PEOPLE v. BOULERICE

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Alan Mark BOULERICE, Defendant and Appellant.

No. H011887.

Decided: January 27, 1995

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald S. Matthias, Supervising Deputy Atty. Gen., Martin S. Kaye, Deputy Atty. Gen., for respondent. Dallas Sacher, Under Appointment by the Sixth Dist. Appellate Program, Santa Clara, for appellant.

Defendant was convicted after a jury trial of indecent exposure (Pen.Code, § 314).   He admitted that he had suffered two prior felony convictions for which he had served prison terms (Pen.Code, § 667.5, subd. (b)).  He was sentenced to five years in state prison.   On appeal, he claims that (1) the judgment is void because the assignment of the municipal court judge who presided over the trial to serve as a superior court judge was “not authorized,” (2) “the trial court erred by denying appellant's second Penal Code section 995 motion,” (3) the trial court prejudicially erred in admitting evidence of a prior offense, (4) the trial court erred by imposing a Penal Code section 667.5, subdivision (b) enhancement for the same conviction which made the substantive offense a felony and (5) the trial court's imposition of the aggravated term was improper because it was based on the trial court's “own personal opinion that appellant's mental illness was not treatable.”   For the reasons expressed below, we affirm the judgment.

FACTS

Brook Alicia Ziegler worked at Gorgeous Salon on Soquel Avenue in Santa Cruz.   Gorgeous Salon is located adjacent to a parking lot and has sliding glass doors facing the parking lot.   Customers using the parking lot must walk between the cars to reach the adjacent businesses.   On February 3, 1993, Ziegler saw a blue Toyota truck in the parking lot which looked familiar to her because a year earlier there had been an “incident” involving this same truck when it been parked in the same spot.   Ziegler noticed that the truck remained parked in the same spot for a “couple hours.”   The parking lot was full and there was a substantial amount of foot traffic in and out of the parking lot.   There appeared to be someone in the truck “but sitting very low with a hat.”   Ziegler made a note of the license number of the truck.   The next day, the truck returned to the same location.   Ziegler immediately called the police.

Uniformed police officer Michelle Marie Jagst responded to the call.   She found a blue truck parked directly in front of and facing Gorgeous Salon.   Jagst saw defendant sitting in the driver's seat of the truck.   She approached the truck, and, when she was about three to four feet away, she saw that defendant's pants were unzipped and folded open, his penis was exposed, and he was masturbating.   He appeared to be looking into Gorgeous Salon.   Defendant did not notice her until she knocked on the passenger window and identified herself as a police officer.   In response to her knock, defendant turned and looked at her.   Then, he “tucked his penis back inside of his pants.”   Jagst arrested defendant.   Inside his car, she found papers which read:  “she has no bissnes looking in my truck,” “my truck privitey property,” “no you cant look in the window,” “you cant look in my truck” and a number of other similar statements.

On March 4, 1993, defendant was charged by information with indecent exposure, and it was also alleged that he had served prison terms for two prior felony convictions.   On April 8, 1993, defendant's Penal Code section 995 motion was granted, and the case was dismissed.   A new preliminary examination was held on April 22, 1993.   Defendant was bound over for trial, and a new information was filed charging him with indecent exposure (Pen.Code, § 314) and alleging two prison priors (Pen.Code, § 667.5, subd. (b)).  Defendant again moved to dismiss pursuant to Penal Code section 995.   This time, the motion was denied.

Defendant sought an in limine ruling that his prior offenses were not admissible to show intent under Evidence Code section 1101, subdivision (b).   The court ruled that defendant's 1992 indecent exposure offense, the most recent of three prior indecent exposure offenses, could be utilized by the prosecution to show the specific intent element of the charged offense.   The jury found defendant guilty of indecent exposure, and defendant admitted the two prison priors.   The trial court imposed the aggravated term of three years and imposed two consecutive one-year terms for the prison priors.   Defendant filed a timely notice of appeal.

