On the evening of December 13, 2008, Jane Doe stepped out of her car and met defendant Humberto Salvador and three other men, who dragged her into a brutalized nightmare. For his participation, defendant was convicted of 15 felonies with 98 enhancements,
Having reconsidered defendant’s first contention in light of People v. Sanchez (2016)
[[BACKGROUND]]
[[REVIEW]]*
Sentencing Error
Defendant was sentenced to life without the possibility of parole on each of the kidnapping counts (counts one and two); 15 years to life for the carjacking count (count eleven); 19 years for the robbery (count fourteen); and two years for the substantive offense of active gang participation (count fifteen). He received terms of 15 years to life for each of the forcible sexual penetration counts (counts twelve and thirteen).
On each of the remaining eight counts—the two rape counts (counts four and six), the two sodomy counts (counts five and seven), and the four oral copulation counts (counts three, eight, nine, and ten)—the trial court imposed a consecutive term of 25 years to life specified by section 667.61. The jury having found true the allegations that each of the offenses had been committed for the benefit of a criminal street gang (see fn. 1, ante), the trial court imposed a separate consecutive 10-year term in accordance with section 186.22, subd. (b)(1)(C)
Defendant contends that we must apply the logic of People v. Lopez, supra,
As framed by the Supreme Court, the sole issue in Lopez was ‘“whether a gang-related first degree murder, which is punishable by a term of 25 years to life, carries an additional 10-year enhancement under . . . section 186.22(b)(1)(C) or, alternatively, a 15-year minimum parole eligibility term under section 186.22(b)(5).” (Lopez, supra,
In doing so, the court rejected the Attorney General’s argument that ‘“the phrase ‘punishable by imprisonment ... for life’ in section 186.22(b)(5) is ambiguous in that it could apply to all life terms (including terms of years to life), as defendant contends, or merely ‘straight’ life terms, which require only a minimum of seven years of incarceration before a defendant becomes eligible for parole (§ 3046). The Attorney General claims that . . . section 186.22(b)(5) applies only to straight life terms and therefore does not apply to first or second degree murder.” (Lopez, supra,
“The more relevant legislative history, in our view, is that surrounding the enactment of the STEP Act [the Street Terrorism Enforcement and Prevention Act] in 1988, which stated repeatedly that section 186.22, former subdivision (b)(3) (now subdivision (b)(5)) applied to ‘any life prison term.’ ” (Lopez, supra,
“In sum, at the time the STEP Act was enacted, the predecessor to section 186.22(b)(5) was understood to apply to all lifers, except those sentenced to life without the possibility of parole. Contrary to the People’s naked assertion, we find no indication that the voter-approved amendment in June 1998 to section 190, subdivision (e), which eliminated postsentence credits and thereby increased the MEPD [minimum eligible parole date] for first and second degree murderers, impliedly altered the meaning of ‘a felony punishable in the state prison for life’ in that predecessor provision. [Citation.] We likewise find no indication that Proposition 21, which reenacted the predecessor provision without substantive change and renumbered it as subdivision (b)(5), impliedly restricted its reach. Finally, we find no support for CDAA’s contention that the Legislature or the voters intended the applicability of subdivision (b)(1)(C) and subdivision (b)(5) to ‘shift, depending upon the current minimum parole eligibility term for murder, and whether or not section 3046 can have an effect.’ We find instead that the plain language of section 186.22(b)(5) governs and therefore conclude that the Court of Appeal erred in applying the 10-year gang enhancement to defendant’s first degree murder conviction.” (Lopez, supra, 34 Cal.4th at pp. 1010-1011.)
The Attorney General concedes that for the 10 counts “application of the One Strike law made the sentence for each ... an indeterminate life term.” Nevertheless the Attorney General initially labored heroically to persuade us that Lopez does not doom the 10-year gang enhancements.
