Opinion
[Opinion certified for partial publication. ]
Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of part II.
[Reprinted without change for tracking pending review and disposition by the Supreme Court.]
[REVIEW GRANTED BY CAL. SUPREME COURT] COUNSEL
Martin Nebrida Buchanan, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Adrianne S. Denault and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HUFFMAN, J.
In this case we hold that an indeterminate life term imposed under the one strike law (Pen. Code, section 667.61) for a current offense is a "term otherwise provided as punishment" for purposes of determining the minimum term for the indeterminate life term required under the three strikes law when a defendant has been found to have suffered two or more qualifying felony convictions. (sections 667, subds. (b)-(i), 1170.12.) We therefore conclude the trial court properly tripled the "25-year-to-life" term it imposed for David Lewis Cornelius's principal current forcible sex crime under the one strike law.
All statutory references are to the Penal Code.
Preface
A jury found Cornelius guilty of kidnapping for sexual purposes (sections 207, 208, subd. (d)), forcible sodomy (section 286, subd. (c)), forcible oral copulation (section 288a, subd. (c)), and five counts of forcible rape (section 261, subd. (a) (2)). The jury also found true the enhancement allegation with each of the forcible sex offenses that Cornelius kidnapped the victim in a manner which substantially increased the risk of harm to the victim within the meaning of section 667.61, subdivisions (a), (c) and (d). After a bifurcated trial on the priors, the court found that Cornelius had suffered one prior serious felony conviction (section 667, subd. (a) (1)), two qualifying three strikes priors (sections 667, subds. (b)-(i), 1170.12) and had served a prior prison term (section 667.5, subd. (b)).
On January 1, 1998, subdivision (d) was deleted from section 208 and the offense was added to section 209, subdivision (b). (Stats. 1997, ch. 817, sections 1 & 2.) Although section 208 was also deleted from section 667.61, subdivision (e) (Stats. 1997, ch. 817, section 6), because Cornelius was convicted of section 207 in addition to section 208, subdivision (d), and the jury specifically found true the allegations under section 667.61, subdivision (d) (2), the recent legislative changes have no effect on the applicability of the one strike law to his case.
Section 667, subdivisions (b) through (i) was enacted as emergency legislation on March 7, 1994. (Stats. 1994, ch. 12.) Section 1170.12 was enacted November 9, 1994, after the voters approved Proposition 184. (Cal. Const., art. II, section 10, subd. (a).) The two enactments commonly referred to as the three strikes law contain almost identical provisions. Because Cornelius was charged with crimes occurring after section 1170.12 was added to the Penal Code, that section rather than section 667, subdivisions (b) through (i) technically controls his case. Because many of the cases discussing the provisions of the three strikes law refer to section 667, subdivisions (b) through (i), our discussion of the three strikes law will generally refer to that section unless there is a relevant difference between the two versions. Our initial review of the two statutory schemes, however, has revealed no variations regarding the provision at issue here.
The court sentenced Cornelius to a total prison term of 230 years to life, consisting of 75 years to life for the count 2 rape (25 years to life under section 667.61, subd. (a), tripled under section 667, subd. (e) (2) (A) (i)), 6 full-strength consecutive indeterminate terms of 25 years to life for the remaining forcible sex offenses, and 5 years for the prior serious felony enhancement. The court stayed execution of sentence for the kidnapping count and struck the prison prior.
Because the abstract of judgment incorrectly shows count 3 as the principal term which is tripled, the abstract of judgment must be amended to reflect the sentence actually imposed.
Cornelius appeals, contending the trial court committed reversible sentencing errors. As we explain below, we affirm as modified.
Because Cornelius does not challenge the sufficiency of the evidence to support his convictions, the enhancement allegations or the true findings on his priors, we merely set forth an overview of the case as a backdrop for the sentencing facts relevant to our discussion.
The evidence at trial revealed that shortly after 9:15 p.m. on March 6, 1996, Cornelius abducted 23-year-old Mellanie J. from the grounds of the Midcity Continuing Education Center in San Diego. During the course of the next hour, Cornelius walked Mellanie several blocks to an apartment, grabbed her when she attempted to run away, ran after her and grabbed her by the neck when she did get away to seek help from the occupants of a passing car, followed her into an apartment complex when she again broke away, where he grabbed her, threw her to the ground, and subjected her to numerous sexual degradations.