DISCUSSION

A. JUDGMENT IS NOT VOID

 Judge Robert B. Atack presided over defendant's July 1993 trial.   Defendant claims that “the instant judgment is void since municipal court Judge Atack had no authority to sit as a permanent member of the superior court bench.”   There is no merit to this contention.  “The Chief Justice may provide for the assignment of any judge to another court․”  (Cal. Const., art. VI, § 6.)  “A judge eligible for municipal court service may be assigned by the Chief Justice to serve on any court.”  (Cal. Const., art. VI, § 15.)   On December 29, 1992, Chief Justice Malcolm Lucas assigned Judge Atack to sit as a judge “of the Superior Court of Santa Cruz County from January 1, 1993 to December 31, 1993, and until completion and disposition of all causes and matters heard pursuant to this assignment.” 1  The California Constitution provides the requisite authority for the Chief Justice's assignment of Judge Atack to the Santa Cruz County Superior Court.   Although defendant's appellate counsel repeatedly asserts that the assignment of Judge Atack to the superior court was a “permanent” assignment, it clearly was not.2  The Chief Justice's assignment order was limited to the specified one year period.   One year is not “permanent.”   Apparently, defendant's appellate counsel believes that one year is too long and that such assignments should be limited to two months.   As he provides absolutely no authority for this proposition, we need not address it.   (People v. Allen (1993) 20 Cal.App.4th 846, 858, 25 Cal.Rptr.2d 26;  Tate v. Saratoga Savings & Loan Assn. (1989) 216 Cal.App.3d 843, 855–856, 265 Cal.Rptr. 440;  People v. Gordon (1990) 50 Cal.3d 1223, 1244 fn. 3, 270 Cal.Rptr. 451, 792 P.2d 251.)

B. EVIDENCE OF PRIOR INCIDENT WAS PROPERLY ADMITTED **

C. PENAL CODE SECTION 667.5, SUBDIVISION (B) ENHANCEMENT

Defendant contends that the trial court erred in imposing a Penal Code section 667.5, subdivision (b) enhancement for his 1990 indecent exposure conviction because this same conviction was the basis for elevation of the current offense to a felony.5  He claims that Penal Code section 314 is a “special statute” which controls over Penal Code section 667.5, subdivision (b), a “general statute,” and, failing that, that imposition of punishment under Penal Code section 667.5, subdivision (b) is barred by Penal Code section 654.

1. “SPECIFIC OVER GENERAL” RULE IS INAPPLICABLE

 Defendant invokes “the general rule that a special statute controls over a general statute.”  (In re Shull (1944) 23 Cal.2d 745, 750, 146 P.2d 417.)   He claims that Penal Code section 314, which makes indecent exposure a felony when the perpetrator has at least one prior indecent exposure conviction, is a “specific statute” which controls over Penal Code section 667.5, subdivision (b), a “general statute.”   We conclude that the “specific over general” rule is inapplicable here.

 The “specific over general” rule applies when “each element of the ‘general’ statute corresponds to an element on the face of the ‘specific’ statute” or “a violation of the ‘special’ statute will necessarily or commonly result in a violation of the ‘general’ statute[.]”  (People v. Jenkins (1980) 28 Cal.3d 494, 502, 170 Cal.Rptr. 1, 620 P.2d 587.)   The two statutes clearly do not have corresponding “elements.”  Penal Code section 314 makes indecent exposure a felony even where the defendant has but a single prior misdemeanor indecent exposure conviction.  Penal Code section 667.5, subdivision (b) applies only where the prior conviction was not only for a felony but also resulted in service of a prison term.   A prior indecent exposure conviction, such as will elevate a new indecent exposure offense to a felony, is also not “commonly” the type of prior conviction to which the provisions of Penal Code section 667.5, subdivision (b) will apply.   First, an initial indecent exposure conviction is generally a misdemeanor.6  Only those defendants who have multiple prior indecent exposure convictions will “commonly” have a prior felony indecent exposure conviction to which the provisions of Penal Code section 667.5, subdivision (b) could possibly be applicable.   Second, even those defendants who do have a prior felony indecent exposure conviction will not “commonly” have served a prior prison term therefor.   Unlike “serious felonies,” indecent exposure is not an offense which “commonly” merits imposition of a prison term.  (Cf. People v. Jones (1993) 5 Cal.4th 1142, 1150, 22 Cal.Rptr.2d 753, 857 P.2d 1163.)   In sum, a prior indecent exposure conviction which elevates a new indecent exposure offense to felony status will not necessarily or commonly result in application of the provisions of Penal Code section 667.5, subdivision (b).   Therefore, the “specific over general” rule has no application here.

