PEOPLE v. VON ATKINSON

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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Joseph VON ATKINSON, Defendant and Appellant.

Cr. 42711.

Decided: August 26, 1983

Richard A. Curtis, Cerritos, under appointment by the Court of Appeal, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Lisa Lewis Dubois and Ruth M. Saavedra, Deputy Attys. Gen., for plaintiff and respondent.

Defendant Von Atkinson appeals from that portion of his judgment of conviction relating to a three-year enhancement of his sentence based on an out-of-state prior conviction in the State of Utah.

Penal Code section 667.5 provides for enhancement of prison terms because of prior prison terms in certain circumstances.1  Subdivision (a) states that if a defendant has been convicted of one of a number of violent felonies specified in subdivision (c), and has also served a prior separate prison term for one of those same offenses listed in subdivision (c), his sentence must be enhanced by three years.   Subdivision (a) further provides, however, that no enhancement shall apply if defendant has remained free of both prison custody and a felony conviction for a period of ten years.   Subdivision (f) defines a prior conviction of a felony committed outside of California.   It must be an offense which if committed in California, would be punishable by imprisonment in state prison and for which defendant served one year or more in prison.  Penal Code section 668 also defines an out-of-state prior conviction.2  Like subdivision (f) of section 667.5, it must be an offense which if committed in California, would be punishable by imprisonment in state prison.   Unlike subdivision (f), however, there is no requirement that defendant serve one year or more in prison.

We must determine whether subdivision (f) of Penal Code section 667.5, or Penal Code section 668 determines whether the 10-year “crime free” period defined in subdivision (a) of section 667.5 is tolled.   We conclude that subdivision (f) is the controlling section.

Facts

On May 3, 1982, defendant Joseph Von Atkinson pled guilty to committing lewd acts with children under 14 years of age, in violation of Penal Code section 288, subdivision (a).   On June 4, 1982, a hearing was held to determine the validity of his prior convictions in the State of Utah.   For our purposes, two Utah priors, which we will call prior # 1 and prior # 2, are relevant.   Prior # 1 was a conviction on July 30, 1974, for sodomy.3  Prior # 2 was a conviction on September 16, 1965, for assaulting a child under the age of 14 and taking indecent liberties with his person.   For prior # 2 Von Atkinson served a term in state prison for more than one year.   The trial court found that this Utah offense was the equivalent of a felony conviction of California Penal Code sections 288, subdivisions (a) and (c).

When Von Atkinson committed prior # 1 in 1972, it was a felony.   Legislation passed prior to his sentencing in 1974 reduced the offense to a misdemeanor.   This reduction made the prison term he had served a nullity 4 so that prior # 1 could not be used to enhance his sentence.   The trial court in California nevertheless found that prior # 1 tolled the running of the 10-year period during which Von Atkinson had to “remain[ ] free of both prison custody and the commission of an offense which results in a felony conviction” pursuant to subsection (a) of Penal Code section 667.5.   The court thus used prior #### 1 to bring prior # 2 within the 10-year time period for enhancement purposes.

The trial court relied on Penal Code section 668 rather than subdivision (f) of Penal Code section 667.5, to decide whether Von Atkinson had committed a felony during the 10-year period after his conviction for prior # 2 in 1965.   The court imposed a three-year enhancement because the 1965 Utah conviction was one of the felonies listed in Penal Code section 667.5, subdivision (c), and because under Penal Code section 668 it was an offense which if committed in this state would have resulted in a state prison term.

Discussion

It is undisputed that prior # 1, Von Atkinson's 1974 Utah conviction, was comparable to convictions for violations of California Penal Code section 286, subdivision (b)(2), a felony, and section 286, subdivision (b)(1), a felony-misdemeanor.   Von Atkinson contends that prior # 1 cannot suspend the 10-year period established by subdivision (a) of Penal Code section 667.5 because subdivision (f) defines what an out-of-state prior conviction is for purposes of tolling the 10-year period.   He argues that inasmuch as he did not serve one year or more in prison for prior # 1, it cannot be used to bring into the 10-year period prior # 2.   Thus his three-year prison enhancement was improper.

Within the framework of section 667.5, in-state prior felony convictions are less narrowly defined than out-of-state prior convictions.   There is no requirement that defendant must have served one year or more in prison.   Thus, a defendant with an in-state prior felony conviction occurring within the 10-year period of subsection (a), and who has served less than one year in prison, may be subject to an enhanced prison term.   On the other hand, a defendant with an out-of-state prior conviction, which would be an offense punishable by state prison if committed in California, but who has served less than one year in state prison for the prior offense will escape the enhancement.   In People v. Hernandez (1979) 100 Cal.App.3d 637, 160 Cal.Rptr. 607, the court held that the statute had a rational basis, and that the difference in treatment for out-of-state priors as opposed to in-state priors for enhancement purposes did not violate equal protection.

