The PEOPLE, Plaintiff and Respondent,
v.
David Lewis CORNELIUS, Defendant and Appellant.
Court of Appeal, Fourth District, Division One.
Mаrtin Nebrida Buchanan, under appointment by the Court of Appeal, San Diego, 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.
Certified for Partial Publication.[1]
HUFFMAN, J.
On February 3, 1998, we determined in this case that an indeterminate life term imposed under the "one strike" law (Pen. Code,[2] § 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.[3] (§§ 667, subds. (b)-(i), 1170.12.) We therefore concluded 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. Cornelius petitioned for review. The Supreme Court granted the petition on May 13, 1998 (S068743), and on November 10, 1999, transferred the matter to us with directions to vacate our decision and to reconsider the cause in light of People v. Jefferson (1999)
PREFACE
A jury found Cornelius guilty of kidnapping for sexual purposes (§§ 207, 208, subd. (d)), forcible sodomy (§ 286, subd. (c)), forcible oral copulation (§ 288a, subd. (c)), and five сounts of forcible rape (§ 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).[5] After a bifurcated trial on the priors, the court found that Cornelius had suffered one prior serious felony conviction (§ 667, subd. (a)(1)), two qualifying three strikes priors (§§ 667, subds.(b)-(i), 1170.12)[6] and had served a prior prison term (§ 667.5, subd. (b)).
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 § 667.61, subd. (a), tripled under § 667, subd. (e)(2)(A)(i)),[7] 6 full strength consecutive indeterminate terms of 25 years to life for the remaining forcible sex оffenses, and 5 years for the prior serious felony enhancement. The court stayed execution of sentence for the kidnapping count and struck the prison prior.
Cornelius appeals, contending the trial court committed reversible sentencing errors. As we explain below, we affirm as modified.
BACKGROUND[8]
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 *328 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 laying on the ground completely nude with her knеes 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 the 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 undеr 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.[9] 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.[10] 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 *329 "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 pipе 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 nonincidental 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."
The court found the sequence and manner of events in this case analogous to those in People v. Harrison (1989)
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 bеcomes 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
On appeal, Cornelius first contended the trial court erred when it imposed a principal *330 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 (§ 667.61, subd. (a)). In making such claim, Cornelius did 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 оne strike law as "imprisonment in the state prison for life and ... not [ ] eligible for release on parole for 25 years...." (§ 667.61, subd. (a).) Rather, relying on the reasoning of People v. Jefferson (1996)
In doing so, we first noted that the court in People v. Ervin (1996)
We next noted it was difficult to address many of Cornelius's arguments because they stemmed from the faulty premise that the sentence imposed under section 667.61, subdivision (a) is a straight life term. While admitting 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" (§ 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., §§ 190, subd. (a), 667.51, subd. (d), 667.71, subd. (b)), we concluded such difference in this case was without distinction.
Reading subdivision (a) of section 667.61, which specifically includes the provision that the defendant "shall not be eligible for release on parole for 25 years except as provided in subdivision (j)[,]" together with subdivision (j)[12] of that section, we found it *331 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 followed that the "minimum term" for such sentence would be 25 years and that such reduced by allowable credits, defined the "minimum parolе eligibility release date" or the minimum period of imprisonment which a defendant must serve before being entitled to release from prison. (See § 190, subd. (a); see also People v. Jenkins (1995)
We additionally found 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 interpretations. We believed it made no difference in this case whether the "term" defined by section 667.61, subdivision (a) is a "minimum tеrm" or a "minimum parole eligibility release period" because either described 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.
