Opinion
F085277
11-09-2023
THE PEOPLE, Plaintiff and Respondent, v. PASCUAL SANCHEZ, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, No. F22902534 Alvin M. Harrell III, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Clifford E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
Defendant Pascual Sanchez claims on this appeal that his sentence was unauthorized. Defendant contends that Penal Code section 245, subdivision (f)(1) is a sentencing enhancement and as such, the trial court erred when it sentenced him on multiple counts of corporal injury on a spouse with a prior domestic violence conviction under section 245, subdivision (f)(1) based on the same prior domestic violence conviction. The People disagree arguing section 245, subdivision (f)(1) is an alternate penalty provision, not a sentencing enhancement, and the sentence is proper. We agree with the People and reject defendant's claim.
Hereinafter, all undesignated statutory references are to the Penal Code.
PROCEDURAL SUMMARY
Defendant was charged with assault with a deadly weapon (§ 245, subd. (a)(1), count 1) and three counts of corporal injury on a spouse or cohabitant with a prior domestic violence conviction (§ 273.5, subd. (f)(1), counts 2-4). For counts 1, 2, and 3, it was alleged that defendant inflicted great bodily injury on the victim (§ 12022.7, subd. (e)). It was further alleged that defendant had been convicted of a prior strike conviction (§ 667, subds. (b)-(i)) and a serious felony conviction (§ 667, subd. (a)). A jury convicted defendant on all counts and found true the great bodily injury enhancements. Defendant admitted his section 422 conviction, which was alleged as a prior strike and serious felony conviction under section 667, subdivision (a)(1), and admitted various aggravating factors.
The trial court sentenced defendant to an aggregate term of 25 years two months in state prison. Defendant's sentence is comprised of: (count 2) four years, doubled to eight years due to the strike, plus a consecutive four-year term for the great bodily injury enhancement; (count 1) one year, doubled to two years due to the strike, plus consecutive four years for the great bodily injury enhancement, which was stayed pursuant to section 654; (count 3) two years eight months consecutive to count 2, plus consecutive two years eight months for the great bodily injury enhancement; (count 4) two years eight months consecutive to count 3; and a consecutive five-year term for the serious felony enhancement.
FACTUAL SUMMARY
I. December 29, 2021 Incident (Count 4)
Defendant and M.S. were married for over 20 years; they share two children. On December 29, 2021, defendant was driving with M.S. in the car when they got into an argument. Defendant started punching M.S., pulling her hair and telling her to shut up. M.S. covered her head and face and told him to stop. M.S. ended up with a painful lump on her head.
II. March 3, 2022 Incident (Count 1)
M.S. was living with her grandmother and defendant had recently moved out. On March 3, 2022, M.S. went to a funeral and when she returned home, defendant was asleep on the couch. They got into an argument after M.S. asked defendant why the front door was unlocked and why he was not packed to move from the residence. Defendant became angry and grabbed M.S. by the hair, threw her on the couch and started grabbing things and throwing them everywhere. Defendant punched, hit and kicked M.S. As M.S. got up to run, defendant threw a hammer at M.S., hitting her in the middle of her head and causing her to pass out for a minute.
III. March 3, 2022 Incident (Count 2)
After being hit by the hammer, M.S. regained consciousness and got up and ran down the hallway. Defendant chased after M.S. and beat her and kicked her in the head, face and side of her body. Defendant's beatings stopped when defendant's friend Kara came to the door. Defendant left because M.S. paid Kara $40 to take defendant and get him out of there.
IV. March 3, 2022 Incident (Count 3)
Defendant returned to M.S.'s grandmother's place about an hour later to get his car. While he was there, defendant punched M.S. in her nose with his closed fist, causing her nose to bleed. Defendant left and the police arrived.
V. Great Bodily Injury and Evidence of Prior Conviction
M.S. suffered bruising, a hematoma on her forehead and tenderness of her ribs near her kidney, as well as lingering pain. M.S. had fractures to her nasal bone and nasal septum. M.S. testified she still had a dent in her head at the time of the trial.
The prosecutor submitted an abstract ofjudgment from Fresno County Superior Court case No. F15901820 as evidence of defendant's March 21, 2015, prior domestic violence conviction of section 273.5, subdivision (a), which was admitted into evidence.
