*1 17986. In No. Bank. Apr. 1976.] [Crim. PEOPLE,
THE Plaintiff and Respondent, JR., WHITE, Defendant
COLUMBUS Appellant.
Counsel Court,
Harold F. under and Tyvoll, by appointment Supreme Keller, under C. the Court of Kenyon appointment Appeal, Defendant and Appellant. General, Winkler, Jack R. Chief Assistant
Evelle J. Younger, Attorney General, General, Kremer, Daniel J. Assistant Alan Attorney Attorney General, Greco, S. E. for Plaintiff Meth and Donald Attorneys Deputy and Respondent.
Opinion McCOMB, J. a of conviction Defendant from judgment appeals was used. first in the of which firearm commission degree robbery, committed The was convicted was Facts: which defendant robbery 1973; 1972. His on June and on December trial commenced July to life (Pen. he was sentenced term (five years prescribed Code, subd. ordered to run I)),1 which was any consecutively sentences. prior incompleted firearm,
It that used a within the was also found defendant had conviction of section 12022.5. That section provides meaning upon a firearm is enumerated felonies in which certain (including robbery) used, “shall, the defendant in addition to punishment prescribed convicted, be the crime of he has been imprisonment punished by such not less than five state for a years,” prison period with his to run term of not concurrently imprisonment such conviction second sentence for offense. Upon circumstances, is 10 additional minimum term under like years of additional third, 15 that those terms it is years, required upon convic- run a fourth or subsequent consecutively. Upon 1AIlsection references are to Code. Penal
tion, the defendant for life or less than may imprisoned years, discretion the court.2 earlier, convicted,
Several months defendant had been in separate trials, robberies, 9, 1972, of two other committed on December 17, 1972. In December of those robberies the also found that each jury used a The defendant firearm. sentence for the December 9 robbery was run with ordered to sentences. any concurrently prior incompleted run sentence for the December was ordered robbery with the sentence on the December concurrently imposed robbery with sentences. The case sentence any prior incompleted at bench ordered was to run to any consecutively prior incompleted *4 sentences.
Thus, for the three robberies defendant became to three subject terms, and two of which were ordered run five-year-to-life concurrently one a he minimum of ten therefor. Because consecutively, making years firearms, had used defendant became to additional consecutive subject result, reason of section 12022.5. As a punishment by defendant is because his of of commission subject .terms exceed ten years. .three robberies
Section subdivision that “the (d), minimum term of provides sentence and . . . a of convicted at one trial imprisonment person [f]or more than one whom are or cumulative felony, imposed upon consecutive sentences the of the minimum terms of which aggregate exceed 10 Defendant contends that if he years, years.” [shall be] trial, been of the 3 at he convicted robberies a would have single been entitled to the benefit of section of (d), subdivision as result which his minimum term have been his would years, of term for the which he convicted at offenses was 2Section 12022.5 who uses a firearm in the commission provides, part; “Any person murder, or commission of a assault with a attempted robbery, deadly weapon, rape, shall, crime, or conviction of such burglary, kidnapping, addition to upon convicted, punishment for the crime which he has been be prescribed punished by in the state five imprisonment for a of not less than Such additional prison years. period period shall other commence or termination of imprisonment upon expiration sentence for the he crime of which is convicted shall not imposed run concurrently with such sentence. circumstances, “Upon conviction under like the additional second period be imprisonment shall for a not less than 10 a third upon shall conviction period years, under like circumstances be for a period imprisonment period not less than 15 run such terms of additional years, consecutively. circumstances, or may fourth conviction under like defendant “Upon subsequent life or a less discretion of the court.” imprisoned for of not than years, period trials, with the additional 12022.5, terms section together prescribed by because he used a offenses, firearm in the commission of the must be limited to 10 or he will have been denied years, of the equal protection laws.
Questions: First. Does the limit in subdivision (d), the additional preclude imposition penalties prescribed by 12022.5?
