Opinion
Certified for Partial Publication.
Pursuant to rule 976.1 of the California Rules of Court, it is ordered that the opinion be partially published and that the following portions be deleted from the published version: Discussion, sections 1, 2, 3 and 5.
Previously published at 51 Cal.App.4th 1457
Review Dismissed and Cause is Remanded to the Court of Appeal Oct. 1, 1997.
William J. Capriola, Oakland, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, Jaime L. Fuster, Steven D. Matthews, and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, Presiding Justice.
Defendant and appellant Lawrence Watson appeals the judgment entered after conviction by jury of robbery in which he personally used a firearm. (Pen.Code, §§ 211, 12022.5, subd. (a).) The trial court found Watson had suffered three prior convictions within the meaning of section 667, subdivisions (b) through (i), and 667, subdivision FACTUAL AND PROCEDURAL BACKGROUND
Subsequent unspecified statutory references are to the Penal Code.
1. Prosecution evidence.
Viewed in accordance with the usual rule of appellate review (People v. Rayford (1994) 9 Cal.4th 1, 23, 36 Cal.Rptr.2d 317, 884 P.2d 1369; People v. Johnson (1980) 26 Cal.3d 557, 575-577, 162 Cal.Rptr. 431, 606 P.2d 738), the evidence established that on January 21, 1995, at approximately 2 a.m., Hong Zhu left the Hollywood Park Casino in Inglewood and went to her car in the parking lot. As Zhu removed keys from her purse, Watson approached and said, "Hello." Zhu was shocked because she had not seen Watson before he spoke. Watson demanded Zhu's purse. When Zhu refused to give it to Watson, he pushed Zhu against the car, produced a handgun and pressed the gun to Zhu's neck. At that point, Zhu relinquished the purse in fear. Watson told Zhu to squat and pushed her head down.
As Watson walked from the scene, Zhu saw a security guard and called for help. When the security guard activated the flashing overhead light of the patrol vehicle, Watson began to run. The security guard pursued Watson, struggled with him, and eventually subdued him. Zhu found her purse under a car.
Cab driver Kendall Johnson heard Zhu scream and saw Watson run from the area. Johnson heard Zhu tell the security guard Watson had a gun. Johnson saw Watson discard a handgun in some shrubbery and kick a purse under a parked car. Thereafter, the security guard detained Watson at gunpoint.
2. Sentencing.
At the time of sentencing, the trial court indicated it lacked discretion to strike the prior serious or violent felony convictions but even if it "had the power, I certainly would not do it in this case. So motion to strike the priors under [section] 1385 [is] denied." The trial court then sentenced Watson to 25 years to life in state prison for the current offense and imposed 3, 5-year enhancements pursuant to section 667, subdivision (a)(1). The trial court noted 3 of the 7 prior prison terms related to prior serious or violent felony convictions of robbery and that 4 prior prison terms were available for sentencing. However, because the trial court concluded the term of 40 years to life in state prison was adequate, it imposed and stayed a 4-year term for personal use of a firearm and struck the four prior prison terms.
CONTENTIONS
Watson contends: the trial court's instruction on reasonable doubt requires reversal; the Three Strikes law violates the separation of powers doctrine; the Three Strikes law does not apply to prior convictions suffered before its enactment; the trial court improperly used Watson's prior convictions to trigger the Three Strikes law and to impose five-year enhancements; the trial court improperly calculated Watson's term of imprisonment; and, the trial court erroneously calculated Watson's presentence custody credit.
In a supplemental letter brief, Watson contends the trial court made a mathematical error in the calculation of his presentence custody credit.
The People controvert Watson's contentions and claim Watson is not entitled to any presentence custody credit.
DISCUSSION
See footnote *, ante.
4. The trial court properly computed the Watson's term of imprisonment.
Watson contends the trial court improperly calculated the term to be imposed under
Watson asserts that under section 667, subdivision (e)(2)(A)(iii), the term imposed should have been 26 years to life in state prison computed as follows: 3 years for robbery (mid-term), 4 years for firearm use (mid-term), 15 years for the prior serious felony convictions, and 4 years for the prior prison terms which were not related to the prior convictions of robbery. Because the term computed under section 667, subdivision (e)(2)(A)(iii), is greater than the term of 25 years to life under section 667, subdivision (e)(2)(A)(ii), Watson asserts the trial court should have imposed the greater term of 26 years to life. Watson further claims that because the prior serious felony conviction enhancements were used to compute the 26-year portion of the indeterminate term, they cannot also be added to that term. Thus, Watson urges reduction of the term imposed to 26 years to life in state prison.
