THE PEOPLE, Plaintiff and Respondent, v. MONROE JONES, Defendant and Appellant, 5 Cal. 4th 1142

Opinion MOSK, J. Did the electorate intend, when it enacted Proposition 8, for a sentence to prison to be enhanced both for a prior conviction and for a prison term imposed for that conviction? We conclude not; hence, defendant’s unstayed sentence must be reduced from 32 to 31 years’ imprisonment. Defendant was tried for a sexual assault on a fellow county jail inmate. The 18-year-old victim, a resident of Merrimack, New Hampshire, had arrived in San Francisco 12 days before he was arrested for marijuana possession with intent to sell.

The victim testified that defendant approached him because, in the victim’s words, defendant thought he was “cute and feminine.” Defendant gave the victim certain favors, including cigarettes and commissary food, but when the victim rebuffed defendant’s sexual advances, he cornered him in a cell for about an hour and, against his will, inserted his finger in his rectum and sodomized him three times. Defendant testified in his own behalf.

He admitted that he and the victim had sex, but said that he and the victim are gay men and that the sex both was consensual and was offered in exchange for defendant’s payment of money. He further testified that he penetrated the victim twice, not three times, and that he did not insert his finger into him. The jury found defendant guilty of three counts of forcible sodomy—a violation of Penal Code

section 286, subdivision (c)—and one count of sexual penetration with his finger—a violation of Penal Code

section 289, subdivision (a). The court, commenting on the victim’s vulnerability, sentenced defendant under the harsh regime of subdivisions (

c) or (

d) of

section 667.6—the court declared subdivision (

d) should apply, but, if not, then subdivision (

c) would. (See Cal. Rules of Court, rule 426.) Both subdivisions provide for full consecutive terms of imprisonment for recidivist sexual offenders. Hence the court sentenced defendant to consecutive middle terms of six years’ imprisonment on each count, with one 6-year count to constitute the principal or base term. The court found that defendant had been sent to prison for three prior felonies, and therefore qualified for three 1-year enhancements of his sentence under

section 667.5, subdivision (b). The court further found that one of the three prior felonies, an aggravated form of kidnapping (§ 209), also qualified as a “serious felony” under

section 667, subdivision (a), and therefore permitted the court to impose an additional five-year sentence enhancement. Accordingly, the court added eight years to defendant’s twenty-four-year sentence for his current crimes. Defendant objected to the cumulative enhancement of his sentence under sections 667 and 667.5 for his prior offense of kidnapping. On appeal, he contends that California law and the federal Constitution prohibit two enhancements for that one prior offense. I. Defendant was sentenced under a statutory and constitutional scheme enacted by the voters in 1982 as part of Proposition 8.

In construing that scheme, “We begin with the fimdamental rule that our primary task is to determine the lawmakers’ intent. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724 [257 Cal.Rptr. 708, 771 P.2d 406].) In the case of a constitutional provision adopted by the voters, their intent governs. (Kaiser v. Hopkins (1936) 6 Cal.2d 537, 538 [58 P.2d 1278]; Armstrong v. County of San Mateo (1983) 146 Cal.App.3d 597, 618 [194 Cal.Rptr. 294].) To determine intent, ‘ “The court turns first to the words themselves for the answer.” ’ (Brown v. Kelly Broadcasting Co., supra, 48 Cal.3d 711, 724, quoting Moyer v.

Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [110 Cal.Rptr. 144, 514 P.2d 1224].) ‘If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).’ (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299].)” (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798 [268 Cal.Rptr. 753, 789 P.2d 934].) Proposition 8 added

section 667, which provides in part: “(

a) In compliance with subdivision (

b) of

Section 1385, any person convicted of a serious felony [as defined in subdivision (

c) of

section 1192.7 and

section 1192.8] who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively. “(

b) This

section shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment. There is no requirement of prior incarceration or commitment for this

section to apply.” As stated, Proposition 8 also amended the California Constitution. The relevant language provides: “Any prior felony conviction . . . shall subsequently be used without limitation for purposes of . . . enhancement of sentence in any criminal proceeding.” (Cal. Const., art. I, § 28, subd. (f).) Some years before the electorate enacted Proposition 8, the Legislature enacted

section 667.5 as part of the Determinate Sentencing Act. (Stats. 1976, ch. 1139, § 268, pp. 5137-5139; see Review of Selected 1977 California Legislation (1978) 9 Pacific L.J. 281, 470-471.)