No. Section subdivision (d), its terms limits to 10 years minimum term of “convicted at one trial of more than one felony,” minimum sentences for which aggregate exceed 10 years. This section with, to, concerned and limited of minimum subject sentences for the felonies, and imposed has no multiple underlying whatever to the additional application of imprisonment for use of a firearm in the commission of the felonies enumerated in section 12022.5. The additional the latter imprisonment prescribed by section is not to be included in minimum term computing aggregate under Williams, subdivision (d). {People Cal.App.3d 547, 549 894].) *5 Strickland,
As 946, out in v. 11 Cal.3d 961 pointed People [114 632, 523 P.2d 672], 12022.5 does not define crimes or Cal.Rptr. offenses, but increases the to be for the offenses merely penalty imposed enumerated therein when a firearm is used in their commission. (See also Johnson, 1, v. 38 10 den.); People Cal.App.3d Cal.Rptr. (hg. [112 834] 89, v. 14 92 den.).) People Henry, Cal.App.3d Cal.Rptr. (hg. [91 841] Additional evidence of intent is found in the significant legislative 12022.5, which, face, on their in provisions certain impose, situations, an additional term of in excess of the imprisonment 10-year 3024, limitation under section subdivision (d). obvious of section 12022.5 is to deter the use of purpose firearms commission of violent crimes additional by prescribing punishment Chambers, each use. 666, v. 776, 7 Cal.3d 672 498 {People Williams, P.2d 1024]; 549.) To that People supra, Cal.App.3d end, the section directs that severe expressly increasingly punishment second, third, convictions, and fourth or imposed upon subsequent additional minimum terms of namely, years respectively. These for additional to commence provisions only imprisonment, upon the termination of the sentence for basic crime in which the firearm, defendant used a indicate that did not intend the Legislature that the limitation of section subdivision (d), would 10-year to the terms of section 12022.5. To hold imprisonment compelled by otherwise would statute intended and nullify special obviously substantial additional designed impose punishment aggravated circumstances, and would lead to and anomalous totally incongruous results which could not have been reasonably contemplated by Legislature.
If the dissent’s were these addition- interpretation consistently applied, al terms of could not be where the offender prior Thus, commits two or more new at offenses triable trial. an single of these sections which harmonizes them interpretation by restricting of section subdivision to the felonies (d), application the clear intent substantial additional promotes legislative impose for the Use of firearms. penalties
The dissent fn. 5) concedes that its (post, p. if interpretation, effect, uniform would lead to given unusual For consequences. example, felonies would be treated more than perpetrator multiple leniently offense, convicted of one in situations person where both only offenders had suffered a conviction to which section 12022.5 prior Furthermore, construction, under the dissent’s section 12022.5 applied. would be to offenders who have committed but one new applicable only offense (§ to those less serious offenses being inapplicable), less severe minimum terms (so that the limitation is not carrying whatever, exceeded). of the sections or Nothing legislative history elsewhere, indicates intent to cause such inconsistent results. The any of the dissent’s is that a necessary consequence reasoning provision intended and substantial obviously designed impose punish- ment in circumstances would aggravated less apply, ironically, only *6 serious offenses. This cannot have been the of the purpose legislation.
Therefore, since the additional
section
punishment
by
prescribed
12022.5 is not to be included in
the minimum term under
computing
3024,
section
subdivision
there is no merit
(d),
to defendant’s contention
that he has been denied
His increased minimum
equal protection.
