PEOPLE v. PEREZ (1995)

The People seek a writ of mandate after the trial court pursuant to Penal Code 1 section 17, subdivision (b)(3) declared that real party in interest Martin Perez (Perez) had committed a misdemeanor.   We must determine whether in a criminal proceeding subject to the recently enacted “three strikes” law, the trial court retains its authority to declare a “wobbler” a misdemeanor pursuant to section 17, subdivision (b)(3).   We conclude there is nothing within the “three strikes” law that deprives the court of that authority and accordingly deny the writ petition.

FACTUAL AND PROCEDURAL BACKGROUND

A group of men were congregated in front of Perez's residence which is located in an area “known for narcotics activity.”   The police asked Perez if he sold drugs to which he replied, “I don't sell drugs․”   Upon request, Perez consented to a search of his residence stating he “would never get involved with drugs.”   No drugs were found in the house, but the officers found a stolen truck and some car parts in the backyard.   Doors from a second stolen truck were found in the living room.   Perez claimed he rented his backyard for storage to a person called Isreal who ran a garage and that he did not know any vehicle or parts were stolen.   Perez claimed his wife had allowed Isreal to put two doors in the living room because Isreal had expressed concern they would get stolen or scratched in the crowded backyard.

An information was filed charging Perez with receiving stolen property in violation of section 496, subdivision (a).   An amended information was later filed adding a “strike” allegation under section 667, subdivisions (b) through (i), that Perez had a prior serious felony conviction for shooting at an occupied structure in violation of section 246.   Judge Bernard E. Revak presided at trial.   Testimony in the trial took less than two and one-half hours total.   The jury deliberated for almost two full days and requested testimony from two witnesses be read back.   The jury returned a verdict of guilty of receiving stolen property.

Perez waived a jury trial as to the prior allegation and further filed a motion which, inter alia, requested the court to reduce the felony charge to a misdemeanor pursuant to section 17, subdivision (b).   A probation report was filed which indicated Perez had only one prior conviction, the one charged as the prior serious felony conviction.   Absent any “strike” considerations, the probation report recommended formal probation conditioned on 365 days custody in the county jail.

On the date set for sentencing, Judge Revak made true findings that Perez suffered a prior felony conviction for discharging a firearm at an inhabited dwelling pursuant to section 246 and that Perez had personally fired the gun.

The judge went on to discuss his concerns about the case:

“What troubles me about this is I'm really surprised that his counsel pled him to count two rather than negligent discharge of a firearm, quite frankly, based on what I've heard about that case and the reports I've read about that case.   This is a part of this case that troubles me.

“I understand that he pled pursuant to People v. West, but when you take into consideration all the facts of this offense, apparently the man was intoxicated, had been drinking, and fired 32 rounds into the air, and out of those 32 one of them apparently hit a door to a residence, and that's the basis for this serious felony conviction, and that's what troubles me about this case because it elevates it to a strike for which, if I leave this crime here as a felony, he's going to serve twice the base term and 80 percent of it in state prison.

“․

“But my problem is that I'm between a rock and a hard place in that I cannot strike, nor will I strike, a serious felony prior.   The alternative, there are two of them:  I can Esteybar [Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140] ․ this crime, making it a misdemeanor.   I'm reluctant to do that because I think he needs another felony.   The alternative is for the district attorney to agree to the striking of it, in which case I will leave it a felony and sentence him accordingly.

“․

“․ I'm not going to play games with it and try to strike the prior, I can't strike the prior.   I agree with that law, and I have imposed that law.

“But my problem is I don't think this was an open and shut case.   The jury took a considerable amount of time deliberating in this case, they asked for testimony to be read back․   So it wasn't a clear cut slam dunk receiving stolen property case.   I think it was a very close case and therein lies my problem.

“․

“I do know that based on everything I've heard that he was a hard worker, he was always fully employed, provided for his family․  [F]or the serious felony of 246 to get 15 days credit for time served, that has to tell you something about that crime.”

The court asked the prosecutor to consider requesting the prior be struck in the interest of justice.   If the district attorney chose not to do so, the court indicated it would likely declare the offense to be a misdemeanor.   The deputy district attorney requested time to consult with his superiors and the motion to reduce the charge to a misdemeanor was continued.   The prosecution filed opposition arguing the court had no power to reduce the offense to a misdemeanor.

