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

The PEOPLE, Plaintiff and Respondent, v. John Henry CALLAHAN, Defendant and Appellant.

No. A071653.

Decided: November 25, 1996

First District Appellate Project, Assisted Case System, Kieran D.C. Manjarrez, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Michael E. Banister, Deputy Attorney General, for Plaintiff and Respondent.

In this appeal from an 18–year prison sentence imposed on a plea of guilty, John Henry Callahan challenges both the underlying judgment of conviction and the sentence imposed under the “second strike” provision of Penal Code section 667, subdivision (e)(1).   We affirm.


An amended information filed on July 24, 1995, in Lake County charged appellant with five theft-related offenses.   The first two counts alleged petty theft with a prior theft conviction (Pen.Code, §§ 484 and 666) or, alternatively, possession of stolen property (Pen.Code, § 496).   The other counts alleged forgery (Pen.Code, § 470), possession of stolen property (Pen.Code, § 496), and vehicle theft (Veh.Code, § 10851, subd. (a)).  The information alleged the offenses were subject to sentencing as a “second strike” because of a prior Texas burglary conviction (Pen.Code, § 667, subd. (e)(1)), and alleged enhancements for two prior prison terms (Pen.Code, § 667.5) and a prior auto theft conviction (Pen.Code, § 666.5).

A second information filed on August 14, 1995, charged appellant with escape from the Lake County Jail by force or violence while arrested and booked for a felony (Pen.Code, § 4532, subdivision (b)).   The information also alleged the requirement of “second strike” sentencing and enhancements for two prior prison terms.

Appellant entered a plea of guilty pursuant to a negotiated disposition to one count of petty theft with a prior theft conviction and escape from jail by force or violence.   In connection with both charges, he admitted a prior felony conviction consisting of the Texas burglary conviction.   The other counts and enhancement allegations in the two informations were dismissed.

At a sentencing hearing on September 11, 1995, appellant's counsel stated that “I think there is legal cause why sentence should not be as recommended.”   An objection was then made on the sole ground that the Texas prior conviction did not constitute a strike within the provisions of Penal Code section 667, subdivisions (d) and (e) since appellant was 17 at the time of that offense.   After hearing argument on that issue, the court imposed a sentence for a term of 18 years in state prison, consisting of a three-year term for petty theft with a prior conviction and a consecutive six-year term for escape by force or violence, both doubled pursuant to the “second strike” provisions of Penal Code section 667, subdivision (e)(1).


A. Procedural Requisites of Penal Code section 1237.5**

B. Second Strike Sentence

1. Legal Background

As a further assignment of error, appellant argues that the court improperly doubled the sentences for his current felony convictions under the “second strike” provisions of Penal Code section 667, subdivision (e)(1) upon a finding that a prior Texas conviction qualified as a “first strike.” 1  Appellant, then age 23, admitted a prior Texas conviction for burglary of a habitation in 1989.  (Tex.Pen.Code, § 30.02.) The record reveals that he was 17 years old when he committed the offense but was tried and convicted as an adult under Texas law.   We take judicial notice of Texas Penal Code section 51.02 which subjects all persons 17 years of age to prosecution in adult criminal court.   Appellant urges that, because of his minority under California law, the use of the Texas conviction is contrary to the legislative intent of Penal Code section 667, subdivision (d)(3) and violates the guarantee of equal protection.

Penal Code section 667, subdivision (e)(1), which governs “second strike” felony convictions, provides:  “(1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term ․ shall be twice the term otherwise provided as punishment for the current felony conviction.”   As defined by Penal Code section 667, subdivision (d)(1), a prior felony conviction constitutes a “first strike” under subdivision (d)(1) if it qualifies as either a violent felony under Penal Code section 667.5 or a serious felony under Penal Code section 1192.7.

A prior conviction in another jurisdiction may constitute a “first strike” if it meets the criterion of Penal Code section 667, subdivision (d)(2) which applies to:  “A conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison.   A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.”