results not from
trials but from the use of a
punishment
firearm
separate
in
commission of the robberies. Since two of his three five-year-to-life
sentences were ordered to run
his minimum term for the
concurrently,
felonies is ten
the same maximum minimum set
underlying
years,
by
3024,
section
subdivision (d).3
Foss,
court,
3In In re
1073],
appearing referred to the minimum term pages 10-year prescribed by court its discretion in Did the trial abuse Second. making terms? to term consecutive any prior incompleted defendant’s that it is cruel or unusual Defendant contends No. punishment third conviction of first the sentence his make degree robbery upon two thereto run to his the use of "firearm incident consecutively sentences, that court did he and he the trial so because suggests previous on the instead of went to trial pleading guilty. charge In v. it was 548], People Morgan, Cal.App.3d Cal.Rptr. [111 held that of the term law for first imposition prescribed by degree and the increased for a firearm did use of not constitute robbery penalty Moreover, cruel or unusual as in section punishment. provided except the Penal of life it is 669 of Code with sentences imprisonment, respect in the discretion of the trial court whether to make sentence for with, to, offense or run any underlying concurrently consecutively Morris, 669; Code, sentences. (Pen. People incompleted prior admits trial 817].) Defendant that the Cal.App.3d run not state that his sentence did reason any ordering judge sentences; but he that consecutively any prior argues incompleted rendered, before sentence was since the district urged just attorney, reason, it that that was the basis such a sentence be assumed may Such for the trial decision. a conclusion would constitute judge’s and defendant has failed to establish that the unjustified speculation, trial acted judge improvidently. set also that because of the maximum minimum
Defendant by argues abused its discretion trial court (d), subdivision term to the two his consecutive five-year-to-life making five-year-to-life him, two been ordered latter having previously imposed upon however, out, his As maxi- run hereinabove concurrently. pointed set minimum for felonies is within limit mum subdivision (d). is affirmed. judgment one, denied the (d), as which the defendant subdivision a mandatory during unwarranted, conclude, and the we now was This possibility parole. interpretation, *7 to an the Penal make offender of 3049 of Code would general apply section provisions of term section was established pursuant provisions whose term. after of the (d), serving subdivision for one-third eligible parole Reese, Riser, 47 117-119 1]; v. Cal.2d P.2d Cal.2d People (People [305 283, 284.) 582]; also P.2d see Ops.Cal.Atty.Gen. Clark, J., Richardson, J., concurred.
Sullivan, J., concurred in the judgment.
TOBRINER, J. I dissent.
In a few has discarded rules established hasty paragraphs, majority of construction and far toward from the Penal statutory gone eliminating Code a statute has of formed an the Indetermin- long integral part ate Sentence Law. date,
Since the enactment its predecessor (hereafter subdivision citations to section 3024 will (d) not specify “subdivision”) has maintained scheme this flexibility sentencing state limit on the minimum term for by fixing ten-year upper any convicted two or more related felonies. person Today majority, 3024(d), ignoring language, purpose, legislative history holds that its ameliorative do not to terms of provisions imprison- ment under section 12022.5. The thus undermines the majority Indeterminate Sentence Law convicted of more permitting by decades, than one be confined for of the Adult felony regardless determination that defendant’s rehabilitation Authority’s subsequent an earlier release. progress justifies prison IAs shall sections 12022.5 and different 3024(d) explain, quite play roles in the criminal Section 12022.5 is directed the trial process. judge and authorizes him to of a the use impose heavy penalties felonies, firearm the commission of enumerated but during says nothing about how terms of are to be if a cumulated punishment person convicted more than one such Section is directed to felony. of a minimum term the Adult a function which it, fixing Authority, sentence; some months after com- performs imposition mands that cumulate minimum terms of body the cumulation of maximum multiple punishment beyond years; terms is not affected. Both statutes their apply by express language bar, case at and both should effect. given I must the facts of this my Unfortunately, begin analysis by restating case, them, over since has obscured majority, by passing lightly real before issue us.
