THE PEOPLE, Plaintiff and Respondent, v. DARLENE A. VARGAS, Defendant and Appellant.
No. S203744
Supreme Court of California
July 10, 2014
635
Melanie K. Dorian, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Taylor Nguyen, David Zarmi, Lawrence M. Daniels, Noah P. Hill and Kimara A. Aarons, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WERDEGAR, J.—We consider in this case whether two prior convictions arising out of a single act against a single victim can constitute two strikes under the Three Strikes law. We conclude they cannot.
The consequences in this state of repeated criminal conduct changed dramatically in 1994. First the Legislature,1 and then the electorate,2 introduced into this state‘s jurisprudence what is now known collectively as the Three Strikes law. Under that law, if a defendant reoffends after having suffered a first qualifying felony conviction, a doubled sentence is mandatory. If, after having suffered two qualifying felony convictions, an offender commits a third qualifying felony, the Three Strikes law presumes he or she is incorrigible and requires a life sentence. “Sentence enhancement based on recidivism flows from the premise that the defendant‘s current criminal conduct is more serious because he or she previously was found to have committed criminal conduct and did not thereafter reform.” (People v. Nguyen (2009) 46 Cal.4th 1007, 1024 [95 Cal.Rptr.3d 615, 209 P.3d 946].) The typical third strike situation thus involves a criminal offender who commits a qualifying felony after having been afforded two previous chances to reform his or her antisocial behavior, hence the law‘s descriptive baseball-related phrase, ” ‘Three Strikes and You‘re Out.’ ” (People v. Hazelton (1996) 14 Cal.4th 101, 104 [58 Cal.Rptr.2d 443, 926 P.2d 423].)
Despite this paradigm, situations have occurred that have challenged the assumption that an offender has had two prior opportunities to reform. For example, in a case in which an offender‘s two previous qualifying felony convictions were for crimes so closely connected in their commission that they were tried in the same proceeding, we held that such convictions can nevertheless constitute two separate strikes because the Three Strikes law does not require that prior convictions, to qualify as strikes, be brought and tried separately. (People v. Fuhrman (1997) 16 Cal.4th 930 [67 Cal.Rptr.2d 1, 941 P.2d 1189].) Similarly, in a case in which the offender‘s previous two crimes could not be separately punished at the time they were adjudicated because they were committed during the same course of conduct (
The instant case presents a more extreme situation: Defendant‘s two prior felony convictions—one for robbery and one for carjacking—were not only tried in the same proceeding and committed during the same course of criminal conduct, they were based on the same act, committed at the same time, against the same victim. As we explain, because neither the
FACTS
A. The Present Crimes
The facts of the present crimes have no bearing on the legal issue we resolve in this case and so may be stated briefly. Petitioner Darlene Vargas and codefendant Oscar Velasquez illegally entered the Claremont home of victims Lynn Burrows and William Alves and stole various items, including a suitcase and a trash can. Defendants were detained while prowling near another home in the same neighborhood; police found them in possession of both burglary tools and items taken from the Burrows/Alves home. A witness later identified Velasquez and Vargas as the man and woman she saw walking near the victims’ home with the suitcase and trash can.
Vargas was charged and convicted of first degree burglary (
Defendant appealed and also filed a petition for a writ of habeas corpus. The Court of Appeal denied relief on appeal but granted the habeas corpus petition in part, finding Vargas‘s defense counsel had been constitutionally ineffective for failing to place before the trial court the transcript of the preliminary hearing in the 1999 case. Because the preliminary hearing transcript demonstrated Vargas‘s carjacking and robbery convictions were based on the same act of taking the victim‘s car by force, the appellate court concluded that “a different outcome was reasonably probable had the trial court known that a single act was involved [in 1999] . . . .” Accordingly, it directed the trial court to conduct a new sentencing hearing after considering these additional facts.
On remand, the trial court denied defendant‘s motion to dismiss one of the 1999 prior convictions. It noted that under our decision in Benson, supra, 18 Cal.4th 24, “the central focus is not on the single act[,] ..., it‘s on the defendant‘s status as a repeat felon” and observed, further, that defendant had received a benefit in 1999 when she was allowed to plead to a negotiated plea of only three years in prison for two serious felonies. Considering the totality of the circumstances, the trial court concluded defendant fell “squarely within the spirit of [Three] Strikes.”