Section 667.5 provides in relevant part: “(

a) Where one of the new offenses is one of the violent felonies specified in subdivision (c), in addition and consecutive to any other prison terms therefor, the court shall impose a three-year term for each prior separate prison term served by the defendant where the prior was one of the violent felonies specified in subdivision (c). However, no additional term shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.” “(

b) Except where subdivision (

a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.” II. It is clear that the electorate’s intent in enacting

article I,

section 28, subdivision (

f) of the California Constitution and simultaneously promulgating

section 667 was to increase sentences for recidivist offenders. The more obdurate the offender, the greater the sentence to be imposed. As we explained in People v. Prather (1990) 50 Cal.3d 428, 437 [267 Cal.Rptr. 605,787 P.2d 1012] (Prather), the changes enacted under Proposition 8 were intended to achieve “increased punishment and effective deterrence ... by increasing the total period of imprisonment for recidivist offenders.” (Id. at p. 435.) In keeping with that logic, the Court of Appeal rejected defendant’s contention that both enhancements may not apply to his prior offense.

It reasoned in part that the two statutes were meant to punish individuals according to two different statuses, and that defendant suffered from both. “Prior felony convictions indicate a habitual offender; a prior prison term indicates a hardened criminal who is undeterred by the fear of prison. [Citations.] We conclude that the drafters of these provisions [sections 667 and 667.5] knew what they were doing in employing these different phrases in the two subject enhancement statutes.” The Court of Appeal’s statement is unpersuasive, however, because its premise—that sections 667 and 667.5 identify and punish differently situated individuals—runs afoul of Prather.

The issue we decided in Prather, supra, 50 Cal.3d 428, was whether

article I,

section 28, subdivision (

f) of the California Constitution forbade applying the double-the-base-term limit of

section 1170.1 to prior prison term enhancements under

section 667.5. The constitutional provision specifies that “Any prior felony conviction . . . shall subsequently be used without limitation for purposes of . . . enhancement of sentence in any criminal proceeding." (Italics added.) The defendant in Prather, supra, 50 Cal.3d 428, relied on the italicized language to argue that because the California Constitution barred only limitations on enhancements based on prior felony convictions, and

section 667.5, subdivision (

b) instead provided an enhancement for prior prison terms, the Constitution’s prohibition did not apply to him, and hence an enhancement under

section 667.5, subdivision (b), could not be imposed on him, given the double-the-base-term limit. We rejected the Prather defendant’s view, concluding that the distinction between prior prison terms and prior felonies for enhancement purposes was “untenable” and, by inference, “hypertechnical” and “ ‘supertechnical.’ ” (50 Cal.3d at p. 439.) We held that the California Constitution’s language, notwithstanding its specification that it apply to “prior felony conviction[s],” applied also to prior prison terms, and therefore the double-the-base-term limitation did not apply. We stated, as was necessary to reach our conclusion, “We think it clear that

section 667.5(

b) is aimed primarily at the underlying felony conviction, and only secondarily, and as an indicium of the felony’s seriousness, at the prior prison term. That is, we believe

section 667.5(b), fairly read, merely provides a special sentence enhancement for that particular subset of ‘prior felony convictions’ that were deemed serious enough by earlier sentencing courts to warrant actual imprisonment. . . . Accordingly, we hold that the broad mandate of

article I,

section 28, subdivision (f), concerning the use of any ‘prior felony conviction[s]’ for enhancement purposes, necessarily includes the lesser category of enhancements based on prior felony convictions for which imprisonment was imposed.” (Prather, supra, 50 Cal.3d 428, 440, last italics added.) The dissent urges that we view the facts of prior conviction and prior prison term as dissimilar for purposes of determining whether a defendant may be exposed to two enhancements for the same prior offense.

We cannot do so and be faithful to Prather, supra, 50 Cal.3d 428, which, as seen, described the distinction the dissent urges as “untenable” and by inference “hypertechnical” and “ ‘supertechnical.’ ” (50 Cal.3d at p. 439.) III. Having concluded that both enhancements apply to the same facts—the prior conviction of a felony—we must decide whether the voters nonetheless intended the enhancements to be imposed cumulatively. A. Our inquiry is aided by the fact that, unlike the statutes we considered in Prather, supra, 50 Cal.3d at p. 437, the same voters who enacted the constitutional provision put in place

section 667. At the same time we are hindered by ambiguities in the constitutional and statutory language we must consider. As stated, subdivision (

b) of

section 667 provides, “This

section shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment. There is no requirement of prior incarceration or commitment for this

section to apply.” The electorate’s contemporaneous construction of the ambiguous (Prather, supra, 50 Cal.3d at p. 437) language in

article I,

section 28, subdivision (

f) of the state Constitution, by way of a simultaneous amendment to the Penal Code, if not completely binding on us, at a minimum is entitled to great deference. (San Francisco v. Industrial Acc. Com. (1920) 183 Cal. 273, 279-280 [191 P. 26]; Railroad Comm’rs v. Market St. Ry. Co. (1901) 132 Cal. 677, 680-681 [64 P. 1065]; see also Izazaga v. Superior Court (1991) 54 Cal.3d 356, 373 [285 Cal.Rptr. 231, 815 P.2d 304] [suggesting courts should strive to harmonize simultaneously enacted constitutional provisions and implementing statutes]; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245-246 [149 Cal.Rptr. 239, 583 P.2d 1281].)