Pursuant to section 17, subdivision (b)(3), Judge Revak declared the crime to be a misdemeanor.   He placed Perez on formal probation for a period of three years on several conditions including service of three hundred sixty-five days in the custody of the sheriff.

The People filed this writ petition and a notice of appeal.   We issued an order to show cause why the relief requested in the writ petition should not be granted and heard oral argument.

DISCUSSION

 The sole issue presented is did the trial court have authority to declare the offense a misdemeanor pursuant to section 17, subdivision (b)(3) or did the recent “three strikes” law ² abrogate that authority?   Because the matter presents legal issues of statewide importance in need of immediate resolution, we conclude appeal is an inadequate remedy and hear the writ petition.  (See Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1328, 262 Cal.Rptr. 405.)

 A “wobbler” is a “crime ․ punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail․”  (§ 17, subd. (b).)  Receiving stolen property is such a crime.  (§ 496, subd. (a).)  Under section 17, subdivision (b)(3), a “wobbler” is a misdemeanor for all purposes when a court “grants probation to a defendant without [the] imposition of sentence and at the time of granting probation, or on application of the defendant ․, the court declares the offense to be a misdemeanor.”

The “three strikes” law in section 667, subdivision (c) provides that “[n]otwithstanding any other law, 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,” the court “shall not” grant probation for the current offense or commit the defendant to any facility other than state prison.  (§ 667, subds. (c)(2) & (c)(4).)   Section 667, defines prior felony convictions as those defined as violent felonies under section 667.5, subdivision (c) and those defined as serious felonies under section 1192.7, subdivision (c).  (§ 667, subd. (d)(1).)   The “three strikes” law additionally provides that “[n]otwithstanding any other law” its provisions “shall be applied” in every case in which the defendant has a prior violent or serious felony conviction.  (§ 667, subd. (f)(1).)   Section 667, subdivision (e) requires that certain sentences “shall apply” where a defendant has prior convictions.   If one prior serious or violent felony has been pled and proved, “the determinate term or minimum term for an indeterminate term shall be twice” that otherwise provided for the current conviction.  (§ 667, subd. (e)(1).)

The People argue that while violation of section 496, subdivision (a) is normally a “wobbler,” it is not in this case.   Rather, the People contend that because Perez was required to be sentenced to state prison under the “three strikes” law, he was convicted of a straight felony as defined by section 17, subdivision (a).   That is, once Perez was “convicted” of the current felony and the court found he had previously suffered a conviction for a felony within the meaning of section 667, subdivision (d)(1) and section 1192.7, subdivision (c)(23), which designates any felony in which the defendant personally used a “dangerous or deadly weapon” as a serious felony, the court was required by section 667, subdivisions (c)(2) and (c)(4) to sentence Perez to state prison for the term prescribed by section 667, subdivision (e)(1).   In sum, the People contend the “three strikes” law has superseded any discretion the sentencing court might have had under section 17.

 It is the Legislature's function to define offenses and to prescribe punishments.  (People v. Navarro (1972) 7 Cal.3d 248, 258, 102 Cal.Rptr. 137, 497 P.2d 481.)   In interpreting those laws we apply well-established rules of statutory construction, a fundamental rule of which is that a court should determine the intent of the Legislature to effectuate the purpose of the law.  (DuBois v. Workers' Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387, 20 Cal.Rptr.2d 523, 853 P.2d 978.)   In doing so, we first look to the language of the statute.  (Ibid.)  If the language is clear and the legislative intent certain, we simply enforce the statute according to its terms.  (Id. at pp. 387–388, 20 Cal.Rptr.2d 523, 853 P.2d 978.)   We give effect to statutes according to the ordinary meaning of the language used and construe words in context, being aware of the nature and purpose of the statute.  (Id. at p. 388, 20 Cal.Rptr.2d 523, 853 P.2d 978.)   Parts of a statute are harmonized by considering particular clauses or sections in the context of the overall statutory framework.  (Ibid.)