The use of a juvenile court adjudication as a prior felony is governed by subdivision (d)(3) of Penal Code section 667 which limits the use of such convictions to adjudications of offenses listed in subdivision (b) of section 707 of the Welfare and Institutions Code which are committed by juveniles 16 years of age or older.   Subdivision (b) of section 707 of the Welfare and Institutions Code lists 29 offenses of which most, but not all, qualify as violent felonies under Penal Code section 667.5 and some qualify as serious felonies under Penal Code section 1192.7.

In determining that appellant's prior conviction in Texas qualified as a “first strike,” the trial court found pursuant to subdivision (d)(2) of Penal Code section 667 that the prior felony for which appellant was convicted in Texas-burglary of a habitation included all the elements of first degree burglary under California law.  (Pen.Code, § 460.)   On the basis of this finding, the court concluded that he was subject to sentencing prescribed by Penal Code section 667, subdivision (e)(1) because he was convicted as an adult of an offense that was equivalent to a serious felony as defined by Penal Code section 1192.7.   Appellant points out, however, that if he had been charged with first degree burglary in California at age 17, the proceeding could result in a “first strike” only if he had been remanded to adult court following a hearing pursuant to Welfare and Institutions Code section 707.   Although first degree burglary constitutes a serious felony under Penal Code section 1192.7, subdivision (c)(18), a juvenile adjudication of that offense does not constitute a “first strike” because the offense is not listed in subdivision (b) of Welfare and Institutions Code section 707.

2. Interpretation of Penal Code section 667, subdivision (e)(1)

Appellant first maintains that, as a matter of statutory interpretation, the legislative scheme applicable to juvenile prosecutions in California should apply to his conviction as a minor under the age of 18 in another jurisdiction.   He argues that the relevant statutes “show a legislative intent that the prior non-violent misconduct of a person under 18 years of age not result in a prior conviction for sentence enhancement purposes, unless there was a judicial determination that the minor's record and characteristics justified prosecution as an adult.”   We see no merit to this strained interpretation of the relevant provisions of Penal Code section 667.

Appellant contends that subdivision (d)(3)(C) of Penal Code section 667 limits the use of juvenile adjudications as prior felony convictions under subdivision (e)(1) to those adjudications that follow a determination that the minor is fit to be dealt with under the juvenile court law.   The provision, however, relates only to adjudications of the juvenile court;  it has no application to adult court convictions, such as that involved in the present case.   Appellant similarly argues that Penal Code section 667, subdivision (d)(3)(D) restricts the use of juvenile court adjudications to adjudications of offenses listed in Welfare and Institutions Code section 707, subdivision (b);  but the provision again has no application to the present case which involves an adult court conviction.

 More plausibly, appellant maintains that Penal Code section 667, subdivision (d)(2) manifests a legislative intent that foreign convictions serve as prior felony convictions under subdivision (e)(1) only if they are equivalent to California convictions.   The intent is indeed clearly expressed with respect to adult court convictions;  a foreign conviction can be used to increase the sentence only if it is “for an offense that includes all of the elements” of a violent felony or serious felony defined by Penal Code section 667.5 or 1192.7.   The provision, however, does not address the problems of equivalence arising from juvenile proceedings.   The court has no power to remedy such an omission by inserting into the statute “ ‘what a legislative body has omitted from its enactments.’  [Citation.]”  (People v. Zapien (1993) 4 Cal.4th 929, 954–955, 17 Cal.Rptr.2d 122, 846 P.2d 704;  Code Civ. Proc., § 1858.)   The court must follow the plain meaning of the statutory language “ ‘ “even if it appears probable that a different object was in the mind of the legislature.” ’ ”  (People v. Weidert (1985) 39 Cal.3d 836, 843, 218 Cal.Rptr. 57, 705 P.2d 380.)

