PEOPLE v. SWEENEY (1984)

OPINION

On June 12, 1982, defendant Raymond Sweeney assaulted his wife.   The resultant injuries included a fractured rib and ruptured spleen.   An emergency splenectomy was performed which saved Mrs. Sweeney's life.   Defendant was charged by information with corporal injury to a spouse, in violation of Penal Code section 273.5, and assault by means of force likely to produce great bodily injury, in violation of Penal Code section 245.   It was alleged he had inflicted great bodily injury, within the meaning of Penal Code section 12022.7, as to each count.   It was further alleged under Penal Code section 667.5, that he had suffered prior felony convictions for sale of heroin in 1973 and for possession of PCP in 1980.   Defendant was arraigned, his pleas of not guilty were entered, the special allegations and the priors were denied, and the case was set for trial.   Before trial began, defense counsel moved for a separate trial on the allegations of the prior felony convictions under the authority of People v. Bracamonte (1981) 119 Cal.App.3d 644, 174 Cal.Rptr. 191.   Relying on Proposition 8, the court denied the motion.   As a result of this ruling, defendant waived jury as to the prior felony convictions and submitted the issue of the priors to the court sitting without a jury.   Defendant also moved to preclude the prosecution from using his prior felony convictions to impeach his testimony, under the authority of People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.   Again relying on Proposition 8, the court denied the motion.

Immediately following the motions, jury selection commenced and was completed at 11:15 a.m.   The victim, who had promised the district attorney she would be in court by 9:00 a.m., was not present, so the matter was trailed, over objection of the defendant, to 9:30 a.m. the following day.

Testimony commenced the following day and in due course the jury returned a verdict finding defendant guilty of assault by means of force likely to produce great bodily injury, but finding also that the great bodily injury allegation was not true.   After the jury verdict, the court found the prior felony conviction allegations to be true.   The court sentenced defendant to prison for the middle term of three years for the aggravated assault conviction, adding one year for each prior felony for a total term of five years.

Defendant's appeal raises numerous issues which we will group in five categories:

1. Use of prior felonies for impeachment after Proposition 8;

2. Viability of Bracamonte after Proposition 8;

3. Prosecutorial misconduct;

4. Continuance of trial over defense objection;

5. Prosecution of offenses over victim's objection.

I

Use of Prior Felonies for Impeachment after Proposition 8

Defendant raises four questions in this connection:

A. In view of the passage of Proposition 8, does Evidence Code section 352 still regulate which prior felony convictions may be used to impeach a witness?

B. Assuming section 352 no longer applies, is due process or the right to a fair trial violated by the unrestricted use of felony priors for impeachment?

C. Since the “prior convictions” provisions of Proposition 8 do not apply to civil proceedings, are criminal defendants denied equal protection?

D. Do the provisions of Proposition 8 regarding use of prior felonies for impeachment apply to all, or just some, felony trials?

Preliminarily, we note that the date of the offense, June 12, 1982, is significant in this case.   Proposition 8, an initiative measure entitled “The Victims' Bill of Rights”, was adopted at the statewide Primary Election on June 8, 1982.   As it relates to this case, Proposition 8 amended the California Constitution by adding section 28, subdivision (f), to article I.   Section 28, subdivision (f) provides:  “Use of Prior Convictions.   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.   When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”

 Fundamental questions regarding Proposition 8 have been resolved by our Supreme Court.   It is valid as against general constitutional attack.   (Brosnahan v. Brown (1982) 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274.)   It applies only to crimes occurring on or after June 9, 1982.  (People v. Smith (1983) 34 Cal.3d 251, 262, 193 Cal.Rptr. 692, 667 P.2d 149.)   Challenges to specific provisions and applications of Proposition 8 will necessarily be resolved on a case by case basis;  some of the issues raised here regarding the “prior convictions” provision of Proposition 8 have not previously been considered by the appellate courts.