In an alcove of the apartment complex's courtyard, Cornelius raped Mellanie five times, sodomized her and required her to orally copulate him. The residents who observed the acts, and called the police, described Mellanie as crying and making hand signals during the succession of sexual acts. The police officer who responded to the call found Mellanie lying on the ground completely nude with her knees up and her right hand sticking straight up as if trying to compensate for pain while Cornelius was on top of her having sexual intercourse. The officer had to order Cornelius to stop and get off of Mellanie.
Cornelius's defenses at trial were that Mellanie consented and that he did not have the intent to commit the kidnap and sexual acts against her will due to his impairment caused by a stipulated blood-alcohol level of .22 and the presence of cocaine in his blood. The jury determined otherwise. At sentencing, the trial court read and considered the probation officer's report, the statements in mitigation and aggravation, the letters in support of probation for Cornelius, as well as photographs, other materials and a psychological report, hearing comments from Cornelius and his sister, and the argument of counsel. The court first determined a lengthy life sentence would not constitute cruel and unusual punishment. The court found that a sentence which was in effect "a life without parole" would not be cruel and unusual in this case. In reaching that conclusion, the trial judge relied on Cornelius's past criminal record, his failure to address a known drug problem and the fact this was the "worst rape [the judge had] ever seen in all [her] career."
As for the actual sentence, the court found Cornelius ineligible for probation under the three strikes law and meticulously set out the applicable sections and the court's reasoning for the number of years to be imposed. The court first looked at section 667.61, subdivisions (a), (c) and (d), which it found required an indeterminate term of 25 years to life for any of the 7 current forcible sex offenses because of the special kidnap allegation that was pled and proven here. The court then looked to subdivision (g) of section 667.61, which triggered an analysis of how many occasions, single or separate, were involved in this case for sentencing purposes. The court noted that to determine the number of occasions it must "consider whether, between the commission of one sex crime and another, [Cornelius] had a reasonable opportunity to reflect upon his actions and nevertheless resumed sexually assaultive behavior." The court explained that it had gone back to the six-page transcript of Mellanie's testimony, had gone through it "step by step" and "determined that each of these counts, two through eight, are indeed separate occasions." The judge further explained: "I believe that each separate count and sex act was separated by a stopping period. There was either a change of the defendant's position and then resuming, by smoking a crack pipe and resuming, by forcing the victim to remove more clothing and then resuming, or by walking away and returning after being seen by a nearby resident. Each act was distinct, gave opportunity for reflection and [cessation] of the criminal activity, and seriously compounded the degradation of the victim, her fear, and her psychological injuries, if not her physical [injuries]. [¶] This was an extremely lengthy rape, sodomy, oral copulation event.... [¶] Each of the atrocious acts committed was distinct and non-incidental to the commission of the other sexual assaults. It was of some note to me that [Cornelius], before he even began this assault, told the victim very clearly what he was going to do and mentioned that there was going to be at least three separate events. So he was thinking that through, and he was discussing it. And he actually changed the positions, changed her positions, and went through each time this change of opportunity, and then added two events to what he had said at the beginning. [¶] I am going to incorporate this transcript into the sentencing today so that it's clear that I find that these are separate, and it's not going to be beyond dispute what I'm seeing. This is what I'm seeing. This was the transcript portion of it."
Section 667.61 provides in relevant part: "(a) A person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d)... shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years .... [¶] ... [¶] (c) This section shall apply to any of the following offenses: [¶](1) A violation of paragraph (2) of subdivision (a) of Section 261. [¶] ... [¶](6) Sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. [¶] ... [¶](d) The following circumstances shall apply to the offenses specified in subdivision (c): [¶] ... [¶](2) The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c)."
Subdivision (g) of section 667.61 provides in pertinent part that "[t]he term specified in subdivision (a) ... shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion .... Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable."
The court found the sequence and manner of events in this case analogous to those in People v. Harrison (1989) 48 Cal.3d 321 [256 Cal.Rptr. 401, 768 P.2d 1078] and People v. Plaza (1995) 41 Cal.App.4th 377 [48 Cal.Rptr.2d 710] where separate occasions were found with regard to one victim. The court found section 667.61, subdivision (g) did not limit the sentence to only one 25-year-to-life term, leaving open the question of consecutive sentences for the multiple imposition of 25-year-to-life terms for each separate count. The court thus exercised its discretion to sentence consecutively for each count under section 667.6, subdivision (d).
Because it had been found true that Cornelius had two strike priors, the court also determined it must apply the three strikes law in addition to applying section 667.61. And, finally, it determined, as it had with regard to section 667.6, subdivision (d), that the three strikes law also requires consecutive sentences in this case.
