishing at about 8:45 p.m. The two women left the restaurant slightly ahead of the others and walked toward town to window shop. The men went to get some cigars from their car; then they started strolling down Washington Street toward the shops at a leisurely pace, pausing at sites of interest. Ross and Lafferty were smoking their cigars.
As they approached a small bridge in a dark area, Ross saw two males walking in the same direction, on the opposite side of the street. One was wearing a red coat and the other was in dark clothing; each appeared to have either a shaved head or a minimal amount of hair. The person in red, whom Ross later identified as Josiah, crossed the street. Lafferty, Ross, and Rick stopped briefly on the bridge; then Lafferty and Rick walked on ahead of Ross.
Josiah approached Ross and asked for a cigarette; Ross said he didn't have one and started to walk faster to catch up with his companions. But Josiah kept pace with him and asked for a cigar. After Ross said he didn't have another cigar, Josiah asked for a "hit" off the cigar Ross was smoking. When Ross refused, Josiah repeated the request more forcefully. By now Ross was frightened. He stopped, broke his cigar in half, and handed Josiah the half that had been in his mouth. Josiah became very upset and slapped Ross on the right side of his forehead, staggering him.
Josiah then demanded, "Give me your money." Not knowing whether Josiah was armed, Ross gave him the money in his pocket, $35 or $40. Immediately thereafter, Josiah stabbed Ross twice in the back. Startled, Ross cried out, "Why did you do that? I gave you my money."
Meanwhile, Lafferty and Rick had paused to wait for Ross. Lafferty suddenly noticed Johnny standing only about two or three feet behind them. Becoming concerned, Lafferty looked back and saw Ross with Josiah. Within seconds, Lafferty saw Josiah hit Ross in the head and then in the midback.
Realizing Ross was being assaulted, Lafferty went to assist him. At the same time, Johnny suddenly stabbed Rick once in the back and ran past him toward Lafferty and Josiah. As Lafferty attempted unsuccessfully to kick Josiah, Johnny stabbed Lafferty in his left shoulder. Both Johnny and Josiah jumped on Lafferty, one on either side, and stabbed him repeatedly in the back. Lafferty was screaming, "They're murdering me, they're stabbing me, they're killing me." Rick was also screaming for help. Josiah and Johnny left, moving quickly away down the street.
The brothers returned to Martinez's house and soon left with their father and a cousin. According to Barra, his sons said they wanted to go back to St. Helena. After stopping briefly in St. Helena, they drove to Fresno. In Fresno, Johnny told his father that he had stabbed two people in Yountville. Josiah also said he had stabbed a guy in Yountville. Both were laughing as they talked about the incident.
Both defendants were under 21 years old when this incident occurred. Their father, who testified for the prosecution, had been granted immunity from prosecution for furnishing alcohol to an underage person.
Ross had two deep stab wounds in his back, which collapsed his lung. Lafferty had several stab wounds, including a large four to six inch laceration in his diaphragm; his stomach had been pushed up through the diaphragm into his chest cavity.
III. APPEAL BY JOSIAH CHESTON BARRA
Part III of this opinion is not certified for publication. (See fn., ante, at p. 1.)
A. Sufficiency of the Evidence
Josiah and Johnny were convicted of the attempted willful, deliberate, and premeditated murder of Lafferty; Josiah also was convicted of the attempted willful, deliberate, and premeditated murder of Ross. Josiah contends the evidence was not sufficient to support findings that he intended to kill either man or that the attempted killings were deliberate and premeditated.
Johnny Barra states in his brief that he joins in and adopts all arguments made by Josiah to the extent those arguments apply to him.
The charge of attempted murder required proof of specific intent to kill. Proof of that intent is ordinarily derived from all of the circumstances of the attempt, such as the defendant's conduct, the brutality of the attack, and the potentially fatal nature of the injuries inflicted. ( People v. Chinchilla (1997) 52 Cal.App.4th 683, 690; see People v. Osband (1996) 13 Cal.4th 622, 692; People v. Mayfield (1997) 14 Cal.4th 668, 769.)
