PEOPLE v. LEWIS

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Tommy Eugene LEWIS, Defendant and Appellant.

No. B118546.

    Decided: June 07, 1999

Marylou Hillberg, under appointment by the Court of Appeal, Santa Rosa, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, and William V. Ballough, Deputy Attorney General, for Plaintiff and Respondent.

PROCEDURAL BACKGROUND

On September 22, 1997, an amended information was filed against appellant Tommy Eugene Lewis, charging him with attempted willful, deliberate, and premeditated murder (Pen.Code, §§ 664 and 187, subd. (a)) 1 in count 1, and shooting into an occupied motor vehicle (§ 246) in count 2. The information also alleged under both counts that appellant had personally inflicted great bodily injury (§ 12022.7, subd. (a)) and had discharged a firearm (§ 12022.5, subd. (b)(1)), rendering both offenses serious felonies (§ 1192.7, subd. (c)(23)).   Finally, the information alleged that appellant had a prior conviction for a serious or violent felony or juvenile adjudication for robbery (§§ 211, 1170.12, subds.(a)-(d), 667, subds. (b)-(i)).   Appellant pled not guilty and denied the allegations.

Trial by jury commenced on September 26, 1997.   On October 7, 1997, the jury rendered its verdicts, finding appellant guilty of attempted willful, deliberate, and premeditated murder and shooting into an occupied vehicle, and finding the special allegations to be true.   In a bifurcated proceeding, the trial court found true the allegation that appellant had a prior conviction or a juvenile adjudication for robbery.

On November 14, 1997, the trial court sentenced appellant to a term of imprisonment of 14 years to life on count 1, plus 10 years for discharging a firearm and 3 years for personally inflicting great bodily injury.   The trial court also sentenced appellant to a term of 14 years' imprisonment on count 2, plus 10 years for discharging a firearm and 3 years for personally inflicting great bodily injury.   The enhancements in count 1 were ordered stayed under section 654 unless an appellate court determined that the enhancements in count 2 must be stayed under section 654, in which case the stay on the enhancements to count 1 was to be lifted.   Finally, the trial court ordered that the sentences under counts 1 and 2 were to run consecutively, bringing appellant's sentence to a total of 41 years to life.   This appeal followed.

FACTS

A. Prosecution Evidence

The key witness to the underlying events was Brandon Call, the victim, who testified as follows:  Between 5:00 and 5:30 p.m., on September 3, 1996, Call, a professional actor, left the Warner Brothers studio in Burbank and began to go home to Redondo Beach in his Honda Civic.   As Call drove down Venice Boulevard, he noticed that an older model blue Datsun 280Z was tailgating him, sometimes approaching within six to eight inches of the Honda's bumper.   Through the Honda's mirrors, Call saw the face of the person driving the 280Z, but did not recognize him.   Call also noticed that the 280Z held a passenger, and that its left front wheel wobbled.

After a while, Call became upset that the 280Z was following him so closely, and he shouted, “ ‘What the f--- is your problem?’ ”   When the 280Z continued to tailgate him, Call became nervous, made a right turn off of Venice Boulevard onto Olin Street, and then made another right turn onto a second street, which ended in a cul-de-sac.   Call turned around and made a left turn onto Olin Street, where he found the 280Z stopped in the middle of the street, facing the Honda.

Cars parked on both sides of Olin narrowed the driving lanes, but Call noticed that there was enough room on the left side of the 280Z for him to drive past the 280Z. As Call approached the 280Z, he saw the driver's face and noticed that the passenger was a Black female.   Call drove slowly because the 280Z left barely sufficient room for the Honda, but he continued to look at the driver of the 280Z. When the passenger windows of the two vehicles were adjacent, the driver of the 280Z leaned over his passenger and fired several shots through the open passenger window of the 280Z into the Honda, injuring Call's arms.   Call drove away as quickly as he could, arriving at the Culver City police station about 15 minutes after the shooting.

In addition to this testimony, the prosecution also presented the following evidence.   Call arrived at the Culver City police station at approximately 6 p.m. on September 3, 1996.   On September 26, 1996, police officers in a patrol car near Venice Boulevard noticed appellant driving a “1980's” blue 280Z with a slightly wobbly front left wheel.   They followed appellant, who eventually parked the car and admitted upon questioning that he lacked a driver's license.   Appellant was cited for driving without a license and the 280Z was impounded.

