PEOPLE v. GOLONDRINA

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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Rodolfo GOLONDRINA, Defendant and Appellant.

A020360.

Decided: September 12, 1984

David A. Hamilton, Paso Robles, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Ann K. Jensen, Morris Lenk, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Following a jury trial, defendant, Rodolfo Golondrina, was found guilty of assault with a deadly weapon upon a police officer engaged in the performance of his duties (Pen.Code, § 245, subd. (b)) 2 and petty theft (§ 488).   The jury also found true the allegation that defendant had been convicted in 1978 of assault with a deadly weapon, a serious felony within the meaning of section 667.   Defendant was sentenced to state prison for the lower term of three years on the assault conviction enhanced by a five-year consecutive term due to the serious felony finding:  a total of eight years.

The primary issues on appeal concern the scope and validity of various provisions of Proposition 8 which were applied to defendant in the imposition of sentence.3  As will be seen, we hold that application to defendant of section 667 does not constitute a violation of the ex post facto clause, that the double the base term limitation contained in section 1170.1, subdivision (g), was eliminated by the enactment of article I, section 28, subdivision (f), of the California Constitution, and that the trial court retains the discretion to strike such a finding under section 1385.   Accordingly, we affirm the judgment of conviction and remand for resentencing.

I–III.4

IV.

Defendant next makes a number of challenges to the five-year term imposed as a result of his status as an habitual offender.  (§ 667.) 5

 He first urges that application of the five-year enhancement provision of section 667 as a result of a crime he committed before the effective date of Proposition 8 runs afoul of the prohibition against ex post facto laws.   We disagree.

The enhancement in section 667 punishes defendant not for his earlier offense but for the repetitive nature of his present offense which was committed after the effective date of Proposition 8.  “[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.  [Citation.]”  (In re Foss (1974) 10 Cal.3d 910, 922, 112 Cal.Rptr. 649, 519 P.2d 1073.)   For that reason, application of section 667 to defendant does not violate the ex post facto clause:  “ ‘[A] law is not objectionable as ex post facto which, in providing for the punishment of future offenses, authorizes the offender's conduct in the past to be taken into the account, and the punishment to be graduated accordingly.   Heavier penalties are often provided by law for a second or any other subsequent offense than for the first, and it has not been deemed objectionable that in providing for such heavier penalties the prior conviction authorized to be taken into account may have taken place before the law was passed.   In such cases it is the second or subsequent offense that is punished, not the first.’  ․”  (Ex parte Gutierrez (1873) 45 Cal. 429, 432;  accord People v. Williams (1983) 140 Cal.App.3d 445, 448–449, 189 Cal.Rptr. 497.)

Defendant next contends that the eight-year aggregate term to which he was sentenced exceeded twice his base term (three years) in violation of subdivision (g), of section 1170.1.6  The question is whether the limitation contained in section 1170.1, subdivision (g), has been superseded by the enactment of article I, section 28, subdivision (f), of the California Constitution, which provides that prior felony convictions “shall subsequently be used without limitation for purposes of ․ enhancement of sentence in any criminal proceedings.”

 Although Proposition 8 did not expressly repeal or expressly amend section 1170.1, subdivision (g), we find that it did so by implication 7 , at least with respect to section 667 enhancements.

 The fundamental rule of statutory construction is that the courts should construe a provision so as to effectuate the intent of the lawmakers.   (Sand v. Superior Court (1983) 34 Cal.3d 567, 571, 194 Cal.Rptr. 480, 668 P.2d 787.)   Of particular importance in this inquiry is the particular objective the legislation seeks to achieve.  (Mercer v. Perez (1968) 68 Cal.2d 104, 112, 65 Cal.Rptr. 315, 436 P.2d 315.)   Where the enactment follows voter approval, it is appropriate to examine the ballot summary, argument and analysis in order to determine the meaning of uncertain language.  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245–246, 149 Cal.Rptr. 239, 583 P.2d 1281.)   Application of these constructional aids leaves little doubt of the voters' intention in enacting Proposition 8.

In Proposition 8 the People proclaimed:  “․ The rights of victims pervade the criminal justice system, encompassing not only the right to restitution from the wrongdoers for financial losses suffered as a result of criminal acts, but also from the more basic expectation that persons who commit felonious acts causing injury to innocent victims will be appropriately detained in custody, tried by the courts, and sufficiently punished so that the public safety is protected and encouraged as a goal of highest importance․  [¶]  To accomplish these goals, broad reforms in ․ the disposition and sentencing of convicted persons are necessary and proper as deterrents to criminal behavior and to serious disruption of people's lives.”  (Cal. Const., art. I, section 28, subd. (a), emphasis added.)