The People argue it is clear by enacting the “three strikes” law the Legislature intended to ensure longer prison sentences, and that by use of the phrase “notwithstanding any other law” further intended the “three strikes” law to take precedence over any other sentencing provisions which might otherwise apply.  (§ 667, subds. (b), (c), (f)(1).)   Moreover, the People contend the use of the term “shall” in subdivision (c)(4) is clearly mandatory and that a specific provision should govern over a general provision.   In effect, the People argue the “three strikes” law because of its general purpose and mandatory wording has by implication abrogated the long-standing power of the court to determine whether a “wobbler” will be treated as a felony or a misdemeanor under section 17, subdivision (b)(3).   We do not agree.

The situation presented here is similar to that presented in People v. Siko (1988) 45 Cal.3d 820, 248 Cal.Rptr. 110, 755 P.2d 294.   In People v. Siko, the People contended the Legislature, by enacting section 667.6, subdivision (c), which increased the punishment for persons convicted of certain serious sex offenses, had impliedly repealed the prohibition of section 654 against multiple punishments for violations based on the “same act or omission” insofar as the prohibition applied to the offenses listed in section 667.6, subdivision (c).   The Supreme Court rejected the argument stating that as a general rule repeal by implication is disfavored and further stating such repeal is particularly disfavored where the statute purportedly repealed expresses a long-standing legal principle of our penal jurisprudence.   (People v. Siko, supra, 45 Cal.3d at p. 824, 248 Cal.Rptr. 110, 755 P.2d 294.)

For over a century, California trial courts have had discretion to determine a “wobbler” will be treated as a misdemeanor by imposing punishment other than a state prison term.  (Amended Code Amdts., 1873–74, ch. 196, § 1, p. 455.)   More than 30 years ago, the Legislature specifically recognized that a court could grant probation without imposition of a sentence and could declare the offense a misdemeanor.  (Stats.1963, ch. 919, § 1, p. 2169–2170.)

The Legislature was clearly aware of the court's power under section 17, subdivision (b)(3) when it enacted the “three strikes” law.   In defining what constituted prior convictions, the Legislature specifically exempted those convictions where the sentence imposed “automatically, upon the initial sentencing, converts the felony to a misdemeanor,” an obvious reference to the trial court's section 17, subdivision (b)(3) power.  (§ 667, subd. (d)(1).)  In all other respects, the Legislature negated the impact of the sentence imposed and specifically included within prior felony convictions those convictions in which imposition of sentence or judgment had been suspended, execution of sentence had been stayed, or the defendant had been committed to specified institutions other than state prison.  (§ 667, subd. (d)(1)(A)–(D).)

Moreover, section 667, subdivision (c) sets forth several specific prohibitions and limitations where a person has been “convicted” of a felony and has a prior violent or serious felony conviction.   Nowhere does the Legislature specifically limit the court's power under section 17, subdivision (b)(3).   Nor does the “three strikes” legislation specifically limit the prosecutor's discretion in charging “wobblers” under section 17, subdivision (b)(4) or a magistrate's discretion at or before the preliminary examination to determine a “wobbler” is a misdemeanor under section 17, subdivision (b)(5).   If discretion remains with the prosecutor and the magistrate, it makes little sense that the Legislature would strip the trial court, which has heard all the evidence, of its discretion to declare the offense a misdemeanor at sentencing under section 17, subdivision (b)(3).

The People, relying on People v. Johnson (1989) 210 Cal.App.3d 316, 258 Cal.Rptr. 347, and People v. Wilson (1991) 227 Cal.App.3d 1210, 278 Cal.Rptr. 319, additionally argue that a “conviction” for purposes of section 667 occurs upon the ascertainment of guilt.   Therefore, they contend, the court was required under section 667, subdivision (c)(4) to commit Perez to state prison and prohibited under section 667, subdivision (c)(2) from granting probation because Perez was a person “convicted” of a felony upon the jury verdict.³

The term “conviction” is ambiguous and has been interpreted to have various meanings, depending upon the context in which it is used.  (People v. Rhoads (1990) 221 Cal.App.3d 56, 60, 270 Cal.Rptr. 266.)   It is sometimes used in the narrow sense of a verdict or a plea, while in others it is used in the broader sense of including ascertainment of guilt and the pronouncement of judgment.  (Ibid.)