DISCUSSION
I. The Trial Court Did Not Err When It Sentenced Defendant to Three Convictions of Section 273.5, subdivision (f)(1) Using the Same Prior Domestic Violence Conviction.
Defendant contends that the elevated sentence under section 273.5, subdivision (f)(1) is an enhancement and section 654 prohibits the use of the same prior conviction in count 2 to enhance counts 3 and 4. The People disagree and contend section 273.5, subdivision (f)(1) is not an enhancement but an alternate penalty scheme, which permits multiple counts based on the same prior conviction. We agree with the People and reject defendant's claim.
A. Relevant Factual and Procedural Background
Defendant was found guilty in counts 2, 3, and 4 of inflicting corporal injury on his spouse with a prior domestic violence conviction in violation of section 273.5, subdivision (f)(1). Defendant's 2015 conviction in Fresno County Superior Court case No. F15901820 was used as the prior conviction for all three counts. At sentencing, the trial court applied the triad under subdivision (f)(1) making the midterm four years on count 2, which was doubled to eight years. As to counts 3 and 4, defendant received one-third the four year midterm of 16 months, which was doubled to two years eight months. Defendant did not object to the use of the same prior domestic violence conviction to support each of the three counts under subdivision (f)(1).
B. Applicable Law and Standard of Review
Defendant is raising an issue of statutory construction which is reviewed de novo.
(People v. Williams (2010) 184 Cal.App.4th 142, 146.) "Our primary task 'in interpreting a statute is to determine the Legislature's intent, giving effect to the law's purpose. [Citation.] We consider first the words of a statute, as the most reliable indicator of legislative intent.'" (California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1041.)"' "We interpret relevant terms in light of their ordinary meaning, while also taking account of any related provisions and the overall structure of the statutory scheme to determine what interpretation best advances the Legislature's underlying purpose." '" (In re A.N. (2020) 9 Cal.5th 343, 351 (A.N.); In re R.T. (2017) 3 Cal.5th 622, 627.)" 'If the meaning is without ambiguity, doubt or uncertainty, then the language controls.'" (Department of Motor Vehicles v. Superior Court (2002) 100 Cal.App.4th 363, 371; see Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1238-1239.)" 'If we find the statutory language ambiguous or subject to more than one interpretation, we may look to extrinsic aids, including legislative history or purpose to inform our views.'" (A.N., at pp. 351-352; see John v. Superior Court (2016) 63 Cal.4th 91, 96; accord, Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 293.)
Section 273.5, subdivision (a), makes it a crime to willfully inflict corporal injury on a spouse or cohabitant. The punishment for the crime is two, three, or four years in state prison or punishment in the county jail for up to a year. (§ 273.5, subd. (a).)
Section 273.5, subdivision (f)(1) provides, "[a]ny person convicted of violating this section for acts occurring within seven years of a previous conviction under subdivision (a), or subdivision (d) of Section 243, or Section 243.4, 244, 244.5, or 245, shall be punished in a county jail for not more than one year, or by imprisonment in the state prison for two, four, or five years or by both imprisonment and a fine ._"
Sentence enhancements and penalty provisions are distinct from each other. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 898 (Robert L.).) While sentence enhancements and penalty provisions generally serve similar functions, there is a difference between the two, which "is subtle but significant." (People v. Jones (2009) 47 Cal.4th 566, 578 (Jones).) A sentence enhancement is" 'an additional term of imprisonment added to the base term.'" (RobertL., at p. 898, quoting Cal. Rules of Court, former rule 4.405(c); Jones, at p. 578.) Rule 4.405(5), defines an enhancement as "an additional term of imprisonment added to the base term." There are two types of sentence enhancements: (1) status enhancements which go to the nature of the offender; and (2) conduct enhancements which go to the nature of the offense. (People v. Coronado (1995) 12 Cal.4th 145, 156; People v. Edwards (2011) 195 Cal.App.4th 1051, 1057.) A conduct enhancement is based on the defendant's conduct in committing the charged offense, such as the personal use of a weapon or the infliction of great bodily harm, and is imposed on the count to which it applies. (Edwards, at p. 1057; Coronado, at p. 157.) "Enhancements based on prior convictions are status enhancements. Because they are related to the status of the offender, rather than the manner of commission of a crime, they are applied only once, in arriving at an aggregate sentence." (Edwards, at p. 1057; Coronado, at p. 157; People v. Williams (2004) 34 Cal.4th 397, 402 [section 667, subdivision (a) applies only once even if the defendant has multiple serious felony convictions].) Section 654 applies to conduct enhancements but not status enhancements. (People v. Ahmed (2011) 53 Cal.4th 156, 162; People v. Wong (2018) 27 Cal.App.5th 972, 979-980.)