After reviewing section 667, subdivision (e)(2)(A)(i)-(iii),[13] the applicable portions of the three strikes law under which Cornelius fell and was sentenced, we noted that 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)
We further noted that 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,
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 [(§ 667, subd. (b))]," we determined any interpretation of the phrase "term otherwise provided as punishment" must necessarily be inclusive rather than exclusive and to interpret such phrase narrowly to exclude Cоrnelius's term imposed under section 667.61, subdivision (a), would defeat the law's very purpose and 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,
We therefore broadly construed the phrase "term otherwise provided as punishment" in section 667, subdivision (e)(2)(A)(i) to mean that sentence or period of confinement a defendant is required to serve before being entitled to release from prison regardless of whether it was a determinate or indeterminate term where a set minimum time was imposed by statute or the sentencing court as a "gauge of parole eligibility. [Citation.]" (People v. Anderson, supra,
As noted above, the Supreme Court granted Cornelius's petition for review and transferred the matter to us to reconsider the cause in light of its determination in Jefferson, supra,
In his supplemental briefing, Cornelius relies on the portion of the court's opinion in Jefferson, supra, where it replies to the dissent's query of how it is possible to double the period set forth in section 3046 for a defendant with one strike but not to do so for defendants who have two or more strikes,[15] to posit "Jefferson makes it clear *333 that the Three Strikes law may not be used to triple the parole ineligibility period prescribed by the One Strike law." He thus claims his indeterminate term imposed under the one strike law can only be sentenced under alternative (ii) of section 667, subdivisiоn (e)(2)(A). After carefully reviewing Jefferson in light of its possible application to third strike sentences for a defendant also sentenced under the one strike law, we disagree.
Several points in Jefferson's analysis of indeterminate term sentences are instructive. After reviewing the old and current sentencing schemes, the court in Jefferson noted that "term" is presently defined as the actual time a person will serve in prison before being released on parole and that "[a] statute requiring a prisoner to serve a specified term of incarceration before being released on parole is a provision requiring service of a `minimum term' within the sentence-doubling language of section 667[, subdivision] (e)(1)." (Jefferson, supra, 21 Cal.4th at pp. 95-96,
In this case, the minimum term provided for by that "other section of law" is subdivision (a) of section 667.61, which specifically provides that the defendant "shаll not be eligible for release on parole for 25 years...." Under the reasoning of Jefferson, it necessarily follows that the "minimum term" for Cornelius's one strike sentence in this case is thus 25 years. This term or set period of confinement or punishment is then used to determine under section 667, subdivision (e)(2)(A) the penalty for a third strike defendant. As noted earlier, such provides that the sentence for such defendant is "an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated at the greater of: [¶] (i) Three times the term otherwise provided as punishment for each current felony conviction ...; [¶] (ii) Imprisonment in the state prison for 25 years[; or] [¶] (iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancements] ... or any period prescribed by Section 190 or 3046." (§ 667, subd. (e)(2)(A).) Because Jefferson essentially tells us the "term otherwise provided as punishment" is the time a defendant will serve in prison (Jefferson, supra, 21 Cal.4th at pp. 96, 101,
*334 Here, the sentencing court did just that. It imposed the 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 exрress 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. Such lengthy sentence comports with the intent of the three strikes law "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." (§ 667, subd. (b).) Moreover, such sentence is consistent with the reasoning in Jefferson, supra, that the minimum term or "alternate penalty" for a statutory provision found true, such as section 186.22, subdivision (b)(4), or in this case section 667.61, subdivision (a), is the punishment for "the underlying felony itself and is thus subject to the applicable equations in calculating the proper "minimum term for the indeterminate term" under the three strikes law. (Jefferson, supra,
Further, the court in Jefferson stressed it was only deciding "whether the Legislature intended the phrase `minimum term for an indeterminate term' in section 667[, subdivision] (e)(1) as a convenient way to describe not only indeterminate sentences that expressly include a minimum term, such as the 25-year-to-life sentence for first degree murder, but also sentences for which section 3046 establishes the minimum period of imprisonment." (Jefferson, supra,
However, because the issue before the court in Jefferson concerned a two strike offender, it did not decide what effect reference to section 3046 or section 190 in alternative (iii) of section 667, subdivision (e)(2)(A) and its absence from the other sentencing alternatives in that subdivision may have in computing the proper sentence in a third strike offender's case. Although it recognized section 3046 would only come into play for a third strike offender in "a very limited number of cases," it did not reаch any issue regarding actual sentencing under section 667, subdivision (e)(2)(A).[17](Jefferson, supra,
Although the dicta in Jefferson on which Cornelius relies is subject to interpretation (see fn. 15, ante, at p. 332), we believe that in light of the legislative history of the three strikes law such remarks logically refer to the fact the 7-year parole eligibility period of section 3046 will usually not be a factor in the calculation of a third strike sentence since tripling such period will result in a minimum term of 21 years, which will always be exceeded by the 25-year-to-life minimum provided by option (ii) of section 667, subdivision (e)(2)(A).[18] If one reads the dicta in Jefferson as Cornelius proposes, i.e., that a sentencing judge can only impose a sentence under alternative (ii) of section 667, subdivision (e)(2)(A) in cases involving a life sentence with a minimum period of confinement before eligibility for parole, absurd results follow. For example, under his interpretation a second strike offender who also falls under the one strike law would receive a harsher sentence than third strike offenders who did so; i.e., the second strike defendant would receive either a life sentence with a minimum term of 30 or 50 years, while a third strike defendant would only receive 25 yeаrs to life regardless of the applicable subdivision of the one strike law. "It is unlikely that the Legislature, when it enacted the Three Strikes law, or the voters, when they passed the Three Strikes initiative, intended such an anomalous result." (Jefferson, supra,
We therefore conclude, consistent with the reasoning in Jefferson, the trial court properly used alternative (i) of section 667, subdivision (e)(2)(A) to triple Cornelius' 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 his count 2 indeterminate three strike sentence.
