People v. Miles
People v. Miles
Opinion of the Court
Opinion
I. Introduction
Defendant, Tracey Miles, who stands convicted of nine felonies, appeals from his conviction, after a jury trial, of two counts of robbery committed on a single occasion. (Pen. Code, § 211.)
Defendant was convicted of two counts of robbery of a Taco Bell restaurant. A semiautomatic gun was used by one of his two coperpetrators. While the gun was not loaded at the time police officers recovered it, there was no
II. Discussion
As to count 1, defendant received a sentence of 36 years to life. As to count 2, the court imposed a one-year, four-month sentence. The count 2 sentence consisted of one-third the three-year mid-term plus one-third of the section 12022, subdivision (a)(1) enhancement. The Attorney General argues that the trial court should have imposed a 25-year-to-life sentence plus a 1-year enhancement pursuant to section 12022, subdivision (a)(1) as to count 2. It is well established that a legally unauthorized sentence can be corrected at any time including on direct appeal upon request of the prosecution even though the issue was never raised in the trial court and the result is the defendant serves a longer prison term. (People v. Scott (1994) 9 Cal.4th 331, 354 [36 Cal.Rptr.2d 627, 885 P.2d 1040]; People v. Welch (1993) 5 Cal.4th 228, 235 [19 Cal.Rptr.2d 520, 851 P.2d 802]; People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11, 349, fn. 15 [14 Cal.Rptr.2d 801, 842 P.2d 100]; In re Ricky H. (1981) 30 Cal.3d 176, 190-191 [178 Cal.Rptr. 324, 636 P.2d 13]; People v. Davis (1981) 29 Cal.3d 814, 827 & fn. 5 [176 Cal.Rptr. 521, 633 P.2d 186]; People v. Serrato (1973) 9 Cal.3d 753, 763-765 [109 Cal.Rptr. 65, 512 P.2d 289], disapproved on another point
Section 667 subdivision (e) provides in pertinent part: “For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction: [H ... [ID (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: [*]D (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions. [<]D (ii) Imprisonment in the state prison for 25 years. [H (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.” Putting aside the issue of enhancements, the greatest determinate term that can be applied to a defendant as a result of the count 2 robbery sentence is five years. (§213, subd. (a)(2).) However, when a defendant has two prior serious felony convictions, the greatest term that can be imposed is twenty-five years to life pursuant to section 667, subdivision (e)(2)(A)(ii) putting aside the issue of enhancements.
The Attorney General argues that the sentences must run consecutively. We agree with the Attorney General that consecutive sentencing is mandated
The judgment is modified to reflect 263 days of actual custody credit, and a total of 373 days of presentence custody credit. The sentence as to count 2 is ordered modified to 26 years to life. The sentence as to count 1 is ordered to run consecutively to count 2. The judgment as modified is affirmed. The court is directed to prepare and deliver a corrected abstract of judgment to the Department of Corrections.
Grignon, J., and Godoy Perez, J., concurred.
Appellant’s petition for review by the Supreme Court was denied May 22, 1996. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.
All future statutory references are to the Penal Code.
See footnote, ante, page 364.
As noted in the body of this opinion, there are three possible sentencing options set forth in section 667, subdivision (e)(2)(A) when a defendant has previously sustained two prior serious or violent felony convictions. The first and third options (§ 667, subd. (e)(2)(A)(i) & (iii)) do not apply under the facts of this case. The first option set forth in section 667, subdivision (e)(2)(A)(i) is to triple the “punishment for each current felony conviction subsequent to the two or more prior felony convictions.” After the punishment is tripled, it serves as the minimum period of incarceration of the indeterminate life term. In this case, disregarding for purposes of discussion the enhancement, this would result in an indeterminate sentence of 15 years to life. The third sentencing option available to judges when the accused has experienced two prior serious or violent felony convictions is to impose an indeterminate life sentence with the minimum term being the determinate term plus any enhancements. (§ 667, subd. (e)(2)(A)(iii).) Under this third option, the result would be an indeterminate term of six years to life. Since section 667, subdivision (e)(2)(A) requires the greatest of the three options be given to the defendant, the twenty-five-year-to-life sentence is the sentence choice that must be imposed as to count 2. (§ 667, subd. (e)(2)(A)(ii).)
