IN RE: Patrick FERRIE

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Court of Appeal, Third District, California.

IN RE: Patrick FERRIE, on Habeas Corpus.

Cr. 10912.

Decided: February 04, 1981

Beauvais & Beauvais, David J. Beauvais, and Susan Beauvais, Sacramento, for petitioner. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Jana Tuton and Gregory W. Baugher, Deputy Attys. Gen., for respondent.

By this petition for writ of habeas corpus, the petitioner challenges the propriety of an eight-month enhancement to his consecutive sentences for burglary applied pursuant to Penal Code section 667.5, subdivision (c).

On January 4, 1978, petitioner plead guilty to one count of first degree burglary (Pen.Code, s 459; case No. 52244) and to two counts of first degree burglary (case No. 52245). In each burglary in case No. 52245, petitioner was charged and found to have used a firearm in violation of Penal Code section 12022.5.

On January 31, 1978, petitioner was sentenced to an aggregate term of eight and two-thirds years, including a four-year upper term for one count of first degree burglary in case No. 52245, a two-year consecutive term for one violation of Penal Code section 12022.5, one year for one count of first degree burglary in case No. 52244, one year for the second count of first degree burglary in case No. 52245, and an additional eight months for his use of a firearm during the commission of that burglary.

It is this last eight-month enhancement which petitioner challenges.

DISCUSSION

At the time petitioner committed his crimes and was sentenced, Penal Code section 1170.1, subdivision (a), provided in pertinent part: “The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall exclude any enhancements when the consecutive offense is not listed in subdivision (c) of Section 667.5.” Presently and at the time of sentencing, Penal Code section 667.5, subdivision (c), lists eight categories of crimes considered to be “violent felonies.” Burglary is not specifically listed; however, the eighth category with which we are concerned includes: “ any felony in which the defendant uses a firearm which use has been charged and proved as provided in Section 12022.5.”

Pursuant to Penal Code section 1170.1, subdivision (a), a consecutive sentence does not carry with it enhancements unless the crime is one listed in section 667.5, subdivision (c), in which case certain enhancements, including one for the personal use of a firearm, are included. A literal application of the language of section 667.5, subdivision (c), would require that in every case in which a consecutive sentence is imposed for a felony in which the defendant is found to have used a firearm, the consecutive sentence shall include an eight-month enhancement for the firearm use.

The confusion confronting us arises from the decision in People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396. The Supreme Court there ruled that section 1170.1 permits enhancement of consecutive sentences only for the specific offenses listed in section 667.5, and not for “any felony in which the defendant uses a firearm.” (25 Cal.3d at p. 761, 159 Cal.Rptr. 696, 602 P.2d 396.) The court considered the legislative intent behind the section stating, “The question is close and subtle. However, the evident legislative intent underlying section 1170.1, subdivision (a), was to allow enhancement of the consecutive offense only in certain limited situations, namely, where the conduct for which such enhancement is sought (e. g., firearm use) occurred in the course of commission of a violent felony (such as murder, mayhem, rape, etc.). We think it is unlikely that the Legislature intended to impose an enhancement for firearm use or great bodily injury in every case involving such factors, given the statutory reference in section 1170.1, subdivision (a), to section 667.5.” (Ibid.; emphasis in original.)

The court evidently misconstrued the underlying legislative intent, as the Legislature immediately reacted to People v. Harvey, supra, by enacting Assembly Bill No. 2123. (Stats.1980, ch. 132.) Section 1 of that act provides: “The Legislature hereby finds and declares as follows:

“(a) The commission of ‘violent felonies' as defined in subdivision (c) of Section 667.5 of the Penal Code represents a substantial threat to the welfare of the people of the State of California.

“(b) The legislative intent in enacting subdivision (c) of Section 667.5 of the Penal Code was to identify these ‘violent felonies' and to single them out for special consideration in several aspects of the sentencing process.

“(c) This act is intended to clarify and reemphasize what has been the legislative intent since July 1, 1977.” (Emphasis ours.)