In our analysis we are particularly mindful of the comments of the Chief Justice in her dissenting opinion in Brosnahan:

“The wisdom of the policies which the draftsmen of Proposition 8 sought to implement is not at issue in this case.   I take no position on those policies for that is for the people to decide.  [¶] I have great respect for the will of the people.   The sovereign power is theirs, and they have chosen to express that power through the Constitution which they, in their wisdom, saw fit to establish.   Respect for the Constitution is the truest measure of a justice's respect for the people.   The Constitution speaks for the people, and as long as its voice remains strong, the voice of the people will not be muffled.”   (Brosnahan v. Brown, supra, 32 Cal.3d 236, 295, 186 Cal.Rptr. 30, 651 P.2d 274;  original emphasis.)

A. Does Evidence Code Section 352 Operate, After Proposition 8, to Restrict Use of Prior Felony Convictions For Impeachment?

The historical development of the rules regarding the effect of a prior felony conviction is a necessary springboard for our analysis.   Under ancient common law, persons convicted of felonies were considered incompetent and were not permitted to testify in court.   In most jurisdictions, the disqualification was eventually removed by statute, but evidence of a witness's prior felony conviction could be admitted to impeach the witness.  (See People v. Stewart (1966) 240 Cal.App.2d 1, 7, 50 Cal.Rptr. 26.)   In California, the newer common law principle of use for impeachment was codified in 1872 as section 2051 of the original Code of Civil Procedure.   Although use of felony priors for impeachment was frequently criticized by legal scholars, (e.g., Witkin, Calif. Evidence (2d ed.) § 1243, p. 1146), challenges to the rule as unfair and archaic were always unsuccessful.  (See, e.g., People v. Stewart, supra.)   Among the unsuccessful attacks was the contention that the rule violated due process and denied a defendant a fair trial.  (See People v. Roberts (1966) 65 Cal.2d 514, 522, 55 Cal.Rptr. 412, 421 P.2d 420.)   In 1965 the Legislature consolidated the rules of evidence into one Evidence Code, which became operative on January 1, 1967.  Section 788 of the Evidence Code provides:  “For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony ․”  Evidence Code section 788 was viewed as a recodification of existing law.  (See legis. committee com., West's Ann.Evid.Code, sec. 788 (1966 ed.) p. 355.)

The 1967 Evidence Code also contained section 352 which provides:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”   In 1972, our Supreme Court ruled that Evidence Code section 788 is limited by section 352 and that the trial court must balance prejudice against the probative value of a prior felony conviction before permitting its use as impeachment.   (People v. Beagle, supra, 6 Cal.3d 441, 452–453, 99 Cal.Rptr. 313, 492 P.2d 1.)   It is significant that Beagle specifically held “there is no constitutional bar to the use of valid prior felony convictions for impeachment purposes․”  (Id., at p. 454, 99 Cal.Rptr. 313, 492 P.2d 1.)   Numerous subsequent decisions have refined the Beagle criteria, but it is significant that all are premised on the Beagle conclusion that section 788 is limited by section 352;  they are not based on constitutional mandates.

As relevant to this case, Proposition 8 provides:  “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 ․ in any criminal proceeding.”  (Cal. Const., art. I, sec. 28, subd. (f).)  On its face, the provision does not state that Evidence Code section 352 is applicable;  to the contrary, it says prior felonies shall be used “without limitation.”   Had the voters wished section 352 to apply, they could have said so in express terms.   Indeed, the “Right to Truth-In-Evidence” portion of Proposition 8, expressly provides that it does not “affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782, or 1103.”  (Cal. Const., art. I, sec. 28, subd. (d).)  In his majority opinion in Brosnahan, Justice Richardson observed that the Evidence Code section 352 limitation does apply to the “Truth-in-Evidence” provisions of Proposition 8, but that the “prior conviction” provision “permits the unlimited use in a criminal proceeding of ‘any prior felony conviction’ for impeachment ․”  (Brosnahan v. Brown, supra, 32 Cal.3d 236, 243, 186 Cal.Rptr. 30, 651 P.2d 274.)