The Attorney General next saw assistance in People v. Jones (2009)
This was largely the approach taken in People v. Williams (2014)
“In this case, defendant received sentences of 25 years to life. These sentences of 25 years to life constitute life sentences within the meaning of section 186.22, subdivision (b)(5). [Lopez, supra,
“In light of Jones’s direction that the phrases ‘[a]ny felony punishable by . . . imprisonment in the state prison for life’ (§ 12022.53, subd. (a)(17)) and ‘a felony punishable by imprisonment in the state prison for life’ (§ 186.22, subd. (b)(5)) ‘should be construed similarly’ (Jones, supra,
In light of the double-handful of consecutive life terms to which defendant was sentenced under section 667.61, it can hardly be said that he is escaping punishment in any genuine sense. In sentencing defendant according to the terms of that statute, the trial court was obviously attempting to comply with the directive in subdivision (f) that defendant be sentenced in such a manner as to receive the “greater penalty.” The objective of punishing violent sex offenders who have a gang connection or motivation is no less important than punishing murderers who have a gang connection or motivation. It is not soft-heartedness or myopia that led the Lopez, Jones, and Williams courts to reach the conclusions they all did. Those results were the products of the “plain and unambiguous” language of section 186.22 concerning what qualifies as a life term. (See Lopez, supra, 34 Cal.4th at pp. 1006-1007; Williams, supra,
As for the junction between sections 186.22 and 667.61, and the enhancement versus penalty distinction of Jones,
The Attorney General naturally drew our attention to two passages from that opinion: “[T]he One Strike law establishes a floor—a minimum term a qualifying defendant must serve—but does not require sentencing under the statute to the exclusion of any other sentencing provisions, or preclude imposing a total sentence that is greater than the term of the One Strike law when other factors warrant greater punishment.” (People v. Acosta, supra,
If these constituted the only words, or the last ones, from our Supreme Court, they would cause us to pause. But they are neither. These expressions were not made with any consideration of section 186.22, much less the impact of its subdivision (b)(5). The language precedes Lopez, and frankly cannot be squared with Lopez’s construction of subdivision (b)(5) as precluding a 10-year enhancement to a life term. If the Supreme Court meant these passages to have the meaning attributed by the Attorney General, it would have figured prominently in a Lopez opinion that reached the opposite conclusion.
In plain effect, because it is an alternative sentencing scheme, section 667.61 establishes penalties for specified offenses. It identifies a number of situations which, depending on the number of circumstances in aggravation, will be punished with a base term of either 15 or 25 years to life. (§ 667.61, subds. (a) & (b); People v. Anderson, supra,
There remains the issue of remedy. In Lopez the Supreme Court decided that “the sentence must be modified to delete the 10-year gang enhancement imposed under Penal Code section 186.22(b)(1)(C).” (Lopez, supra,
The sentence is vacated and the cause is remanded for the sole purpose of resentencing in accordance with this opinion. The judgment of conviction is affirmed in all other respects.
Appellant’s petition for review by the Supreme Court was denied August 9, 2017, S242222.
Notes
Statutory references are to the Penal Code unless otherwise indicated. Defendant was convicted of one count of kidnapping for sexual purposes (§ 209, subd. (b)(1)); one count of kidnapping during a caijacking (§ 209.5, subd. (a)); one count of caijacking (§ 215, subd. (a)); one count of second degree robbery (§§ 211, 212.5, subd. (c)); active participation in the criminal conduct of a criminal street gang (§ 186.22, subd. (a)); two counts of forcible sexual penetration (§ 289); two counts of forcible sodomy in concert (§ 286, subd. (d)(1)); two counts of forcible rape in concert (§ 264.1, subd. (a)); and four counts of forcible oral copulation in concert (§ 288a, subd. (d)(1)).
Each of the two kidnapping counts, the caijacking count, and the robbery count included allegations found true by the jury that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)), and involved the personal use of a deadly weapon (§ 12022, subd. (b)(1)) and the personal infliction of great bodily injury (§ 12022.7, subd. (a)).
The gang participation count included sustained allegations of the personal use of a deadly weapon and the personal infliction of great bodily injury.
Each of the two forcible sexual penetration counts included sustained allegations that it was a hate crime (§ 422.75) and that defendant committed the offenses for the benefit of a criminal street gang, and while he was aimed with and personally used a deadly weapon (§§ 12022, subd. (b)(1), 12022.3, subd. (b)).
Each of the two forcible sodomy counts included sustained allegations that it was a hate crime and committed in concert (§ 422.75, subd. (b)); that defendant was aimed with and personally used a deadly weapon, and personally inflicted great bodily injury (§§ 667.61, subd. (d)(6), 12022.7, 12022.8); that the offense involved a kidnapping that substantially increased the risk to the victim (§ 667.61, subd. (d)(2)); and that it was committed for the benefit of a criminal street gang.
Each of the two forcible rape counts included sustained allegations that it was a hate crime and committed in concert; that defendant was aimed with and personally used a deadly weapon; that the offense was committed for the benefit of a criminal street gang; and that the offense involved a kidnapping that substantially increased the risk to the victim.