Several weeks after Call was shot, he picked appellant out of a photographic lineup.   He later identified appellant as his assailant at a live lineup, during the preliminary hearing, and at trial.

B. Defense Evidence

Appellant's principal witness was Luther Robinson, the Director of Admissions of the International Dealers School in Commerce.   Robinson testified that federal rules required the school to keep attendance records and to award credit only for classes attended.   Appellant was enrolled at the school in September 1996, and the school's records indicated that appellant had received full credit for attendance on September 3, 1996, for a class that began at 7 p.m. and ended at 10:50 p.m. Robinson also testified that in his own classes, he gave full credit to students who arrived as late as 7:15, and that he did not know how the instructor of appellant's class determined full credit.

Priscilla Carr testified that she sold the 280Z found in appellant's possession to appellant's wife in August 1996.   At that time, the vehicle's left front wheel did not wobble.   Los Angeles Police Department Detective William Sweeney testified that when he inspected appellant's 280Z on October 2, 1996, he did not find any damage to the vehicle's left front wheel, and that appellant told him on October 8, 1996, that he had had the wheel repaired one month earlier to cure a vibration.

C. Rebuttal

Sandra Lewis, appellant's wife, testified that on September 3, 1996, appellant left for school in her 280Z at about 6:00 or 6:15 p.m. She also testified that she had previously told a public defender investigator that appellant had left their residence on that date between 5:30 and 6 p.m.

DISCUSSION

Appellant contends that (1) the prosecutor committed misconduct, (2) the trial court erroneously determined that his juvenile robbery adjudication was a “strike,” (3) the trial court improperly determined that appellant's indeterminate life sentence for attempted murder had a minimum term of seven years for the purposes of sentencing under the “Three Strikes” law, (4) section 654 bars the consecutive sentences for attempted murder and shooting into an occupied vehicle, and (5) section 654 bars the imposition of the enhancements on his sentence for shooting into an occupied vehicle.

A. ***

B. Juvenile Adjudication as Strike

Appellant contends that the trial court erred in sentencing appellant upon a determination that his juvenile adjudication for robbery constituted a strike within the meaning of the “Three Strikes” law.   We agree.

“ ‘In March 1994, the Legislature enacted its version of the “Three Strikes and You're Out” law by amending section 667.   In general, the legislation provides longer sentences for certain prior serious or violent felonies popularly denoted “strikes.”  ․’ [Citation.]   The statute's unambiguous purpose is to provide greater punishment for recidivists. (§ 667, subd. (b).)”  (People v. Davis (1997) 15 Cal.4th 1096, 1099, 64 Cal.Rptr.2d 879, 938 P.2d 938.)

Under the “Three Strikes” law, section 667, subdivision (d)(3), states the requirements for a prior juvenile adjudication to qualify as a “strike.” 2  (People v. Davis, supra, 15 Cal.4th at p. 1100, 64 Cal.Rptr.2d 879, 938 P.2d 938.)   Section 667 provides:  “[ (d) ](3) A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if:  [¶] (A) The juvenile was 16 years of age or older at the time he or she committed the prior offense.  [¶] (B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a felony.  [¶] (C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law.  [¶] (D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.”

The phrase “described in paragraph (1) or (2)” in subdivision (d)(3)(B) refers to subdivisions (d)(1) and (d)(2) of section 667.   Subdivision (d)(1) concerns “[a]ny 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.”   Subdivision (d)(2) concerns “[a] conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison.”

There is no dispute that appellant's juvenile adjudication for robbery satisfies the first three requirements described in subdivisions (d)(3).   Here, the record establishes that on December 14, 1995, a petition was filed in juvenile court, alleging that on November 8, 1995, appellant, then 17 years old, committed the crime of second degree robbery in violation of section 211.   On February 7, 1996, appellant admitted the allegation and was declared a ward of the juvenile court under Welfare and Institutions Code section 602.

