Other Multiple Uses of Prior Convictions
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The appellate courts say that there is no impediment to using prior
convictions to disadvantage a defendant in several ways. A prior conviction may
be an element of a crime, as in the case of the crime of being a felon in
possession of a weapon, and may also serve as a strike, increasing the
punishment for that crime. (People v. Nobleton (1995) 38 Cal.App.4th 76,
80.) In People v. Sipe (1995) 36 Cal.App.4th 468, the defendant
committed the crime of escape while charged with a felony. His sentence was
doubled under the three strikes law because the felony he was charged with when
he escaped served as a prior strike.
In People v. White Eagle
(1996) 48 Cal.App.4th 1511, 1516, 1518, 1521, a defendant's prior conviction
was used in three ways: to raise his current conviction for petty theft from a
misdemeanor to a felony, to increase his sentence under Penal Code section
667.5, subdivision (b) (which adds a year if the defendant was in prison within
five years of the current offense), and to double his sentence under the Three
Strikes law. Surely the voters never knew or intended that one prior felony
could be used in several separate ways to increase a later sentence for a petty
offense.
The defendant in People v. Yarborough (1998) 65
Cal.App.4th 1417, 1419, was convicted of failing to register as a sex offender,
and the sex offense that resulted in the registration requirement was used as a
prior strike to increase his punishment. The court decided that the usual rule
prohibiting use of a prior conviction both as an element of a crime and to
augment a sentence applies only when the new offense would not be criminal in
the absence of the prior conviction. Despite the fact that a failure to
register as a sex offender is not criminal for anyone who has not been
convicted of a sex offense, the court concluded that a failure to register is
"inherently criminal." (People v. Yarborough, supra, at p.
1420.)
People v. Tillman (1999) 73 Cal.App.4th 771, 786 was a
similar case. In Tillman, the court rejected the reasoning of
Yarborough and yet reached the same result. The rule against using a
single prior conviction both as an element of the new crime and to increase the
punishment for the new crime, the Court said, was intended to effectuate
legislative intent, and the legislature changed its intent in the Three Strikes
law. The stated intent of the Three Strikes law is 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." (Historical
Note, 50B West's Ann. Pen. Code, § 1170.12, (1999 pocket supp.), p. 145,
Prop. 184 (Nov. 8, 1994) Preamble.) According to the Court, that statutory
intent supplants the earlier interpretive rule. (People v. Tillman,
supra, 73 Cal.App.4th at pp. 781-782.)
The Supreme Court decided
that People v. Tillman got it right. In People v. Garcia
(S081934), decided May 31, 2001, the Supreme Court ruled that the Three Strikes
law discloses the Legislature's intent to impose the increased penalty despite
the dual use of the prior conviction. Thus, the rule prohibiting the dual use
of prior convictions does not apply in the context of the Three Strikes law.
Despite the rulings that a prior conviction may be used to disadvantage
the defendant in numerous ways, relief from such multiple use is sometimes
available through a Romero motion (People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 529-530) to dismiss a strike. (See section
entitled "Dismissing a Strike.") In People v. Cluff (2000) 87
Cal.App.4th 991, the First District, Division 3, decided that using a prior sex
offense as a strike was a reversible abuse of judicial discretion in the case
of a third-strike defendant whose current offense was a failure to register as
a sex offender. The defendant had registered whenever he changed his address,
but had failed to confirm his address annually as required by the sex offender
registration law. The requirement of annual re-registration had been enacted
five years after the defendant was released from prison. The Court of Appeal
ruled that the trial court had abused its discretion by failing to strike a
strike, because the sentence of twenty-five years-to-life "appears
disproportionate by any measure." (Id. at p. 1004.)
A prior
felony conviction may be used both to increase the sentence under the Three
Strikes law and to add a five-year enhancement under Penal Code section 667,
subdivision (a). In People v. Dotson (1997) 16 Cal.4th 547, the court
sentenced the defendant under the Three Strikes law to an indeterminate term of
life imprisonment, with a minimum term calculated by adding the upper term (six
years) for his current first degree burglary to a five-year enhancement for
each of four prior serious felony convictions, resulting in a minimum
indeterminate term of twenty-six years to life. (Id. at p. 551.) This
was not enough, the Supreme Court (unanimously!) ruled; the trial court should
also have imposed a separate determinate term of 20 years by reason of the four
5-year enhancements, to run prior to the indeterminate term. (Id. at p.
553.)
Other cases approving multiple uses of prior convictions are
People v. Anderson (1995) 35 Cal.App.4th 587, 592; People v. Ramirez
(1995) 33 Cal.App.4th 559; People v. Dominguez (1995) 38 Cal.App.4th
410; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1137, 1139;
People v. Turner (1995) 40 Cal.App.4th 733, 740, 742; People v.
Ingram (1995) 40 Cal.App.4th 1397, 1411, disapproved on other grounds in
People v. Dotson (1997) 16 Cal.4th 547, 560, fn. 8; People v.
Purata (1996) 42 Cal.App.4th 489, 498; People v. Nelson (1996) 42
Cal.App.4th 131. These cases say that the "clear language" of the three strikes
law reveals that the legislature intended multiple uses of prior convictions.
In People v. Acosta (2002) 29 Cal.4th 105, the California Supreme Court
ruled that it was proper to use a prior conviction as a strike, as a basis for
referencing the One Strike Law in calculating the minimum term under the Three
Strikes Law, and to impose a five-year enhancement under section 667, subdivision (a).
Another recidivism
statute, section 667.71, which punishes habitual sexual offenders, applies in
addition to the Three Strikes law. So held the Supreme Court in People v.
Murphy, 25 Cal.4th 136, decided March 29, 2001. The defendant in that case
received a sentence for each of his new convictions that was increased by the
Three Strikes law and also received a habitual sexual offender sentence of
twenty-five years to life for each of the new convictions.
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Date last modified: 1/10/04.