Three of the four forcible oral copulation counts included sustained allegations that it was a hate crime and committed in concert, for the benefit of a criminal street gang; that defendant was armed with a deadly weapon; and that the offense involved a kidnapping that substantially increased the risk to the victim. In addition, the fourth count also included the sustained allegation that during the commission of the offense defendant personally used a deadly weapon.
See footnote, ante, page 584.
Section 186.22, subdivision (b)(1), in pertinent part, provides: “[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with
The probation officer advised the trial court of the extensive criminal history defendant had amassed by the time he was 36: “[D]efendant has twenty felony convictions, three of which are for auto theft, three for receiving stolen property, two for kidnapping [in addition to the current convictions] .... [¶] He has eight misdemeanor convictions, three of which are for possessing a controlled substance and one each for assault, vandalism, receiving stolen property, hit and run, and evading police. [¶] As a juvenile, the corn! sustained one felony charge of attempted robbery. [¶] The juvenile court sustained four misdemeanor charges of weapon on a school campus, attempted auto theft, vandalism, and unlicensed driver.”
The Supreme Com! in Montes also spoke of the “punishable by imprisonment in the state prison” language of section 186.22, subdivision (b)(5) as being limited to “the underlying felony itself’ (Montes, supra. 31 Cal.4th at pp. 353, 357) and “the felony provision itself.” (Id. at p. 359.) The Attorney General placed considerable stress on these formulations, the clear implication being that rape, sodomy, oral copulation, and sexual penetration do not qualify because sections 261, 286, 288a, and 289 do themselves specify that any of these offenses is punishable by a life term (e.g., “appellant was convicted of ten counts that were ... all felonies that by themselves are punished by determinate sentences. [Citations.] [Application of the One Strike Law made the sentence for each of these counts an indeterminate life term.”). The Penal Code is peppered with statutes defining crimes, with the punishment for those crimes being laid down in other statutes. The most obvious example is murder, which is defined in section 187, divided into degrees in section 189, and punished according to sections 190, 190.03, 190.05, 190.2, and 190.25. If the Attorney General was suggesting that the statutes defining and specifying the punishment for an offense cannot be read together, such an approach is patently unreasonable and unworkable. We do not believe in Montes the Supreme Court intended to endorse anything this impractical when it made the statement quoted in the text.
It is true that in Montes the Supreme Court disapproved of the Court of Appeal “look[ing] to a different section of the Penal Code . . . not incorporated in the language of the felony provision .... in order to find that the felony provided for a life term.” (Montes, supra. 31 Cal.4th at pp. 358-359, citation omitted.) However, we believe this language was meant to apply to the penalty versus enhancement dichotomy (discussed post), and not to situations where an offense is defined in one statute and punished according to another.
Section 186.22, subdivision (b) provides: “Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any
This was the basis for the 15-year-to-life sentence for the caijacking. Concerning that count, the jury sustained the allegation that the offense was committed for the benefit of a gang, but the trial court did not impose a 10-year enhancement on top of the indeterminate term.
Which, we note, the Supreme Court reiterated in another decision filed on the same day as Jones'. “Nothing in this opinion should be read as undermining the validity of the strict distinction this court has drawn in the past between sentence enhancements and penalty provisions in other contexts.” (People v. Brookfield (2009)
Nevertheless, we acknowledge that the issue was a novel and thorny one with which the court and both counsel grappled. The prosecutor stated that “it took about five district attorneys and a representative from the AG’s Office to try to calculate the correct sentence for Mr. Salvador . . . .” Defendant’s sentencing was originally set for February, but was continued to May so that all concerned could try to find the solution. It is clear from the sentencing hearing that the trial court’s 10-page statement of reasons was written in advance and read into the record. The court erred, but it was certainly not from lack of diligence or reflection.
The careful reader may have noted that the past tense has been used with respect to the Attorney General’s position on this sentencing issue. The reason for the unusual phrasing requires explanation. Both sides waived oral argument. Because we were concerned that an issue of this magnitude should receive the most consideration possible, we directed the parties to present oral argument on the sentencing issue. Upon further reflection on the matter. Senior Assistant Attorney General Jeffrey M. Laurence advised that, “after careful reconsideration,” the Office of the Attorney General was withdrawing its opposition to defendant’s argument. “Instead, we agree with appellant’s claim that the sentences on the counts in question are indeterminate life terms as a consequence of the application of section 667.61, and that section 186.22, subdivision (b)(5) governs. We therefore acknowledge the trial court erred in imposing the ten 10-year terms pursuant to section 186.22, subdivision (b)(1)(C).” We commend the Office of the Attorney General, and Mr. Laurence, for this approach to their professional responsibilities to this court and to the people of the State of California.