On appeal from the resentencing, defendant contended the trial court erred by declining to strike one of her prior convictions and sentence her as a two strike offender. The Court of Appeal found no abuse of discretion and affirmed. We granted review.
DISCUSSION
A. Introduction
The issue we decide today is whether the trial court should have dismissed one of defendant‘s two prior felony convictions, alleged as strikes under the Three Strikes law, where both convictions were based on the same act. The question has two potential aspects: First, when faced with two prior strike convictions based on the same act, is the trial court required to dismiss one of them? Second, assuming the sentencing court retains discretion to dismiss a strike or not, did the trial court here, on the facts of this case, abuse its discretion by declining to dismiss one of defendant‘s two strikes? Because we find the first question dispositive, we need not continue and discuss whether the trial court abused its discretion.
Given the intent of both the Legislature and the drafters of the initiative version of the Three Strikes law to punish repeat criminal offenders severely, to drastically curtail a sentencing court‘s ability to reduce the severity of a sentence by eliminating alternatives to prison incarceration, and to limit an offender‘s ability to reduce his or her sentence by earning credits, a question arose soon after enactment of the parallel Three Strikes schemes whether a trial court retained its traditional authority under section 1385 to dismiss an enhancement “in furtherance of justice.”5 We settled the issue in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 [53 Cal.Rptr.2d 789, 917 P.2d 628] (Romero), where we concluded “that section 1385[, subdivision ](a) does permit a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law.” Accordingly, the trial court below had the power under the law to grant defendant‘s motion and dismiss one of her two strike convictions.
In order to guide the lower courts when ruling on such motions to dismiss, People v. Williams (1998) 17 Cal.4th 148, 161 [69 Cal.Rptr.2d 917, 948 P.2d 429], explained that when facing a motion to dismiss a strike allegation, the trial court “must consider whether, in light of the nature and circumstances of [the defendant‘s] present felonies and prior serious and/or violent felony convictions, and the particulars of [the defendant‘s] background, character, and prospects, the defendant may be deemed outside the scheme‘s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Italics added.) We quoted this language with approval in People v. Carmony (2004) 33 Cal.4th 367, 377 [14 Cal.Rptr.3d 880, 92 P.3d 369], and further explained that “[b]ecause the circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Id. at p. 378.)
That a case would be extraordinary in which an offender with two prior qualifying convictions would fall outside the spirit of the Three Strikes law does not mean such cases do not exist. We must decide whether defendant‘s
When the Benson defendant reoffended 15 years later, his new crime was charged as his third strike under the Three Strikes law. He argued that because punishment had been stayed for one of his prior convictions, he had only one qualifying prior conviction under the Three Strikes law. This court disagreed, explaining that the prefatory phrase “[n]otwithstanding any other provision of law,” as used in both the initiative and legislative versions of the Three Strikes law, meant that the statutory definition of a qualifying strike conviction was exclusive. Therefore, because the Three Strikes law states specifically that a “stay of execution of sentence” does not disqualify a conviction from being a strike, a stay under
Benson also rejected the defendant‘s argument that permitting a conviction for which punishment was stayed to qualify as a strike would lead to
Thus, although Benson concerned only whether a conviction for which punishment was stayed qualified as a strike under the Three Strikes law, the opinion nonetheless suggests that a trial court should dismiss one of two prior strike convictions if they were based on the same act. We echoed this sentiment a few years later in People v. Sanchez (2001) 24 Cal.4th 983 [103 Cal.Rptr.2d 698, 16 P.3d 118] (Sanchez),7 underscoring Benson‘s recognition that where two prior crimes are based on the same act, such a close connection might require a sentencing court to strike one of them pursuant to its authority under section 1385 (Sanchez, supra, at p. 993).