We do not think that the statutory language is susceptible to any other interpretation than that adopted by the trial court.   The applicable statutes-subdivisions (d)(1), (d)(2) and (e)(1) of Penal Code section 667–prescribe a doubled determinate term where the defendant has a conviction in the adult court of another jurisdiction for an offense with all the elements of a serious felony under Penal Code section 1192.7.  Penal Code section 667 contains no formula requiring equivalence in procedure between state and foreign convictions in adult court of juveniles under the age of 18.   There remains, however, the question whether this legislative omission has the effect of violating the guarantee of equal protection of the laws.  (U.S. Const., 14th Amend.;  Cal. Const., art. I, § 7.)

3. Guarantee of Equal Protection of the Laws

 “The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.”  (Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578, 79 Cal.Rptr. 77, 456 P.2d 645;  In re Eric J. (1979) 25 Cal.3d 522, 531, 159 Cal.Rptr. 317, 601 P.2d 549.)   The constitutional mandate of equal protection may be violated either by a statutory classification which distinguishes between similarly situated persons or by a statutory classification that fails to make a distinction between persons differently situated, thereby causing unequal treatment under relevant equal protection principles.

In the present case, appellant argues that, for the purpose of imposing a “second strike” sentence, the relevant portions of Penal Code section 667 (i.e., subds.(d)(1), (d)(2) and (e)(1)) fail to distinguish between two classes of persons who are sometimes differently situated, i.e., persons who suffered an adult court conviction under the age of 18 in California courts and those who suffered such a conviction in out-of-state courts.   He contends that, with respect to a burglary conviction of a 17–year–old minor in adult criminal court, the differences between a Texas conviction and a California conviction are sufficiently great as to require different treatment under equal protection principles.

 In evaluating this claim, we face the preliminary issue of the standard of review.  “There are two such tests which are applied by the courts of this state and the United States Supreme Court.   The first ․ invests legislation involving such differentiated treatment with a presumption of constitutionality and ‘requir[es] merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose.’  [Citation.]  ․ Moreover, the burden of demonstrating the invalidity of a classification under this standard rests squarely upon the party who assails it.  [Citations.]”  (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 16–17, 112 Cal.Rptr. 786, 520 P.2d 10.)   A much more stringent test applies to cases affecting a “fundamental interest,” such as personal liberty.  (See People v. Olivas (1976) 17 Cal.3d 236, 251, 131 Cal.Rptr. 55, 551 P.2d 375.)  “Here the courts adopt ‘an attitude of active and critical analysis, subjecting the classification to strict scrutiny.   [Citations.]  Under the strict standard applied in such cases, the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.  [Citation.]”  (D'Amico v. Board of Medical Examiners, supra, at p. 17, 112 Cal.Rptr. 786, 520 P.2d 10.)

The courts have split on which test applies to an equal protection challenge to a sentence enhancement.   One line of authority relies on the simple logic that an enhancement involves the deprivation of personal liberty and therefore calls for the strict scrutiny test.  (People v. Jacobs (1984) 157 Cal.App.3d 797, 801, 204 Cal.Rptr. 234;  People v. Williams (1983) 140 Cal.App.3d 445, 450, 189 Cal.Rptr. 497.)   Other authority draws a distinction between “the initial interest one has in retaining his liberty prior to sentencing and the interest one has in whether or not an enhancement applies.”  (People v. Hernandez (1979) 100 Cal.App.3d 637, 644, fn. 2, 160 Cal.Rptr. 607;  People v. McCarthy (1986) 176 Cal.App.3d 593, 596, 222 Cal.Rptr. 291.)

 In the McCarthy decision, this court adopted the rational basis test for analyzing an equal protection challenge to the enhancement provisions of Penal Code section 667.5, subdivisions (b) and (f).   We will apply that analysis to a “second strike” sentence.2  As stated in People v. Flores (1986) 178 Cal.App.3d 74, 88, 223 Cal.Rptr. 465, “[t]he decision of how long a particular term of punishment should be is left properly to the Legislature.   The Legislature is responsible for determining which class of crimes deserves certain punishments and which crimes should be distinguished from others.   As long as the Legislature acts rationally, such determinations should not be disturbed.”