 Legislation should be interpreted so as to effectuate the intent of the voters.¹  In determining the intent of the electorate in adopting an initiative measure, it is proper to consider the history of the statute and official statements made to the voters.  (See Diamond International Corp. v. Boas (1979) 92 Cal.App.3d 1015, 1033–1034, 155 Cal.Rptr. 616;  Noroian v. Department of Administration (1970) 11 Cal.App.3d 651, 654–655, 89 Cal.Rptr. 889.)   In the California Ballot Pamphlet distributed to voters prior to the June 8, 1982 election, the Legislative Analyst told the voters:  “Prior Convictions.   The measure would amend the State Constitution to require that information about prior felony convictions be used without limitation to discredit the testimony of a witness, including that of a defendant.   Under current law, such information may be used only under limited circumstances.”  (California Ballot Pamphlet, p. 54.)   According to Beagle, the only “current law” which limits the use of prior felonies for impeachment is Evidence Code section 352.   Assuming they read and considered the Legislative Analyst's explanation, the voters intended and expected that by passage of Proposition 8 there would be no limitations on the use of prior felony convictions to impeach, and that the section 352 restriction would be eliminated.

 Perhaps the most compelling argument why section 352 is inapplicable to the “prior convictions” provisions of Proposition 8 is that if it were to apply, passage of the initiative would effect absolutely no change in the law.   Prior to June 8, 1982 the only limitation on the use of prior felonies, according to Beagle, was that imposed by Evidence Code section 352 which required the trial court to balance the probative value of a prior felony conviction against the risk of undue prejudice.  (People v. Beagle, supra, 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 492 P.2d 1.)   If we were to hold that the “prior convictions” provisions of Proposition 8 incorporates section 352, we would be violating the only purpose of enacting those provisions—to remove the section 352 restriction.   The responsibility of a reviewing court is to ascertain the intent of the legislature (or, as here, the voters) so as to effectuate the purpose of the law.  (People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 40, 127 Cal.Rptr. 122, 544 P.2d 1322.)   To hold otherwise would clearly frustrate the intention of the voters and the spirit of the enactment.

People v. Tanner (1979) 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328 provides a helpful analogy.   Prior to 1975, trial courts had limited discretion to grant probation to defendants convicted of using deadly weapons.   In 1975, the Legislature enacted Penal Code section 1203.06, purporting to prohibit probation to defendants convicted of using firearms in the commission of certain specified crimes.   In Tanner, the trial judge concluded that section 1203.06 did not prevent him from exercising discretion to strike the firearm allegation under Penal Code section 1385.   Indeed, the Legislature had not expressly provided on the face of section 1203.06 that section 1385 was inapplicable.   The Supreme Court concluded that section 1203.06 necessarily implied that section 1385 could not be used.   It stated:  “Any other construction restores the pre-1975 law allowing a court to grant probation to any criminal if the court deems that to do so would be in the interest of justice.   Such judicial resurrection renders the 1975 legislation a nullity.”  (Tanner, at p. 520, 156 Cal.Rptr. 450, 596 P.2d 328.)   Likewise, to resurrect Beagle in the present case would render the “prior convictions” provisions of Proposition 8 a nullity.

Defendant contends there is a way we can construe Proposition 8 in order, on the one hand, to give continuing existence to Beagle and, on the other, to avoid nullification of the amendment.   He contends that the Beagle screening process must still be performed by the trial court.   Then, if the court determines a prior is admissible by Beagle standards, Proposition 8 operates to preclude the court from “sanitizing” the prior.   The trial court “sanitizes” a prior conviction by withholding from the jury some of the specifics of the prior in order to lessen its prejudicial effect.   For example, in People v. Madaris (1981) 122 Cal.App.3d 234, 175 Cal.Rptr. 869, the defendant's prior felony conviction was for robbery.   The trial court allowed impeachment only to the extent of permitting the prosecutor to establish that the defendant had been convicted of “a felony involving theft”, the trial court's reasoning being that theft involved the trait of dishonesty and that dishonesty was relevant to the determination of a witness' credibility.   On the other hand, according to the trial court's “sanitizing” theory, the element of violence, inherent in a robbery conviction, was irrelevant to prove or disprove credibility while its prejudicial effect was great.   Under its section 352 analysis, the relevant portion of the prior (theft) was admitted;  the irrelevant portion (violence) was deleted, or “sanitized”.