 In view of this record, appellant was over 16 years of age when he committed the robbery, thus satisfying subdivision (d)(3)(A) (hereafter “requirement (A)”).   Although a violation of section 211 is not listed in Welfare and Institutions Code section 707, subdivision (b),3 it is identified as a serious felony in section 1192.7, subdivision (c)(19), and therefore the juvenile adjudication meets the requirement stated in subdivision (d)(3)(B) (hereafter “requirement (B)”).   Finally, as our Supreme Court explained in People v. Davis, supra, 15 Cal.4th at pages 1100-1103, 64 Cal.Rptr.2d 879, 938 P.2d 938, when, as here, a juvenile is tried in juvenile court, the requirement in subdivision (d)(3)(C) (hereafter “requirement (C)”) is satisfied.

 The key issue, therefore, is whether the robbery adjudication satisfies the fourth requirement found in subdivision (d)(3)(D) (hereafter “requirement (D)”).4  The record discloses that appellant had been declared a ward of the juvenile court, not because he had committed a felony listed in Welfare and Institutions Code section 707, subdivision (b), but because he had committed a felony listed in section 1192.7.   Nonetheless, the trial court concluded that the robbery adjudication met requirement (D), despite the plain language of this requirement, reasoning that it should be understood as encompassing all the felonies identified in requirement (B).

 The question thus presented is an issue of statutory interpretation, which we review de novo.  (Eidsmore v. RBB, Inc. (1994) 25 Cal.App.4th 189, 195, 30 Cal.Rptr.2d 357.)   Established principles applicable to statutes enacted by the Legislature and the voters guide our inquiry.   We look first to the plain language of the statute, read in context, and will not add to the statute or rewrite it to conform to an assumed intent not apparent from the language.  (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 301, 58 Cal.Rptr.2d 855, 926 P.2d 1042;  In re Jerry R. (1994) 29 Cal.App.4th 1432, 1437, 35 Cal.Rptr.2d 155.)

 An examination of subdivision (d)(3) reveals that the four requirements, though interrelated, display two basic structural features.   First, whereas requirements (A), (C), and (D) begin with the phrase “[t]he juvenile,” requirement (B) begins with the phrase “[t]he prior offense.”   Thus, requirements (A), (C), and (D), unlike requirement (B), are framed as descriptions of a kind of juvenile offender, rather than as a description of a kind of offense.   Second, whereas requirements (A) and (B) refer back to the phrase “a prior juvenile adjudication” at the beginning of subdivision (d)(3) by means of the phrase “[t]he prior offense,” requirement (D) contains the phrase “an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.” (Emphasis added.)   Thus, the offense falling under the phrase “an offense” in requirement (D), unlike the offense falling under the phrase “[t]he prior offense” in requirements (A) and (B), need not be the prior juvenile adjudication that potentially counts as a strike.

In our view, these two facts fix the correct interpretation of subdivision (d)(3).   The four requirements fall into two groups.   Requirements (A), (C), and (D) carve out a class of individuals eligible for treatment as “strike” offenders, and requirement (B) specifies the conduct by a “strike” offender that counts as a “strike.”   Furthermore, requirements (B) and (D), as worded, are not coextensive.   A particular juvenile adjudication may count as a strike under requirement (B) provided that an individual was declared a ward of the court for some offense identified in requirement (D), including offenses other than the particular juvenile adjudication in question.

Under this interpretation, the lists of offenses found in requirements (B) and (D) play different roles in subdivision (d)(3).   The list in requirement (D) characterizes a condition for an individual to be a “strike” offender, namely, having been adjudged a ward of the court for an offense in Welfare and Institutions Code section 707, subdivision (b).   The offenses found in that subdivision thus function as threshold offenses required for entry into the class of “strike” offenders.   By contrast, the lists in requirement (B) characterize potential strikes.   An offense by a “strike” offender may count as a strike if it is found in requirement (B), even if it is not one of the threshold offenses by which an individual became a “strike” offender.

This interpretation finds additional support in Welfare and Institutions Code section 707.   Subdivision (b) of that section enumerates offenses by a minor 16 years of age or older that trigger an inquiry into whether the minor should be treated as an adult offender.  (Welf. & Inst.Code, § 707, subds. (b), (c).)   The purpose of this inquiry is to determine “whether the best interests of the minor and society would be served by retention of juvenile court authority [.]”  (People v. Superior Court (Zaharias M.) (1993) 21 Cal.App.4th 302, 307, 25 Cal.Rptr.2d 838.)   The offenses listed in section 707, subdivision (b), thus mark criminal conduct by minors of sufficient gravity to justify an inquiry into whether they should be tried as adults.   Accordingly, the reference to this section in requirement (D) corroborates our conclusion that requirement (D) targets a special class of juvenile offenders for “strike” eligibility.