2. PENAL CODE SECTION 654

 Defendant claims that Penal Code section 654 precluded imposition of the Penal Code section 667.5, subdivision (b) enhancement because the enhancement was based on the same prior conviction which triggered the elevation of the substantive offense to felony status.   We disagree.

 “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one.”   (Pen.Code, § 654.)  Penal Code section 654 does not bar imposition of the enhancement in this case because this type of enhancement is not based on the act which resulted in the prior conviction, but is instead based on defendant's status.  “[I]ncreased penalties for subsequent offenses are attributable to the defendant's status as a repeat offender and arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense.”   (In re Foss (1974) 10 Cal.3d 910, 922, 112 Cal.Rptr. 649, 519 P.2d 1073, emphasis added.)   On its face, Penal Code section 654 applies only to an “act or omission” and not to status-based enhancements.   (People v. Rodriguez (1988) 206 Cal.App.3d 517, 519, 253 Cal.Rptr. 633.)   As Penal Code section 667.5, subdivision (b) does not punish an act or omission, it is not subject to the double punishment bar of Penal Code section 654.7

D. AGGRAVATION ***

CONCLUSION

The judgment is affirmed.

FOOTNOTES

1.   We take judicial notice of this assignment order at defendant's request.

2.   Defendant's appellate counsel avers, but has failed to establish, that Judge Atack was assigned to a “felony team” department by the presiding judge of the Santa Cruz County Superior Court in June 1993.   By local court rule, the presiding judge assigns judges to a department.   Defendant's appellate counsel has submitted a copy of “Department Assignments Revised August 1, 1993” to demonstrate that Judge Atack was assigned to a “felony team” department.   However, appellate counsel has failed to demonstrate with any judicially noticeable material that these assignments were made prior to defendant's July 1993 trial.   Hence, we cannot consider whether the assignment of Judge Atack to a “felony team” had any effect on his authority to sit as a superior court judge.

FOOTNOTE.   See footnote *, ante.

5.   This issue is currently under review by the California Supreme Court.  (People v. Coronado (1994) 28 Cal.App.4th 1175, 34 Cal.Rptr.2d 315, review granted December 22, 1994.)

6.   First offense indecent exposure can be charged as a felony if it is committed after the perpetrator enters an inhabited structure or trailer coach.  (Pen.Code, § 314.)

7.   Defendant points out that in People v. Cortez (1992) 6 Cal.App.4th 1202, 8 Cal.Rptr.2d 580 a different panel of this court mentioned, in the course of a discussion about Penal Code sections 667 and 667.5, subdivision (b), that “[w]hile a defendant may be charged with both a section 667 enhancement and a section 667.5 enhancement arising from a single conviction, imposition of punishment for both enhancements will be barred by section 654 's restriction on multiple punishment for a single act.  (People v. Hopkins (1985) 167 Cal.App.3d 110, 117–118 [212 Cal.Rptr. 888].)  (People v. Cortez, supra, 6 Cal.App.4th 1202, 1213, 8 Cal.Rptr.2d 580, emphasis added.)   The only significance that this statement had in Cortez was to support the proposition that both enhancements could not be imposed based on a single prior conviction.   The California Supreme Court subsequently held in People v. Jones, supra, 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163 that both enhancements cannot be imposed for a single prior conviction because the voters, who enacted section 667, did not so intend.   Hence, the reasoning behind Cortez 's statement was unnecessary to its conclusion.   Moreover, Cortez did not even purport to analyze or decide whether section 654 applies to status-based enhancements.   Nevertheless, because the conclusion we reach is contrary to the one reached in Hopkins, Cortez erred in relying on Hopkins.   However, this error was of no consequence since the point made in Cortez is valid and amply supported by Jones.

FOOTNOTE.   See footnote *, ante.

MIHARA, Associate Justice.

COTTLE, P.J., and WUNDERLICH, J., concur.