We reject the argument that Proposition 8 was intended only to eliminate the “sanitizing” line of cases.   The voters' pamphlet does not so indicate.   Moreover, the “sanitizing” approach was rejected by the California Supreme Court both before the passage of Proposition 8 (People v. Rollo (1977) 20 Cal.3d 109, 120, 141 Cal.Rptr. 177, 569 P.2d 771) and after its adoption (People v. Barrick, (1982) 33 Cal.3d 115, 127–128, 187 Cal.Rptr. 716, 654 P.2d 1243).   There is no logic to the argument that Proposition 8 was designed to cure a non-existent ill.

B. Due Process

 Defendant contends that removing the section 352 limitation on using prior felonies for impeachment would be a denial of due process.   We disagree.

 Beagle specifically held that there was no constitutional prohibition to the use of prior felony convictions for impeachment.  (People v. Beagle, supra, 6 Cal.3d 441, 454, 99 Cal.Rptr. 313, 492 P.2d 1.)   The due process argument was raised and specifically rejected by the California Supreme Court on several occasions before Beagle.  (See, e.g., People v. Roberts, supra, 65 Cal.2d 514, 522, 55 Cal.Rptr. 412, 421 P.2d 420.)   We are constrained to follow the Supreme Court decision in Roberts, but we recognize the possibility that in a specific fact situation, it might be contended that the use of a particular prior felony conviction would result in the denial of a fair trial and therefore a denial of due process.   The Attorney General contends that section 28 of article I, as a co-equal provision of the California Constitution, is not subordinate to the due process provisions of the California Constitution (art. I, sec. 7).   We reject that view.   In People v. Superior Court (Engert) (1982) 31 Cal.3d 797, 183 Cal.Rptr. 800, 647 P.2d 76, the prosecution contended that section 27 of article I of the California Constitution (also enacted by the voters as an initiative measure), authorizing the death penalty, was not subordinate to the due process clause and therefore could not be scrutinized according to due process principles.   The California Supreme Court specifically rejected that contention and held that the death penalty constitutional amendment had to meet the due process requirements of the California Constitution.   It is therefore proper that Proposition 8 be subordinate to state due process standards.

 Nor does the due process provision of the United States Constitution bar unlimited use of prior felony convictions for impeachment.  (McGautha v. California (1971) 402 U.S. 183, 215, 91 S.Ct. 1454, 1471, 28 L.Ed.2d 711.)   Indeed, the United States Supreme Court has held that due process is not violated if a prior felony conviction is used for sentence enhancement and proved as part of the prosecution's case in chief, whether or not defendant testifies.  (Spencer v. Texas (1967) 385 U.S. 554, 565–566, 87 S.Ct. 648, 654–655, 17 L.Ed.2d 606.)

 Even if a due process analysis were appropriate to our consideration, the trial court's failure to grant the defendant's Beagle motion herein was clearly harmless.   Defendant never disputed the accusation he had assaulted his wife;  in argument his attorney conceded that the jury “will probably convict him of the misdemeanor charges, either the battery or the assault.”   No proffered testimony by defendant would have helped establish his outright innocence.   His defense was that he lacked the specific intent to commit great bodily injury.   The jury accepted his defense and found the 12022.7 allegation not true.   Since the Penal Code section 245 charge was a general intent crime, and since his wife's injuries were nearly fatal, it was inevitable defendant would be convicted of that offense.   The record does not show that defendant was denied due process or a fair trial.

C. Equal Protection

 It is contended by defendant that, since the “prior conviction” provisions of Proposition 8 apply in criminal but not civil cases, criminal litigants are denied equal protection of the law.   This argument ignores the fact that civil and criminal law deviate on even more fundamental levels.   Civil juries need not be unanimous to reach a verdict;  criminal juries must.   In civil cases the jury need only be convinced by a preponderance of the evidence;  criminal juries must be convinced beyond a reasonable doubt.   Civil and criminal litigants have vastly different stakes and concerns.  Penal Code section 1102, enacted in 1872, permits the rules of evidence in civil cases to differ from the rules applicable to criminal cases.   There are many examples of the rules of evidence in civil cases differing from those applicable in criminal cases.  (See, e.g., Evid.Code, §§ 1102 and 1103, [character evidence].)  “The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.”  (In re Eric J. (1979) 25 Cal.3d 522, 530, 159 Cal.Rptr. 317, 601 P.2d 549, original emphasis.)   Such showing has not been made.

