People v. Vargas

Filed 7/10/14

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S203744

v. )

) Ct.App. 2/8 B231338

DARLENE A. VARGAS, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. KA085541

____________________________________)

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.

INTRODUCTION

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

1 See Penal Code section 667, subdivisions (b)–(i). All statutory references

are to the Penal Code.

2 Section 1170.12 was enacted as part of Proposition 184 in 1994.

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.) 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.)

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.) 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

(§ 654), we held such close factual and temporal connection did not prevent the

trial court from later treating the two convictions as separate strikes when the

accused reoffended. (People v. Benson (1998) 18 Cal.4th 24 (Benson).)

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 electorate (§ 1170.12) nor the

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Legislature (§ 667, subds. (b)–(i)) could have intended that both such prior

convictions would qualify as separate strikes under the Three Strikes law, treating

them as separate strikes is inconsistent with the spirit of the Three Strikes law, and

the trial court should have dismissed one of them and sentenced defendant as if

she had only one, not two, qualifying strike convictions.

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 (§ 459), grand

theft (§ 487, subd. (a)), and conspiracy to commit grand theft (§ 182, subd. (a)(1)).

In addition, the court sustained allegations that she had suffered a prior serious

felony conviction (§ 667, subd. (a)), as well as two strikes within the meaning of

the Three Strikes law: a 1999 conviction for carjacking (§ 215) and another for

robbery (§ 211). Because her three present crimes (burglary, grand theft,

conspiracy) were qualifying felonies under the version of the Three Strikes law

3

applicable at the time,3 all three felonies were potentially subject to enhancement

by her two alleged strikes, rendering her vulnerable to three consecutive terms of

25 years to life, or an aggregate prison term of 75 years to life. She moved to

dismiss the carjacking strike as to all counts. The trial court granted the motion in

part, dismissing the carjacking strike conviction as to the grand theft and

conspiracy counts, but declining to dismiss the remaining conviction for burglary.

B. Appeal and Resentencing

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

3 Neither grand theft nor conspiracy to commit grand theft would now

qualify for Three Strikes treatment under the version of the law as amended by the

Three Strikes Reform Act of 2012, approved by the electorate as Proposition 36 on

November 6, 2012.

Because defendant‘s burglary was of a home, it constitutes burglary in the

first degree and is thus a ―serious felony‖ pursuant to section 1192.7, subdivision

(c)(18). (See People v. Cruz (1996) 13 Cal.4th 764, 768.) Accordingly, defendant

is not entitled to have her Three Strikes sentence for burglary recalled under the

terms of the new law. (See § 1170.126, subd. (b).)

4

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.

B. Analysis

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

5

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.‖4 We settled the issue in People v. Superior Court (Romero) (1996) 13

Cal.4th 497, 529–530 (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, 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, 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

4 Section 1385, subdivision (a), states: ―The judge or magistrate may, either

of his or her own motion or upon the application of the prosecuting attorney, and

in furtherance of justice, order an action to be dismissed. The reasons for the

dismissal must be set forth in an order entered upon the minutes. No dismissal

shall be made for any cause which would be ground of demurrer to the accusatory

pleading.‖

6

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 case falls

into this rare category, that is, where the facts—here, that defendant‘s two strikes

were based on the same act—demonstrate that no reasonable person would

disagree that defendant fell outside the spirit of the Three Strikes law. This court

faced a related issue in Benson, supra, 18 Cal.4th 24, where the defendant had two

prior strike convictions based on a single incident: after returning his neighbor‘s

vacuum cleaner, which he had borrowed, he returned to her apartment ostensibly

to retrieve his keys, whereupon he grabbed her, forced her to the floor, and

eventually stabbed her multiple times. Based on this incident, he was convicted of

residential burglary (§ 459) and assault with the intent to commit murder (former

§ 217). Because these two felonies were based on the same course of conduct, the

trial court stayed one of the defendant‘s two prior convictions pursuant to section

654,5 which expressly prohibits separate punishment for two crimes based on the

same act, but has been interpreted to also preclude multiple punishment for two or

more crimes occurring within the same course of conduct pursuant to a single

intent. (See Neal v. State of California (1960) 55 Cal.2d 11, 19.)

5 Section 654, subdivision (a), provides in pertinent part: ―An act or

omission that is punishable in different ways by different provisions of law shall

be punished under the provision that provides for the longest potential term of

imprisonment, but in no case shall the act or omission be punished under more

than one provision.‖

7

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 section 654 did not affect whether a felony conviction qualified under

the Three Strikes law. (Benson, supra, 18 Cal.4th at pp. 28–31.) Thus, ―the

language of section 1170.12, subdivision (b)(1), unequivocally establishes that the

electorate intended to qualify as separate strikes each prior conviction that a

defendant incurred relating to the commission of a serious or violent felony,

notwithstanding the circumstance that the trial court, in the earlier proceeding,

may have stayed sentence on one or more of the serious or violent felonies under

compulsion of the provisions of section 654.‖ (Benson, supra, at p. 31.)