The court imposed sentence, stating: "The bottom line then becomes as follows: On Count One, the kidnap charge, this has to be stayed under [section] 654 because this is the same as the allegations under [section] 667.61, the enhancement allegations, which raise the other crimes. So it has to be stayed. And this I believe is 25 to life under three strikes. [¶] So Count One ... is 25 to life under three strikes, stayed under Penal Code section 654. [¶] Count Two, which I designate as the principal term, is 75 [years] to life. And I count that as the one imposition under [section] 667.61, and that's 25 [years] to life, times three, which is the 75 [years] to life under three strikes. [¶] Counts Three, Four, Five, Six, Seven and Eight, are each 25 [years] to life under three strikes, consecutive to each other and to Count Two. To those I have to add five years under [section] 667[, subdivision] (a) (1). That's the five years serious felony prior. So the total term is 230 years to life."
Discussion
I. A Section 667.61, Subdivision (a) Indeterminate Life Term Is a "Term Otherwise Provided as Punishment" for Purposes of Tripling Under the Three Strikes Law
Cornelius first contends the trial court erred when it imposed a principal term of 75 years to life for his count 2 forcible rape conviction by improperly tripling pursuant to the three strikes law the chosen term of 25 years to life under the one strike law (section 667.61, subd. (a)). In making such claim, Cornelius does not assert that the three strikes law does not apply in this case nor challenge the propriety of the court setting his punishment under the one strike law as "imprisonment in the state prison for life and ... not ... eligible for release on parole for 25 years ...." (section 667.61, subd. (a).) Rather, he claims that the indeterminate term imposed under the one strike law can only be sentenced under section 667, subdivision (e) (2) (A) (ii) of the three strikes law because that "term" is in actuality "a straight life sentence," which merely sets a minimum parole eligibility release date, and is not a definitive "term" for the purposes of tripling under section 667, subdivision (e) (2) (A) (i). He thus asserts the only reasonable construction of section 667.61 is that the Legislature intended that section to provide for a straight life sentence with a minimum parole eligibility date of 15 or 25 years and that the plain language of the three strikes law precludes the tripling of such an indeterminate life sentence. We disagree.
In support of his argument, Cornelius originally relied on People v. Jefferson (1996) 50 Cal.App.4th 958 [58 Cal.Rptr.2d 252] (review granted Feb. 19, 1997 (S057834)), a two strikes case which held that the three strikes law was inapposite to a defendant whose current attempted willful, deliberate and premeditated murder under section 189 was punishable by life with the possibility of parole, which it concluded was an indeterminate term without a "minimum term" that could be doubled. Although Cornelius acknowledges by letter and in his reply brief that Jefferson may no longer be relied upon or cited because it was granted review, he posits its reasoning is still applicable to his analogous situation.
In People v. Ervin (1996) 50 Cal.App.4th 259 [57 Cal.Rptr.2d 728] (disapproved on other grounds in People v. Fuhrman (1997) 16 Cal.4th 930, 947, fn. 11 [67 Cal.Rptr.2d 1, 941 P.2d 1189]), the appellate court examined the interplay between section 667.61, subdivision (b) and the three strikes law with regard to a defendant with one qualifying prior. (People v. Ervin, supra, at pp. 263-266.) In holding that both statutes were to be given effect, the court stated: "About six months after the Legislature enacted the three strikes law as urgency legislation [citation], it adopted section 667.61 [citation], the 'one strike law.' [Citation.] Accordingly, our analysis of the issue before us begins with the presumption that the Legislature was aware of the three strikes law when section 667.61 was enacted [citation]-and ends with the fact that there is no apparent reason in law or logic to believe the Legislature intended either law to operate exclusively of the other. As relevant to this issue, we do not find any ambiguity in section 667.61 or in any part of the three strikes law, and where, as here, two statutes are not inconsistent, both will be given effect. [Citation.] What this means is that Ervin, convicted of a violent rape during a burglary, must be sentenced to a term of 15 years to life under section 667.61, subdivision (b), and that his sentence must be doubled under the three strikes law. [Citations.] As the People point out, the three strikes law and section 667.61 serve different objectives-the former punishes recidivism, the latter aggravated sex offenses-and there is simply no reason for suggesting that a recidivist criminal ought to be rewarded rather than penalized because his latest offense is sufficiently heinous to bring him within the provisions of section 667.61." (People v. Ervin, supra, 50 Cal.App.4th at p. 264, fn. omitted.)