Section 667, however, does not specifically state whether only the greater enhancement available under sections 667 and 667.5 is available, as opposed to both. Thus not only is the constitutional provision ambiguous, but so is the contemporaneous construing statute. In our view, however, the most reasonable reading of subdivision (

b) of

section 667 is that when multiple statutory enhancement provisions are available for the same prior offense, one of which is a

section 667 enhancement, the greatest enhancement, but only that one, will apply. Any other reading of the subdivision would lead to peculiar results. If a prior felony is “violent” enough to qualify for an enhancement under

section 667.5, it will a fortiori be noxious enough to qualify as “serious” under subdivision (

a) of

section 667, and will almost always have resulted in a prison term. The result is that five-year enhancements will become eight-year enhancements in all but a very few cases. (Compare §§ 1192.7, subd. (c), 1192.8 [describing 28 categories of serious felonies for purposes of

section 667, subdivision (a)] with § 667.5, subd. (c) [describing violent felonies for purposes of

section 667.5, subdivision (a)—a cluster of felonies that is a subset of sections 1192.7’s and 1192.8’s serious felonies].) If the drafters of Proposition 8 meant to confer eight-year enhancements on those who previously committed serious felonies, rather than five-year enhancements, they could have done so by repealing

section 667.5 and providing for the longer enhancement in

section 667. Title 16 of

part I of the Penal Code shows that the Legislature has no difficulty prescribing long terms for particularly bad recidivism. (See, e.g., §§ 667.51, 667.6, 667.7, 667.75.) No less is true of the electorate. Defendant, of course, received not the three-year enhancement under subdivision (

a) of

section 667.5, but rather a one-year enhancement under subdivision (b)—an enhancement available for “any felony” if the felon served time in prison for “any felony” and showed an inability to reform. Many felonies serious enough to require incarceration, however, are likely to be encapsulated in

section 1192.7, subdivision (c), and therefore will subject the recidivist offender to the five-year enhancement of

section 667, subdivision (a), on the commission of a new and serious felony. Just as it would be anomalous for the law to impose an eight-year enhancement when the voters specified five, so also would it be for the law to impose a six-year enhancement when the voters specified five. We do not view the language of the state Constitution as in conflict with this result. If we were to read that language literally, we would have to conclude that

section 667, subdivision (b), itself was without effect, for it limits the imposition of a

section 667 enhancement when a greater enhancement is available elsewhere. It is plain that the voters did not intend to make the provisions of Proposition 8 self-canceling. B. In Prather, supra, 50 Cal.3d 428, we stated that Proposition 8’s constitutional provision did not divest the Legislature of its power to define enhancements, as opposed to imposing general conditions on them. “Implicit in this

interpretation is the notion that, in some cases, a particular statutory restriction on the use of an enhancement may be so integrally related to an enhancement provision that it may be said to constitute either an essential definitional element of the enhancement itself, or a necessary precondition to application of the enhancement in a particular context, in which case the definitional restriction should not be considered a ‘limitation’ for purposes of

article I,

section 28 [of the Constitution], “An illustration may prove useful. Under the foregoing theory, the Legislature could properly restrict enhancements to only ‘serious’ felonies, but could not effectively prohibit enhancements by imposing a general cap on the overall length of a sentence. Both examples would ‘limit’ enhancements. But the former category acts to limit the applicable class of criminals . . . whereas the latter limitation operates generally, placing a ceiling on the number of enhancements that may be used.