II[*]
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., concur.
NOTES
Notes
[1] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of part II.
[2] All statutory references are to the Penal Code.
[3] Our opinion was published in People v. Cornelius (1998)
[4] We also considered supplemental letter briefs on the issue presented by the transfer.
[5] 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, §§ 1 & 2.) Although section 208 was also deleted from section 667.61, subdivision (e) (Stats. 1997, ch. 817, § 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 сhanges have no effect on the applicability of the one strike law to his case.
[6] 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, § 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 tо 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.
[7] 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.
[8] 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 ovеrview of the case as a backdrop for the sentencing facts relevant to our discussion.
[9] 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)."
[10] 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 оther law, including Section 667.6, if applicable."
[11] We found further support for this conclusion in People v. Alvarez (1996)
[12] "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.)
[13] The pertinent portion of section 667 provided 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." (§ 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.
[14] The court in Cartwright identified several specific offenses, including murder (§ 190), for which the punishment would be more than eight years. (People v. Cartwright, supra,
[15] The majority in Jefferson answered several comments by the dissent regarding its holdings, as follows: "The dissent further contends: `[W]hen the drafters did make use of section 3046 [in section 667[ subdivision] (e)(2)(A)], they did not require the court to multiply the sevеn-year period of parole eligibility set out therein. For the rare third strike case not covered by another provision of the Three Strikes law, the drafters apparently were satisfied to rely on the Board of Prison Terms to decide when, if ever, after the period set out in section 3046, such an offender would be released on parole.' [Citation.] The dissent asks, `How can we justify doubling the period set out in section 3046 for a second strike defendant when the drafters left the same period unmultiplied for a third strike defendant?' [Citation.] We see no inconsistency between the Legislature's decision to double the parole ineligibility period set by section 3046 for `secоnd strike' offenders and its decision not to multiply that period for third strike offenders. As to third strike offenders, section 3046 comes into play only in a very limited number of cases: those in which the minimum term of confinement is (1) more than three times the term provided as punishment of the current conviction and is (2) more than twenty-five years. The Legislature may have seen no need to multiply these extremely long sentences, notwithstanding its conclusion that the shorter parole ineligibility period in section 3046 should be multiplied for second strike offenders." (Jefferson, supra,
[16] Our earlier opinion in this case was consistent with this reasoning and these conclusions.
[17] The court's dicta in Jefferson appears to refer only to the seven year shorter parоle period in section 3046 and the rare incidents when alternative (iii) of subdivision (e)(2)(A) would come into play using such period. We can envision such a situation occurring when a defendant with a current conviction for attempted premeditated murder and 2 prior strikes has at least 14 prior serious felony convictions within the meaning of section 667, subdivision (a)(1). Under such circumstances, the defendant would have a minimum term of 77 years under the calculations of alternative (iii), which would provide the "greater" minimum term for purposes of the three strikes law. Similarly, a one strike defendant like Cornelius with 2 strike priors who also hypothetically had 14 separately brought and tried prior serious felony convictions would have a minimum term of 100 years under alternative (iii) which would provide the "greater" minimum term. In either situation, tripling of the section 3046 term under alternative (i) as the dicta in Jefferson suggests would be unnecessary because alternative (iii) would have provided the longest possible term consistent with the intent behind the enactment of the three strikes law.
[18] On March 8, 2000, Division Seven of the Second District Court of Appeal issued its decision in People v. Dozier (2000)
[19] We are also aware Division Two of this Fourth Appellate District has recently held in People v. Mendoza (2000)
[*] See footnote 1, ante.