We agree with the reasoning in Ervin that the one strike law and the three strikes law are not inconsistent and thus can be applied cumulatively. Additionally, although Ervin concerned a defendant who only had one qualifying prior (two strikes), we see no reason the same rationale would not permit the two laws to apply cumulatively where, as here, the defendant has two or more qualifying strike priors (three strikes). While Cornelius appears to agree with this conclusion by conceding both laws apply in his case, he disagrees with the court's conclusion in Ervin that the section 667.61 "term" imposed may then be doubled under the three strikes law, or tripled in his case.
We find further support for this conclusion in People v. Alvarez (1996) 14 Cal.4th 155 [58 Cal.Rptr.2d 385, 926 P.2d 365] where our Supreme Court held the three strikes law is not exclusive, but rather applies " 'in addition to any other [enhancement or] punishment provisions which may apply' [citations] ...." (Id. at p. 247, fn. omitted, original italics.)
Preliminarily, we note it is difficult to address many of Cornelius's arguments because they stem from the faulty premise that the sentence imposed under section 667.61, subdivision (a) is a straight life term. While admittedly the pertinent language of section 667.61, subdivision (a), which states imprisonment shall be "in the state prison for life and [the defendant] shall not be eligible for release on parole for 25 years" (section 667.61, subd. (a)), is slightly different than that used to define the terms imposed under other statutes which provide for punishment in prison for 15, 20 or 25 years to life (e.g., sections 190, subd. (a), 667.51, subd. (d), 667.71, subd. (b)), such difference in this case is without distinction.
Subdivision (a) of section 667.61 specifically includes the provision that the defendant "shall not be eligible for release on parole for 25 years except as provided in subdivision (j)." Subdivision (j) of section 667.61 states in pertinent part: "Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the minimum term of 25 years in the state prison imposed pursuant to subdivision (a).... However, in no case shall the minimum term of 25 ... years be reduced by more than 15 percent for credits granted pursuant to Section 2933, 4019, or any other law providing for conduct credit reduction. In no case shall any person who is punished under this section be released on parole prior to serving at least 85 percent of the minimum term of 25 ... years in the state prison." (Italics added.) When these subdivisions are read together, it becomes evident that the only reasonable construction of the plain language of section 667.61 is that the Legislature intended subdivision (a) to provide for an indeterminate sentence of 25 years to life. That being so, it necessarily follows that the "minimum term" for such sentence is 25 years and that this minimum term, reduced by allowable credits, defines the "minimum parole eligibility release date" or the minimum period of imprisonment which a defendant must serve before being entitled to release from prison. (See section 190, subd. (a); see also People v. Jenkins (1995) 10 Cal.4th 234, 243-244, 247 [40 Cal.Rptr.2d 903, 893 P.2d 1224].) Cornelius's various attempts to characterize the "term" imposed under section 667.61, subdivision (a) as a straight life term without a "minimum term" thus fail.
Moreover, we find Cornelius's assertion the language of the three strikes law does not permit the tripling of an indeterminate life sentence with "a minimum parole eligibility release period" to be merely another way of advancing his above strained interpretation.
Further, we believe it makes no difference in this case whether the "term" defined by section 667.61, subdivision (a) is a "minimum term" or a "minimum parole eligibility release period." Regardless of how it is characterized, a 25-year-to-life indeterminate sentence imposed under section 667.61, subdivision (a) describes a set period of confinement or punishment which is then used to determine the minimum term for the indeterminate life term if required under the three strikes law. We explain.
The applicable portions of the three strikes law under which Cornelius fell and was sentenced, provided in section 667 that: "(e)... [I]n addition to any other enhancement or punishment provisions which may apply, the following shall apply ...: [¶] ... [¶](2) (A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: [¶](i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions. [¶] (ii) Imprisonment in the state prison for 25 years. [¶](iii) 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 any period prescribed by Section 190 or 3046." (section 667, subd. (e) (2) (A) (i-iii), italics added.)
We respectively refer to each of the formulas of subdivision (e) (2) (A) of section 667 as alternative (i), alternative (ii) and alternative (iii). Section 1170.12, subdivision (c) (2) (A), provides the same three alternatives as section 667, subdivision (e) (2) (A) for calculating the minimum term.