 The rational-relationship test requires that a “classification must bear some fair relationship to a legitimate public purpose.”  (Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 913, 13 Cal.Rptr.2d 245, 838 P.2d 1198.)   The court thus must conduct an “inquiry into the correspondence between the classification and legislative goals.”  (Newland v. Board of Governors (1977) 19 Cal.3d 705, 711, 139 Cal.Rptr. 620, 566 P.2d 254.)   Nevertheless, a classification will be upheld “ ‘if any set of facts reasonably can be conceived that would sustain it.’  [Citation.]”  (In re Demergian (1989) 48 Cal.3d 284, 292, 256 Cal.Rptr. 392, 768 P.2d 1069.)  “ ‘[T]he decision of the Legislature as to what constitutes a sufficient distinction to warrant the classification “will not be overthrown by the courts unless it is palpably arbitrary and beyond rational doubt erroneous.”  [Citations.]’ ”  (People v. Leung (1992) 5 Cal.App.4th 482, 495, 7 Cal.Rptr.2d 290;  In re Erika W. (1994) 28 Cal.App.4th 470, 478, 33 Cal.Rptr.2d 548.)

In applying the rational-relationship test to the present case, we begin with the assumption that, for the purpose of the “second strike” provisions of Penal Code section 667, subdivision (e)(1), persons who were charged with a serious felony in California when under age 18 and those who were charged in another state with an equivalent charge are similarly situated.   We further note that the statute makes no distinction between adult court convictions suffered by persons in these two groups.   Appellant argues that adult court convictions in the two states in fact reflect significant differences requiring separate treatment.

Appellant notes, first, that a 17–year–old juvenile charged with a burglary in Texas has a much higher probability of suffering a conviction in adult court than a 17–year–old juvenile similarly charged in California.   In Texas, the adult court has original jurisdiction over the burglary charge.   In California, juvenile court procedures relating to remand to adult court, which require a motion of the district attorney and a judicial finding of unfitness, have the effect of causing the juvenile court to retain jurisdiction over the vast majority of juveniles charged with the offense.   In 1989–the year appellant was convicted in Texas-only .4 percent of delinquency petitions in California juvenile courts were remanded to adult courts.  (Bur. of Crim. Stats., Cal. Dept. of Justice, Crime & Delinquency in Cal. 1980–1989 (1990) p. 269, table 57.)   Although we have no statistical breakdown showing the age of the offenders or the nature of the alleged offenses, this statistic undoubtedly indicates that a juvenile charged with burglary in that year had a small chance of suffering a conviction in adult court.   It is true that petitions filed against 17–year–old juveniles may have a higher chance of remand to adult court than those filed against younger offenders, thereby raising the juvenile's chances significantly above .4 percent, but, in light of available statistics, it does not seem likely that burglary petitions have a much higher than average probability of being remanded to adult court.   In 1969–the most recent year in which the Bureau of Criminal Statistics published statistics by offense–1.5 percent of burglary petitions in California juvenile courts were remanded to adult court as compared with 1.3 percent of all delinquency petitions.  (Bur. of Crim. Stats., Cal. Dept. of Justice, Crime & Delinquency in Cal. (1969) p. 169.)

Appellant also maintains that the juvenile court procedures in California serve to assure that only cases involving aggravated criminal circumstances, either in commission of the offense or criminal record of the offender, will be tried in adult court.   Upon receiving the required motion of the district attorney, the juvenile court must “cause the probation officer to investigate and submit a report on the behavior patterns and social history of the minor” and then determine whether the juvenile is a “fit and proper subject to be dealt with under the juvenile court law” in light of “the following criteria:  [¶] (1) The degree of criminal sophistication exhibited by the minor.  [¶] (2) Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction.  [¶] (3) The minor's previous delinquent history.  [¶] (4) Success of previous attempts by the juvenile court to rehabilitate the minor.  [¶] (5) The circumstances and gravity of the offense alleged in the petition to have been committed by the minor․”  (Welf. & Inst.Code, § 707, subd. (a).)  Since a case will remain subject to juvenile court law in the absence of the district attorney's motion and appropriate judicial finding, appellant claims that the intended effect of the procedure is clearly to assure that only exceptional cases involving a high level of criminality are remanded to adult court.