The bench and bar took notice. (See, e.g., Menaster & Ricciardulli, 3 Strikes Manual (July 2009 supp.) p. 12 [referring to Benson‘s “Famous Footnote 8“].) The first published appellate decision to address the issue was People v. Burgos (2004) 117 Cal.App.4th 1209 [12 Cal.Rptr.3d 566] (Burgos). In Burgos, the jury convicted the defendant of two qualifying felonies and found he had suffered two strike convictions: one for attempted robbery and one for attempted carjacking, both in April 1999. The defendant moved to dismiss one of his strike convictions on the ground that they were based on the same act of forcibly attempting to take the victim‘s car. The trial court denied the motion and sentenced him under the Three Strikes law to consecutive sentences of 25 years to life in prison for his two current felonies.
Five years later, the issue again arose in People v. Scott (2009) 179 Cal.App.4th 920 [101 Cal.Rptr.3d 875] (Scott). In Scott, a jury convicted the defendant of two felonies—possession by a prisoner of a sharp instrument and simple assault (
The Scott court reasonably characterized the rationale in Burgos as unclear, for if a trial court must always dismiss one of two strikes when they are based on the same act, then the other considerations discussed by Burgos (such as the offender‘s past criminal record, and the length and adequacy of a
Benson and Sanchez necessarily spoke of the “same act” issue hypothetically, as in neither case was the defendant before the court facing two separate strikes from two prior convictions based on a single criminal act. Indeed, in Sanchez, no question of prior convictions was presented at all: The defendant was presently convicted of both murder and gross vehicular manslaughter while intoxicated and argued that in a hypothetical future prosecution, “he still could be subject to enhanced punishment under the ‘Three Strikes’ law [citations], because he could be treated as having two strikes on the basis of the two convictions.” (Sanchez, supra, 24 Cal.4th at p. 993.)
In the instant case the issue is not hypothetical. Defendant was convicted in 1999 of two different crimes (robbery and carjacking) that were based on her commission of the same act (forcibly taking the victim‘s car), and the trial court used both convictions to sentence her to the ultimate three strike term of 25 years to life in prison. Faced for the first time with the exact situation mentioned in Benson‘s “Famous Footnote 8” (Menaster & Ricciardulli, 3 Strikes Manual, supra, at p. 12), and later endorsed in Sanchez, we adhere to the views expressed in those cases and hold that, on these facts, the trial court was required to dismiss one of defendant‘s two prior strike convictions.
We reach this conclusion because, as Benson and Sanchez recognized, the trial court‘s failure in these circumstances to dismiss one of defendant‘s two prior strike convictions, and instead to treat her as a third strike offender, was inconsistent with the intent underlying both the legislative and initiative versions of the Three Strikes law. (See People v. Garcia (2001) 25 Cal.4th 744, 756-757 [107 Cal.Rptr.2d 355, 23 P.3d 590] [” ‘As with any other statute, our task in construing a provision of the Three Strikes law “is to ascertain and effectuate legislative intent.” ’ “].)
The initiative version of the Three Strikes law came into being when 1994‘s Proposition 184 was passed by the voters. As the ballot argument in favor of that initiative explained: “Here‘s how it works: [¶] Strike One: One serious/violent felony serves as a first strike toward a stiffer prison term. [¶] Strike Two: second felony conviction with one prior serious/violent felony, DOUBLES the base sentence for the conviction. Any additional enhancements under existing law, including those for prior convictions, are then
Given this information, the voting public would reasonably have understood the “Three Strikes” baseball metaphor to mean that a person would have three chances—three swings of the bat, if you will—before the harshest penalty could be imposed. The public also would have understood that no one can be called for two strikes on just one swing. Permitting the trial court below to treat defendant‘s 1999 robbery and carjacking convictions as separate strikes—despite the fact they were based on a single criminal act—would do just that, and thus contravene the voter‘s clear understanding of how the Three Strikes law was intended to work. Given the obvious twinning of the language used in the legislative version of the Three Strikes law, we discern no different intent with that version of the law.
