Opinion
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141 Cal.App.4th 497a __ Cal.Rptr.3d __ THE PEOPLE, Plaintiff and Respondent, v. VINCE V. MISA, Defendant and Appellant. D046582 California Court of Appeal, Fourth District, First Division July 19, 2006Super. Ct. No. SCN179647.
OPINION
HUFFMAN, Acting P.J.
THE COURT:
It is ordered that the opinion filed herein on June 21, 2006, (140 Cal.App.4th 837; ___ Cal.Rtpr.3d ____), be modified as follows:
Section 3, on pages 9-13 [140 Cal.App.4th 844-847, advance report, section 3], is completely replaced by the following text:
"3. Imposition of Two Serious Prior Felony Enhancements
Penal Code section 667, subdivision (a)(1) provides in pertinent part: "[A]ny person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively." (All further statutory references are to the Penal Code.) In People v. Tassell (1984) 36 Cal.3d 77, 90 [201 Cal.Rptr. 567] (Tassell), overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401 [27 Cal.Rptr.2d 646], the California Supreme Court held that the prior conviction enhancement created by this statute is a status enhancement (that is, an enhancement that relates to the nature of the offender rather than one that relates to the nature of the current offense) and that, as such, the enhancement may be used to enhance a determinate sentence only once, regardless of the number of determinate terms that make up the total sentence. Misa contends that, in accordance with Tassell, the court erred in imposing the prior conviction enhancement twice, once on the determinate term imposed on the assault count and again on the indeterminate term imposed on the torture count. The Attorney General responds that, as made clear in the California Supreme Court's more recent decision in People v. Williams (2004) 34 Cal.4th 397, 402 [19 Cal.Rptr.3d 619] (Williams), Tassell is inapplicable to indeterminate sentences where the defendant is subject to the Three Strikes law. We agree with the latter argument. (The Attorney General also urges us to make a broader finding that the analysis of Williams applies to any
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indeterminate sentence, including one that is imposed on a defendant who is not subject to the Three Strikes law at all. Because this issue is not presented by the facts of this case, we decline to address the broader issue.)
In Williams, the defendant was convicted of multiple felonies that qualified as serious or violent and was found to have suffered from two prior felonies that also qualified as strikes. In accordance with section 667, subdivision (e)(2), the trial court sentenced the defendant to indeterminate life terms for each of the current felonies and also imposed two additional five-year enhancements (one for each of the prior convictions) on each current count. (Williams, supra, 34 Cal.4th at pp. 400-401.) The question on appeal was whether the sentence so imposed violated Tassell's limitation on the imposition of a prior conviction enhancement to one per aggregate sentence. (Williams, supra, 34 Cal.4th at p. 401.)
In determining that the analysis of Tassell was inapplicable to a third strike defendant, the court reasoned in part: " . . . Tassell relied on the language of section 1170.1, and not on the language or legislative history of section 667(a), in concluding that at sentencing a trial court must impose a sentence enhancement for a prior felony conviction—including a section 667(a) enhancement—only once, regardless of the number of new felony offenses. "Section 1170.1, however, applies only to determinate sentences. It does not apply to multiple indeterminate sentences imposed under the Three Strikes law." (Williams, supra, 34 Cal.4th at p. 402, italics in original.) The court went on to conclude that based on the language of section 667, subdivision (e) indicating that the increased penalties for second and third strike offenses were to be imposed "in addition to any other enhancement or punishment provisions which may apply" and the requirement that a third strike sentence must "be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law," the five-year enhancement for a prior conviction provided for in section 667, subdivision (a) was required to be imposed as to each qualifying felony of which the defendant (in that case, a third striker) was currently convicted. (§ 667, subd. (e); Williams, supra, 34 Cal.4th at p. 404.)
Here, Misa was not subjected to an indeterminate sentence under the Three Strikes law, but instead received an indeterminate life sentence on the torture count (§ 206), the minimum commitment for which was then doubled pursuant to section 667, subdivision (e)(1). Because he was not subjected to multiple indeterminate sentences pursuant to the Three Strikes law as was the defendant in Williams, the California Supreme Court's analysis in that case is not directly dispositive of the issue before us. However, we conclude that a similar analysis is applicable here.
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Notably, the statutory language in section 667, subdivision (e) that the Williams court relied on in part to determine that the prior conviction enhancement must be applied to multiple strike offenses in third strike cases also applies to second strike sentences and thus supports the conclusion that a logical application of the Williams analysis in this context would require the imposition of the prior conviction enhancement on Misa'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. (See also Williams, supra, 34 Cal.4th at p. 402 [stating that section 1170.1, on which Tassell relied, does not apply to indeterminate sentences].)
Further, the California Supreme Court's analysis in Williams relied in part on the fact that the section 667, subdivision (a) enhancement was enacted as part of a statutory and constitutional scheme intended to increase sentences for recidivist offenders. (Williams, supra, 34 Cal.4th at p. 404.) The high court reasoned:
"Adding the five-year enhancement separately to the third strike sentence for each new serious felony conviction is not inconsistent with [the intent to increase sentences for recidivist offenders].
"Adding the five-year enhancement to the sentence for each new serious felony conviction is also consistent with the logic of the Three Strikes law. Under that law, the status or nature of the offender as a person previously convicted of serious felony offenses does not result merely in a single additional term of imprisonment for each prior conviction added on to the overall sentence that would otherwise be imposed for all of the new offenses. Instead, the Three Strikes law uses a defendant's status as a recidivist to separately increase the punishment for each new felony conviction. For a defendant with a single qualifying prior conviction, the sentence for each new offense is double what it otherwise would be. (§§ 667, subd. (e)(1) . . ., 1170.12, subd. (c)(1) . . .; see People v. Nguyen [(1999) 21 Cal.4th 197,] 202-207 [87 Cal.Rptr.2d 198].) For a defendant with two or more qualifying prior convictions, the sentence for each new offense is life imprisonment with a minimum term of at least 25 years. (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2).)
"The 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. Accordingly, we conclude that, under the Three Strikes law, section 667(a) enhancements
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are to be applied individually to each count of a third strike sentence." (Williams, supra, 34 Cal.4th at pp. 404-405, fn. omitted, italics added.)
Although Misa was a second strike defendant rather than a third striker, he is nonetheless a recidivist and, pursuant to the foregoing analysis of the applicable statutory scheme, 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. Accordingly, we affirm."
The petition for rehearing is denied.