Opinion
C080421
01-03-2017
THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS MICHAEL MARTIN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. P14CRF0247)
A jury found defendant Douglas Michael Martin guilty of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187, subd. (a)) and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The jury also found true multiple offense-related sentence enhancement allegations, including a firearm enhancement allegation. (§ 12022.53, subd. (d).) In a bifurcated proceeding, defendant admitted he had served three prior prison terms (§ 667.5, subds. (a), (b)) and had two prior serious felony convictions (§ 667, subd. (a)(1)) that qualified as strikes under the three strikes law (§ 667, subds. (b)-(i)). The trial court sentenced defendant to an aggregate term of 89 years to life.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court imposed an unauthorized sentence in violation of Proposition 36, the Three Strikes Reform Act of 2012. According to defendant, the trial court improperly imposed prior prison term enhancements on both counts. We reject this contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In light of the issue raised on appeal, a detailed recitation of the underlying facts and procedural history of this case is unnecessary. It suffices to say that on November 20, 2013, defendant shot the victim eight times and hit her with a stick after he had repeatedly threatened to kill her earlier that day.
Defendant was charged with attempted willful, deliberate, and premeditated murder (§§ 664, 187, subd. (a); count 1) and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2). As to count 1, it was alleged defendant personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)), personally and intentionally discharged a firearm proximately causing great bodily injury (§ 12022.53, subd. (d)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), personally used a firearm (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)), and personally and intentionally inflicted great bodily injury upon the victim (§ 1203.075). It was further alleged defendant had been convicted of two prior serious felonies (§ 667, subd. (a)(1)) that qualified as strikes under the three strikes law (§ 667, subds. (b)-(i)), and had served a prior prison term for one of those convictions (§ 667.5, subd. (a)). It was also alleged defendant had two other prior felony convictions for which he had served prior prison terms. (§ 667.5, subd. (b).)
One of the prior serious felonies was attempted murder, which is a violent felony within the meaning of section 667.5, subdivision (a). (See § 667.5, subd. (c)(12).)
Following a jury trial, defendant was found guilty on both counts. The jury also found true the offense-related sentence enhancement allegations. In a bifurcated proceeding, defendant admitted the allegations regarding his prior convictions and prior prison terms.
On count 1, defendant was sentenced as a third strike offender because attempted murder is a serious and violent felony (§§ 667.5, subd. (c)(12), 1192.7, subd. (c)(9)) and defendant had two prior strike convictions (see People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1285-1286 [under Proposition 36, a defendant with two prior strikes is subject to a sentence as a third strike offender only if the third felony is a serious or violent felony]). Subdivision (e) of section 667 provides the term for defendant's attempted murder conviction "shall be an indeterminate term of life imprisonment," with the "minimum term of the indeterminate sentence" being the greatest of the three options described in subdivision (e)(2)(A). (People v. Acosta (2002) 29 Cal.4th 105, 108.) These options are: (i) three times the term otherwise provided as punishment for attempted murder, not including enhancements; (ii) 25 years; or (iii) "[t]he 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." (People v. Williams (2004) 34 Cal.4th 397, 403 (Williams); § 667, subd. (e)(2)(A).) The trial court employed option iii, which it correctly concluded yields the longest sentence. (See People v. Dotson (1997) 16 Cal.4th 547, 553 ["Generally, option (iii) will be the 'greate[st]' sentence when the defendant has an extensive criminal recidivist history, and hence there are numerous applicable enhancements"].)
The minimum term calculated under option (iii) includes the term for the current felony plus "any applicable enhancement that would be used to lengthen the term the defendant would receive absent the Three Strikes Law." (People v. Acosta, supra, 29 Cal.4th at p. 115.) Enhancements imposed under sections 12022.53, subdivision (d), 667, subdivision (a)(1), and 667.5, subdivision (b), lengthen the term defendant would serve for attempted murder absent the three strikes law. Thus, the trial court properly calculated the minimum term of defendant's indeterminate life sentence under option (iii) as 44 years, comprised of 7 years for the offense under section 3046, plus 25 years for the firearm enhancement (§ 12022.53, subd. (d)), plus 10 years for the 2 prior serious felonies (§ 667, subd. (a)(1)), and 2 years for the 2 prior prison terms (§ 667.5, subd. (b)).