799 convicted, trials, at of three first Defendant was three separate jury Code, the a firearm. each use of (Pen. 211), robberies § degree involving 9, 15 and (Dec. 17) within an These robberies occurred eight-day period Convicted, first, 9 defendant received in 1972. of the December robbeiy, Code, (Pen. 213) life itself § a sentence of five for the years robbery (Pen. of five to life for firearm use an additional sentence and years Code, to section 12022.5 the court fixed 12022.5).1 Pursuant § penalty for to the sentence for the use of a firearm as consecutive At defendant therefore had this totalling robbeiy. point, life sentence. 10 and a maximum years
Next, he defendant was convicted of December again robbery; five-to-life received a sentence of five-to-life for the robbeiy terms, consecu- to section 12022.5.2These necessarily although pursuant another, sentence ordered to run with the tive to one were concurrently conviction, defendant, conviction, after second for the first so sentence. had a total and life maximum still 10-year . commission who uses a firearm in the 1Section 12022.5 provides, “Any person part: crime, shall, of in addition to the punishment . . of a .. . conviction such robbery, upon convicted, has the crime of which he been be by imprisonment for prescribed in the state punished a not than five Such additional years. period for less period prison or termination of the sentence shall commence other imprisonment upon expiration with such for the crime of he is convicted and shall not run concurrently sentence. circumstances, a second conviction under like the additional period “Upon conviction shall be for of not less than 10 a third years, upon a imprisonment period under like circumstances the additional shall be for a period period imprisonment less such run consecutively. not than terms of additional years, circumstances, a the defendant may fourth or conviction under like “Upon subsequent life or a not of the court. for less than discretion imprisoned years, period “This where is an element section shall even in those cases the use of apply weapon of the offense.” unless Hereinafter all references sections in this dissent are to Penal Code otherwise noted. conviction ante) and third (see that for a second fn. 12022.5 provides 2Section. shall be firearms use additional minimum penalty like circumstances” the “under and facts. however, not present does This clearly 15years, provision, respectively. Defendant, was with charged not with the December robbery, when charged been, since 969), he have (see nor could conviction “under like circumstances” prior the trial the robberies. information for Similarly, had not taken place. December 9 robbery two the other of either of convictions December 15 did robbery charge prior defendant charging of each before robbery If awaited conviction the prosecution convictions, the 10- next, thus to cumulate penalties charging prior with seeking The purpose still would not apply. provisions penalty from who are released from prison to deter recidivists cumulating provisions does not apply similar offense. The deterrent purpose another Committing firearm, crimes, before series of using apprehension who commits a defendant *9 800 defendant was convicted of the December 15 the one Finally, robbery, n
involved in the he received a sentence of present appeal. Again, five-to-life under section 213 and five-to-life consecutive under section time, however, 12022.5. This his discretion under judge, exercising sentences, section 669 to consecutive ordered that these terms be impose served sentences.” “consecutively respect any prior incompleted Corrections, The as from defendant’s cumulative Department appears case this as in total minimum summary, interpreted judgment resulting terms of 20 It derived the years. 20-year by adding concurrent minimum terms for the 9 17 10-year December and imposed robberies to the consecutive minimum terms for the 10-year imposed 15 December robbery. issue we are called precise decide is whether upon of Corrections
Department cumulated two mini properly 10-year terms, mum minimum, in a or whether it resulting was limited 20-year on minimum by terms established section ceiling by 3024(d). That section “The shall be the minimum provides: following term of sentence and cases, in certain imprisonment notwithstanding any other code, of this or provisions of law a lesser any provision specifying sentence; For a ...(d) convicted at one trial of more than one person and whom are felony, cumulative or consecutive sen upon imposed tences the of the minimum of which terms exceed 10 aggregate years, years....”