Proof also was required that the attempted murders were deliberate and premeditated. The term "deliberate" means formed, arrived at, or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. "Premeditated" means considered beforehand. Both deliberation and premeditation can occur in a brief interval. The test is reflection, not time. ( People v. Memro (1995) 11 Cal.4th 786, 862-863.) Among the categories of evidence that may bear on premeditation and deliberation are evidence of planning activity, motive, and the manner of killing. ( People v. Anderson (1968) 70 Cal.2d 15, 26-27.) But these categories are descriptive, not normative, and do not establish an exhaustive or exclusive list that excludes all other types and combinations of evidence that would support a finding of premeditation and deliberation. ( People v. Perez (1992) 2 Cal.4th 1117, 1125.) For instance, a jury may consider a defendant's conduct after an attack as some evidence of his or her state of mind before the attack. ( Id. at p. 1128.)
Our task is to review the evidence in the light most favorable to the judgment, to determine whether it discloses substantial evidence from which a reasonable trier of fact could find beyond a reasonable doubt that defendants intended to kill and premeditated and deliberated. ( People v. Perez, supra, 2 Cal. 4th at p. 1125.) We must presume in support of the judgment the existence of every fact the trier could reasonably have deduced from the evidence. ( People v. Fosselman (1983) 33 Cal.3d 572, 578.) The question is not whether this court is convinced beyond a reasonable doubt, but whether any rational trier of fact could have been persuaded beyond a reasonable doubt that defendants deliberated and premeditated. ( Perez, supra, at p. 1127.)
Viewed in the light most favorable to the judgment, the evidence indicates that Josiah and Johnny followed their victims until they reached a dark area. When Ross fell slightly behind his companions, Josiah quickly approached him, knife at the ready. At the same time, Johnny unobtrusively closed in on the other two men, also with knife in hand. After Ross surrendered his money without resistance, Josiah responded by stabbing him in the back. As soon as Lafferty started toward Josiah and Ross, Johnny stabbed Rick in the back, preventing him from intervening. Johnny then immediately moved to assist his brother, and they both repeatedly and brutally stabbed Lafferty. The jury could reasonably have inferred that this attack was a coordinated, deliberate, premeditated plan by appellants to rob and to kill if necessary to escape detection.
The nature of the stabbings themselves also supports the jury's findings of intent to kill. Josiah inflicted such deep wounds on Ross that his lung was punctured. Then, although they had moments to reflect after the first stabbing, both appellants stabbed Lafferty repeatedly and viciously, severely lacerating his diaphragm and making several holes in his stomach. The force of the blows lifted him and moved him along the sidewalk. The surgeon who treated Lafferty described the laceration in his diaphragm as "unbelievable" and "huge." He said, "[Y]ou have to go inside and stir it up to do that kind of injury."
Appellants' behavior after the crime is additional evidence supporting the jury's verdict. Even though they fled the scene, they laughed when describing the stabbings to their father and uncle; that behavior is clearly inconsistent with a rash, impulsive attempt to kill.
Josiah argues that he and his brother had come to Yountville to drink and then made quick plans to commit a robbery; he insists their actions demonstrate a plan to escape, not to kill. But if the circumstances reasonably justify the jury's findings, the possibility that the evidence might also support contrary findings does not warrant a reversal of the judgment. ( People v. Perez, supra, 2 Cal.4th at p. 1124.)
B. Appellants' Absence During Reading of Supplemental Instructions
Appellants both personally orally waived their right to be present at the initial discussion of jury instructions. When deliberations began, the court suggested it would accept a stipulation that readback could occur without the presence of court staff, counsel, or appellants. If a stipulation was agreed upon, however, it was not placed on the record. During deliberations, defense counsel waived appellants' presence while the court and counsel discussed the appropriate response to a note from a juror. Later, the jury inquired about the duration of a robbery. Defense counsel again waived appellants' presence while the court and counsel considered the inquiry, but the court had appellants returned to the courtroom while it read a supplemental instruction.
That afternoon, the jury asked for a readback of testimony. After the court and counsel agreed on how to proceed, the prosecutor asked whether appellants should be present. Counsel for Josiah stated, "They both informed me this morning when they were brought over that they were told that's it, the jury's reached a verdict, and they were both scared to death. I'm sure it was good natured play. [¶] I don't think it helps at all to have [Josiah] here . . . . And rather than causing any unnecessary grief by virtue of something that may be said to him or whatever, I would just as soon waive, continue to waive his presence." Counsel for Johnny agreed, stating, "I think it's within the scope of the original waiver, and I don't request that my client be here."
