Opinion
C099585
05-10-2024
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM ADAM KRISKE, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 04F01142
ROBIE, J.
In 2005, a jury found defendant William Adam Kriske guilty of first degree burglary, attempted carjacking, and resisting an executive officer with force or violence. Defendant was originally sentenced to indeterminate third strike terms of 25 years to life on all three offenses.
In 2023, the trial court granted a petition to recall defendant's sentence. Thereafter, the trial court resentenced defendant and struck one of defendant's strikes as applied to both attempted carjacking and resisting an executive officer. The trial court then sentenced defendant to an indeterminate third strike term of 25 years to life for first degree burglary, a determinate term of five years for attempted carjacking (the middle term doubled as a second strike), and a consecutive determinate term of 16 months for resisting an executive officer (one-third the middle term as a subordinate term and doubled as a second strike). Defendant's trial counsel did not object to the imposition of consecutive terms.
On appeal, defendant argues the trial court erred by failing to subordinate-by imposing one-third the middle term-both of his determinate second strike terms to his indeterminate third strike term. Defendant also argues the trial court erred by imposing consecutive terms. We disagree with the first contention and find the second contention forfeited. Accordingly, we affirm.
DISCUSSION
I
Determinate Terms Cannot Be Subordinated To Indeterminate Terms
California has determinate and indeterminate sentencing schemes. (People v. Felix (2000) 22 Cal.4th 651, 654.) The determinate sentencing scheme is codified under Penal Code section 1170 et seq. Under the determinate sentencing scheme, a trial court selects one of three possible terms of imprisonment. (§ 1170, subd. (b).) Under section 1170.1, "[I]f a defendant is convicted of more than one offense carrying a determinate term, and the trial court imposes consecutive sentences, the term with the longest sentence is the 'principal term'; any term consecutive to the principal term is a 'subordinate term.' (§ 1170.1, subd. (a).) The court imposes the full term . . . for the principal term. However, . . . the court imposes only 'one-third of the middle term' for subordinate terms. (Ibid.)" (Felix, at p. 655.)
Further undesignated section references are to the Penal Code.
" 'Sentencing under [determinate and indeterminate] sentencing schemes must be performed separately and independently of each other.'" (People v. Minifie (2018) 22 Cal.App.5th 1256, 1264.) This is referred to" 'as sentencing in separate boxes.'" (Ibid.) One box contains determinate terms and the other contains indeterminate terms. (Ibid.) An indeterminate enhancement attached to a determinate base term does not transform a term of imprisonment into an indeterminate term; the term would still belong in the determinate scheme. (People v. Sanders (2010) 189 Cal.App.4th 543, 558.)
Defendant argues the trial court was required to subordinate his determinate terms to his indeterminate first degree burglary term. According to defendant, an indeterminate third strike sentence is an enhancement within the determinate sentencing scheme and does not serve to mutate the determinate base term for first degree burglary into an indeterminate prison term. (See § 461, subd. (a).) We disagree.
An indeterminate third strike term is not an enhancement within the determinate sentencing scheme. It is an alternative sentencing scheme. (See People v. Burke (2023) 89 Cal.App.5th 237, 243-244.) "The [word] 'enhancement' has a well-established technical meaning in California law. [Citation.] 'A sentence enhancement is "an additional term of imprisonment added to the base term."' [Citations.] It is equally well established that the Three Strikes law[, i.e., section 667, subds. (b)-(i),] is not an enhancement; it is an alternative sentencing scheme." (Ibid.) In other words, an indeterminate third strike term is not an additional term of imprisonment added to the base term; it is the base term.
Defendant relies on People v. Garcia (1999) 20 Cal.4th 490 for support. In Garcia, our Supreme Court held a trial court had discretion "to dismiss a prior conviction allegation with respect to one count but not another." (Id. at pp. 492-493.) Our Supreme Court further upheld the trial court's decision to impose the defendant's determinate base term consecutive to his third strike term. (Id. at pp. 495, 500.) As a byproduct of doing so, our Supreme Court left unchanged the trial court's imposition of the determinate term as a subordinate term to the indeterminate three strike term. (Ibid.) Defendant asserts the byproduct of our Supreme Court's holding is a holding authorizing the subordination of determinate terms to indeterminate terms. Not so.
Our Supreme Court did not issue a holding regarding subordination of determinate terms to indeterminate terms. (See People v. Garcia, supra, 20 Cal.4th at pp. 495, 500.) "It is axiomatic that cases are not authority for propositions not considered." (People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10.) More importantly, our Supreme Court had the following to say regarding the trial court's imposition and calculation of the sentence: "After we filed our opinion, the question arose whether [subordinating a determinate term to an indeterminate term] was legally correct. We express no opinion on this point but merely recite what the trial court actually did and decide the sole issue on which we granted review." (Garcia, at p. 495, fn. 2.) Thus, Garcia is inapposite.
Defendant lastly relies on two cases involving second strike sentences. (People v. Nguyen (1999) 21 Cal.4th 197, 203-204 [holding the correct term to be doubled for consecutive determinate terms under § 667, subd. (e)(1) is one-third the middle term pursuant to § 1170.1]; People v. Sasser (2015) 61 Cal.4th 1, 7 [holding a prior serious felony enhancement applied "only once to multiple determinate terms imposed as part of a second strike sentence"].) The reasoning in both cases was that the determinate sentencing scheme in section 1170.1 is incorporated into the "Three Strikes" law unless the Three Strikes law abrogates the determinate sentencing scheme. (Nguyen, at p. 204; Sasser, at p. 14.) Defendant argues because "nothing in [the determinate sentencing scheme] expressly states how determinate sentences are to be handled when there is also an indeterminate term based upon the Three Strikes [s]entencing scheme, [then] the normal procedure of one third the mid term applies to all subordinate terms."
The problem with defendant's argument is that the Three Strikes law expressly provides, "[T]he term for [a third strike offense] shall be an indeterminate term of life imprisonment." (§ 667, subd. (e)(2).) Consequently, section 667, subdivision (e)(2) places third strike sentences in the auspices of the indeterminate sentencing scheme, making the determinate sentencing scheme inapplicable. "The consecutive sentencing scheme of section 1170.1 . . . has no application to sentencing calculations for [T]hree [S]trikes defendants." (People v. Nguyen, supra, 21 Cal.4th at p. 205.)
Accordingly, we conclude the trial court was correct in not subordinating defendant's determinate terms to his indeterminate term.
II
Defendant Forfeited His Claim Regarding Consecutive Terms
Defendant next argues the trial court erred by imposing consecutive sentences because the trial court did not explain its rationale. The People argue defendant forfeited this claim by failing to raise it at the resentencing hearing. We agree with the People. "[T]he [forfeiture] doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which . . . the court purportedly erred because it . . . failed to state any reasons or give a sufficient number of valid reasons." (People v. Scott (1994) 9 Cal.4th 331, 353.)
Accordingly, we conclude defendant forfeited this claim by failing to object on these grounds in the trial court.
DISPOSITION
The judgment is affirmed.
We concur: HULL, Acting P. J., MAURO, J.