The issue resolves itself into two (1) Does section subsidiary questions: 3024(d) to the instant case even defendant was convicted of apply though felonies at so, trials? If (2) does section separate 3024(d) to additional terms of under section imposed trial. Section 644 explicitly that requires defendants “have served terms” for separate criminals, offenses prior 12022.5, before can be they habitual adjudged section pursues similar deterrent must also to cases purpose, apply only in which some part a sentence or term for the probationary offense has prior been served already prior convictions, commission of the new offense. The statute for pleading prior accords with this since it indicates that the interpretation, should state that the pleading defendant was convicted of the offense the commission of the prior offense charged before in the pleading. sense, 3In a technical defendant should have raised this properly issue a writ of habeas rather corpus, than in with his direct conjunction because appeal, relates to the Adult Authority’s function rather than term-fixing to the trial court’s Code, (See, decision. sentencing Pen. e.g., (1974) 3020 et In re seq.; Kapperman Cal.3d 542 657].) P.2d Because the General has not Attorney to this objected procedural deficiency these throughout appellate proceedings, inasmuch as the issue has been briefed fully I believe argued, it is appropriate our court resolve the issue the present proceeding. two below, of these I 12022.5? As language purpose explain that section 3024(d) the conclusion statutes makes applies inescapable" hand, under the additional the case at including *10 an as therefore be considered 12022.5. Defendant should having of 10 not 20. minimum term after the 3.convictions years, aggregate at was convicted 1. Section separate although applies defendant trials. terms, on the a limit its 3024(d), Section imposes express one more than at one trial of a “convicted term of person “at convicted that the limitation Defendant contends persons felony.” who, like a discriminates trial” person one against unconstitutionally could have which himself, trials of offenses was convicted at separate the two between the distinction 954. Because under section been joined to the relate does not thus created of reasonably classes persons asserts, denied statute, he he has been equal legitimate purpose of the law. protection contention, and the a meritorious
Defendant raises Attorney patently with the to refute it. General does not even equal attempt Compliance Constitutions States and California clauses of the United protection I, Const., Amend.; Const., that Cal. art. 7) 14th (U.S. requires persons of the law must with to the situated similarly legitimate purpose respect create, treatment, which the statutes receive like and that classifications minimum, a at a rational must a bear legitimate public relationship 11 Cal.3d re (In (1974) Cal.Rptr. purpose. Kapperman [114 3 Cal.3d 522 P.2d In re 657]; (1970) King
P.2d 983].) below, is to I more
The of section as discuss 3024(d), fully purpose minimum terms of on the an limit aggregate place upper furthers the than one statute goal, of more thereby convicted felony. Adult Law, Sentence to the Indeterminate vesting fundamental dates in accordance to set discretion discharge parole Authority statute further case. The merits of each promotes with the prisoner’s who circumstances defendants in like incarceration for uniformity individual to the standards judges. otherwise be would varying subject at offenses defendants convicted A distinction between multiple been trials, the offenses could have which joined, several not does trial offenses at convicted of single ‘.defendants multiple relate to this reasonably purpose.
At oral General for the first asserted time that argument, Attorney the state interest joinder pursues legitimate encouraging counts under and that defendant multiple accordingly may hand, choice on to the the one put risking, possible prejudice trial, result tried could from offenses at a being single hand, and on other of section 3024(d) foregoing protection himself to a term. This greater subjecting possibly argument, however, not does case. The not present, prosecution, defendant, chose to three robberies charge separately thereby was three trials. Since record shows defendant separate require he for the third until been (Dec. 15) arraigned robbery already two, tried and sentenced for the other he had no to seek *11 opportunity of that the trial join robbery. event,
In as defendant cannot be just any subjected greater because he chooses to not v. (United States punishment plead guilty 500, Cir. 278 F.2d or to a (7th 1960) 504) conviction Wiley appeal (People v. 497 (1963) Henderson 60 Cal.2d 386 677]), P.2d [35 so he must a from minimum he term if protected longer potential obtains severance criminal The state’s interest in charges. encouraging not to defendants seek severance is an administrative merely interest and cannot overcome defendant’s the judicial economy, right protec tion of due of law severance of (See the Bullock through process charges. v. Carter 405 (1972) U.S. 134 L.Ed.2d S.Ct. 92 849]; Shapiro [31 600, 614, 633 (1969) U.S. L.Ed.2d 89 S.Ct. Thompson 1322].) but If a statute confers on some unconstitutionally privileges situated, a withholds such from others court privilege similarly reviewing invalidate invidious extend to those may exception privilege 542; In excluded. re Cal.3d (In unconstitutionally Kapperman, supra, I conclude 3024(d) re Cal.3d that section 226.) applies King, supra, trials, if defendant convicted of offenses at such separate offenses, case, the instant have been as in could joined.