The following day, the court and counsel had a lengthy discussion about another question from the jury concerning aiding and abetting. When the court suggested that appellants should be present for the reading of supplemental instructions, defense counsel indicated that appellants did not want to be present. Before reading the instructions, the court reiterated that appellants had waived their right to be present at that "hearing" or any subsequent "hearing." Shortly thereafter, the court responded to a final question from the jury about whether aiding and abetting applied to the sentence enhancement. Appellants were not present.
Josiah now contends reversal is required because he was absent when the court gave these supplemental instructions on aiding and abetting. He acknowledges the waiver by his counsel, but argues that his personal oral and written waivers were required.
A defendant has a federal constitutional right to be present at any stage of a criminal proceeding "that is critical to its outcome if his presence would contribute to the fairness of the procedure." ( Kentucky v. Stincer (1987) 482 U.S. 730, 745.) A defendant also has state constitutional and statutory rights to be present at his or her trial. (Cal. Const., art I, § 15; Pen. Code, §§ 977, subd. (b), 1043; People v. Bradford (1997) 15 Cal.4th 1229, 1357.)
However, as a matter of both federal and state constitutional law, a defendant may validly waive his presence at critical stages of the trial by voluntarily absenting himself from the proceedings. (See, e.g., People v. Jackson (1996) 13 Cal.4th 1164, 1209-1210 [defendant expressly declines to be present during one day of his trial because of a black eye].) Our Supreme Court has also held that defense counsel alone can waive defendant's right to be present if the proceeding is one in which defendant and his counsel have no significant role. ( People v. Thompson (1990) 50 Cal.3d 134, 175.) On the other hand, several federal circuit courts have held that defense counsel cannot waive that right on defendant's behalf. (See Larson v. Tansy (10th Cir. 1990) 911 F.2d 392, 396 fn. 2.)
While the statutory right to be present at certain proceedings may be waived, that waiver must be in writing. Section 977, subdivision (b)(1), mandates the accused's presence at several proceedings, including when evidence is being taken at trial. It then provides that the accused shall be personally present at all other proceedings, "unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present, . . ."
But a defendant has the burden of demonstrating that his absence prejudiced his case or denied him a fair trial. ( People v. Bradford, supra, 15 Cal.4th at p. 1357.) A defendant's absence, even without a waiver, may be declared nonprejudicial in situations where his presence does not bear a reasonably substantial relation to the fullness of his opportunity to defend against the charge. ( People v. Horton (1995) 11 Cal.4th 1068, 1120-1121; People v. Johnson (1993) 6 Cal.4th 1, 18; People v. Medina (1990) 51 Cal.3d 870, 902.)
While our Supreme Court sometimes utilizes this "fullness of the opportunity to defend" language in assessing harmless error, it has also used the same test to conclude that there has been no error. (See People v. Bradford, supra, 15 Cal. 4th at p. 1357; People v. Clark (1993) 5 Cal.4th 950, 1012.)
First, the record supports a conclusion that appellants' absence during the reading of the supplemental instructions on aiding and abetting and the enhancement was voluntary. Although they did not personally waive their right to be present, counsel informed the court that appellants did not want to return to the courtroom. What is more important, neither appellant has explained how his attendance when the court read the instructions would have benefited him or otherwise altered the outcome of the trial. Neither claims that the instructions were erroneous or that counsel provided ineffective representation, and the suggestion that their presence might have exerted some psychological impact during the reading of the instructions is sheer speculation, not a demonstration of prejudice.
C. Providing the Jury With Transcripts Without a Cautionary Instruction
The jury requested a readback of certain testimony of the victims, with references that appeared to be dates and military time notations. After discussing the request with counsel both on and off the record, the court offered the jury three alternatives: (1) a readback of all the testimony of Lafferty, Ross, and Rick; (2) a readback of limited portions of their testimony; or (3) transcripts of the testimony. The jury asked for the transcripts, which were provided to them the following morning, without objection from appellants. Nevertheless, Josiah now contends the court should have cautioned the jury that the transcript was not to serve as a substitute for memory and warned the jury to weigh all the evidence and avoid focusing on any one portion of the trial. He contends that the court's failure to advise the jury against undue emphasis on the transcripts requires reversal.