Section 664, subdivision (a), provides: "[I]f the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole." Section 3046, subdivision (a), provides that seven years is the minimum parole eligibility date for a person with a life sentence.
The trial court also properly imposed additional enhancements of 25 years under section 12022.53, subdivision (d), 10 years under section 667, subdivision (a)(1), and 2 years under section 667.5, subdivision (b), for a total sentence of 81 years to life. (§ 667, subd. (e)(2)(B).) As our Supreme Court explained in Williams, supra, 34 Cal.4th 397: "In third strike cases, the Three Strikes law uses enhancements in two distinct ways: to calculate the minimum term of the indeterminate life sentence and to add an additional, determinate term to be served before the indeterminate life sentence. 'The two distinct functions of enhancements are found in the two required stages in the calculation of a " 'third strike' " sentence: the determination of " 'the greatest minimum term' " and the final sentence calculation which is to include all applicable enhancements.' " (Williams, supra, 34 Cal.4th at p. 403.) The three strikes law requires that a third strike defendant's indeterminate life sentence "shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law," (§ 667, subd. (e)(2)(B)), and shall be "in addition to any other enhancement or punishment provisions which may apply." (§ 667, subd. (e).) These provisions apply "whether or not the minimum term was established under option [iii]." (Williams, at p. 403.) As a consequence, the enhancement term is imposed consecutive to the minimum term of the indeterminate life sentence, even where the minimum term of the life sentence is calculated by adding in the enhancement term under option iii of section 667, subdivision (e)(2)(A). (Williams, at p. 403; see also People v. Dotson, supra, 16 Cal.4th at p. 553.)
On count 2, defendant was sentenced as a second strike offender because the crime of being a felon in possession of a firearm is not a serious or violent felony. (See People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168 [Proposition 36 "diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike offender"].) The trial court imposed a consecutive determinate term of eight years, comprised of the upper term of three years for the offense, doubled for the strike prior, plus two years for defendant's prior prison terms.
In total, defendant was sentenced to serve a term of 89 years to life in state prison. Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the trial court imposed an unauthorized sentence on count 2 in violation of the Three Strikes Reform Act of 2012. According to defendant, the trial court erred in enhancing his determinate sentence on count 2 with the same prison priors it used to calculate and enhance the indeterminate term imposed in count 1. We disagree.
Defendant does not contend the trial court erred in calculating the sentence for count 1.
Section 667.5, subdivision (b), provides, in relevant part: "[W]here the new offense is any felony for which a prison sentence . . . is imposed[,] . . . in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term or county jail term . . . ."
In People v. Tassell (1984) 36 Cal.3d 77 (Tassell), overruled on another ground in People v. Ewoldt (1994) 7 Cal.4th 380, 401, our Supreme Court held that "when imposing a determinate sentence on a recidivist offender convicted of multiple offenses, a trial court is to impose an enhancement for a prior conviction only once to increase the aggregate term, and not separately to increase the principal or subordinate term imposed for each new offense. [Citation.]" (Williams, supra, 34 Cal.4th at p. 400, italics and fn. omitted.)
In Williams, our Supreme Court was faced with whether Tassell's holding applied to multiple indeterminate third strike sentences. (Williams, supra, 34 Cal.4th at p. 400.) The court reasoned Tassell, supra, 7 Cal.4th 380 was "not controlling . . . in this different context" because Tassell relied on section 1170.1, which "generally governs the calculation and imposition of a determinate sentence when a defendant has been convicted of more than one felony offense" and does not apply to multiple indeterminate sentences imposed under the three strikes law. (Williams, at pp. 402-403.) The court noted that "[t]he Three Strikes law, unlike section 1170.1, does not draw any distinction between status enhancements, based on the defendant's record, and enhancements based on the circumstances of the current offenses, and the Three Strikes law generally discloses an intent to use the fact of recidivism to separately increase the sentence imposed for each new offense." (Williams, at pp. 404-405.) The court therefore concluded that "under the Three Strikes law, section [667, subdivision (a),] enhancements are to be applied individually to each count of a third strike sentence." (Id. at p. 405.)