In sum, the lists of offenses in requirements (B) and (D) serve different functions, and are not coextensive.   Requirement (D) identifies the offenses by which an individual becomes eligible for treatment as a “strike” offender, and requirement (B) identifies the offenses that count as strikes for such an offender.   Furthermore, these requirements, by their plain language, indicate that the Legislature and the voters intended the list of potential strikes to be broader than the list of threshold offenses for treatment as a “strike” offender.

Respondent, in agreement with the trial court, takes the position that requirement (D), as written, identifies too few potential “strike” offenders, and that the phrase “or described in paragraph (1) or (2) as a felony” should be inserted after the reference to Welfare and Institutions Code section 707, subdivision (b).   This contention finds support in People v. Griggs ( 1997) 59 Cal.App.4th 557, 69 Cal.Rptr.2d 174.   In Griggs, the court concluded that a juvenile adjudication for residential burglary was a strike, even though this offense is not listed in Welfare and Institutions Code section 707, subdivision (b).   The court there reasoned that the failure to include the words “or described in paragraph (1) or (2) as a felony” in both requirements (B) and (D) must be a drafting oversight because “[t]here is no other rational explanation for the omission.”  (59 Cal.App.4th at p. 561, 69 Cal.Rptr.2d 174.)

We respectfully disagree.   As we have explained, the plain language of subdivision (d)(3) discloses a rational explanation for the apparent disparity between requirements (B) and (D), and thus there is no need to rewrite requirement (D) to facilitate “the intent of the adopting body.”  (People v. Skinner (1985) 39 Cal.3d 765, 775, 217 Cal.Rptr. 685, 704 P.2d 752.)

Here, appellant was not declared a ward of the juvenile court because he had committed an offense listed in Welfare and Institutions Code section 707, subdivision (b), and thus he does not satisfy requirement (D).5  Accordingly, the trial court erred in determining that appellant's juvenile adjudication for robbery constituted a strike.

C.-E.†

DISPOSITION

For the reasons explained in this opinion, the judgment is reversed with respect to appellant's sentence, and the matter is remanded to the trial court with directions to set aside appellant's former sentence and (1) to enter a new term of life imprisonment with the possibility of parole under count 1, plus 10 years for personal use of a firearm and 3 years for personally inflicting great bodily injury, (2) to enter a term of 7 years' imprisonment under count 2, plus 10 years for discharging a firearm at an occupied vehicle, and (3) to stay punishment for count 2. In all other respects, the judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code, unless otherwise indicated.

FOOTNOTE.   See footnote *, ante.

2.   Section 1170.12, subdivision (b)(3), which is also part of the “Three Strikes” law, contains materially identical provisions.  (People v. Davis, supra, 15 Cal.4th at pp. 1099-1100 & fn. 2, 64 Cal.Rptr.2d 879, 938 P.2d 938.)

3.   The only form of robbery enumerated in that provision is robbery while armed with a dangerous or deadly weapon.  (Welf. & Inst.Code, § 707, subd. (b)(3).)   Here, the juvenile petition concerning appellant's robbery does not allege that he was so armed, and during the juvenile proceedings appellant admitted only to the petition as pled.

4.   In People v. Davis, supra, 15 Cal.4th 1096, 1100, 1103, 64 Cal.Rptr.2d 879, 938 P.2d 938, our Supreme Court left “for another day” the issue of whether a juvenile adjudication for an offense not listed in Welfare and Institutions Code section 707, subdivision (b), counts as a strike under section 667, subdivision (d)(3).

5.   Because we conclude on grounds of statutory interpretation that appellant does not meet requirement (D), we do not address appellant's other contentions, including his argument that requirement (B) is constitutionally infirm.  (California State Electronics Assn. v. Zeos Internat. Ltd. (1996) 41 Cal.App.4th 1270, 1274, 49 Cal.Rptr.2d 127 [a court should not decide issues of constitutionality when other grounds for resolving the matter are available].)

FOOTNOTE.   See footnote *, ante.

CURRY, J.

EPSTEIN, Acting P.J., and HASTINGS, J., concur.

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