Benson also rejected the defendant‘s argument that permitting a conviction

for which punishment was stayed to qualify as a strike would lead to ― ‗dramatic

and harsh results‘ ‖ (Benson, supra, 18 Cal.4th at p. 35), explaining that ―[i]n the

absence of any constitutional infirmity, . . . we are not at liberty to alter the

intended effect of a statute on such grounds.‖ (Id. at p. 36.) But as if presaging

the current case, Benson continued: ―It is worth noting . . . that our decision in

Romero, supra, 13 Cal.4th 497, affirms that a trial court retains discretion in such

cases to strike one or more prior felony convictions under section 1385 if the trial

court properly concludes that the interests of justice support such action.‖ (Ibid.)

The court expounded on this point in an accompanying footnote, adding:

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―Because the proper exercise of a trial court‘s discretion under section 1385

necessarily relates to the circumstances of a particular defendant‘s current and past

criminal conduct, we need not and do not determine whether there are some

circumstances in which two prior felony convictions are so closely connected—for

example, when multiple convictions arise out of a single act by the defendant as

distinguished from multiple acts committed in an indivisible course of conduct—

that a trial court would abuse its discretion under section 1385 if it failed to strike

one of the priors.‖ (Benson, supra, p. 36, fn. 8, italics added.)

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 (Sanchez),6

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 (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

6 Sanchez was overruled on an unrelated point in People v. Reed (2006) 38

Cal.4th 1224, 1228.

9

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.

On appeal, the defendant argued the trial court should have dismissed one

of his two strike convictions. The Burgos court, relying on Benson, supra, 18

Cal.4th 24, and Sanchez, supra, 24 Cal.4th 983, agreed. Burgos explained that the

defendant‘s prior felony convictions were, in Benson‘s language, ― ‗so closely

connected,‘ having arisen from the same single act, that the failure to strike one of

them must be deemed an abuse of discretion.‖ (Burgos, supra, 117 Cal.App.4th at

p. 1216.) Burgos noted further that (1) the carjacking statute specifically

precludes double punishment for both carjacking and robbery based on the same

act (§ 215, subd. (c)); (2) the defendant‘s criminal history was not particularly

severe or extensive, and his current offenses were not ―the worst of crimes‖

(Burgos, supra, at p. 1216); and (3) the defendant‘s maximum two-strike

sentence—20 years in prison—was itself quite severe (ibid.). Based on all these

factors, the Burgos court concluded the trial court erred in failing to dismiss one of

the strikes.

Five years later, the issue again arose in People v. Scott (2009) 179

Cal.App.4th 920 (Scott). In Scott, a jury convicted the defendant of two

felonies—possession by a prisoner of a sharp instrument and simple assault

(§§ 4502, subd. (a), 240) 7—and found two strike allegations true. He moved to

7 Although many types of assaultive crimes qualify for treatment under the

Three Strikes law, simple assault not involving deadly weapons, great bodily

injury, or specific victims such as peace officers or firefighters, does not. The

defendant in Scott was thus found to have committed only one felony that

qualified under the Three Strikes law: possession by a prisoner of a sharp

instrument (§ 4502, subd. (a)).

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dismiss one of his two prior strike convictions claiming, as here, that his prior

convictions (for robbery and carjacking) arose from the same act of forcibly taking

the victim‘s car. The trial court denied the motion and sentenced him to 25 years

to life in prison. On appeal, the Scott court declined to follow Burgos, finding the

basis of its holding ―difficult to discern. It can reasonably be read to state that in

such cases one strike must be stricken, or that the connection between the two

strikes is but one factor a trial court must consider in conducting a traditional

Romero analysis.‖ (Scott, supra, at p. 923, citing Romero, supra, 13 Cal.4th 497.)

After noting the confusion engendered by this lack of clarity, the Scott court

concluded that ―the ‗same act‘ circumstances posed by robbery and carjacking

cases provide a factor for a trial court to consider, but do not mandate striking a

strike.‖ (Scott, supra, at p. 931.) Because the trial court had applied that line of

reasoning and did not abuse its discretion, the Scott court affirmed the judgment.

The Court of Appeal in the instant case followed Scott.

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 possible two-

strike sentence), would be irrelevant to the analysis. But although Scott references

Benson‘s ―Famous Footnote 8‖ and its endorsement in Sanchez (Scott, supra, 179

Cal.App.4th at pp. 927–928), it rejected the footnote‘s clear import, concluding

that the circumstance a robbery and carjacking arose out of the same act is only

one factor for a trial court to consider, not a reason categorically to dismiss a strike

(id. at p. 931).