Section 2 of the act amends Penal Code section 1170.1 to provide that when a defendant receives a consecutive sentence for a violent felony as defined in Penal Code section 667.5, subdivision (c), “ including those offenses described in paragraph (8) of subdivision (c) of Section 667.5,” his consecutive sentence is one-third the middle term for the offense, plus one-third of any enhancements imposed pursuant to section 12022, 12022.5, or 12022.7.

This amendment did not add any new material for enhancements to section 1170.1, but did make clear the original and continuing intent of the Legislature. The Legislature declared the act to be an urgency measure and gave it immediate effect. (Stats.1980, ch. 132, s 4.) The bill was signed by the Governor and filed by the Secretary of State on May 29, 1980.

The question arises whether we may consider and give effect to this recent expression of prior and present legislative intent, or whether we are precluded from doing so under the doctrine of stare decisis. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) We have concluded that we are not compelled by stare decisis to ignore the clear intent of the Legislature as expressed in Assembly Bill No. 2123.

Under the doctrine of stare decisis all courts exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction; it is not a lower court's function to attempt to overrule decisions of a higher court. (57 Cal.2d at p. 455, 20 Cal.Rptr. 321, 369 P.2d 937.) Although there are no true “exceptions” to the rule of stare decisis, there are, however, exceptional situations in which a lower court is not required to blindly follow precedent which has only facial applicability.

The right and power of the Legislature to adopt legislation clarifying its intent is well established. (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 157 Cal.Rptr. 676, 598 P.2d 836; People v. Superior Court (Douglass) (1979) 24 Cal.3d 428, 155 Cal.Rptr. 704, 595 P.2d 139; County of Nevada v. MacMillen (1974) 11 Cal.3d 662, 675, 114 Cal.Rptr. 345, 522 P.2d 1345; State Bd. of Equalization v. Board of Supervisors (1980) 105 Cal.App.3d 813, 164 Cal.Rptr. 739; Los Angeles County Democratic Central Committee v. County of Los Angeles (1976) 61 Cal.App.3d 335, 132 Cal.Rptr. 43; Burgess v. Board of Education (1974) 41 Cal.App.3d 571, 581, 116 Cal.Rptr. 183; Friends of Lake Arrowhead v. Board of Supervisors (1974) 38 Cal.App.3d 497, 113 Cal.Rptr. 539; People v. Rozell (1963) 212 Cal.App.3d 875, 28 Cal.Rptr. 478; Flewelling v. Board of Trustees (1960) 178 Cal.App.2d 168, 2 Cal.Rptr. 891.)

The question whether a later statement of legislative intent relating to previously enacted legislation, may supersede an erroneous intervening construction given to that legislation by the Supreme Court, must be answered affirmatively. The rule of stare decisis is not so imperious or inflexible that it requires blind conformance in any case; rather its application must be determined by the circumstances in each case. Prior decisions should not be followed to the extent that obvious error may be perpetuated. (See Los Angeles County Democratic Central Committee v. County of Los Angeles, supra, 61 Cal.App.3d at p. 342, 132 Cal.Rptr. 43; County of Los Angeles v. Faus (1957) 48 Cal.2d 672, 679, 312 P.2d 680.) The following from Flewelling v. Board of Trustees, supra, 178 Cal.App.2d at page 172, 2 Cal.Rptr. 891, citing Stockton Sav. & Loan Bank v. Massanet (1941) 18 Cal.2d 200, 204, 114 P.2d 635, seems particularly apropos in this instance. “ ‘This expression by the legislature concerning the existence of an ambiguity and the declaration of the intent of the 1933 act, although not binding upon this court in its construction of the 1933 act, is a factor that may properly be considered in correctly determining the meaning and effect of the sentence in question. (Citations.) That is not giving a retroactive effect to a statute, because the meaning of the statute to be interpreted has always been the same. The subsequent legislation interpreting the statute construed, does not change the meaning; it merely supplies an indication of the legislative intent which may be considered together with other factors in arriving at the true intent existing at the time the legislation was enacted.’ ”

As stated by the court in Bates v. McHenry (1932) 123 Cal.App. 81, at page 93, 10 P.2d 1038, “In view of the legislature's own interpretation as thus clearly set forth by its amending section 52, supra, there remains only one duty to be performed by the court, and that is to accept the interpretation as not only equitable but final.”