He also argues that the court should have provided the parties with an opportunity to flag any inaccuracies in the transcript, but he does not claim that there were any such inaccuracies.
Josiah cites no authority supporting the proposition that the court had a sua sponte obligation to fashion a cautionary instruction before allowing the jury to read the transcripts. Ordinarily limiting instructions are not required absent a request, except for the occasional extraordinary case, and this case does not present that exceptional situation. (See generally People v. Collie (1981) 30 Cal.3d 43, 64 [no duty to instruct sua sponte on limited admissibility of evidence of past criminal conduct].) Appellants have waived this issue by not objecting or requesting a limiting instruction in the trial court. U.S. v. Hernandez (9th Cir. 1994) 27 F.3d 1403, upon which Josiah relies, does not dictate a contrary conclusion. The transcript in that case was provided to the jury over the defendant's vehement objection, and the trial court denied his request for a limiting instruction regarding the jury's emphasis of the transcript. ( Id. at pp. 1405, 1408.)
D. Evidence of Battery of Martin Rivera
Martin Rivera was also at Martinez's house for part of the evening on December 30. At some point Josiah was offended by a remark from Rivera; he punched Rivera several times in the head before his father intervened and told him to stop.
Over Josiah's objection, the court exercised its discretion under Evidence Code section 352 and admitted this evidence. The court reasoned that the evidence was relevant to prove Josiah's "aggressive, attack-prone state of mind" at the time of the attack on Lafferty and his companions. At the same time, the court rejected the theory that the battery was prior similar conduct admissible to show modus operandi. It also refused to admit evidence that Rivera had remarked about Josiah's lack of ability to lead a gang, reasoning that such evidence would be unduly prejudicial. Later, the court instructed with CALJIC No. 2.50 that any evidence of uncharged crimes was admitted only to show intent or motive. Josiah contends this evidence should not have been admitted because its only relevance was to show criminal propensity.
This issue concerns only Josiah. Johnny argued at trial that the evidence of the battery was relevant to his theory of the case, i.e., that Josiah had a propensity for flying off the handle and became embroiled in a physical confrontation with Ross; when Lafferty came to Ross's assistance, Johnny responded by helping Josiah.
Other crimes evidence is admissible when it is relevant to prove a disputed fact other than disposition, such as intent. (Evid. Code, § 1101, subd. (b).) To be relevant, other crimes evidence must have some tendency in reason to prove the disputed fact. ( People v. Rowland (1992) 4 Cal.4th 238, 261.) To be admissible to prove intent, the charged and uncharged crimes need not be identical; however, they must be sufficiently similar to support the inference that the defendant probably harbored the same intent in each instance. ( People v. Ewoldt (1994) 7 Cal.4th 380, 402.) Illustrative are People v. Gallego (1990) 52 Cal.3d 115, 171-172 [evidence of defendant's involvement in two prior substantially similar killings admitted to prove intent to kill in charged crime]; and People v. Hayes (1990) 52 Cal.3d 577, 617 [evidence of strikingly similar prior assault and robbery admitted to prove intent to rob in the charged crime]. However, because such evidence is inherently prejudicial, it is admissible only if it has substantial probative value. ( Ewoldt, supra, at p. 404.) Where the connection between the uncharged crime and the ultimate fact in dispute is not clear, the court should exclude the evidence. ( People v. Daniels (1991) 52 Cal.3d 815, 856.)
In this case, Josiah's criminal intent was put at issue when he pleaded not guilty. ( People v. Memro, supra, 11 Cal.4th at p. 864.) But we question whether the evidence that Josiah hit Rivera in response to an insult had any tendency in logic and reason to prove his intent to rob Ross or kill Ross and Lafferty, or to prove that the attempted murders were deliberate and premeditated. Nevertheless, even if the evidence was not relevant or only marginally relevant, its admission was undoubtedly harmless, given the strength of the evidence against appellant.
IV. APPEAL BY JOHNNY BARRA, JR.
A. Admissibility of Lafferty's Statements After Being Stabbed
Part IV of this opinion is not certified for publication. (See fn., ante, at p. 1.)