2. The to terms 3024(d) limitation applies section 12022.5. under imprisonment imposed
The that section asserts concerned only majority opinion with for the sentences felonies with follow use of may finding firearm This under 12022.5. assertion fails distinguish functions served sections 12022.5 and and is 3024(d), refuted by by those enactments. legislative history language Sections 12022.5 and 3024 serve distinct and functions in independent the structure of the California criminal Section 12022.5 is a process. mandate, court, statute. Its directed to the trial that sentencing requires court to sentence a defendant found to have used a firearm in the of an commission enumerated to additional terms of felony imprison- Code, ment. Under California’s Indeterminate Law Sentence (Pen. however, 2900 et the trial § sentence court does seq.), imposition by not determine the actual term of confinement in state prison. has the task of the actual term of
Legislature delegated fixing imprison- Code, ment to the Adult Pen. (See 3020.) Authority. hand, statute,
Section on the other is not a but one of sentencing the discretion of the Adult provisions limiting Authority fixing actual term of Penal Code confinement. provides generally the Adult must fix a term within the maximum and Authority the statutes by governing imposition provided sentence; section 3024 then four circumstances specifies exceptional under which the Adult must fix terms than the Authority greater maximum or the minimum less than term sentencing provided statute. This last deserves the sole function of section point reemphasis: *12 3024 is to the Adult under the there circumstances compel Authority, defined, to fix terms different from those authorized or required by statutes. Thus when the Adult follows the mandate sentencing Authority of section 3024 it is not intent as embodied in frustrating legislative laws, but intent as embodied in sentencing fulfilling legislative the Indeterminate Sentence Law. of section is to an limit on specific purpose place upper
the total minimum term which convicted of more than one can suffer. the effect of the exercise felony By limiting sentencing judge’s 669, of the it to consecutive sentences under section power impose the Adult in its consideration with provides greater flexibility Authority of the merits of the of each individual terms case prisoner fixing the Indetermin- dates. This is an essential of setting parole flexibility part ate Sentence Law. 10 Cal.3d 923-924
As we noted in In re Foss (1974)
Cal.Rptr.
[112
corrections
and criminal
519 P.2d
authorities on
1073],
penology
to
minimum sentences
have
parole
precluding
mandatory
objected
from
authorities
taking
correctional
considerátion because they prevent
offenses,
differences
account,
of
into
within a
classification
given
violations,
and his
the offender
of the
seriousness
potential
adjustment
for
rehabilitation.
also In re Minnis
Cal.3d
(See
(1972)
Thus, the of section 12022.5 offer clue to no language purpose *13 resolution of the issue before this court. The language history however, section 3024(d), conclusive of the issue. Section that its must be observed expressly provides provisions “notwithstanding 4The reason that minimum defendant’s additional terms majority appears imposed by section 12022.5 must be cumulated from minimum sentences separately imposed 3024(d) section and that on the by section serves limit place 10-year upper only however, us, section 213 minima. The of the before facts case demonstrate not to the practice of Corrections has adhered strained Department majority’s (for of this section. defendant’s second conviction Dec. 17 interpretation Following indicated, he I was as have new minimum terms of 10 which were robbery) given, years (for to the term his imposed concurrently after first conviction 10-year imposed previous the Dec. 9 If 12022.5 that the for the firearms section terms use of robbery). required cumulated as the this could not be condoned. majority sentencing separately, implies, The section 12022.5 minimum for the December would have 5-year imposed robbery minimum, of at to have been added to the a minimum previous resulting 10-year conviction, least 15 after the instead of the minimum which 10-year second years defendant had. The has made no this inconsistency. then majority attempt explain Since section 3024 of this code.” other specifies exceptions any provisions statutes define the maximum rule that to the sentencing terms, is to assure that the obvious of this language purport will section 3024 the Adult notwithstanding any contrary Authority Penal 12202.5 is laws. Code section among sentencing provisions which, “other of this code” legislative by express provisions declaration, 3024. is subordinate to section however,
The notes that section 12022.5 does not define majority, offenses, crimes or but increases the to be for merely penalty imposed From this observation it concludes that such underlying felony. term is increased not to the limitations of section 3024. The subject conclusion does follow from not Section 3024 does not premise. terms; between felonies and additional it distinguish speaks of terms of “sentence and Additional confine- generally imprisonment.” ment to section 12022.5 is a term of pursuant plainly imprisonment, court, the sentence of the trial and thus falls within the imposed by of section 3024.5 language