The description and background of the two provisions of Proposition 8 which relate to the enhancement of prison sentences for prior felony convictions—section 667 and article I, section 28(f)—were explained to the voters by the Legislative Analyst as follows:  “Longer Prison Terms.   Under existing law, a prison sentence can be increased from what it otherwise would be by from one to ten years, depending on the crime, if the convicted person has served prior prison terms, and a life sentence can be given to certain repeat offenders.   Convictions resulting in probation or commitment to the Youth Authority generally are not considered for the purpose of increasing sentences, and there are certain limitations on the overall length of sentences.  [¶]  This measure includes two provisions that would increase prison sentences for persons convicted of specified felonies.   First, upon a second or subsequent conviction for one of these felonies, the defendant could receive, on top of his or her sentence, an additional five-year prison term for each such prior conviction, regardless of the sentence imposed for the prior conviction.   This provision would not apply in cases where other provisions of law would result in even longer prison terms.   Second, any prior felony conviction could be used without limitation in calculating longer prison terms. ”  (Ballot Pamp., Proposed Amend. to Cal. Const. with arguments to voters, Prim.Elec. (June 8, 1982), Analysis by the Legislative Analyst, pp. 54–55, emphasis added.)

 From these materials it is clear to us that one of the purposes of the passage of Proposition 8 was to change the sentencing of those who are repeat offenders of serious felonies.   That purpose included the elimination of any restriction on the overall length of sentences for serious felonies including the twice the base limitation contained in section 1170.1, subdivision (g).8  Accordingly, the trial court did not err in imposing a consecutive five-year term to defendant's sentence pursuant to section 667.

Next defendant urges that the case should be remanded for the trial court to exercise its discretion under section 1385 to strike the prior conviction.   Relying on Proposition 8 the Attorney General counters that the trial court lacks the discretion to strike a prior conviction alleged pursuant to section 667.   In so arguing, he recognizes that this issue has been decided against him by the Court of Appeal in People v. Lopez (1983) 147 Cal.App.3d 162, 164–165, 195 Cal.Rptr. 27, and suggests that we should decline to follow it.

 We are unpersuaded that Lopez was incorrectly decided.   Unlike in the preceding discussion, there is nothing in the Legislative Analyst's statement nor in the official ballot arguments which establishes unequivocally an intent to remove the discretion afforded to the trial courts pursuant to section 1385.   In the Legislative Analyst's statement, the voters were told that “any prior conviction could be used without limitation in calculating longer prison terms.”  (Ballot Pamp., op. cit. supra, at p. 55, emphasis added.)   The use of the term “could” does not indicate to us that an additional term is absolute.   The ballot arguments are silent on the discretion afforded to the trial court under section 1385.

For these reasons, we believe that Lopez was correctly decided and will follow it unless and until the California Supreme Court directs us to do otherwise.

The record in this case shows no exercise by the trial court of its discretion to strike the prior conviction.   This court has no genuine basis upon which to determine what the trial court would have done.   Accordingly, the matter must be remanded for exercise of the trial court's discretion.9

V.10

Conclusion

The judgment of conviction is affirmed.   The cause is remanded to allow the trial court:  (a) to determine whether or not the section 667 finding should be stricken;  and (b) to correct the abstract of judgment in accordance with the views expressed herein.

I respectfully dissent from my colleagues' determination that, post-Proposition 8, a trial court retains discretion under Penal Code section 1385 to strike a prior conviction.1

Section 667, a part of the initiative measure known as Proposition 8, provides in part as follows:  “Any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.   The terms of the present offense and each enhancement shall run consecutively.”  (Emphasis added.)

This provision was reviewed in People v. Lopez (1983) 147 Cal.App.3d 162, 195 Cal.Rptr. 27.   There the Second District considered the identical argument posed here by appellant.   In that case the People stressed the facially mandatory language of section 667 as well as section 28, subdivision (f) of article I of the California Constitution, another part of Proposition 8.  Section 28, subdivision (f) provides, in part, as follows:  “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding․”  The Lopez court viewed the phrase “without limitation” as ambiguous, although it did not explain that conclusion.   It contrasted the case to a Supreme Court decision holding that although certain death penalty provisions in sections 190–190.5 were facially mandatory, this did not divest a court of the authority to dismiss an action under section 1385.  (People v. Lopez, supra, 147 Cal.App.3d at p. 165, 195 Cal.Rptr. 27;  People v. Williams (1981) 30 Cal.3d 470, 477–490, 179 Cal.Rptr. 443, 637 P.2d 1029.)   Thus, said the court, “the statute lacks sufficiently express language to prevent a trial court from striking, or otherwise rendering unenforceable, the enhancements provided for in section 667.”  (People v. Lopez, supra, 147 Cal.App.3d at p. 165, 195 Cal.Rptr. 27.)

I find the reasoning in Lopez to be unpersuasive and reject its conclusion.   More particularly, I do not agree with the Lopez court's characterization of the new enhancement provisions as ambiguous.   I find the language to be clear and unambiguous;  and, more importantly, I find no basis to conclude that such language authorizes the striking of enhancements provided for in section 667.   Indeed, that language is undisputedly clear, especially when considered in relation to the general purpose of Proposition 8 and other extrinsic evidence.

Section 1385 provides that a trial court has the power to strike a charge of a prior conviction.   According to the majority, since section 667 does not specifically prohibit the operation of section 1385, section 1385 necessarily must be given effect in this case and the court accordingly should be required to exercise its discretion in deciding whether or not to impose the enhancement.   I disagree.