The People argue that although the Hernandez case limits out-of-state convictions for which an additional period of imprisonment may be imposed, there is no equitable reason to impose such a requirement on out-of-state priors to determine whether the 10-year period should be tolled.   Although this is a reasonable appraisal, we find nothing in subsection (f) to indicate that its circumscribed definition of an out-of-state prior applies only to enhancements.   The Hernandez rationale that a criminal defendant with an in-state prior conviction and another with an out-of-state prior conviction are not similarly situated is as persuasive to toll the 10-year period as it is to determine when a sentence shall be enhanced.   In Hernandez, supra, 100 Cal.App.3d at page 645, 160 Cal.Rptr. 607, the court stated that “[o]ur Legislature may have wished to insure the seriousness of the particular crime for enhancement purposes․  California has made certain that only a serious prior out-of-state felony conviction would be used to enhance a sentence.”

The People argue that Penal Code section 668, with its less restricted definition of an out-of-state prior, should control here as it does in Penal Code sections 667.51 and 667.6.   These latter two sections provide for a five-year enhancement for prior convictions in certain sex offenses.   As in subdivision (a) of section 667.5, both sections 667.51 and 667.6 bar enhancements for convictions occurring “prior to a period of 10 years in which the person remained free of both prison custody and the commission of an offense which results in a felony conviction.”   Neither of these two statutes contains a subdivision comparable to subdivision (f) of section 667.5.   Thus, for enhancement purposes and for purposes of tolling the 10-year period, an out-of-state prior conviction is treated the same as an in-state prior conviction.  Sections 667.51 and 667.6 must rely on Penal Code section 668 in determining the circumstances under which an out-of-state prior conviction may be used for enhancement purposes.   This, however, does not mean that section 668 must also be used to determine when an out-of-state prior conviction will toll the 10-year period under section 667.5.   Subdivision (f) precludes this because it specifically defines an out-of-state conviction within the framework of section 667.5.

Whatever the Legislature's reasons for including subdivision (f) under Penal Code section 667.5 but omitting similar language from sections 667.51 or 667.6, the language of subdivision (f) is clear and unambiguous.   “ ‘When statutory language is thus clear and unambiguous there is no need for construction, and courts should not indulge in it.’ ”  (People v. Boyd (1979) 24 Cal.3d 285, 294, 155 Cal.Rptr. 367, 594 P.2d 484, citing Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, 137 Cal.Rptr. 460, 561 P.2d 1148.)   Here, we find nothing in the legislative history of Penal Code section 667.5 to indicate the Legislature meant anything other than what it said.   The Boyd court points out (id., 24 Cal.3d at p. 295, 155 Cal.Rptr. 367, 594 P.2d 484.) that “[w]hen the legislative history thus gives rise to conflicting inferences, it does not justify departing from the plain language of the statute.   Moreover, even if that language were reasonably susceptible of different interpretations, the construction more favorable to the defendant should be adopted.  [Citation omitted].”

Both Penal Code sections 668 and 667.5, subdivision (f), define an out-of-state prior conviction.  Section 667.5, subdivision (f), however, has a more restrictive definition.  “ ‘It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.’ ”  (People v. Gilbert (1969) 1 Cal.3d 475, 479, 82 Cal.Rptr. 724, 462 P.2d 580, citing In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593;  Lyons v. Municipal Court (1977) 75 Cal.App.3d 829, 839, 142 Cal.Rptr. 449.)

 Both sections 668 and 667.5, subdivision (f), concern the same subject matter.   Subdivision (f) of 667.5, however, more narrowly defines and further qualifies the definition of an out-of-state prior conviction.  “ ‘Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different intention existed.’ ”  (Allis-Chalmers Corp. v. City of Oxnard (1981) 126 Cal.App.3d 814, 821, 179 Cal.Rptr. 159, citing Richfield Oil Corp. v. Crawford (1952) 39 Cal.2d 729, 735, 249 P.2d 600.)   It follows that conversely where a statute with reference to a subject contains a given provision, the inclusion of additional provisions or qualifications in a similar statute concerning a related subject is significant to show that a different intention existed.