As case law has established, subdivision (e) (2) (A) of section 667 provides the sentencing court with three alternatives or formulas "designed solely to calculate the minimum term of an indeterminate life sentence" for certain qualifying recidivist defendants. (People v. Anderson (1995) 35 Cal.App.4th 587, 596 [41 Cal.Rptr.2d 474], original italics.) In making its determination, the court must select the greatest of the three alternatives for the minimum term, "which then acts merely as a gauge of parole eligibility. [Citation.]" (Ibid.) Although alternative (ii) of this subdivision will generally provide the greatest minimum term, alternative (i) will do so whenever the " 'term otherwise provided as punishment' exceeds eight years." (People v. Cartwright, supra,39 Cal.App.4th at p. 1143.) "The Legislature clearly intended [alternative (i)] to be [a] viable, independent alternative[.]" (People v. Anderson, supra, 35 Cal.App.4th at p. 596; see also People v. Dotson (1997) 16 Cal.4th 547, 552-553 [66 Cal.Rptr.2d 423, 941 P.2d 56].)
The court in Cartwright identified several specific offenses, including murder (section 190), for which the punishment would be more than eight years. (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1143 [46 Cal.Rptr.2d 351].)
Although the minimum term calculation under alternative (i) has been described as "three times the term otherwise provided by law, i.e., triple the base term" (People v. Anderson, supra, 35 Cal.App.4th at p. 595), we have found nothing in the language of the three strikes law that defines or limits the phrase "term otherwise provided as punishment" for the purposes of tripling under that alternative. Nor have we found any language in the three strikes law which would preclude consideration of a current sentence as a "term otherwise provided as punishment" that is an indeterminate term in and of itself, with either a "minimum term" or only "a minimum parole eligibility release period."
Because the purpose of the three strikes law was "to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses [(section 667, subd. (b)]," any interpretation of the phrase "term otherwise provided as punishment" must necessarily be inclusive rather than exclusive. If such phrase were interpreted narrowly, as Cornelius would have us do, to exclude his term imposed under section 667.61, subdivision (a), it would defeat the laws very purpose. A narrow construction would also lead to absurd results by rewarding rather than penalizing a recidivist criminal like Cornelius "because his latest offense is sufficiently heinous to bring him within the provisions of section 667.61." (People v. Ervin, supra, 50 Cal.App.4th at p. 264.)
We therefore believe the phrase "term otherwise provided as punishment" in section 667, subdivision (e) (2) (A) (i) must be broadly construed to mean that sentence or period of confinement a defendant is required to serve before being entitled to release from prison. This definition includes both determinate and indeterminate terms where a set minimum time is imposed by statute or the sentencing court as a "gauge of parole eligibility. [Citation.]" (People v. Anderson, supra, 35 Cal.App.4th at p. 596.) Such interpretation comports with the intent of the Legislature in enacting the three strikes law to ensure the imposition of longer prison sentences for certain qualified repeat offenders.
To reiterate, for the adjudicated repeat offender, like Cornelius, with two qualifying strike priors, the three strikes law mandates an indeterminate life term with a minimum term calculated as the greatest of the three alternatives in subdivision (e) (2) (A) (i) through (iii) of section 667. And, where, as here, the term for a current offense is an indeterminate life term with a minimum term or period of confinement that exceeds eight years, it is only common sense that, in conformance with the intent to impose greater punishment, the sentencing court will be required to increase the set term by using alternative (i) to triple that "term otherwise provided as punishment."
Here, the sentencing court did just that. It imposed a 25-year-to-life term for the count 2 base (principal) term under the one strike law and then used that term to apply the alternative that would produce the "greater" minimum term under the three strikes law. That the Legislature intended this increased sentence is evidenced by its express language that "in addition to any other enhancement or punishment provisions which may apply" the greater of the calculated "terms" under alternatives (i) through (iii) of subdivision (e) (2) (A) of section 667 will determine the minimum term of the indeterminate sentence to be imposed. We therefore conclude the trial court properly used alternative (i) of section 667, subdivision (e) (2) (A) to triple the 25-year-to-life "term otherwise provided as punishment" under the one strike law for purposes of imposing a 75-year-to-life minimum term for the count 2 indeterminate three strikes sentence.
See footnote 1, ante, page 221.
Disposition
The convictions and true findings are affirmed. The trial court is directed to prepare an amended abstract of judgment to reflect count 2 as the principal term which is tripled under the three strikes law and to send the corrected abstract to the Department of Corrections. As so modified, the judgment is affirmed.
Work, Acting P. J., and McIntyre, J., concurred.