Supreme Court of California Justia
Docket No. S110377
People v. Williams


Filed 10/18/04

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S110377
v.
Ct.App. 4/1 D038602
ANTHONY MAURICE WILLIAMS,
San Diego County
Defendant and Appellant.
Super. Ct. No. SCE 207131

In People v. Tassell (1984) 36 Cal.3d 77 (Tassell), this court held that when
imposing a determinate sentence on a recidivist offender convicted of multiple
offenses, a trial court is to impose an enhancement for a prior conviction only once
to increase the aggregate term, and not separately to increase the principal or
subordinate term imposed for each new offense.1 (Tassell, at pp. 89-92.) Here,
the Court of Appeal concluded that Tassell’s holding does not apply to multiple
indeterminate third strike sentences imposed under the “Three Strikes and You’re
Out Law” (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, hereafter the Three Strikes
law).2 We agree that Tassell is not controlling in this different context, and that a

1
We overruled Tassell on an unrelated point in People v. Ewoldt (1994) 7
Cal.4th 380, 401.
2
All further statutory references are to the Penal Code, unless otherwise
stated.
1



prior conviction enhancement may be added to the third strike sentence for each
new offense.
I
A jury convicted defendant Anthony Maurice Williams of forcible rape in
concert (§§ 261, subd. (a)(2), 264.1), forcible oral copulation in concert (§ 288a,
subd. (d)), and forcible sodomy in concert (§ 286, subd. (d)), and it found that he
had suffered two prior convictions for serious or violent felonies under section
667, subdivision (a)(1) (requiring an additional five-year term for each
conviction), and under the Three Strikes law. The record shows that the crimes
were particularly callous and brutal. Defendant and his companion not only
forced the victim—a woman they had met earlier in the day—to orally copulate
them and then raped and sodomized her, they forced her to get in a trash can,
stomped on her head, and urinated on her.
In a separate, unrelated case, defendant was convicted of both residential
burglary (Pen. Code, § 459) and unlawfully taking or driving a vehicle (Veh.
Code, § 10851), and he was found to have the same two prior convictions. (For
convenience, we will refer to this as the burglary case.)
The trial court pronounced sentence in both cases on the same day. In the
burglary case, the court sentenced defendant to a term of 25 years to life for the
burglary, plus an additional five-year term for each of the prior serious felony
convictions, for an aggregate sentence of 35 years to life. Sentence on the Vehicle
Code offense was stayed under Penal Code section 654. In this case, the trial
court imposed three concurrent sentences of 25 years to life for the three felonies
(see § 667, subd. (e)(2)(A)(ii)), plus five years for each of the two prior serious
felony
2

convictions, for an aggregate sentence of 35 years of life, to run consecutively to
the sentence imposed in the burglary case, for an overall net sentence of 70 years
to life.3 At the sentencing hearing, the probation officer recommended that the
two five-year terms for the prior serious felony convictions be stayed in this case,
because they had been imposed for the same prior convictions in the burglary
case, but the trial court rejected the recommendation, stating that “it’s the court’s
view that the court is mandated to impose those [two five-year] enhancements in
this present case notwithstanding the similar imposition of such enhancements in
the other case.”
On defendant’s appeal, the Court of Appeal affirmed the judgment in all
respects. The court rejected defendant’s contention that the trial court had erred in
imposing five-year enhancements for prior serious felony convictions in this case
after the same prior convictions had been used to enhance defendant’s sentence in
the burglary case. The court rejected defendant’s argument that section 1170.1
permitted the enhancements to be imposed only once, concluding instead that
section 1170.1 did not apply to the calculation of indeterminate sentences imposed
under the Three Strikes law.
We granted defendant’s petition for review.
II
Subdivision (a) of section 667 (section 667(a)), as here relevant, provides
that “any person convicted of a serious felony who previously has been convicted
of a serious felony . . . shall receive, in addition to the sentence imposed by the