In Tassell, supra, 36 Cal.3d 77, the court "explained how section 1170.1 affects the imposition of sentence enhancements: 'Section 1170.1 refers to two kinds of enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense. Enhancements for prior convictions--authorized by sections 667.5, 667.6, and 12022.1--are of the first sort. The second kind of enhancements--those which arise from the circumstances of the crime--are typified by sections 12022.5 and 12022.7: was a firearm used or was great bodily injury inflicted? Enhancements of the second kind enhance the several counts; those of the first kind, by contrast, have nothing to do with particular counts but, since they are related to the offender, are added only once as a step in arriving at the aggregate sentence.' [Citations.]" (Williams, supra, 34 Cal.4th at p. 402.)
In People v. Misa (2006) 140 Cal.App.4th 837 (Misa), the Fourth Appellate District concluded that "a similar analysis" to that employed in Williams applied to a second strike offender who was not subject to an indeterminate sentence under the three strikes law, but rather subject to an indeterminate sentence because of his torture conviction. (Misa, at pp. 846-847.) In Misa, the defendant was convicted of one count of torture and two counts of assault with a deadly weapon by means of force likely to cause great bodily injury. (Id. at p. 840.) The trial court sentenced the defendant to serve an indeterminate life sentence on the torture count, a determinate term on one assault count, and stayed punishment on the second assault count. Additionally, the trial court imposed separate five-year enhancements under section 667, subdivision (a)(1), on the torture count and the assault count for the defendant's prior serious felony conviction. (Misa, at p. 841.) The court held that "[a]lthough [the defendant] was a second strike defendant rather than a third striker, he is nonetheless a recidivist and . . . is thus subject to a prior conviction enhancement under section 667, subdivision (a) on the torture count even though he also received a similar enhancement relating to the assault count." (Id. at p. 847.) In so holding, the court reasoned that even though Williams dealt with the issue of multiple prior conviction enhancements on a third strike offender, "a logical application of the Williams analysis in [the] context [of a second strike offender with an indeterminate sentence] would require the imposition of the prior conviction enhancement on [the defendant's] second strike offense (the torture count) notwithstanding that the enhancement was also imposed as a status enhancement relating to the determinate term on the assault count." (Misa, at p. 846.)
The reasoning of Williams, supra, 34 Cal.4th 397 and Misa, supra, 140 Cal.App.4th 1550 applies here. Defendant's indeterminate life sentence on count 1 was properly increased by a total of four years based on two prior prison term enhancements. Indeterminate sentences are not governed by section 1170.1. (Williams, supra, 34 Cal.4th at p. 402.) Moreover, adding the prior prison term enhancements to a new qualifying offense (i.e., count 2) in a second strike sentence is "consistent with the logic of the Three Strikes law," which "uses a defendant's status as a recidivist to separately increase the punishment for each new felony conviction." (Williams, supra, 34 Cal.4th at p. 404.) Both the prior serious felony and prior prison term enhancements are status enhancements. While Williams and Misa addressed only the prior serious felony enhancement, their reasoning applies with equal force to prior prison term enhancements. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1561.)
Defendant's reliance on People v. Sasser (2015) 61 Cal.4th 1 (Sasser) is misplaced. In Sasser, the defendant had one prior strike conviction. (Id. at p. 7.) He was convicted of numerous counts, including seven in which the trial court imposed determinate terms. (Id. at pp. 6-7.) The trial court added a five-year prior serious felony enhancement under section 667, subdivision (a)(1), to each of the seven determinate terms. (Sasser, at p. 7.) Our Supreme Court held a five-year prior serious felony enhancement may be added only once to multiple determinate terms imposed as part of a three strikes law second strike sentence, and therefore the enhancements must be stricken as to the other six determinate terms. (Id. at pp. 12-17.)
Sasser, supra, 61 Cal.4th 1 is distinguishable from this case because defendant did not receive more than one determinate term. He was sentenced to serve an indeterminate life sentence on count 1 as a third strike offender and to a determinate term on count 2 as a second strike offender. Therefore, Sasser is inapplicable.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
MAURO, J.