All further references to rules are to the California Rules of Court.
By contrast, a penalty provision "prescribes an added penalty to be imposed when the offense is committed under specified circumstances." (People v. Bright (1996) 12 Cal.4th 652, 661 (Bright), overruled on other grounds in People v. Seel (2004) 34 Cal.4th 535, 542-550.) In other words, it is an" 'alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the conditions specified in the statute.'" (Jones, supra, 47 Cal.4th at p. 578.)
VI. Forfeiture
It is not disputed that defendant failed to raise the challenge regarding use of the same prior domestic violence conviction to elevate counts 2, 3, and 4 in the trial court. However, both parties concede that since defendant's claim alleges that his sentence was unauthorized, it is not forfeited since an unauthorized sentence may be raised at any time. (See People v. Scott (1994) 9 Cal.4th 331, 354-355.) We agree. A claim that a sentence is unauthorized "constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal." (Id. at p. 354.) As such, defendant's claim is not deemed forfeited for purposes of this appeal.
VII. Analysis
Defendant contends that section 273.5, subdivision (f)(1) is a status enhancement and should have been applied only once to the aggregate sentence and not to the three separate counts. Defendant contends that "the structure of section 273.5 suggests that it is a status enhancement" since the "only factor elevating the punishment under subdivision (f)(1) is a prior conviction which is commonly understood to be a status enhancement." Defendant further argues "[t]he subdivision uses the word 'acts' which contemplates more than one possible current conviction because the word is plural[,]" but "does not provide for elevated punishment for each current conviction suggesting the enhanced punishment should be imposed only once." For these reasons, defendant argues the sentences for counts 3 and 4 should be modified from two years eight months to two years. The People respond that section 273.5, subdivision (f)(1) is not an enhancement but an alternate penalty provision since the elevated prison term is based on the defendant's status as a recidivist and in lieu of, not in addition to, the base term on the substantive offense. Defendant and respondent agree there are no published cases on point resolving this specific issue.
We begin by distinguishing between sentence enhancements and alternate penalty provisions. "By definition, a sentence enhancement is 'an additional term of imprisonment added to the base term.'" (Robert L., supra, 30 Cal.4th at pp. 898-899; rule 4.405(5); see Bright, supra, 12 Cal.4th at p. 667; see also People v. Jefferson (1999) 21 Cal.4th 86, 101 (Jefferson).) Examples of sentence enhancements are firearm enhancements under sections 12022.5 and 12022.53 (People v. Gonzalez (2008) 43 Cal.4th 1118, 1124), great bodily injury enhancements under section 12022.7 (People v. Cook (2015) 60 Cal.4th 922, 925-926) and enhancements based on prior convictions, such as section 667, subdivision (a) (People v. Williams, supra, 34 Cal.4th at p. 402).
" '[A] penalty provision prescribes an added penalty to be imposed when the offense is committed under specified circumstances. A penalty provision is separate from the underlying offense and does not set forth elements of the offense or a greater degree of the offense charged. [Citations.]'" (Robert L., supra, 30 Cal.4th at p. 899; Bright, supra, 12 Cal.4th at p. 661 [penalty provisions are separate from underlying offenses and do not set forth elements of an offense or degrees of an offense]; Jefferson, supra, 21 Cal.4th at p. 101 [a penalty provision "sets forth an alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the conditions specified in the statute."].) A penalty provision does not define a substantive offense, but"' "focus[es] on an element of the commission of the crime or the criminal history of the defendant which is not present for all such crimes and perpetrators and which justifies a higher penalty than that prescribed for the offenses themselves." [Citation.]'" (People v. Wallace (2003) 109 Cal.App.4th 1699, 1702.) "The jury does not decide the truth of the penalty allegation until it first has reached a verdict on the substantive offense charged." (Bright, at p. 661; People v. Wolcott (1983) 34 Cal.3d 92, 101.) In other words, it is an" 'alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the conditions specified in the statute.'" (Jones, supra, 47 Cal.4th at p. 578.)