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,

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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 [citation], 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

[― ‗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

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sentence for the conviction. Any additional enhancements under existing law,

including those for prior convictions, are then added. [¶] Strike Three: A third

felony conviction, with two serious/violent prior felonies, TRIPLES the base

sentence or imposes 25 years to life, whichever is greater.‖ (Ballot Pamp., Gen.

Elec. (Nov. 8, 1994), argument in favor of Prop. 184, p. 36 (Ballot Pamphlet); see

generally, Romero, supra, 13 Cal.4th at p. 528 [ballot arguments of Three Strikes

initiative is evidence of voters‘ intent].)

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

13

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 done so does not of itself make an offender more

blameworthy, or more dangerous, within the meaning of the Three Strikes law. 8

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

8 Although the Three Strikes law provides that it applies ―[n]otwithstanding

any other provision of law‖ (§§ 667, subd. (c), 1170.12, subd. (a)), and we have

interpreted that phrase broadly to effectuate the intent to the law, to interpret this

catchall phrase so broadly as to permit the artificial inflation of the number of

qualifying strikes in this case from one to two is unjustified. To do so would

essentially recognize no limit at all to the ―[n]otwithstanding any other provision

of law‖ proviso.

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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. Section 215, subdivision (c), provides that a person can

be charged with both robbery and carjacking based on the same incident, but no

defendant may be punished for both crimes if based on the ―same act.‖9 This

9 Section 215, subdivision (c), states: ―This section shall not be construed to

supersede or affect Section 211. A person may be charged with a violation of this

section and Section 211. However, no defendant may be punished under this

(footnote continued on next page)

15

prohibition on doubling punishment is not uncommon (see, e.g., § 496, subd. (a)

[―no person may be convicted [of] both [receiving stolen property] and of the theft

of the same property‖]), and reflects the Legislature‘s assessment of the relative

moral blameworthiness and danger to society of such offenders.

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

section 654 the defendant was punished for only a single crime.‘ ‖ (Benson,

supra, 18 Cal.4th at p. 30, italics added.) But as noted, Benson involved multiple

criminal acts (albeit committed in a single course of conduct) and not, as here,

multiple criminal convictions stemming from the commission of a single act.

Benson itself recognized this distinction in its ―Famous Footnote 8‖ (Menaster &

Ricciardulli, 3 Strikes Manual, supra, at p. 12), by observing that where multiple

convictions stem from the same act, they may be so closely connected that treating

them as separate strikes would be contrary to the spirit of the Three Strikes law.

Although Benson focused on the mere existence of prior convictions, its analysis

must be read with this footnote in mind.

(footnote continued from previous page)

section and Section 211 for the same act which constitutes a violation of both this

section and Section 211.‖

16

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, section 1170.12, subdivision (a)(6), provides, ―If there is a

current conviction for more than one felony count not committed on the same

occasion, and not arising from the same set of operative facts, the court shall

sentence the defendant consecutively on each count pursuant to this section.‖

Section 667, subdivision (c)(6), says the same thing. The negative implication of

this provision is that if two or more crimes are committed on the same occasion,

and arise from the same set of facts, the trial court need not sentence the counts

consecutively. The Attorney General argues that because the Legislature

addressed the ―same act‖ circumstance in the context of current convictions, but

included no similar language addressing prior convictions, we should presume the

omission of parallel language by the Legislature and, presumably, the electorate,

was intentional and purposeful. (See California Fed. Savings & Loan Assn. v.

City of Los Angeles (1995) 11 Cal.4th 342, 349 [― ‗We must assume that the

Legislature knew how to create an exception if it wished to do so‘ ‖].) This

suggested inference of legislative intent, leaping from how courts should consider

current crimes to how courts should view prior convictions, is too weak to

overcome the plain meaning of the Three Strikes scheme that one may not commit

but two criminal acts (here, forcibly taking a victim‘s car in 1999, burglarizing a

house in 2008) yet be assessed three strikes. Indeed, we might also observe the

Legislature knows how to impose a life term on fewer than three convictions, but

has not done so here. (See § 667.61 [One Strike law for certain sex offenders].)

17

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.10

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

BAXTER, J.

CHIN, J.

CORRIGAN, J.

LIU, J.

O’ROURKE, J.*

10 To the extent People v. Scott, supra, 179 Cal.App.4th 920, is inconsistent

with this decision, it is disapproved.

* 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.

18

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Vargas

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 206 Cal.App.4th 971

Rehearing Granted

__________________________________________________________________________________

Opinion No. S203744

Date Filed: July 10, 2014

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Bruce F. Marrs

__________________________________________________________________________________

Counsel:

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.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Melanie K. Dorian

P.O. Box 5006

Glendale, CA 91221-5006

(818) 241-5837

Kimara A. Aarons

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 897-2270

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