3
More precisely, the sentence consisted of a determinate term of 20 years to
be followed by two consecutive indeterminate life sentences, each having a
minimum term of 25 years. (See § 669 [requiring that determinate terms under
§ 667 be served before consecutively imposed life sentences].)
3



court for the present offense, a five-year enhancement for each such prior
conviction on charges brought and tried separately.” Section 667(a), which was
adopted by voter initiative in 1982, does not expressly address the situation in
which a defendant with a prior conviction for a serious felony is thereafter
convicted of more than one serious felony offense. It does not state whether, in
that situation, the sentencing court is to add a five-year enhancement separately to
the sentence for each new felony conviction or instead is to impose the
enhancement only once to add a single five-year term to the overall sentence for
all new offenses.
In 1984, this court addressed that issue in Tassell, supra, 36 Cal.3d 77. We
concluded that, on the facts presented there, the answer was to be found in section
1170.1, enacted as part of the Uniform Determinate Sentencing Act (Stats. 1976,
ch. 1139). Section 1170.1 generally governs the calculation and imposition of a
determinate sentence when a defendant has been convicted of more than one
felony offense. It then read, and still reads: “Except as otherwise provided by
law, and subject to Section 654, when any person is convicted of two or more
felonies, whether in the same proceeding or court or in different proceedings or
courts, and whether by judgment rendered by the same or by a different court, and
a consecutive term of imprisonment is imposed under Sections 669 and 1170, the
aggregate term of imprisonment for all these convictions shall be the sum of the
principal term, the subordinate term, and any additional term imposed for
applicable enhancements for prior convictions, prior prison terms, and Section
12022.1.” (Italics added.)
In Tassell, supra, 36 Cal.3d 77, we explained how section 1170.1 affects
the imposition of sentence enhancements: “Section 1170.1 refers to two kinds of
enhancements: (1) those which go to the nature of the offender; and (2) those
which go to the nature of the offense. Enhancements for prior convictions—
4

authorized by sections 667.5, 667.6, and 12022.1—are of the first sort. The
second kind of enhancements—those which arise from the circumstances of the
crime—are typified by sections 12022.5 and 12022.7: was a firearm used or was
great bodily injury inflicted? Enhancements of the second kind enhance the
several counts; those of the first kind, by contrast, have nothing to do with
particular counts but, since they are related to the offender, are added only once as
a step in arriving at the aggregate sentence.” (Id. at p. 90; accord, People v.
Gutierrez (2002) 28 Cal.4th 1083, 1163-1164.)
Thus, this court in Tassell relied on the language of section 1170.1, and not
on the language or legislative history of section 667(a), in concluding that at
sentencing a trial court must impose a sentence enhancement for a prior felony
conviction—including a section 667(a) enhancement—only once, regardless of the
number of new felony offenses.
Section 1170.1, however, applies only to determinate sentences. It does not
apply to multiple indeterminate sentences imposed under the Three Strikes law.
“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 . . . .” (§ 667, subd. (e)(2)(A),
italics added; see also § 1170.12, subd. (c)(2)(A).) As this court has stated, “[t]he
consecutive sentencing scheme of section 1170.1 does not apply to indeterminate
life terms, and therefore it has no application to sentencing calculations for three
strikes defendants.” (People v. Nguyen (1999) 21 Cal.4th 197, 205; see also
§ 669; People v. Felix (2000) 22 Cal.4th 651, 654-659; People v. Lyons (1999) 72
Cal.App.4th 1224, 1227-1229.) Because Tassell relied on section 1170.1, which
does not apply to third strike sentences, it is not controlling or even helpful here in
this significantly different context. (Accord, People v. Byrd (2001) 89
Cal.App.4th 1373, 1380.)
5

In third strike cases, the Three Strikes law uses enhancements in two
distinct ways: to calculate the minimum term of the indeterminate life sentence
and to add an additional, determinate term to be served before the indeterminate
life sentence. “The two distinct functions of enhancements are found in the two
required stages in the calculation of a ‘third strike’ sentence: the determination of
‘the greatest minimum term’ and the final sentence calculation which is to include
all applicable enhancements.” (Couzens and Bigelow (2001) Cal. Three Strikes
Sentencing p. 8.6 (rev. 11/02).)
For a third strike defendant, the minimum term of the indeterminate life
sentence is the greatest of three time periods. The first period (option one) is
“[t]hree times the term otherwise provided as punishment” for the felony offense,
not including enhancements. (§§ 667, subd. (e)(2)(A)(i), 1170.12, subd.
(c)(2)(A)(i).) The second period (option two) is 25 years. (§§ 667, subd.
(e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii).) The third period (option three) is
“[t]he 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.” (§§ 667, subd. (e)(2)(A)(iii), 1170.12, subd. (c)(2)(A)(iii).)
A five-year enhancement under section 667(a) for a prior serious felony
conviction lengthens the option three period, which is generally the longest of the
three periods “when the defendant has an extensive criminal recidivist history.”
(People v. Dotson (1997) 16 Cal.4th 547, 553.)
In addition to its use in calculating the minimum term of the indeterminate
life sentence under option three, a prior serious felony conviction requires a five-
year enhancement term. (§ 667(a) [“any person convicted of a serious felony who
previously has been convicted of a serious felony . . . shall receive . . . a five-year
enhancement for each such prior conviction on charges brought and tried
6