We have explained that when ruling on a defendant‘s Romero motion (Romero, supra, 13 Cal.4th 497), trial courts should consider, among other things, the nature and circumstances of the prior convictions and whether the defendant falls outside the spirit of the Three Strikes law. (See People v. Carmony, supra, 33 Cal.4th at p. 377; People v. Williams, supra, 17 Cal.4th at p. 161.) In this case, the nature and circumstances of defendant‘s convictions show she committed just one criminal act, not two. Nevertheless, the Attorney General argues that the “electorate may deem offenders who have simultaneously violated more than one criminal statute to pose a qualitatively higher risk to public safety than those who have not. This is because such offenders invade more than one societal interest that the Legislature has designated for distinct protection by the enactment of more than one statute.” We would agree had the offender committed more than one act, whether separately or during a continuous course of conduct, as in Benson, supra, 18 Cal.4th 24. As we stated in Benson, “the electorate and the Legislature rationally could—and did—conclude that a person who committed additional violence in the course of a prior serious felony (e.g., shooting or pistol-whipping a victim during a robbery, or assaulting a victim during a burglary) should be treated more harshly than an individual who committed the same initial felony, but whose criminal conduct did not include such additional violence.” (Id. at p. 35.) But where, as here, an offender committed but a single act, we disagree she poses a greater risk to society merely because the Legislature has chosen to criminalize the act in different ways. The Legislature is free to criminalize an act in multiple ways, but that it has
Similarly, logic demonstrates that defendant falls outside the spirit of the Three Strikes law. In requiring severe punishment the Three Strikes law responded to a belief that prior law contained too many loopholes favoring criminals, and that judges exercised too much discretion in reducing an offender‘s overall punishment. When these loopholes and discretion were added together, the perception was that serious and violent criminals who committed multiple crimes were allowed to escape their just desserts. (Ballot Pamp., supra, rebuttal to argument against Prop. 184, p. 37 [“soft-on-crime judges, politicians, defense lawyers and probation officers care more about violent felons than they do victims. They spend all of their time looking for loopholes to get rapists, child molesters and murderers out on probation, early parole, or off the hook altogether.“].) Defendant falls outside of these concerns because the law prescribes the just desserts of a two strike offender should be a doubled sentence, not a tripled, or a 25-years-to-life, term. Unlike those rightfully subject to a third strike sentence, defendant has had only two swings of the bat. Under these circumstances, the law directs that she should have her sentence doubled, itself a serious penalty, as well as suffer all the other attendant Three Strike law disabilities imposed on her. (For example, offenders subject to the law have reduced opportunities for earning conduct credit or obtaining diversion for drug addiction, two options that seem particularly relevant to someone in defendant‘s circumstances.) Treating her more harshly than that—i.e., as a third strike offender—when she has committed but one prior qualifying act, upsets this tiered penalty structure, skipping the second step.
Although not dispositive here, were more evidence needed to demonstrate the Legislature intended the forcible theft of a victim‘s car cannot be considered two different crimes, we need look no further than the actual terms of the carjacking statute itself.
That Benson placed primary emphasis on the fact of each conviction, and not on the number of opportunities an offender had to reform, does not change the analysis. Benson admittedly reasoned that ” ‘the Legislature and the voters through the initiative process clearly intended that each conviction for a serious or violent felony counts as a prior conviction for sentencing purposes under the Three Strikes law, even where the convictions were based upon conduct against a single victim committed at the same time with a single intent, and where pursuant to
The Attorney General argues the terms of the Three Strikes law itself suggest the Legislature (and the framers of the initiative version of the law) considered the effect of two crimes stemming from one act, at least as it affects current convictions, suggesting both of defendant‘s prior convictions can be separate strikes. Thus,
CONCLUSION
We conclude this is one of the extraordinary cases (People v. Carmony, supra, 33 Cal.4th at p. 378) in which the nature and circumstances of defendant‘s prior strike convictions demonstrate the trial court was required to dismiss one of them because failure to do so would be inconsistent with the spirit of the Three Strikes law. Accordingly, the judgment is vacated and the case ordered remanded to the trial court for resentencing, consistent with the views expressed above.11
Cantil-Sakauye, C. J., Baxter, J., Chin, J., Corrigan, J., Liu, J., and O‘Rourke, J.,* concurred.
*Associate Justice of the Court of Appeal, Fourth Appellate District, Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.