This example indicates two important considerations in determining the permissibility of a limitation: ... the level of generality . . . and ... the purpose behind the limitation . . . . [f] We are persuaded . . . that general caps or ceilings on overall length of sentence, such as the one contained in [section] 1170.1(g), are not of such conditional or definitional character and, accordingly, may not be applied to limit the use of prior felony convictions for sentence enhancement purposes.” (Prather, supra, 50 Cal.3d at pp. 438-439.) We find this language to be in accord with our conclusion that subdivision (

b) of

section 667 permits only the greatest enhancement to be imposed. To limit the enhancement to the longest available is a definitional rather than a general cap: the effect is to place the conviction in the proper category. C. In large part, the parties focus on their diametrically different

interpretations of

section 654. Defendant contends that provision forbids what he views as multiple punishment for the same prior offense—namely, his conviction of and sentence to prison for kidnapping. The appellate courts have disagreed on whether

section 654 applies to enhancements. (Compare, e.g., People v. Rodriguez (1988) 206 Cal.App.3d 517, 519 [253 Cal.Rptr. 633] with People v. Hopkins (1985) 167 Cal.App.3d 110, 117-118 [212 Cal.Rptr. 888].) We need not decide this issue to resolve the specific question now before us. That is so because, as we have shown, the statutory scheme permits a narrower resolution of this matter. Nor is there a need to address defendant’s contention that his federal constitutional rights have been violated, for we have granted the relief requested on state law grounds. IV. California law makes plain an intent that certain recidivism be severely punished. The sentence imposed under

section 667.6 and the enhancement available under

section 667 had this effect. But the voters did not specify that enhancements under sections 667 and 667.5 were both to apply to the same prior offense; rather, subdivision (

b) of

section 667 and the rules of statutory construction lead us to the opposite conclusion. The case is remanded to the trial court with directions to strike the one-year enhancement of defendant’s sentence for his prior offense of kidnapping under subdivision (

b) of

section 667.5, and to send to the Department of Corrections a corrected abstract of judgment. In all other respects, the judgment is affirmed. Kennard, J., Arabian, J., and George, J., concurred. Unlabeled statutory references are to this code. Nor has the Legislature decided to impose the enhancements cumulatively since the original enactment of sections 667 and 667.5. Title 16 of

part I of the Penal Code reveals the ease of specifying that a

section 667 enhancement is to apply cumulatively to another, rather than in the alternative.

Section 667.9 specifies that a person who commits certain violent crimes against a person under 14, over 65, or disabled, or who has a prior conviction for those crimes or first degree burglary and commits another such crime against a victim of that type, shall have his or her sentence enhanced “in addition to the sentence provided under

Section 667.” (§ 667.9, subds. (a), (b).) The Legislature has amended both sections 667 (Stats. 1986, ch. 85, § 1.5, p. 211) and 667.5 (Stats. 1986, ch. 645, § 1, p. 2165) since the passage of Proposition 8, and has never chosen to specify a cumulative term of imprisonment as it did with

section 667.9. The Legislature’s use of sentencing language cumulative to

section 667 in

section 667.9 and its omission of such language in

section 667.5 show an intent not to require enhancements under both sections 667 and 667.5. (Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 576 [273 Cal.Rptr. 584, 797 P.2d 608].) The dissent maintains that subdivisions (d), (e), and (

h) of

section 1170.1 show the Legislature intended

section 667 and

section 667.5 enhancements to be imposed cumulatively. (Dis. opn. of Lucas, C. J., post, pp. 1158-1159, 1160, 1161-1162.) We believe the dissent proves too much. Taking the dissent’s reasoning to its logical end would lead to absurd results elsewhere.

Section 1170.1, subdivision (d), mandates, for example, that a court impose “the additional terms” provided in

section 12022.6, which deals with property losses incurred as a result of certain unlawful conduct. Subdivision (

e) of

section 1170.1, which specifies that when two or more enhancements are available under certain sections, only the greatest shall apply, does not include

section 12022.6. Therefore, under the dissent’s view, we would have to conclude the Legislature intended, in

section 12022.6, four-year enhancements to be ten, three-year enhancements to be six, and two-year enhancements to be three, because

section 12022.6 provides for one- to four-year enhancements, in one-year increments, for property losses exceeding $50,000, $150,000, $1 million, and $2.5 million, and it is logically compelled that a greater loss includes all lesser losses. (Id., subds. (a), (b), (c), (d).) In the same vein, Health and Safety Code

section 11370.4, subdivision (a), enacted in 1985, provides that conviction of commerce in certain unlawful drugs will result in an enhancement whose duration increases with the substance’s weight. But just as it would frustrate the legislative intent to conclude that a former version of Health and Safety Code

section 11370.4 and a former version of Penal Code

section 1170.1 stand for a rule that “those defendants possessing more than 25 pounds of a controlled substance would be punished the same as those with 10 pounds” (People v. Pieters (1991) 52 Cal.3d 894, 901 [276 Cal.Rptr. 918, 802 P.2d 420]), so it would do to conclude that Health and Safety Code

section 11370.4 and Penal Code

section 1170.1 command, for example, that a sale of 4.1 kilograms of cocaine should result in an eight-year enhancement when the Legislature specified five years.

Section 654 states, “An act or omission . . . made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”