California Penal Code Section 667.61 - Enhanced Punishment
In People v. Graves (2000) 80 Cal. App. 4th 1336, we disagreed with People v. Ervin (1996) 50 Cal. App. 4th 259 insofar as it permits the accumulation of punishment under circumstances falling within the restrictions imposed by section 667.61, subdivision (f). (People v. Graves, supra, 80 Cal. App. 4th at pp. 1339-1341.)
Section 667.61 provides for enhanced punishment of certain enumerated offenses upon proof of specified circumstances. the qualifying offenses are enumerated in subdivision (c).
The qualifying circumstances are set forth in subdivisions (d) and (e). Defendant was convicted of a qualifying offense, rape. ( 667.61, subd. (c)(1).)
A qualifying circumstance, kidnapping, was also pled and proved. ( 667.61, subd. (e)(1).)
Under subdivision (a) of section 667.61, imprisonment for life with a minimum parole eligibility of 25 years is imposed if the defendant is convicted under any of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e).
Under subdivision (b), applicable to defendant, a lesser sentence of life with parole eligibility after 15 years is imposed if only one of the circumstances specified in subdivision (e) applies.
Circumstances alleged and proved under subdivisions (d) and (e) could conceivably serve as the basis for additional punishment under other statutes.
Subdivision (f) appears to prohibit this dual use. It provides that if only the minimum number of circumstances required to invoke subdivisions (a) or (b) are pled and proved, they must be used to impose the terms provided under subdivisions (a) or (b) "rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty." ( 667.61, subd. (f).)
If, however, additional circumstances are alleged and proved (i.e., more than the minimum number required to invoke subdivisions (a) or (b)), the additional circumstance(s) "shall be used to impose any punishment or enhancement authorized under any other law." (Ibid.)
In People v. Graves, the People relied on a single circumstance under section 667.61, subdivision (d)(1): a prior conviction of Penal Code section 288, subdivision (a). (Graves, supra, 80 Cal. App. 4th at p. 1341.)
This single circumstance also constituted the strike charged by the People under the three strikes law. We concluded subdivision (f) confines use of this single circumstance to the term provided under section 667.61 "rather than being used to impose the punishment authorized under any other law," including the three strikes law. (Ibid.)
In People v. Rayford, supra, 9 Cal. 4th 1, the Supreme Court, in dicta, used the verb "is enhanced" without characterizing the one strike term as a technical "enhancement."
The punishment for the "current felony conviction" under the second strike doubling provision of the three strikes law is the term provided under the one strike law since the statute provides the punishment "shall be twice the term otherwise provided as punishment for the current felony conviction." ( 667, subd. (e)(1).)