separately”].) Under the Three Strikes law, this determinate term must be
consecutive to the minimum term of the indeterminate life sentence, and it is
imposed whether or not the minimum term was established under option three.
(People v. Dotson, supra, 16 Cal.4th at p. 559 [“Once the minimum indeterminate
term is calculated, ‘other enhancements or punishment provisions,’ such as section
667(a) enhancements, are added as a separate determinate term to the
indeterminate term under options (i), (ii), and (iii)”]; accord, People v. Acosta
(2002) 29 Cal.4th 105, 130-131; People v. Thomas (1997) 56 Cal.App.4th 396,
403-405.) Thus, the Three Strikes law provides that the indeterminate life
sentence “shall be served consecutive to any other term of imprisonment for which
a consecutive term may be imposed by law” (§§ 667, subd. (e)(2)(B), 1170.12,
subd. (c)(2)(B)) and shall be “in addition to any other enhancement or punishment
provisions which may apply” (§§ 667, subd. (e), 1170.12, subd. (c)).
The five-year enhancement under section 667(a) for a prior serious felony
conviction was added as part of “a statutory and constitutional scheme enacted by
the voters in 1982 as part of Proposition 8.” (People v. Jones (1993) 5 Cal.4th
1142, 1146.) The voters’ intent “was to increase sentences for recidivist
offenders.” (Id. at p. 1147.) Adding the five-year enhancement separately to the
third strike sentence for each new serious felony conviction is not inconsistent
with this intent.
Adding the five-year enhancement to the sentence for each new serious
felony conviction is also consistent with the logic of the Three Strikes law. Under
that law, the status or nature of the offender as a person previously convicted of
serious felony offenses does not result merely in a single additional term of
imprisonment for each prior conviction added on to the overall sentence that
would otherwise be imposed for all of the new offenses. Instead, the Three Strikes
law uses a defendant’s status as a recidivist to separately increase the punishment
7

for each new felony conviction.4 For a defendant with a single qualifying prior
conviction, the sentence for each new offense is double what it otherwise would
be. (§§ 667, subd. (e)(1) [“the determinate term or minimum term for an
indeterminate term shall be twice the term otherwise provided as punishment for
the current felony conviction”], 1170.12, subd. (c)(1) [same]; see People v.
Nguyen, supra, 21 Cal.4th at pp. 202-207.) For a defendant with two or more
qualifying prior convictions, the sentence for each new offense is life
imprisonment with a minimum term of at least 25 years. (§§ 667, subd. (e)(2),
1170.12, subd. (c)(2).)
The Three Strikes law, unlike section 1170.1, does not draw any distinction
between status enhancements, based on the defendant’s record, and enhancements
based on the circumstances of the current offenses, and the Three Strikes law
generally discloses an intent to use the fact of recidivism to separately increase the
sentence imposed for each new offense. Accordingly, we conclude that, under the
Three Strikes law, section 667(a) enhancements are to be applied individually to
each count of a third strike sentence.
We recognize that in several published opinions, Courts of Appeal have
referred to consecutive third strike sentences on multiple counts in which a section
667(a) enhancement was imposed only once. (See, e.g., People v. Byrd, supra, 89

4
The Three Strikes law is hardly unique in viewing recidivism as an
aggravating factor that warrants harsher punishment for each new offense. Other
provisions of the Penal Code also use a defendant’s prior record to increase the
sentence for each new offense. For example, petty theft is generally punished as a
misdemeanor (§ 490), but a defendant with a prior conviction for theft or a theft-
related offense may receive felony punishment for each subsequent petty theft.
(§ 666; see also § 666.5, subd. (a) [increased penalties for each subsequent
conviction of certain crimes involving the theft or taking of a vehicle]; Veh. Code,
§ 23536 et seq. [increased penalties for each subsequent conviction for driving
under the influence].)
8



Cal.App.4th at p. 1378; People v. Thomas, supra, 56 Cal.App.4th at p. 399;
People v. Ayon (1996) 46 Cal.App.4th 385, 395-396, 401, disapproved on another
point in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10; People v. Miles
(1996) 43 Cal.App.4th 364, 366, 371; People v. Ingram (1995) 40 Cal.App.4th
1397, 1412, disapproved on another point in People v. Dotson, supra, 16 Cal.4th
at p. 560, fn. 8; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1131, 1140.)
In none of these opinions, however, was the point addressed, and cases are not
authority for propositions not considered. (People v. Barragan (2004) 32 Cal.4th
236, 243.)
The judgment of the Court of Appeal is affirmed.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.