Defendant relies on People v. Guerin (1972) 22 Cal.App.3d 775, 779-783 [99 Cal.Rptr. 573], for the proposition he could not be punished for robbery of two victims because while one victim was in actual possession of the cash, the other victim was only in constructive possession of the cash. Defendant’s argument is premised on an inaccurate description of the facts in this case. Moreover, the reliance on Guerin is misplaced. Guerin was overruled in People v. Ramos, supra, 30 Cal.3d at page 589, footnote 16. Ramos held Guerin incorrectly read the robbery statute as requiring multiple takings to sustain multiple convictions; instead, Ramos held, two convictions of robbery are proper if force or fear was applied to two victims in joint possession of property. (People v. Ramos, supra, 30 Cal.3d at p. 589.) In the present
Defendant also relies on subdivision (c)(6) and (7) of section 667 in arguing consecutive sentences cannot be imposed for the current offenses. Those subdivisions apply to current convictions “not committed on the same occasion, and not arising from the same set of operative facts.” (§ 667, subd. (c)(6).) There is a lack of clarity as to the scope of the application of section 667, subdivision (c)(6) and (7). However, section 667, subdivision (e)(2)(B) is the controlling sentencing provision in the present case. Moreover, under subdivision (e)(2)(B) of section 667, consecutive sentences are mandatory.
Defendant was convicted of two counts of robbery occurring on a single occasion involving two victims where a principal was found to have used a firearm within the meaning of section 12022, subdivision (a)(1). Two separate firearm use by a principal findings were returned. At one time, it would have been impermissible for a court to impose sentences for both of the one-year terms for the section 12022, subdivision (a)(1) findings. In the decision of In re Culbreth (1976) 17 Cal.3d 330, 333-334 [130 Cal.Rptr. 719, 551 P.2d 23], overruled in People v. King (1993) 5 Cal.4th 59, 79 [19 Cal.Rptr.2d 233, 851 P.2d 27], the California Supreme Court held that only a single section 12022.5 enhancement may be imposed for use of a firearm on a single occasion against multiple victims. The Courts of Appeal applied that rule to armed allegations pursuant to the various versions of section 12022. (People v. Nguyen (1988) 204 Cal.App.3d 181, 194 [251 Cal.Rptr. 40]; People v. Jordan (1984) 155 Cal.App.3d 769, 786 [203 Cal.Rptr. 172]; People v. Freeman (1979) 95 Cal.App.3d 917, 924-925 [157 Cal.Rptr. 454]; People v. Robinson (1977) 66 Cal.App.3d 624, 629-630 [136 Cal.Rptr. 127].) In an opinion filed May 17, 1993, our Supreme Court reconsidered Culbreth and held that multiple sentencing for personal firearm use on a single occasion was permissible. (People v. King, supra, 5 Cal.4th at p. 79.) However, in order to avoid due process concerns (Bouie v. City of Columbia (1964) 378 U.S. 347, 354 [12 L.Ed.2d 894, 900, 84 S.Ct. 1697]; People v. Escobar (1992) 3 Cal.4th 740, 752 [12 Cal.Rptr.2d 586, 837 P.2d 1100]), King was not to be applied retroactively. (People v. King, supra, 5 Cal.4th at pp. 79-81; accord, People v. Davis (1994) 7 Cal.4th 797, 812 [30 Cal.Rptr.2d 50, 872 P.2d 591].) The constitutional bar against retroactive application of King is inapplicable to the present case. The robberies in this case occurred on May 22, 1994, more than one year after King was decided. Hence, King is the controlling authority and defendant is properly subject to multiple punishment for a principal’s firearm use during robberies occurring on a single occasion. Further, the full one-year term must be imposed. Section 1170.1, subdivision (a), insofar as it allows for the imposition of one-third of a statutory term as an enhancement in the case of a violent felony (§ 667.5, subd. (c)) is inapplicable. Among other reasons, this is because defendant has not been sentenced to one of three potential determinate terms pursuant to sections 1168, subdivision (a) and 1170, subdivision (a)(3). Rather, because indeterminate sentencing has occurred pursuant to sections 667, subdivision (e)(2)(A)(ii) and 1168, subdivision (b), there may be no reduction to one-third of the section 12022, subdivision (a)(1) enhancement as would occur if a determinate term had been imposed. (People v. Jackson (1993) 14 Cal.App.4th 1818, 1833 [18 Cal.Rptr.2d 586]; People v. Reyes (1989) 212 Cal.App.3d 852, 856 [260 Cal.Rptr. 846]; People v. Boney (1982) 136 Cal.App.3d 744, 748 [186 Cal.Rptr. 511]; People v. Day (1981) 117 Cal.App.3d 932, 936-937 [173 Cal.Rptr. 9]; People v. Walling (1980) 105 Cal.App.3d 893, 896 [164 Cal.Rptr. 681]; People v. Veasey (1979) 98 Cal.App.3d 779, 788 [159 Cal.Rptr. 755].)
Reference
- Full Case Name
- THE PEOPLE, and v. TRACEY MILES, and
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- Published