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Court of Appeal, First District, Division 1, California.

The PEOPLE, Plaintiff and Appellant, v. William Royal HAZELTON, Defendant and Respondent.

Nos. A068300, A068303.

Decided: December 26, 1995

Gary T. Yancey, District Attorney of Contra Costa County, L. Douglas Pipes, Deputy District Attorney, Martinez, for Plaintiff and Appellant. Charles H. James, Public Defender of Contra Costa County, Ron Boyer, Deputy Public Defender, Martinez, for Defendant and Respondent.

 The sole issue presented in this appeal by the People is whether prior convictions from jurisdictions outside California are excluded from consideration when determining “[i]f a defendant has two or more prior felony convictions” so as to trigger the stringent “third strike” penalty provisions of Penal Code section 1170.12, subdivision (c)(2)(A).1  We conclude that any “violent” or “serious” felony as defined by California law, whether committed here or in another state, may be counted to impose enhanced punishment upon a defendant under section 1170.12, subdivision (c)(2)(A).2


Respondent William Hazelton was charged with felonies in two separate complaints filed in Contra Costa County in May and August of 1994, the first of these alleged that he suffered a single prior felony conviction within the meaning of section 667, subdivisions (d) and (e), the legislative version of the “Three Strikes” law.   The second complaint alleged that respondent suffered two prior felony convictions under section 667, subdivisions (d) and (e), one of which was “attempted rape” in “the State of Nevada.”   Before these cases were resolved, the initiative Three Strikes law, which added section 1170.12 to the Penal Code, was enacted and became operative.   Upon motion by the defense, the trial court subsequently ruled that under section 1170.12 respondent's “out of state prior does not count for purposes of a third strike.”   The effect of the trial court's ruling was “to strike or dismiss” the Nevada prior conviction as a sentence enhancement allegation.   The People's request to reinstate the prior conviction allegation (§ 871.5) was denied, and this appeal was taken pursuant to section 1238, subdivision (a)(9).3


Respondent's Nevada Conviction is a “Prior Felony Conviction” within the Meaning of Subdivision (c)(2)(A)a) The express language of the initiative includes foreign felony convictions.

For purposes of section 1170.12, a “prior conviction of a felony” is defined in three separate paragraphs of subdivision (b) as:  “(1) [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”;  (2) a “conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison” and includes “all of the elements” of qualifying California convictions;  and (3) specified juvenile adjudications of criminal offenses.   In addition to any other enhancements or punishment provisions, if a defendant “has one prior felony conviction 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.”  (§ 1170.12, subd. (c)(1).)   A defendant who has “two or more prior felony convictions, as defined in paragraph (1) of subdivision (b), that have been pled and proved” must be sentenced to an indeterminate term for the current felony conviction calculated as the greater of three times the term otherwise provided by law, 25 years, or the term determined by the court pursuant to section 1170, including any enhancements.  (Subd. (c)(2)(A), italics added.)   Thus, subdivision (c)(2)(A) contains language which defines prior felony convictions by specific reference to “paragraph (1) of subdivision (b),” without also expressly including convictions from other jurisdictions and juvenile adjudications as specified in paragraphs (2) and (3) of subdivision (b).   The trial court found that according to the language of subdivision (c)(2)(A), only California prior felony convictions may be counted to enhance punishment for “two or more prior felony convictions.”