In People v. Harvey, supra, the Supreme Court attempted to determine and give an effect to the legislative intent behind Penal Code section 1170.1, subdivision (a). The court did not find the statute ambiguous, but rather candidly observed that a literal reading of the statute would permit enhancement of consecutive sentences for the use of a firearm or infliction of great bodily injury in every case in which those factors were present. (25 Cal.3d at pp. 760-761, 159 Cal.Rptr. 696, 602 P.2d 396.) The court found the question to be both “close and subtle,” but concluded that: “We think it is unlikely that the Legislature intended to impose an enhancement for firearm use or great bodily injury in every case involving such factors, ” (Id. at p. 761, 159 Cal.Rptr. 696, 602 P.2d 396.)

The response of the Legislature to People v. Harvey, supra, was both immediate and emphatic. Assembly Bill No. 2123 was read for the first time in the Assembly on January 21, 1980, and within four months had been passed by both houses and was sent to enrollment; moreover, the bill received not a single dissenting vote in either house. The bill unequivocally established that it was and is the legislative intent that a consecutive sentence be enhanced in every case in which the use of a firearm or the infliction of great bodily injury was involved.

It is axiomatic that in the guise of clarification of intent, the Legislature may not effect an amendment of a statute. Similarly, a “clarification” of an ambiguous statute cannot be given an absurd effect simply because the Legislature states that an unmistakable change is merely a clarification and restatement of original intent. (California Emp. etc. Com. v. Payne (1947) 31 Cal.2d 210, 213-214, 187 P.2d 702.)

It is because of such possibilities that courts are careful in their consideration of subsequent expressions of legislative intent.

In Forde v. Cory (1977) 66 Cal.App.3d 434, 135 Cal.Rptr. 903, this court considered the application of a provision of the Judges' Retirement Law. Under that law a judge could provide for survivor benefits for his spouse in the event he should die before reaching retirement eligibility, but if he chose to do so, his estate was not entitled to the normal lump sum death benefit. A similar law was enacted with respect to surviving children of a judge which was parallel to the surviving spouse provisions except that it omitted the provision that election to provide survivor benefits for children would be in lieu of the lump sum death benefit. After electing to provide survivor benefits for his children, and before becoming eligible to retire, a superior court judge died and his executor applied for both survivor benefits and a lump sum death benefit. In construing the provision this court relied, in part, upon a legislative enactment passed more than two years after the judge's death. We reasoned that the legislative expression of intent in the later statute was merely a clarification and not a change in the law. (66 Cal.App.3d at p. 438, 135 Cal.Rptr. 903; see also People v. Poggi (1980) 107 Cal.App.3d 581, 587-588, 165 Cal.Rptr. 758.)

The subsequent expression of legislative intent related to the enactment of Penal Code section 1170.1, subdivision (a), as articulated in Assembly Bill No. 2123 is not inconsistent with the prior statute. We have noted, as did the Supreme Court in People v. Harvey, supra, 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, that literal reading of the prior enactment would require the enhancement of consecutive sentences under the circumstances present here. Assembly Bill No. 2123 does not constitute a change in the statute; its terms compel the conclusion that it is merely a clear statement of the original intent of the Legislature.

Under the circumstances, we do not believe the intent should be thwarted. Stare decisis should not be used as a means of avoiding distasteful legislative enactments. We conclude that petitioner's sentence was correctly determined by the trial court and the intervening decision in Harvey is now inapplicable.