 In our opinion, the Legislature could reasonably adopt a classification that fails to distinguish between differences in probability that a youthful offender will be convicted in adult court in another state, even when the disparity may be significant.   First, if the additional punishment resulting from a burglary conviction in adult court furthers the goal of the criminal law, it is irrelevant under equal protection principles that a youthful offender in one state is more likely to incur such conviction than in another state.  “[T]here is no constitutional requirement that a regulation, in other respects permissible, must reach every class to which it might be applied _ that the legislature must be held rigidly to the choice of regulating all or none.”  (Silver v. Silver (1929) 280 U.S. 117, 123, 50 S.Ct. 57, 59, 74 L.Ed. 221;  accord Leavenworth Properties v. City and County of San Francisco (1987) 189 Cal.App.3d 986, 992, 234 Cal.Rptr. 598.)   The same logic applies to longer prescribed prison terms for a criminal conviction meriting additional punishment.   Second, the Legislature could reasonably conclude that considerations of judicial efficiency preclude consideration of differences in probability of conviction for similar acts in different states.   As discussed in People v. Martinez (1991) 230 Cal.App.3d 197, 202, 281 Cal.Rptr. 205, the probability of conviction may also be affected by the differing availability of particular criminal defenses in other states, potentially opening up a wide range of difficult issues.   The list of factors affecting the conviction rate could be further expanded to include enforcement policy, jury predilections and many other matters.   All such factors involve complex considerations, dependent on remote sources of information, and peripheral to the central issues of guilt and punishment, which are difficult to distinguish or arrange in any clear priority.   The Legislature thus could reasonably choose to avoid making distinctions of this kind on the ground that they would unduly burden the courts with difficult issues of marginal importance that the courts are poorly equipped to resolve.

A distinct issue is presented by the contention that adult courts in Texas have original jurisdiction over all 17–year–old burglary offenders while the juvenile courts in California remand to adult court only exceptional cases involving aggravated criminal circumstances.   Appellant contends that, as a consequence of the different procedures applying to this class of minor, adult court convictions of 17–year–old offenders in Texas will tend to embrace a much wider range of criminality, spanning petty crime to aggravated criminal behavior, than comparable adult court convictions in California, which tend to be limited to cases of an exceptional level of criminality.

 The equal protection clause, however, does not require “perfection” in drawing legislative lines.  (Phillips Chemical Co. v. Dumas Ind. School Dist. (1960) 361 U.S. 376, 385, 80 S.Ct. 474, 480, 4 L.Ed.2d 384.)  “The constitutional command for a state to afford ‘equal protection of the laws' sets a goal not attainable by the invention and application of a precise formula.   This Court has never attempted that impossible task.”   (Kotch v. Bd. of River Port Pilot Comm'rs. (1947) 330 U.S. 552, 556, 67 S.Ct. 910, 912, 91 L.Ed. 1093.)   The use of foreign convictions of offenders under 18 years of age to support a “second strike” sentence will ordinarily raise no equal protection difficulties;  the present case involves unusual circumstances that seldom occur in the use of prior convictions of juveniles in adult criminal courts.   Because of the public interest in the fair and efficient administration of the laws, it is better to tolerate some rough approximation of equal protection in unusual and marginal applications of a law than to find constitutional violations that call the entire statute into question, thus frustrating the legislative intent.   As stated in Vance v. Bradley (1979) 440 U.S. 93, 109, 99 S.Ct. 939, 948, 59 L.Ed.2d 171, “[w]e accept such imperfection because it is in turn rationally related to the secondary objective of legislative convenience.”