 Our primary function is to ascertain the intent which underlies the enactment of the Three Strikes initiative as determined by reference to the language of the statute read as a whole and in context.   (People v. Jones (1993) 5 Cal.4th 1142, 1146, 22 Cal.Rptr.2d 753, 857 P.2d 1163;  People v. Ramirez (1995) 33 Cal.App.4th 559, 563, 39 Cal.Rptr.2d 374.)   We must also interpret the statutory language in a manner which avoids absurd consequences obviously unintended by the electorate.  (People v. Jenkins (1995) 10 Cal.4th 234, 246, 40 Cal.Rptr.2d 903, 893 P.2d 1224;  People v. Thomas (1992) 4 Cal.4th 206, 210, 14 Cal.Rptr.2d 174, 841 P.2d 159;  People v. McGee (1993) 15 Cal.App.4th 107, 113–114, 19 Cal.Rptr.2d 12;  People v. Willett (1993) 15 Cal.App.4th 1, 7–8, 18 Cal.Rptr.2d 603.)   “Thus, ‘[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.’  [Citation.]”   (People v. Pieters (1991) 52 Cal.3d 894, 899, 276 Cal.Rptr. 918, 802 P.2d 420;  see also People v. Thomas, supra, at p. 210, 14 Cal.Rptr.2d 174, 841 P.2d 159.)   The fundamental objective of effectuating the intent of the electorate is favored over thoughtless adherence to the literal language of the statute.  (People v. Jenkins, supra, at p. 247, 40 Cal.Rptr.2d 903, 893 P.2d 1224;  People v. Thomas, supra, at p. 210, 14 Cal.Rptr.2d 174, 841 P.2d 159;  People v. Pieters, supra, at pp. 901–902, 276 Cal.Rptr. 918, 802 P.2d 420;  People v. Bigelow (1984) 37 Cal.3d 731, 755–756, 209 Cal.Rptr. 328, 691 P.2d 994.)

 The stated purpose of the initiative Three Strikes law, which must serve as a guideline to its interpretation, is 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.”  (Ballot Pamp., Text of Proposed Law, Gen. Elec. (Nov. 8, 1994) p. 64;  see also People v. Ramirez, supra, 33 Cal.App.4th at p. 565, 39 Cal.Rptr.2d 374.) 4  This statement of purpose does not confine the intended scope of the statute to only defendants who have been convicted in California of two prior serious or violent felonies, and the ballot summary indicates that felonies committed outside California are counted as strikes.  (Ballot Pamp., Gen. Elec. (Nov. 8, 1994) p. 36.)   Denying the most severe penalty enhancement consequences of subdivision (c)(2)(A) to defendants who have committed their otherwise qualifying prior convictions in foreign jurisdictions would manifestly undermine the objectives of the law.   Increasing the punishment imposed upon recidivist offenders is no less important if the prior felony offenses were committed outside of this state.   Hence, we are presented with the task of interpreting a subdivision of a statute, the literal language of which may appear, upon a superficial reading, to be at odds with the purpose of the law.5

In People v. Jones (1995) 40 Cal.App.4th 630, 47 Cal.Rptr.2d 308 Division Four of this court recently rejected a similar claim based on the literal language of subdivision (c)(2)(A).   They reasoned that the difference between the Legislature's and the Initiative's treatment of foreign felony convictions as “second strikes” resulted from a drafting error and did not evidence an intent to enact a more lenient version of the law.   While we also conclude that foreign felonies can be “second strikes” under the Initiative, we do not reach the question of a possible drafting error.   Upon closer scrutiny, we find an interpretation of the law which corresponds to the apparent legislative intent and does not contravene the meaning of the language.

Subdivision (c)(2)(A) defines a prior felony conviction according to paragraph (1) of subdivision (b) as any offense listed as a “violent” felony in section 667.5, subdivision (c), or a “serious felony” under subdivision (c) of section 1192.7.   No other felony offenses, whether committed in California or elsewhere,6 may serve as the “two or more prior felony convictions” which subject a defendant to imposition of the most severe punishment enhancements the law provides upon conviction of any third felony.   Thus, while any felony may qualify as a third strike, the drafters and electorate meant to impose the enhanced state prison sentences prescribed by the initiative only for prior commission of violent or serious felony offenses.   Prior felony convictions for less heinous crimes are excluded from treatment as priors.7