The People respond the trial court properly sentenced under section 667, subdivision (e)(2)(A)(ii), because the four year term for firearm use was stayed and the four prior prison terms were stricken. Thus, the term computed under section 667, subdivision (e)(2)(A)(iii), would consist of only 18 years to life consisting of 3 years for robbery (mid-term) and 15 years for the prior serious felony convictions.
We conclude the trial court properly sentenced Watson under section 667, subdivision (e)(2)(A)(ii).
As both parties point out, under section 1170, the trial court could have imposed a determinate term of more or less than 25 years depending on the manner in which it exercised its sentencing discretion. Thus, the term could have been as much as 26 years or as little as 18 years.
Here, the trial court calculated the section 1170 term at less than 25 years. It struck the 4 prior prison terms and stayed the firearm enhancement. In so doing, the trial court noted the 40 year to life term imposed was adequate. Thus, although the trial court might have computed Watson's sentence under section 1170 so as to exceed the 25 year minimum of section 667, subdivision (e)(2)(A)(ii), it chose not to do so. Accordingly, no sentencing error appears.
Moreover, acceptance of Watson's claim of error on appeal ultimately would require his prison term be increased by one year. This is so because the 15-year term attributable to the section 667, subdivision (a)(1), enhancements would have to be added to the 26 year to life term he requests, resulting in a total term of 41 years to life. (People v. Ochoa (1996) 49 Cal.App.4th, 697, 707-708, 57 Cal.Rptr.2d 112 (as modified October 17, 1996).)
The conclusion the determinate enhancements would have to be added to a 26-year term computed under section 667, subdivision (e)(2)(A)(iii), prefaces rejection of Watson's claim the enhancements may not be added to a 25-year term computed under section 667, subdivision (e)(2)(A)(ii).
Section 667, subdivision (e)(2)(B), expressly provides: "The indeterminate term described in subparagraph (A) shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law." Thus, prior convictions used to determine the minimum indeterminate Watson's reliance on People v. Jenkins (1995) 10 Cal.4th 234, 253, 40 Cal.Rptr.2d 903, 893 P.2d 1224, is misplaced. Jenkins addressed whether a five-year enhancement could be imposed upon a defendant sentenced to an indeterminate sentence under section 667.7, the habitual offender statute applicable to individuals convicted of felonies involving great bodily harm. Jenkins held a five-year enhancement could not be imposed consecutively to a life term it had been used to compute. Jenkins noted: "Nothing in the statute [section 667.7] suggests that the Legislature intended that those same enhancements be used again to add an additional term of imprisonment onto the life term." (People v. Jenkins, supra, 10 Cal.4th at p. 253, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)
Section 667.7, subdivision (a), provides, in part: "(a) Any person convicted of a felony in which the person inflicted great bodily injury as provided in Section 12022.7, or personally used force which was likely to produce great bodily injury, who has served two or more prior separate prison terms as defined in Section 667.5" for numerous specified violent crimes, "is a habitual offender and shall be punished as follows: [p] (1) A person who served two prior separate prison terms shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for [i] 20 years, or [ii] the 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 [iii] any period prescribed by Section 190 or 3046, whichever is greatest." (Bracketed numbers added.)
However, with respect to the Three Strikes law, the opposite is true. The Three Strikes law states the term imposed under section 667, subdivisions (b) through (i), is to be imposed in addition to any other enhancement or punishment provisions which may apply. (§ 667, subd. (e).) Thus, Jenkins does not support Watson's argument that enhancements for prior serious felony convictions cannot be imposed consecutively to a third strike term. (People v. Nelson (1996) 42 Cal.App.4th 131, 140, 49 Cal.Rptr.2d 361; People v. Anderson, supra, 35 Cal.App.4th at p. 598, 41 Cal.Rptr.2d 474.)
Accordingly, the trial court properly imposed five-year enhancements for Watson's three prior serious felony convictions under section 667, subdivision (a)(1).
5. The trial court's award of presentence custody credit was proper.
DISPOSITION
The judgment is affirmed.
CROSKEY and ALDRICH, JJ., concur.