Based on the plain language of section 273.5, subdivision (f)(1), giving terms their ordinary meaning, the statute meets the definition of a penalty provision and not an enhancement. (See A.N., supra, 9 Cal.5th at p. 351; see also In re R. T., supra, 3 Cal.5th at p. 627.) Section 273.5, subdivision (f)(1) is separate from an underlying offense and does not set forth elements of an offense or degrees of an offense. (See Robert L., supra, 30 Cal.4th at p. 899; Bright, supra, 12 Cal.4th at p. 661.) Subdivision (f)(1) also prescribes an alternate and higher prison term triad based on the circumstance of having a prior domestic violence conviction within seven years. (See Jefferson, supra, 21 Cal.4th at p. 101.) Moreover, subdivision (f)(1) does not describe an enhancement since it does not add an additional term of imprisonment to the base term, but sets forth an alternate, elevated triad. (See Robert L., at p. 898; rule 4.405(5).)
For example, the court in Robert L. considered section 186.22, subdivision (d), which provides that any "person who is convicted of a public offense, punishable as a felony or misdemeanor, that is committed for the benefit of . . . a criminal street gang ... [shall receive a specified penalty]." The court concluded that section 186.22, subdivision (d) was not a sentence enhancement "because it does not add an additional term of imprisonment to the base term; instead it provides for an alternative sentence when it is proven ._ Neither is it a substantive offense because it does not define or set forth elements of a new crime." (Robert L., supra, 30 Cal.4th at p. 899.) Rather, the court determined section 186.22, subdivision (d) "prescribes an alternate penalty when the underlying offense is committed under specified circumstances; here, for the benefit of, at the direction of, or in association with, a criminal street gang." (Robert L., at p. 900.) We applied the same analysis above in considering section 273.5, subdivision (f)(1) to be an alternate penalty provision rather than an enhancement.
In People v. Levesque (1995) 35 Cal.App.4th 530, the defendant argued that sections 667.51, subdivision (d), and 647.6 are enhancements and that section 654 prohibits use of the same prior conviction to enhance both convictions. (Levesque, at p. 546.) The court rejected defendant's claim on the basis that neither sections 667.51, subdivision (d), nor 647.6 are enhancements since the sentence imposed is in lieu of, not in addition to, the base term on the substantive offense. (Levesque, at p. 546.) Neither statute constituted a sentence enhancement and section 654 did not apply. (Levesque, at pp. 546-547.) Similarly, in People v. Decker (1988) 199 Cal.App.3d 694, the court concluded that section 667.51, subdivision (c) was not an enhancement but a penalty provision. (Decker, at p. 697.)
We disagree with defendant that the decision in Decker has no relevance here because it was based on the fact that enhancements by definition are not part of the indeterminate sentencing laws. The Decker court stated that indeterminate terms are not enhancements within the meaning of People v. Tassell (1984) 36 Cal.3d 77, overruled by People v. Ewoldt (1994) 7 Cal.4th 380, 401, which addressed enhancements for prior convictions under section 667.5 and not the penalty provision at issue in Decker. (Decker, supra, 199 Cal.App.3d at p. 697.) Instead, the same analysis used to distinguish between an enhancement and a penalty provision applies to statutes with determinate sentences. In People v. Bouzas (1991) 53 Cal.3d 467, the court held that section 666, which is petty theft with a prior theft-related conviction, "is structured to enhance the punishment for violation of other defined crimes and not to define an offense in the first instance." (Bouzas, at p. 478.) "In other words, a charge under section 666 merely puts a defendant on notice (see § 969 [prior convictions must be alleged in the information]) that if he is convicted of the substantive offense and if the prior conviction and incarceration allegation of section 666 is admitted or found true, he faces enhanced punishment at the time of sentencing." (Bouzas, at p. 479.) As such, the court concluded that section 666 establishes a penalty provision. (Bouzas, at p. 478.)