Our conclusion does not impose an ex post facto punishment upon petitioner. At the time petitioner committed his crimes, section 1170.1, subdivision (a), provided for the enhanced consecutive sentences for the use of a firearm in the commission of the crimes for which consecutive sentences were imposed. (See People v. Harvey, supra, 25 Cal.3d at pp. 760-761, 159 Cal.Rptr. 696, 602 P.2d 396.) The subsequent expression of legislative intent did not retroactively amend that statute to provide for a greater sentence; it merely provided a clear expression of the legislative intent behind the original enactment. (See People v. Sobiek (1973) 30 Cal.App.3d 458, 472-473, 106 Cal.Rptr. 519; Redevelopment Agency v. Pacific Vegetable Oil Corp. (1966) 241 Cal.App.2d 606, 611-612, 50 Cal.Rptr. 676. See also Dobbert v. Florida (1977) 432 U.S. 282, 301, 97 S.Ct. 2290, 2302, 53 L.Ed.2d 344, 361.)

We believe that People v. Fulton (1980) 109 Cal.App.3d 777, 167 Cal.Rptr. 436, and People v. Matthews (1980) 108 Cal.App.3d 793, 167 Cal.Rptr. 8, were erroneously decided given the facts and circumstances underlying the decision in People v. Harvey, supra, 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, and Assembly Bill No. 2123, and should not be followed.

The prohibition against ex post facto laws is a restraint upon the legislative branch of government and concerns the making of laws, not their construction, by the courts. (Ross v. Oregon (1913) 227 U.S. 150, 161, 33 S.Ct. 220, 222, 57 L.Ed. 458, 463; Chambers v. Municipal Court (1977) 65 Cal.App.3d 904, 911, 135 Cal.Rptr. 695; People v. Sobiek, supra, 30 Cal.App.3d at p. 474, 106 Cal.Rptr. 519.)

There was no due process violation.

The petition for a writ of habeas corpus is denied.

I respectfully dissent.

Several published cases have treated this subject. People v. Matthews (1980) 108 Cal.App.3d 793, 167 Cal.Rptr. 8, struck the enhancement because it considered People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, as stare decisis under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937. People v. Fulton (1980) 109 Cal.App.3d 777, 167 Cal.Rptr. 436, reached the same result by way of the doctrine of ex post facto. And People v. Vizcarra (1980) 110 Cal.App.3d 858, 168 Cal.Rptr. 257, reached the same conclusion on the basis that the legislative enactment (Stats.1980, ch. 132, May 29, 1980, amending Pen.Code, s 1170.1) did not operate retroactively and that People v. Harvey, supra, was the applicable law at the time of sentencing.

Other cases rejecting the retrospective application of declaratory or interpretive statutes have used the concepts of separation of powers or due process as a rationale. (See Note, Declaratory Legislation (1935) 49 Harv.L.Rev. 137, for a collection of older cases.)

Whatever the reasoning, tenable or not, the problems created by retroactivity of legislation can best be described as a dilemma. One thing is clear, however, and that is that at some point difficult to articulate, a judicial act final in the judicial sense must be inviolate. Also, it is accepted, as doctrine that judicial review of legislation is ordinary, but that the reverse is unusual, particularly retrospectively, and specially in criminal law. Further, and just as clear, the judiciary shall interpret the declaratory legislation itself.

The interpretive statute before us did not expressly purport to work backwards, and declarations of intent, no matter how framed, give it no greater force in that direction. It should not be so applied, because Harvey was the law. The Supreme Court had a difficult question of interpretation and squarely faced it knowing the public sentiment. The resulting unpopularity and expeditious attention given by the Legislature should not cause us to forsake the policy reasons underlying the doctrines above mentioned. Such a course would, among other things, permit legislative review and possible abrogation of virtually every judicial act.

It is also important to note the obvious that law is developmental and evolutionary. Each branch of government, as well as extra-governmental sources, often contribute. The judicial role is often needed to clarify both substantive and adjective law, and that function should be immune from unwarranted and material infringement. Harvey was a step in that process and was effective. Finally, to say, “This is what we meant” does not perforce create retroactivity. The Legislature knows how to say it and it did not say it in the declaratory statute. Penal Code section 667.5, subdivision (c), as interpreted by Harvey was the law applicable at the critical time herein and I would strike the enhancement.

EVANS, Associate Justice.

REGAN, Acting P. J., concurs.