Opinion
F040484.
7-7-2003
THE PEOPLE, Plaintiff and Respondent, v. MILTON B. HARRELL, Defendant and Appellant.
John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Jeffrey D. Firestone and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Milton B. Harrell was sentenced on five felony counts in 1998. He was sentenced pursuant to the Three Strikes alternative sentencing scheme (see People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 527, 917 P.2d 628) to an aggregate term of 140 years and 10 months to life in prison. He appealed. Although affirming the judgment of conviction and the sentence in most respects, we "remanded for resentencing for the trial court to exercise its discretion to impose concurrent or consecutive sentences. In addition, we directed the trial court to correct the sentence ... in count 4 to reflect a conviction of attempted robbery, not robbery." (People v. Richardson & Harrell (Oct. 24, 2001, F032406) at p. 64.)
On remand, the court corrected the sentence on count 4 and exercised its discretion to impose consecutive sentences. As a result, defendant was resentenced to an aggregate term of 138 years and 10 months to life. On this new appeal, defendant challenges neither the correction of the sentence on count 4 nor the courts exercise of discretion to impose consecutive sentences. Instead, he contends that imposition of a sentence he cannot possibly serve is unconstitutionally cruel and unusual and one of his five-year enhancements is not supported by the record.
We agree with the second contention; we will modify and affirm defendants sentence.
A. The Lengthy Sentence
Relying entirely on Justice Mosks concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, 600, 957 P.2d 945, defendant contends that a civilized society should not impose upon a defendant a sentence he or she cannot possibly serve, no matter how despicable the series of crimes that results in that sentence. (See id. at pp. 600-601.) The remedy, according to defendant and the concurring opinion, is to simply impose a life sentence or, in extreme cases, a sentence of life without possibility of parole. (See id. at p. 602.)
This argument was rejected by the Court of Appeal in People v. Byrd (2001) 89 Cal.App.4th 1373, 1383, a case defendants counsel declined to cite in his appellate briefs. The Byrd court concluded the constitutional argument was meritless for two reasons: it was not the law in California and the rationale for lengthy indeterminate sentences reflects valid societal judgments about the punishment for crime. As the court stated: "In our view, a sentence such as the one imposed in this case serves valid penological purposes: it unmistakably reflects societys condemnation of defendants conduct and it provides a strong psychological deterrent to those who would consider engaging in that sort of conduct in the future." (Ibid.) We agree.
B. The Five-Year Priors
Penal Code section 667, subdivision (a), requires a five-year enhancement of current serious felony sentences for each prior serious felony of which the defendant has been convicted. However, for imposition of multiple five-year enhancements, each prior serious felony conviction must be "on charges brought and tried separately." (Pen. Code, § 667, subd. (a)(1).) "The requirement in section 667 that the predicate charges must have been brought and tried separately demands that the underlying proceedings must have been formally distinct, from filing to adjudication of guilt." (In re Harris (1989) 49 Cal.3d 131, 136, 260 Cal. Rptr. 288, 775 P.2d 1057.)
In the present case, the probation officers sentencing report affirmatively shows defendants two prior convictions were charged in the same information under the same case number.
Further, we take judicial notice of our own file in defendants previous appeal (F032406), in which these facts are confirmed as part of the court trial on the enhancement allegations. The reporters transcript of that proceeding shows the court was focused primarily on the status of the prior convictions as "strikes" under Penal Code section 667, subdivision (d). Under that subdivision, it is immaterial whether the prior felonies were brought and tried separately. (People v. Fuhrman (1997) 16 Cal.4th 930, 939, 941 P.2d 1189.) When the trial court concluded that the same prior serious felonies were proved for Penal Code section 667, subdivision (a), purposes, the court did not make the additional finding that the two charges were brought and tried separately. In that trial and in subsequent proceedings, this issue may simply have escaped notice in light of the minimal practical significance of the resulting enhancement of sentence.
Nevertheless, the Attorney General gamely insists we must presume something in the record supports the trial courts imposition of sentence, citing as authority People v. Wiley (1995) 9 Cal.4th 580, 592, 889 P.2d 541. The case before us, however, is not a "silent record" case, as was Wiley. In that case, the record showed the two prior convictions were prosecuted under two separate informations with two separate case numbers. Defendant asked the court to speculate that, nevertheless, they had initially been charged in a single complaint. The court declined to do so. (Id. at p. 593.)
In the present case, by contrast, the record affirmatively shows the charges were brought in the superior court as a single case, in no sense "formally distinct," as required by In re Harris, supra, 49 Cal.3d at page 136. The Attorney General has not asserted any possible set of facts that we could presume that would have the legal effect of making these two convictions separate for purposes of Penal Code section 667, subdivision (a).
The Attorney General also contends we should not reach this issue, since defendant failed to raise it in the prior appeal. As the Supreme Court pointed out in People v. Wiley, supra, 9 Cal.4th at page 594, the issue of "separateness" can be addressed postappeal on habeas corpus. Accordingly, in the interest of judicial economy, we address the issue here. And, based on the record, defendant is subject to only a single Penal Code section 667, subdivision (a), enhancement.
Disposition
One Penal Code section 667, subdivision (a), five-year enhancement of sentence is reversed and defendants sentence is modified accordingly. As modified, the judgment is affirmed. The trial court shall direct the clerk to prepare and send to the appropriate authorities a corrected abstract of judgment.