The conclusion that section 3024(d) to additional applies 12022.5, under section so clearly compelled by statutes, of those is reinforced their language by legislative history of section the Penal 3024(d) in Code. The exact placement 5The 3024(d) result if majority opinion points anomaly might were to limit the minimum term of a defendant who had been applied hypothetical sentenced to a minimum term of more than 10 for a crime years single through of section A 12022.5. defendant who had served a term one operation robbery use, firearm and had then committed another such involving would be example, robbery, (5 to minimum terms of 15 for the subject years years robbery plus years use) consecutive for firearm under section 12022.5 for the If he second alone. robbery were tried for another with the felony—for second it example, rape—along robbery, would 3024(d) create an clearly as anomaly interpret imposing 3024(d) on his minimum term. Section ceiling cannot to result in a lesser operate minimum term for felonies than could be received for a In the single felony. described, case hypothetical would the Adult from prevent Authority the terms for the cumulating but it would not reduce the robbery rape, term below 15 years. arise, however, described anomaly above could in connection with only section 12022.5 and the related section but in connection with statute which any *14 a minimum sentence imposes than 10 greater years for crime. of such single Examples 213, 264, statutes are Penal Code sections and 461 minimum sentences if (15-year great is inflicted in the bodily course of injury and Health robbery, rape, and burglary); Safety Code section 11350 et minimum sentences for certain 'seq. (15-year offenses with drug felonies), and Penal prior habitual (minimum- Code section 3047 et seq. for criminals). A between hypothetical these statutes and section inconsistency 3024(d) in certain unusual cases 3024(d) does not of course mean that section cannot be in cases in which applied its is consistent with the scheme. application statutory
806 of section enacted in 1933 3024(d), as an amendment language originally 814, 1, to the Indeterminate Sentence Law ch. 1168) § (§ (Stats. that law 2156) was to the deleterious effect on reduce p. obviously designed which could have resulted from an earlier amendment (Stats. felons terms for armed 1491) ch. minimum § mandatory l,p. imposing amendment, felons and with felonies. That earlier now contained prior 3024(a), (c), section in 1933 for a (b) provided mandatory of 10 for term an armed felon with a years prior felony. By the of minimum terms for convicted of imposing ceiling persons more than one the manifested its concern that felony, Legislature clearly the of cumulation minima for felons would have frustrated the of the Indeterminate Law Sentence the hands the purpose by tying correctional for authorities of time. Section exceedingly long periods 3024(d) was and still is a on restriction cumulation of the originally minimum terms section 3024(a), (b), (c)',and indeed it is imposed so labelled in the modern code. restricts the 3024(d) cumulation
Similarly, for who have committed more than one violation covered by sections 12022 and 12022.5. These sections a deterrent function perform as to use of firearms that commensurate to of section (b), and 3024(a), At (c). the time the enactment of the of section 3024(d), predecessor sections and 12022.5 been in force progenitor as been an amendment years, having originally incorporated 339, 3, ch. 696). Act The minimum (Stats. § Deadly Weapons p. act with that coincided those modern sections penalty provisions 12022.5, 12022 and in the of the modem exactly provided, language sections, were that additional to be penalties imposed consecutively sentences felonies. Presumably Legislature was aware of the when it Act Deadly Weapons adopted predecessor 3024(d); could have intended Legislature hardly limit to one set of minimum terms (now 10-year upper mandatory 3024(a), contained in but to another set.6 (b) (c)), similar very is than an of two court’s more erroneous today reading holding far statutes. It casts shadows more than the reaching majority penal If is so to be realizes. as inapplicable interpreted 894], (1974) opinion, Williams 6People Cal.App.3d two-page held, case, we after time recently granted hearing present “[t]he is not under section 12022.5 to be included in minimum term computing (d).” under section That incorrect and should be clearly subdivision decision disapproved. *15 12022.5, under section terms of additional to be no reason then there seems statutory notwithstanding, language other statutes heavy impose penalties why “specific” 11350 et offense, Code section such as Health seq. Safety single not likewise be 264 and 461 could and Penal Code sections judicially to allow unbridled cumulation of expanded far Such a result would more than one such offense. go
convicted of books, and would strike a off the section 3024(d) heavy toward writing Law. Indeterminate Sentence blow Legislature’s Despite intention, one such convicted of more than felony many persons express of release or be incarcerated for decades without the could possibility find their cases. whatever merits Adult Authority might parole, I would order the and Adult Corrections Accordingly, Department their records reflect defendant’s Authority modify aggregate minimum term for the convictions of with use robbery first-degree I is 10 In other firearms all believe the years. judgment respects, should be affirmed. J., Mosk, J., C. concurred.
Wright, Tobriner, June 1976. for a was denied rehearing petition Appellant’s J., Mosk, J., that the should were of granted. petition opinion