9



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

Name of Opinion People v. Williams
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 8/22/02 - 4th Dist., Div. 1
Original Appeal
Original Proceeding
Review Granted
XXX
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S110377
Date Filed: October 18, 2004
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: Allan J. Preckel

__________________________________________________________________________________

Attorneys for Appellant:

Beatrice C. Tillman, under appointment by the Supreme Court; Lynne G. McGinnis, under appointment by
the Court of Appeal, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Steven T. Oetting, Pamela Ratner Sobeck, Laura D. Stilwell and Lise
Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.


10

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


Beatrice C. Tillman
Appellate Defenders, Inc.
555 West Beech Street, Suite 300
San Diego, CA 92101
(619) 696-0282

Lise Jacobson
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-3079

11


Opinion Information
Date:Docket Number:
Mon, 10/18/2004S110377

Parties
1Williams, Anthony Maurice (Defendant and Appellant)
Represented by Beatrice C. Tillman
Appellate Defenders Inc
555 West Beech Street, Suite 300
San Diego, CA

2Williams, Anthony Maurice (Defendant and Appellant)
Represented by Appellate Defenders, Inc.
555 West Beech Street, Suite 300
555 West Beech Street, Suite 300
San Diego, CA

3The People (Plaintiff and Respondent)
Represented by Attorney General - San Diego Office
Laura D. Stilwell, DAG
P.O. Box 85266
San Diego, CA


Disposition
Oct 18 2004Opinion: Affirmed

Dockets
Oct 1 2002Petition for review filed
  Appellant (Anthony Maurice Williams) by counsel
Oct 4 2002Received Court of Appeal record
  1 doghouse
Nov 26 2002Petition for Review Granted; issues limited (criminal case)
  The issue to be briefed and argued shall be limited to whether the Penal Code section 1170.1, subdivision (a) aggregate term limitation articulated in People v. Tassell (1984) 36 Cal.3d 77, 91, prevents the trial court from imposing prior felony conviction enhancement terms to each Three-Strike indeterminate term. Votes: George, CJ., Kennard, Baxter, Werdegar, Chin. Brown and Moreno, JJ.
Dec 23 2002Counsel appointment order filed
  Appellate Defenders Inc. is herby appointed to represent appellant. Appellant's brief on the merits shall be served and filed on or before 30 days from the date of this order.
Jan 15 2003Request for extension of time filed
  by counsel for appellant asking to Feb. 22, 2003 to file opening brief on the merits. (recv'd in San Diego)
Jan 23 2003Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including February 22, 2003.
Feb 18 2003Request for extension of time filed
  by counsel for appellant requesting to March 24, 2003 to file opening brief on the merits. (Ok to grant - order being prepared.)
Feb 26 2003Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including March 24, 2003.
Mar 20 2003Opening brief on the merits filed
  in San Diego by counsel for appellant (Anthony Maurice Williams).
Apr 8 2003Request for extension of time filed
  by counsel for respondent requesting to May 19, 2003 to file answer brief on the merits. (recv'd in San Deigo) (ok to grant - order being prepared)
Apr 14 2003Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including May 19, 2003.
May 13 2003Request for extension of time filed
  by counsel for respondent requesting to June 9, 2003 to file the answer brief on the merits. (granted - order being prepared)
May 15 2003Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including June 9, 2003.
Jun 6 2003Answer brief on the merits filed
  in San Diego by counsel for respondent (The People).
Jun 25 2003Reply brief filed (case fully briefed)
  in San Diego by counsel for appellant.
Aug 11 2004Case ordered on calendar
  9-8-04, 1:30pm, S.F.
Aug 30 2004Received:
  letter from Attorney General regarding additional authorities. (recv'd in San Diego)
Sep 8 2004Cause argued and submitted
 
Oct 18 2004Opinion filed: Judgment affirmed in full
  Majority Opinion by Kennard, J. joined by George CJ., Baxter, Werdegar, Chin, Brown & Moreno, JJ.
Nov 18 2004Remittitur issued (criminal case)
 
Dec 8 2004Received:
  Receipt for remittitur - from CA4/1.
Sep 23 2005Compensation awarded counsel
  Atty Tillman - Appellate Defenders, Inc

Briefs
Mar 20 2003Opening brief on the merits filed
 
Jun 6 2003Answer brief on the merits filed
 
Jun 25 2003Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website