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LWOP Sentence Can’t Be Doubled Under Three-Strikes Law, C.A. Declares
Panel Says It ‘Overrules’ Division’s Contrary 1999 Decision
By a MetNews Staff Writer
news and analysis
Div. Two of the Court of Appeal for this district held yesterday that a sentence of life imprisonment without the possibility of parole cannot be doubled pursuant to the Three Strikes Law, repudiating a contrary decision by the division a quarter of a century ago.
Yesterday’s opinion was authored by Presiding Justice Elwood Lui. It renounces a July 12, 1999 proclamation by then-Presiding Justice Roger Boren, now retired, in People v. Hardy.
In declaring that “we overrule our decision” in that case, Lui also rejected a 1988 comment by Boren that the Court of Appeal cannot “overrule” a Court of Appeal decision.
Boren’s View
Boren said in Hardy:
“[W]e are guided by the stated purpose of the three strikes law—’to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.’…A doubled sentence of life without possibility of parole is consistent with Penal Code section 669, which provides in pertinent part: ‘Life sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another....’ By doubling the sentence of life without possibility of parole, the court essentially sentenced appellant to two consecutive terms of life without possibility of parole.”
Then-Los Angeles Superior Court Judge Cesar Sarmiento, now an arbitrator/mediator, doubled the life-without-parole (“LWOP”) sentence of a first-degree murderer pursuant to Penal Code §667(e)(1) based on the defendant having suffered a prior robbery conviction.
Lui’s Opinion
Lui noted that “[n]o published case has followed” the reasoning set forth in Hardy and a “current majority of cases offer an opposing view, holding that it is improper to double an LWOP sentence under the Three Strikes Law.”
Penal Code §667(e)(1) provides:
“If a defendant has one prior serious or violent felony conviction as defined in subdivision (d) that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.”
He pointed to three cases holding that an LWOP sentence cannot be doubled, saying they “recognize that the statutory language allows doubling (due to one prior ‘strike’) of (1) the ‘determinate term’ or (2) the ‘minimum term for an indeterminate term,’ ” noting:
“The cited cases conclude that neither aspect of section 667, subdivision (e)(1) exists when LWOP is imposed.”
Superior Court Utterance
Lui made note of this observation by the California Supreme Court in its 2013 decision in Bourhis v. Lord:
“The doctrine of stare decisis is not absolute, and sometimes it is appropriate to overrule prior precedent, even precedent interpreting a statute. Nevertheless, a court should be reluctant to overrule precedent and should do so only for good reason.”
The presiding justice declared:
“Here, we find such good reason—chiefly, that Hardy was decided without the benefit of reasoning set forth in later cases. Overruling Hardy harmonizes the law in California and brings uniformity (and hence certainty) to the law on this issue.”
The case is People v. Mason, 2024 S.O.S. 3342.
Power to ‘Overrule’
While the power of the California Supreme Court to “overrule” decisions is undoubted, there is uncertainty as to whether the Court of Appeal can “overrule” a prior Court of Appeal decision, even by the same division or undivided district.
In the 1988 decision by this district’s Div. Five in Fraser v. Bogucki, Boren (then an associate justice in that division) rejected a call by the appellant to “overrule” a 1966 decision by this district’s Div. One. He pointed out in a footnote:
“Although we are not bound by the decisions of another division or district of the state Court of Appeal, we are not, by the same token, empowered to ‘overrule’ decisions from a court of equal dignity.”
In an unpublished 2018 opinion in MacDonald v. Singer, then-Justice Luis Lavin of this district’s Div. Three remarked that “only our Supreme Court has the authority to depublish or overrule a decision of the Court of Appeal.”
The First District’s Div. Three said in its 2008 opinion in Garza v. Asbestos Corp., Ltd.:
“As a court of equal dignity, we are certainly free to disagree with our colleagues in Division One, and may even decline to follow them. However, principles of stare decisis do not permit us to ‘overrule’ their decision in Arena.”
Contrary View
Yet, there are references by courts of appeal to overruling prior Court of Appeal decisions—such as by Court of Appeal Justice Kenneth Yegan of this district’s Div. Six in his 2007 opinion in Cuccia v. Superior Court.
On June 5, Div. Four of this district’s Court of Appeal, in an opinion by Presiding Justice Brian S. Currey in Cohen v. Superior Court, purported to overrule a 2002 Div. Four decision by Justice Norman Epstein (later presiding justice, now deceased) in Riley v. Hilton Hotels Corp. Epstein said that a private citizen may maintain civil action to enforce city’s parking ordinance; Currey said he was wrong.
“[W]e overrule Riley and disavow its recognition of a private right of action by members of the general public,” Currey wrote.
Auto Equity
In granting review, the California Supreme Court said:
“Pending review, the opinion of the Court of Appeal…may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion…to choose between sides of any such conflict.”
That discretion was noted in the high court’s 1962 decision in Auto Equity Sales, Inc. v. Superior Court where it was said:
“[W]here there is more than one appellate court decision, and such appellate decisions are in conflict…the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.”
Then-Court of Appeal Justice David Eagleson of this district’s Div. Five (later a justice of the California Supreme Court, now deceased) said in his 1987 opinion in McCallum v. McCallum that trial judges “may pick and choose between conflicting lines of authority.”
A question that arises is whether Currey’s opinion actually “overruled” Epstein’s opinion, rendering it a nullity—based on it being a product of the same division, though differently constituted—or whether it simply departed from the earlier decision, leaving trial judges at liberty to adhere to the earlier pronouncement, if they found it to be predicated on superior reasoning.
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