Proposition 8 was “designed to strengthen procedural and substantive safeguards for victims in our criminal justice system.   These changes were aimed at achieving more severe punishment for, and more effective deterrence of, criminal acts, [and] protecting the public from the premature release into society of criminal offenders ․”  (Brosnahan v. Brown (1982) 32 Cal.3d 236, 247, 186 Cal.Rptr. 30, 651 P.2d 274.)   To construe section 667 so as not to eliminate a trial court's discretion to impose enhancements, would be, in my view, to leave the situation exactly as it was before the passage of Proposition 8.  (§ 1170.1, subdivision (h);  Stats.1977, ch. 165, § 17, pp. 649–650;  renumbered Stats.1982, ch. 1515, § 1, p. 5878.)   Such a result would frustrate the general purpose of the initiative.

The language of section 667 itself also indicates that section 1385 should not be applicable.   Subdivision (b) of section 667 explicitly provides for an exception from the application of that section:  “․ when the punishment imposed under other provisions of law would result in a longer term of imprisonment․”  This specific itemization of an exception necessarily excludes all other implied exceptions.  (People ex rel. Cranston v. Bonelli (1971) 15 Cal.App.3d 129, 134–135, 92 Cal.Rptr. 828.)

Extrinsic evidence also indicates that section 667 was meant to eliminate a trial court's discretion to strike a prior conviction for purposes of enhancement.   One item of evidence particularly relevant here is the voter's pamphlet distributed to the public prior to the vote on Proposition 8.   In pertinent part, the pamphlet states as follows:  “This measure includes two provisions that would increase prison sentences for persons convicted of specified felonies.   First, upon a second or subsequent conviction for one of these felonies, the defendant could receive, on top of his or her sentence, an additional five-year prison term for each such prior conviction, regardless of the sentence imposed for the prior conviction.   This provision would not apply in cases where other provisions of law would result in even longer prison terms.   Second, any prior felony conviction could be used without limitation in calculating longer prison terms.”  (Analysis by the Legislative Analysts, Ballot Pamp., Proposed Amend. to Cal. Const., Primary Elec. (June 8, 1982) p. 54;  emphasis added.)

The majority holds that use of the word “could” suggests that the language of section 667 should not be considered to be mandatory.   However, that would be taking that language out of context.   Taken as a whole, the analysis indicates that the only time the five year enhancement would not be given was when a longer prison term would result from the application of other provisions.

In conclusion, to determine that in section 667 “shall” means “may” would be to ignore the common sense implication of the provision.   Because section 667 is clear on its face, and because the general purpose of Proposition 8 would be frustrated by such a result, I would find that section 667 does not operate to retain a trial court's discretion whether or not to impose an enhancement.   The trial court therefore was correct in concluding that it had no discretion under section 667.   I would affirm the judgment in its entirety.

FOOTNOTES

2.   Unless otherwise indicated, all further statutory references are to the Penal Code.

3.   Because defendant's offenses occurred after the effective date of Proposition 8, its provisions apply to him.  (People v. Smith (1983) 34 Cal.3d 251, 258, 193 Cal.Rptr. 692, 667 P.2d 149.)

4.   See footnote 1, ante.

5.   Section 667 provides in pertinent part:  “(a) Any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.   The terms of the present offense and each enhancement shall run consecutively.“(b) This section shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment.   There is no requirement of prior incarceration or commitment for this section to apply.“․“(d) As used in this section ‘serious felony’ means a serious felony listed in subdivision (c) of Section 1192.7․”

6.   Section 1170.1, subdivision (g), provides:  “The term of imprisonment shall not exceed twice the number of years imposed by the trial court as the base term pursuant to subdivision (b) of Section 1170 unless the defendant stands convicted of a ‘violent felony’ as defined in subdivision (c) of Section 667.5, or a consecutive sentence is being imposed pursuant to subdivision (c) of this section, or an enhancement is imposed pursuant to Section 12022, 12022.5, 12022.6 or 12022.7 or the defendant stands convicted of felony escape from an institution in which he is lawfully confined.”On its face section 1170.1, subdivision (g), applies to defendant because assault with a deadly weapon is not a “violent felony” as defined by section 667.5.

7.   As the Supreme Court noted in Brosnahan v. Brown (1982) 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274, it would have been “wholly unrealistic to require the proponents of Proposition 8 to anticipate and specify in advance every change in existing statutory provisions which could be expected to result from the adoption of that measure.”  (Id., at p. 257, 186 Cal.Rptr. 30, 651 P.2d 274.)

8.   We express no opinion as to whether Proposition 8 has repealed section 1170.1, subdivision (g), for all purposes.

9.   In light of this conclusion it is unnecessary to reach defendant's contention that his eight-year term constitutes cruel and unusual punishment.

10.   See footnote 1, ante.

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

POCHÉ, Acting Presiding Justice.

TRAVIS, J.,* concurs.

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