In People v. Johnson, supra, 210 Cal.App.3d 316, 258 Cal.Rptr. 347, the defendant was found guilty of murder but escaped before sentencing.   While at large, he committed other crimes for which he was later charged including a section 667, subdivision (a) enhancement allegation based on the his prior murder “conviction.”   The defendant argued the prior serious felony allegation should have been stricken because judgment for that offense was pronounced after he committed the current offenses.   In People v. Wilson, supra, 227 Cal.App.3d 1210, 278 Cal.Rptr. 319, the defendant was on probation for one burglary and was convicted of a second burglary committed while on probation.   He sought to avoid a five-year enhancement under section 667, subdivision (a) by arguing he should not be deemed convicted in the prior case until his probation was revoked and he was sentenced to a term in state prison.   Both cases held a defendant “has been convicted” of a prior serious felony under section 667, subdivision (a) upon the ascertainment of guilt alone.  (People v. Wilson, supra, 227 Cal.App.3d 1210, 1219–1220, 278 Cal.Rptr. 319;  People v. Johnson, supra, 210 Cal.App.3d 316, 323–325, 258 Cal.Rptr. 347;  see also People v. Shirley (1993) 18 Cal.App.4th 40, 46–48, 22 Cal.Rptr.2d 340.)   To have held otherwise would have defeated the purpose of the statute and rewarded the defendants' wrongful conduct.   The administration of justice would have been compromised.

The cited cases support the conclusion a prior serious or violent felony conviction occurs upon ascertainment of the defendant's guilt by verdict or plea.   They do not support the conclusion that by using the term “convicted” of a felony as to the current offense, the Legislature intended to abrogate the trial court's discretion under section 17, subdivision (b)(3).   Rather, the entire statutory scheme of section 667 which recognizes the trial judge's discretion to take such action indicates the Legislature intended the term “convicted” to be used in the broader sense of ascertainment of guilt and pronouncement of judgment.   At a minimum, use of the word “convicted” is ambiguous and should be construed as favorably to the defendant as reasonably possible considering the language and the circumstances.  (People v. Weidert (1985) 39 Cal.3d 836, 848, 218 Cal.Rptr. 57, 705 P.2d 380.)

 Accordingly, we conclude the Legislature in enacting the “three strikes” law did not intend to abrogate the trial judge's long-standing power under section 17, subdivision (b)(3) to declare a “wobbler” a misdemeanor and to impose probation at the time of sentencing.

DISPOSITION

The petition is denied.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   A “three strikes” law was enacted as urgency legislation on March 7, 1994, and is set forth in section 667, subdivisions (b) through (i).  (Stats.1994, ch. 12.)   Proposition 184 approved by the California voters on November 9, 1994, added section 1170.12 to the Penal Code.  Section 1170.12 contains almost identical provisions to those found in section 667, subdivision (b) through (i).   Perez was charged with having received stolen property after the enactment of section 667, subdivision (b) through (i) but before the passage of Proposition 184.   Our analysis of the “three strikes” law will therefore be with reference to section 667, subdivisions (b) through (i).   Our review of the two statutory schemes, however, has revealed no significant differences between them with respect to the provisions that are here in issue.

3.   We find no merit to two additional arguments raised by the People, i.e., (1) that the clear intent and effect of the court's grant of probation and commitment to the county jail was to strike the prior conviction and (2) that section 17 never came into play because a “wobbler” is deemed a felony until judgment.   First, the court repeatedly acknowledged it had no authority to strike the prior conviction.   It did not do so, but rather exercised its discretion under section 17, subdivision (b)(3).   Second, the fact a “wobbler” is deemed a felony until the time of judgment (see People v. Banks (1959) 53 Cal.2d 370, 381, 1 Cal.Rptr. 669, 348 P.2d 102) has no impact on our decision.   Moreover, the People's reliance on People v. Booker (1994) 21 Cal.App.4th 1517, 26 Cal.Rptr.2d 715 is misplaced.  Booker stated the court's sentencing discretion to reduce the offenses to misdemeanors was not implicated because the defendants had not been “convicted.”  (Id. at p. 1521, 26 Cal.Rptr.2d 715.)   However, that was in the context of the defendants having brought and the court having granted a pretrial motion to declare the charged crimes misdemeanors, all without statutory authority.   The case has no application here.

HUFFMAN, Associate Justice.

WORK, Acting P.J., and BENKE, J., concur.