California Penal Code Section 1170.12(B) - Interpretation
In People v. Benson, 18 Cal. 4th 24, 954 P.2d 557, 74 Cal.Rptr.2d 294 (1998), the California Supreme Court was presented with the issue whether a felony conviction stayed pursuant to section 654 could count as a strike.
Construing California's unique "three strikes" law, the court noted that for the purposes of that law, and only that law, section 1170.12(b) of the California Penal Code specifies, "Notwithstanding any other provision of law . . .," "stay of execution of sentence" is a disposition which would not affect the determination that a prior conviction is a prior felony. Benson, 954 P.2d at 559 (emphasis omitted) (quoting CAL. PENAL CODE 1170.12(b)(1)(B)). See also CAL. PENAL CODE 667(d)(1)(B).
Not only is the exception which allows the use of a stayed conviction specifically limited to the California "three strikes" statute, but, even then, the Benson court did not say, as the majority seems to think, that the California Penal Code requires a stayed conviction be treated as a strike even under that statute.
Rather such a conviction may, but need not, be treated as a strike under the California statute:
Our previous decisions affirm 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.
. . . . We believe that the three strikes statute properly must be interpreted to permit--but not necessarily require--a qualifying prior conviction to be treated as a strike even if the sentence on the conviction has been stayed pursuant to the provisions of section 654.
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, 954 P.2d at 564-65.
Consistent with Benson, a California trial judge may strike a section 654 stayed conviction completely, or he may count it as a strike for the purposes of the "three strikes" law pursuant to section 667, but he may not count it for anything besides the California "three strikes" law as a matter of law.
The Court interpreted section 1170.12, subdivision (b), which stated in relevant part:
" 'Notwithstanding any other provision of law . . . a prior conviction of a felony shall be defined as: (1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state . . . . None of the following dispositions shall affect the determination that a prior conviction is a prior felony . . . : for purposes of this section: . . . (B) the stay of execution of sentence.'" (Benson, at p. 28.)
Thus, the court held that the Three Strikes recidivism enhancement provisions were exempt from section 654, that is, even if the trial court stayed sentence, a strike results from a prior serious or violent felony conviction. (Benson, at pp. 26-27.)