While subdivision (c)(2)(A) counts only violent or serious felonies as the first two prior convictions, we find nothing in the statutory language which precludes consideration of felonies committed in other jurisdictions for purposes of sentence enhancement under section 1170.12.   To the contrary, strict adherence to the language of paragraph (1) of subdivision (b) which describes the class of “two or more prior felony convictions” used to enhance punishment under subdivision (c)(2)(A), brings foreign felonies within the scope of the stated definition.   Paragraph (1) of subdivision (b) defines prior felony convictions as those violent or serious felony offenses enumerated in sections 667.5 and 1192.7.   These sections encompass qualifying foreign as well as California felonies.   They include, any offense committed in another jurisdiction which has all of the elements of the corresponding violent or serious felony in California.  (§ 667.5, subd. (f);  People v. Myers (1993) 5 Cal.4th 1193, 1201, 22 Cal.Rptr.2d 911, 858 P.2d 301;  People v. Hayes (1992) 6 Cal.App.4th 616, 619–620, 7 Cal.Rptr.2d 866;  People v. Hawkins (1991) 1 Cal.App.4th 880, 883, 2 Cal.Rptr.2d 321;  People v. Johnson (1991) 233 Cal.App.3d 1541, 1547, 285 Cal.Rptr. 394;  People v. Harbolt (1988) 206 Cal.App.3d 140, 159, 253 Cal.Rptr. 390.)   Respondent's Nevada conviction for attempted rape is an offense specifically listed as a “serious” felony in section 1192.7, subdivision (c)(3), (27).   We must assume that when section 1170.12 was enacted, the drafters of the initiative and the electorate had knowledge of existing laws and judicial decisions which identified offenses committed in other jurisdictions as violent or serious felonies within the meaning of sections 667.5 and 1192.7.  (Cf. Williams v. Garcetti (1993) 5 Cal.4th 561, 572, 20 Cal.Rptr.2d 341, 853 P.2d 507;  People v. Overstreet (1986) 42 Cal.3d 891, 897, 231 Cal.Rptr. 213, 726 P.2d 1288.)   By specifically relying upon sections 667.5 and 1192.7 to define prior felony convictions pursuant to subdivision (c)(2)(A), their intent must have been to continue the use of foreign felony convictions as enhancements throughout section 1170.12.   Thus, even if we confine the class of “two or more prior felony convictions” to the definition contained in “paragraph (1) of subdivision (b),” respondent's Nevada prior conviction of attempted rape is a qualifying offense.

b) Incorporation of foreign felony convictions is consistent with the remainder of the initiative.

The allusion in subdivision (c)(2)(A) to only paragraph (1) of the three paragraphs of subdivision (b) to define prior felony convictions does not constitute an exclusion of foreign convictions as enhancements.   The incorporation by reference—through sections 667.5 and 1192.7—of enumerated offenses committed in other jurisdictions into the class of “two or more prior felony convictions, as defined in paragraph (1) of subdivision (b),” is consistent with the remainder of section 1170.12, in which prior felony convictions are consistently described without jurisdictional limitation.   Subdivision (b) not only expressly defines a prior conviction of a felony to include “[a] conviction in another jurisdiction,” but further declares that the definition provided therein is “[n]otwithstanding any other provision of law and for the purposes of this section․”   Subdivision (d)(1) further provides that “[n]otwithstanding any other provision of law, this section shall be applied in every case in which a defendant has a prior felony conviction as defined in this section.”   Finally, subdivision (a) of section 1170.12 enumerates eight sentencing consequences to which “the court shall adhere” if “a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions, as defined in subdivision (b),” without specifically excluding foreign convictions or directing attention to only paragraph (1).  (Italics added.)

Even within subdivision (c) of section 1170.12, which delineates the primary sentencing features of the law, no intent is manifested to deprive foreign convictions of validity when enhancing punishment for “two or more prior felony convictions.”   Subdivision (c) is, by its terms, operative “where a defendant has a prior felony conviction,” again without limitation upon the subdivision (b) definition of the term.   Paragraph (1) of subdivision (c) similarly imposes upon defendants twice the term otherwise provided as punishment for any “prior felony conviction.”   Even subdivision (c)(2)(A), the sole provision of section 1170.12 which refers to paragraph (1) of subdivision (b) alone when discussing prior felony convictions, authorizes enhancement with foreign violent or serious felonies by indirectly but specifically adding to the definition the offenses specified in sections 667.5 and 1192.7.