The prosecutor sought to admit testimony by Rick that while he was trying to comfort his father immediately after the stabbing, Lafferty said, "I love you, son. I'm going to die." Appellant Johnny Barra conceded the relevance of Lafferty's belief that he was dying, but argued that the first part of the statement was not relevant and would be unduly prejudicial. The trial court engaged in the weighing process required by Evidence Code section 352 and admitted the entire statement. The court reasoned in part that the remark would not have a significantly greater effect than a graphic depiction of wounds. It also explained that excising the words, "I love you, son," would give the statement a "clinical context" different from its real context and diminish its credibility. Although Johnny contends the admission of the statement was erroneous and requires reversal, he has not demonstrated any abuse of discretion in the court's ruling. Moreover, given all the evidence in this case, there is no reasonable probability that the result would have been different had the evidence not been admitted.
B. Reasonable Doubt Instruction
Johnny claims the trial court erred in instructing on reasonable doubt with the 1994 revision of CALJIC No. 2.90. The contention is without merit. ( People v. Godwin (1996) 50 Cal.App.4th 1562, 1571-1572; People v. Barillas (1996) 49 Cal.App.4th 1012, 1022.)
V. JOHNNY BARRA'S SENTENCE FOR ATTEMPTED MURDER
At Johnny Barra's sentencing hearing, the court imposed a life term for the attempted murder conviction, "doubled by reason of the so-called strike." The abstract of judgment also indicates that the life term is "to be doubled per [the Three Strikes law]."
Johnny contends that doubling of the life term was unauthorized by law. He reasons that the Three Strikes law does not apply to a defendant with one qualifying prior when the punishment for his current offense is life with the possibility of parole, because that punishment is an indeterminate sentence with no minimum term to double. The contention is based on an apparent misunderstanding of the difference between determinate and indeterminate life sentences.
A sentence of 15 or 25 years to life is an indeterminate sentence, with a minimum possible term of 15 or 25 years and a maximum potential term of life imprisonment. (See In re Jeanice D. (1980) 28 Cal.3d 210, 215-219; People v. Yates (1983) 34 Cal.3d 644, 648-652; People v. Smith (1984) 35 Cal.3d 798, 808-809.) When a second strike defendant's current conviction is punishable by an indeterminate life sentence (see, e.g., §§ 190, subd. (a) [murder], 217.1, subd. (b) [attempted murder of certain public officials]), the specified minimum term for that conviction is doubled. (See People v. Ruiz (1996) 44 Cal.App.4th 1653, 1657 [second strike defendant sentenced to 15 years to life for second degree murder, doubled to 30 years to life].)
Section 664 is among several statutes that prescribe a life term without setting a specified minimum term. (See, e.g., §§ 205 [aggravated mayhem], 209, subd. (a), (b) [certain kidnappings], 209.5 [kidnapping during carjacking], 219 [train derailing where no death occurs].) Our Supreme Court has consistently characterized such a sentence as a determinate or express life term. (See People v. Yates, supra, 34 Cal.3d at pp. 648-650; People v. Smith, supra, 35 Cal.3d at pp. 808-809; see also People v. Bright (1996) 12 Cal.4th 652, 669 [§ 664, subd. (a) "sets forth a penalty provision prescribing an increased sentence (a greater base term) to be imposed upon a defendant's conviction of attempted murder when the additional specified circumstances are found true . . . .")
The minimum parole eligibility release date for a defendant sentenced to a determinate life term is seven years. (§ 3046.) With certain exceptions, that date for a defendant sentenced to an indeterminate life term is calculated by applying section 2931 credits against the statutory minimum sentence. ( In re Dayan (1991) 231 Cal.App.3d 184, 186; see §§ 190, 3046.)
When faced with a question about the legislative intent underlying a statute, we begin with its actual words, giving them a plain and common sense meaning. ( People v. Valladoli (1996) 13 Cal.4th 590, 597.) We do not indulge in statutory construction when those words are clear and unambiguous. ( People v. Hendrix (1997) 16 Cal.4th 508, 512.) Instead, we follow the legislative intent as exhibited by that plain language, regardless of what we may think of the wisdom of the enactment. ( People v. Weidert (1985) 39 Cal.3d 836, 843.)
For a defendant with one qualifying prior, the plain language of the Three Strikes law distinguishes between determinate and indeterminate terms and specifies that "the determinate term . . . shall be twice the term otherwise provided as punishment for the current felony conviction." (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1).) As that directive is clear and unambiguous, courts must follow it. In this case, the punishment for Johnny's current conviction was a determinate life sentence, and the trial court correctly imposed twice that term, i.e., two consecutive determinate life terms.