The court in People v. Hickey (1980) 109 Cal.App.3d 426, 439, 167 Cal.Rptr. 256, had occasion to compare Penal Code sections 667.5, subdivision (f), and 668, when it held that extrinsic evidence could not be used to establish the similarity of California and foreign convictions for the purpose of sentence enhancement.   It concluded that “[e]xamination of the current equivalent of former section 668 indicates that the Legislature is now more specific in its classification of prior convictions and the manner in which they may be proved.”  (Id., at p. 439, 167 Cal.Rptr. 256.)

 By following the plain meaning of subdivision (f) of Penal Code section 667.5, we are following the Legislature's intent.   The court is only justified in declining to follow such plain meaning when to do so would result in “absurd consequences” or frustrate the “manifest purposes” of the legislation as a whole.  (People v. Boyd, supra, 24 Cal.3d 285, 294, 155 Cal.Rptr. 367, 594 P.2d 484 citing Younger v. Superior Court (Mack) (1978) 21 Cal.3d 102, 113–114, 145 Cal.Rptr. 674, 577 P.2d 1014.)

 Anomalies may result from the disparity in treatment of in-state and out-of-state prior felony convictions, but we see no “absurd consequences” flowing from a straightforward reading of section 667.5, subdivision (f).   The tolling of the 10-year period directly determines whether a sentence will be enhanced.   Defendants with an in-state prior and those with an out-of-state prior are not similarly situated.   Thus, since the Legislature may have reasonably intended two different classifications, it is justified in treating each classification differently.  (People v. Hernandez, supra, 100 Cal.App.3d 637, 160 Cal.Rptr. 607.)   Since we have concluded that the definition of an out-of-state prior is the same for enhancing a sentence as for tolling the 10-year period, we modify Von Atkinson's sentence to strike the three-year enhancement.

In view of our holding, we need not discuss additional issues raised by Von Atkinson.

The sentence is modified to strike the three-year enhancement.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   Penal Code section 667.5 provides in part as follows:“Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows:“(a) Where one of the new offenses is one of the violent felonies specified in subdivision (c), in addition and consecutive to any other prison terms therefor, the court shall impose a three-year term for each prior separate prison term served by the defendant where the prior was one of the violent felonies specified in subdivision (c);  provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.“(b) Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony;  provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.“(c) For the purpose of this section, ‘violent felony’ shall mean any of the following:“(1) Murder or voluntary manslaughter.“(2) Mayhem.“(3) Rape as defined in subdivision (2) of Section 261.“(4) Sodomy by force, violence, duress, menace, or threat of great bodily harm.“(5) Oral copulation by force, violence, duress, menace, or threat of great bodily harm.“(6) Lewd acts on a child under 14 as defined in Section 288.“(7) Any felony punishable by death or imprisonment in the state prison for life.“(8) Any other felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in Section 12022.5.“․“(f) A prior conviction of a felony shall include a conviction in another jurisdiction for an offense which if committed in California is punishable by imprisonment in state prison provided the defendant served one year or more in prison for such offense in the other jurisdiction.   A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law provided the defendant served one year or more in prison for such offense in the other jurisdiction.“(g) A prior separate prison term for the purposes of this section shall mean a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after escape from such incarceration.”

2.   Penal Code section 668 reads:  “Every person who has been convicted in any other state, government, country, or jurisdiction of an offense for which, if committed within this state, such 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 such prior conviction had taken place in a court of this state.”

3.   This 1974 conviction was for a violation of Title 76, chapter 53, section 22 of the Utah Code of 1953, which stated:  “Every person who is guilty of sodomy or any other detestable and abominable crime against nature, committed with mankind or with any animal with either the sexual organs or the mouth, is punishable by imprisonment in the state prison not less than three years nor more than twenty years.”

4.   When Von Atkinson was charged with sodomy, the then-existing statute did not require that force be shown as an element of the crime.   Von Atkinson pled guilty to this statute, but before his plea or sentence the statute under which he was charged was repealed.   New sodomy statutes enacted prior to Von Atkinson's sentencing made sodomy a misdemeanor and created a new crime of forcible sodomy, a felony.   Even though Von Atkinson had not been charged with forcible sodomy, he was nevertheless sentenced to a prison term under the forcible sodomy statute, after the trial judge had conducted a hearing and determined that Von Atkinson had used force in committing the offense of sodomy for which he had pled guilty.   The Utah Supreme Court affirmed the conviction, but the United States Court of Appeals in Von Atkinson v. Smith (10th Cir.1978) 575 F.2d 819, in response to Von Atkinson's petition for a writ of habeas corpus, held he could not be sentenced under the forcible sodomy statute because he had not been charged with forcible sodomy.

GILBERT, Associate Justice.

STONE, P.J., and ABBE, J., concur.

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