 The screening procedures of Welfare and Institutions Code section 707, subdivision (a) provide no more than an opportunity for the exercise of judicial discretion without establishing any precise legislative distinctions.   While relatively few burglary convictions may be remanded to adult court in California, the convictions resulting from those cases which are so remanded do not reflect a distinct kind of offense but rather entail the same criminal elements as those cases that remain within juvenile court jurisdiction.   The application of the principles of equal protection have always been tempered by the counsel of judicial restraint in interfering with legislative distinctions drawn by a co-equal branch of government.  (D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d 1, 16, 112 Cal.Rptr. 786, 520 P.2d 10.)   We are unwilling to draw constitutional distinctions, affecting unusual and marginal applications of a statute, which the Legislature has not seen fit to make.   While unusual applications may strain the limits imposed by the principles of equal protection, the statute still reflects a reasonable exercise of legislative classification.   We conclude that the use of the prior Texas conviction to support a “second strike” sentence is not “palpably arbitrary and beyond rational doubt erroneous” (People v. Leung, supra, 5 Cal.App.4th 482, 495, 7 Cal.Rptr.2d 290) and therefore does not violate equal protection.

Our conclusion is supported by People v. Andrews (1989) 49 Cal.3d 200, 260 Cal.Rptr. 583, 776 P.2d 285.   There, the jury convicted the defendant of first degree murder and found true a special-circumstance allegation relating to a prior murder conviction in Alabama when the defendant was 16 years of age.   Under Alabama law, minors 16 to 18 years old came within the original jurisdiction of the adult criminal court.   The effect of the special-circumstance finding was to require a penalty of either death or confinement in state prison for life without possibility of parole.   To the extent that the finding required the lengthened sentence of life without possibility of parole, we regard it as being indistinguishable from a finding relating to an allegation such as that at issue here.   Appellant seeks to distinguish the decision on the grounds that the equal protection analysis articulated in the opinion has no application to the present case and that the special circumstance finding of a prior murder conviction concerned a more serious offense, more clearly meriting increased punishment, than the burglary conviction at issue here.   We see no need to examine these contentions more closely.   For our purposes, it is enough that the Andrews holding is based on closely analogous facts and thus supports the decision we have reached.

4. Factual Basis for Strike

Appellant also attacks the use of the prior Texas conviction on the ground that the trial court incorrectly determined that there was a factual basis for his admission of the prior.

 Appellant entered his plea pursuant to a negotiated disposition.   In exchange for his plea numerous other charges were dismissed.   Although no sentence was set forth as part of the agreement to plead guilty, the agreement is nevertheless considered a plea bargain.  (People v. Panizzon (1996) 13 Cal.4th 68, 80, 51 Cal.Rptr.2d 851, 913 P.2d 1061.)   His argument does not raise an issue on appeal based on reasonable constitutional, jurisdictional or other grounds going to the legality of the proceeding.   (People v. Westbrook (1996) 43 Cal.App.4th 220, 224, 51 Cal.Rptr.2d 1.)   In addition, appellant did not raise this issue before the trial court and thus has waived this claim of error.  (People v. Ellis (1987) 195 Cal.App.3d 334, 342–347, 240 Cal.Rptr. 708;  People v. Otterstein (1987) 189 Cal.App.3d 1548, 1551, 235 Cal.Rptr. 108.)   We therefore decline to consider this issue.

The judgment is affirmed.


FOOTNOTE.   See footnote *, ante.

1.   The procedural requirements of Penal Code section 1237.5 do not apply to this assignment of error which concerns the propriety of the sentence imposed after the entry of the guilty plea and does not contest the validity of the plea itself.   The amended notice of appeal filed on October 23, 1995, stated the pertinent grounds of appeal in compliance with California Rules of Court, rule 31(d).

2.   While a sentence prescribed by Penal Code section 667, subdivision (e)(1) does not technically qualify as an enhancement, i.e., an additional term of imprisonment added to the base term (People v. Martin (1995) 32 Cal.App.4th 656, 666–667, 38 Cal.Rptr.2d 776), it presents closely parallel considerations for the purpose of equal protection analysis.

SWAGER, Associate Justice.

STEIN, Acting P.J., and DOSSEE, J., concur.