Imposition of two consecutive life terms will result in a minimum parole eligibility period of at least 14 years. (See § 3046 ["Where two or more life sentences are ordered to run consecutively to each other pursuant to section 669, no prisoner so imprisoned may be paroled until he or she has served at least seven calendar years . . . on each of the life sentences . . . ."].)
We recognize that in People v. Tran (Dec. 4, 1997, H016119) __ Cal.App.4th __ [97 Daily Journal D.A.R. 14701] modified December 30, 1997, the court held that the imposition of two consecutive life terms under similar circumstances was error. Instead, the Tran court interpreted the Three Strikes law as requiring the imposition of one life term, with the doubling of the seven-year minimum period for parole eligibility set forth in section 3046. The court viewed the omission of a specific reference to the minimum period for parole eligibility as a drafting error, but reasoned that the Legislature could not have intended to exempt defendants convicted of attempted premeditated murder from the term-doubling provisions of the law. While we agree with the Tran court's assessment of the legislative and voter intent underlying the Three Strikes law, we question the court's failure to recognize the difference between indeterminate and determinate life terms. VI. OTHER SENTENCING ISSUES
The applicability of the Three Strikes law to a defendant with one qualifying prior and a current conviction of attempted deliberate and premeditated murder is currently pending before the California Supreme Court in People v. Jefferson (1996) 50 Cal.App.4th 958, review granted February 19, 1997 (S057834).
Part VI of this opinion is not certified for publication. (See fn., ante, at p. 1.)
The trial court also imposed a five-year enhancement pursuant to section 667, subdivision (a)(1), for Johnny's prior serious felony conviction. He next contends the court erred in using the prior both for the enhancement and to sentence him under the Three Strikes law. The argument is without merit. ( People v. Nelson (1996) 42 Cal.App.4th 131, 136-141; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1137-1139; see People v . Dotson (1997) 16 Cal.4th 547, 554-555 [section 1170.12, subdivision (c) "clearly prescribes that terms of enhancement, including the five-year enhancement under section 667(a), be imposed in addition to the indeterminate term"].)
Johnny also contends that his sentence of twenty-two years plus two consecutive life terms constitutes cruel and unusual punishment, arguing that the sentence is "grossly out of proportion" to the severity of his offenses. We disagree. Attempted willful, deliberate, and premeditated murder is obviously an extremely serious offense in the abstract, and assault with a deadly weapon and robbery with use of a knife are also very serious. Furthermore, as we have already discussed, the evidence in this case indicated a coordinated, premeditated plan to rob and kill if necessary. The nature of the attack on Lafferty was particularly violent and brutal, and he was fortunate to have survived. Moreover, under the Three Strikes law, a defendant is punished not just for his current offense but for his recidivism. ( People v. Cooper (1996) 43 Cal.App.4th 815, 823.) "Fundamental notions of human dignity are not offended by the prospect of exiling from society those individuals who . . . have proved themselves to be threats to public safety and security." ( People v. Ruiz, supra, 44 Cal.App.4th at pp. 1662-1663.) The sentence does not constitute cruel and unusual punishment.
Next, Johnny argues that because the Three Strikes law mandates that the prosecutor charge all known prior convictions, the Legislature has usurped the prosecutor's traditional charging discretion, thereby violating the separation of powers doctrine. The argument has been rejected by several courts, and we agree with their conclusion. ( People v. Butler (1996) 43 Cal.App.4th 1224, 1247; People v. Kilborn (1996) 41 Cal.App.4th 1325, 1332-1333; see People v. Cartwright, supra, 39 Cal.App.4th at pp. 1133-1134.)
Finally, Johnny asserts that the Three Strikes law's limitation on the calculation of conduct credits constitutes a denial of equal protection, but that claim is equally devoid of merit. ( People v. Spears (1995) 40 Cal.App.4th 1683, 1687-1688; see People v. Ramos (1996) 50 Cal.App.4th 810, 824 and cases cited therein.)
VII. DISPOSITION
The judgments are affirmed.
_______________________________ Strankman, P.J.
We concur:
_______________________________ Stein, J.
_______________________________ Swager, J.