Lastly, in People v. Muhammad (2007) 157 Cal.App.4th 484, the court explained that section 646.9, subdivision (a) set forth the elements of the crime of stalking while subdivisions (b) and (c) focused on the criminal history of the defendant which justified a higher penalty than the prescribed penalty for stalking under subdivision (a). (Muhammad, at p. 493; see People v. Wallace, supra, 109 Cal.App.4th at p. 1702; see also People v. Tardy (2003) 112 Cal.App.4th 783, 787 [§ 666 gives court authority to impose felony sentence on the defendant convicted of misdemeanor petty theft who has a prior theft conviction].) "The effect of [section 646.9,] subdivisions (b) and (c) is to establish a higher base term for stalking when it is committed by a defendant with a particular criminal history." (Muhammad, at p. 494.) Furthermore, "the jury does not consider the truth of these penalty facts until it has reached a verdict on the substantive stalking offense under subdivision (a)." (Ibid.; see Bright, supra, 12 Cal.4th at p. 661.) Therefore, the Muhammad court concluded that subdivisions (b), (c)(1), and (2) of section 646.9 were penalty provisions and not enhancements. (Muhammad, at p. 494.) In the same way here, section 273.5, subdivision (f)(1) elevates the punishment for a domestic violence conviction under subdivision (a) when the defendant has the specific circumstance of having a prior domestic violence conviction within seven years. Like the analysis applied in Muhammad, the effect of subdivision (f)(1) "is to establish a higher base term for [domestic violence] when it is committed by a defendant with a particular criminal history." (See Muhammad, at p. 494.)
We agree with the People that People v. Cross (2015) 61 Cal.4th 164 does not support defendant's claim. The issue in Cross was whether the defendant's stipulation to a prior conviction, which increased punishment under section 273.5, subdivision (f), meant he was entitled to receive Boykin - Tahl warnings before he made his admission. (Cross, at p. 174.) The appellate court reasoned that the existence of a prior conviction was not an element of the offense but a factor in an alternate sentencing scheme, but the Cross court stated it "[did] not see a meaningful distinction between an 'enhancement' and an 'alternative sentence scheme' in this context." (Id. at p. 175.) The court noted that "Yurko did not parse whether former section 644, subdivision (b) specified an 'enhancement' or an 'alternative sentencing scheme.' Such nomenclature played no role in our analysis. What mattered was that the defendant's unwarned admission of prior convictions automatically exposed him to 'added penalties.'" (Cross, at p. 176; In re Yurko (1974) 10 Cal.3d 857, 863.) As such, Cross did not decide whether section 273.5, subdivision (f)(1) was a sentencing enhancement or alternative sentencing scheme, because the distinction was not relevant in this case. (See Cross, at p. 178.) Ultimately, the court concluded that since the stipulation had the direct consequence of subjecting defendant to a longer prison term for his current offense the trial court should have advised defendant of his trial rights and elicited waiver of those rights. (Id. at p. 179.)
Boykin v. Alabama (1969) 395 U.S. 238. In re Tahl (1969) 1 Cal.3d 122.
We disagree with defendant's contention that the holding in Edwards means that section 273.5, subdivision (f)(1) is a status enhancement, making the prior conviction only able to be used once to elevate the current domestic violence convictions. The court concluded that Health and Safety "section 11370.2 enhancements are status enhancements, which can be imposed only once, as part of the aggregate sentence." (People v. Edwards, supra, 195 Cal.App.4th at p. 1057.) However, the issue in Edwards was not whether subdivisions (a) and (c) of Health and Safety Code section 11370.2, are enhancements or alternate penalty provisions, but whether they are conduct enhancements or status enhancements. (Edwards, at pp. 1057-1058.) Therefore, the analysis in Edwards does not apply to section 273.5, which is not an enhancement, but a penalty provision.
Last, we are not persuaded by defendant's argument that because section 273.5, subdivision (f)(1) uses the word" 'acts'" it "contemplates more than one possible current conviction" but does not provide for elevated punishment for each conviction, "suggesting the enhanced punishment should be imposed only once." This argument is not supported by any authority. And the plain language of the statute that "[a]ny person convicted of violating this section for acts occurring within seven years of a previous conviction under subdivision (a)" actually allows for the prior conviction to apply to the current convictions, plural. The language does not expressly limit imposition of the elevated punishment to only one conviction.
Accordingly, we reject defendant's contention that section 273.5, subdivision (f)(1) is a status enhancement that should have only applied once to the aggregate sentence, and conclude the trial court did not err by applying the one prior domestic violence conviction to support the three counts of section 273.5, subdivision (f)(1).
DISPOSITION
We affirm the judgment. --------- Notes: [*] Before Levy, Acting P. J., Detjen, J. and Pena, J.