 Upon our reading of section 1170.12 in its entirety, we find that the language “as defined in paragraph (1) of subdivision (b)” in subdivision (c)(2)(A) does not by implication delete from the class of qualifying enhancement offenses those prior felony convictions incurred in other states which fall within the meaning of paragraph (2) of subdivision (b) and sections 667.5 and 1192.7.   Nowhere in subdivision (c)(2)(A) is paragraph (2) explicitly removed from the definition of prior felony convictions, and we will not read an exception into the statute where to do so would flout the public policies served by the law and the definition expressed elsewhere in the same statute.  (People v. Goodson (1990) 226 Cal.App.3d 277, 282, 277 Cal.Rptr. 60.)   To hold otherwise would give the effect to the initiative of inviting felons from other states to make a fresh start in California.

We are not persuaded by respondent's argument that the electorate intended to reserve the most severe sentences “for those who have committed crimes in California as opposed to elsewhere.”   The obvious intent of the initiative as manifested in its statement of purpose is to inflict the most onerous sentences upon those who have committed violent or serious prior felony offenses most often, without regard to accidents of geography.  (Cf. People v. Jenkins, supra, 10 Cal.4th 234, 246, 40 Cal.Rptr.2d 903, 893 P.2d 1224.)   The more obdurate the offender, the greater the appropriate sentence.  (Cf. People v. Jones, supra, 5 Cal.4th at p. 1147, 22 Cal.Rptr.2d 753, 857 P.2d 1163.)   To impose upon such recidivist offenders all but the most oppressive sentencing consequences of section 1170.12 for prior felony convictions committed in other jurisdictions would, we believe, create a sentencing anomaly and lead to absurd results not contemplated by the electorate.   We conclude that to achieve the primary goal of effectuating the legislative intent and to promote harmony within the statutory sentencing scheme embodied in section 1170.12, the language in subdivision (c)(2)(A) which adverts to subdivision (b)(1) must be construed as subsuming within the definition of “two or more prior felony convictions” any conviction in another jurisdiction for an offense that includes all of the elements of a felony defined in this state as violent or serious in sections 667.5 or 1192.7.

c) The inclusion of foreign felony convictions in the initiative is consistent with other similar statutes.

We are also guided by the aim of realizing conformity in the statutory treatment of foreign felonies as enhancements.   Not only does section 1170.12 consistently treat felonies committed in other jurisdictions as qualifying prior convictions, other penalty enhancement statutes accord foreign felonies the same status as California felonies.  (Cf. §§ 667, subd. (a)(1);  667.5, subd. (f);  667.71;  668.)   In fact, section 668 declares a universal policy for treatment of foreign convictions as penalty enhancements:  “Every person who has been convicted in any other state ․ or jurisdiction of an offense for which, if committed within this state, that person could have been punished under the laws of this state by imprisonment in a state prison, is punishable for any subsequent crime committed within this state in the manner prescribed by law and to the same extent as if that prior conviction had taken place in a court of this state.   The application of this section includes, but is not limited to, all statutes which provide for enhancements for prior convictions and prior prison terms.”  (Italics added.)   We cannot, in derogation of the provisions of section 668 and the remainder of section 1170.12 interpret subdivision (c)(2)(A) to deny foreign prior felony convictions the same force and effect as penalty enhancements given to their California counterparts.

Finally, we observe that the legislative version of the Three Strikes law, although otherwise essentially identical to section 1170.12 (People v. Ramirez, supra, 33 Cal.App.4th at p. 565, 39 Cal.Rptr.2d 374), does not have any language which directs attention to California prior felony convictions alone when determining whether a defendant qualifies for punishment under the “three-strike” provisions of the law.   Subdivision (d) of section 667 defines prior felony convictions in language which mirrors the initiative definition, with the inclusion in paragraph (2) of prior convictions “from jurisdictions outside California that otherwise contain all the elements of qualifying California convictions.”  (People v. Anderson (1995) 35 Cal.App.4th 587, 601, 41 Cal.Rptr.2d 474.)   Subdivision (e)(2)(A) of section 667 then delineates the penalty provisions of the law for defendants convicted of “two or more prior felony convictions as defined in subdivision (d),” with no further limited reference to only paragraph (1) of the definition.   We cannot countenance the aberrant sentencing results that would ensue from according distinct treatment to foreign prior felony convictions under the virtually identical provisions of sections 667 and 1170.12.  (Cf. People v. Reed, supra, 33 Cal.App.4th at p. 1612, 40 Cal.Rptr.2d 47.)

d) Inclusion of foreign felony convictions does not impair respondent's constitutional rights.

 Use of foreign prior felony convictions to impose punishment under section 1170.12, subdivision (c)(2)(A), does not violate principles of “due process” by denying respondent “fair notice” of the meaning of the law.   Respondent argues that “nothing in the terms ‘paragraph (1) of subdivision (b)’ ․ would give an average person of ordinary intelligence fair notice that a court might construe those terms to mean ‘paragraphs (1), (2) and (3) of subdivision (b).’ ”   Based upon our reading of the entire statute in context and consideration of the statutory intent, rather than merely the literal language of subdivision (c)(2)(A), we disagree.   Nor do we agree with respondent's position that section 1170.12, subdivision (c)(2)(A), as construed to include prior felony convictions in another jurisdiction, may only be applied prospectively to future cases.   No ex post facto violation results from our interpretation of the statute to increase penalties for current offenses attributable to respondent's status as a repeat offender based upon his Nevada prior conviction.  (People v. Brady (1995) 34 Cal.App.4th 65, 72, 40 Cal.Rptr.2d 207;  People v. Hatcher (1995) 33 Cal.App.4th 1526, 1528, 39 Cal.Rptr.2d 801.) 8  We are convinced that the statute provided appellant with adequate notice of the penalty enhancement consequences of foreign prior felony convictions upon the commission of any new felony offense.   No due process or ex post facto violation has been established.   (People v. Brady, supra, at p. 72, 40 Cal.Rptr.2d 207.)


We accordingly conclude that the trial court erred by striking respondent's prior Nevada felony conviction as a penalty enhancement allegation.   The judgment is reversed and the case is remanded to the trial court for proceedings not inconsistent with the views expressed herein.


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

2.   Henceforth, we will refer to section 1170.12, subdivision (c)(2)(A), merely as “subdivision (c)(2)(A).”

3.   Section 1238, subdivision (a)(9) provides that an “appeal may be taken by the people” from “[a]n order denying the motion of the people to reinstate the complaint or a portion thereof pursuant to Section 871.5.”

4.   The initiative which created section 1170.12 was enacted by the voters on November 8, 1994, and is essentially identical to the amendments to section 667 adopted by the Legislature on March 7, 1994.  (Stats.1994, ch. 12, §§ 1 and 2;  People v. Ramirez, supra, 33 Cal.App.4th at pp. 564–565, 39 Cal.Rptr.2d 374.)   Both versions of the Three Strikes law have the overriding objective of increasing significantly the sentences of recidivist felony offenders.  (People v. Ramirez, supra, at p. 566, 39 Cal.Rptr.2d 374.)

5.   We observe, as this court has in the past, that the Three Strikes laws, both legislative and initiative, are not models of clarity.  (Cf. People v. Reed (1995) 33 Cal.App.4th 1608, 1610, 40 Cal.Rptr.2d 47.)

6.   Pursuant to subdivision (b)(2) of section 1170.12, a conviction in another jurisdiction must also include “all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7” to qualify as a “prior conviction.”

7.   To stretch the popular baseball “strikes” analogy, under section 1170.12, felonies which are neither “serious” nor “violent” are the opposite of “foul balls.”   They may “strike-out” a defendant if he has two prior felony convictions for serious or violent offenses but they do not count as first or second strikes.

8.   The substantive offenses with which respondent was charged were all committed after the effective date of the legislative Three Strikes law but before the enactment of section 1170.12.   Hence, respondent can hardly complain that he did not receive notice of the consequences of statutory language in subdivision (c)(2)(A) which did not exist when the current offenses were committed.

STEIN, Associate Justice.

STRANKMAN, P.J., and DOSSEE, J., concur.

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