D. Do the “Prior Convictions” Provisions of Proposition 8 Apply to All Felonies?

 Section 7 of Proposition 8 added section 1192.7 to the Penal Code.  Section 1192.7 prohibits plea bargaining in “serious felony” cases.   Subdivision (c) of section 1192.7 enumerates twenty-five “serious felonies”.   Defendant contends that the “prior convictions” provisions of Proposition 8 should be restricted to the “serious felonies” enumerated in section 1192.7.   We reject that interpretation;  the “prior convictions” provisions are expressly stated to apply “in any criminal proceeding”.   We see no logical reason to ignore the clear language of the section.

II

The Continuing Existence of People v. Bracamonte

In People v. Bracamonte, supra, 119 Cal.App.3d 644, 174 Cal.Rptr. 191, the court held that a unitary trial on both guilt and the existence of prior felony convictions was a denial of due process.   The court noted the relative ease and brevity of severing the two issues and precluding the jury from hearing evidence regarding the priors until after it had determined the defendant's guilt.   Indeed, in those cases where the defendant is found not guilty, judicial time is saved because the issue of prior convictions is not litigated at all.

As noted, the trial judge herein believed that Proposition 8 overruled Bracamonte by implication and he therefore denied the defense motion for a separate trial on the issue of the defendant's prior convictions.

The “prior convictions” provisions of Proposition 8, as relevant to Bracamonte, state, first, that:  “Any prior felony conviction ․ shall subsequently be used without limitation for ․ enhancement of sentence ․” and, second, that “When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”  (Emphasis added.)

 We have concluded that neither of these provisions overrules Bracamonte either expressly or by implication.   The first quoted portion addresses the situation involved here;  the priors were being used for enhancement of sentence under Penal Code section 667.5.   The issue we must resolve is whether the term “without limitation” refers to the sentencing consequence of the prior conviction or to the procedure employed in proving it.   The intent of the provision, according to the Legislative Analyst, was the former:  “[A]ny prior felony conviction could be used without limitation in calculating longer prison terms.”  (California Ballot Pamphlet, p. 55, emphasis added.)   Nowhere in the ballot pamphlet can we find allusion to Bracamonte or an expression of concern about its procedures.

 One important principle of statutory construction, heretofore discussed, requires that our interpretation not render the statute a nullity.   (See People v. Tanner, supra, 24 Cal.3d 514, 520, 156 Cal.Rptr. 450, 596 P.2d 328.)   We conclude that the first quoted portion had an objective independent of Bracamonte.   The language of the provision, combined with the Legislative Analyst's comments, suggest that the first quoted portion of the “prior convictions” provisions of Proposition 8 was intended to overrule the construction placed on section 667.5 by our Supreme Court in People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396.  Harvey held that section 667.5 limited the application of subdivision (a) of Penal Code section 1170.1 to those specific offenses listed in section 667.5.  (Id., at p. 761, 159 Cal.Rptr. 696, 602 P.2d 396.)   Reason and common sense suggests the “limitation” referred to in the quoted portion of Proposition 8 was that imposed by Harvey, especially since Bracamonte imposed no limitation on the “use” of prior felony convictions.

The second quoted portion of Proposition 8 also appears not to affect Bracamonte.   First, the Bracamonte procedure does permit proof of the prior felony conviction “to the trier of fact in open court.”   Second, on its face, the quoted portion applies where the prior felony conviction “is an element of any felony offense”, not when the prior felony conviction is used for purposes of enhancement.   And third, applying the Tanner principle of statutory interpretation, it appears that the second quoted portion was intended to overrule the principle set forth in People v. Hall (1980) 28 Cal.3d 143, 167 Cal.Rptr. 844, 616 P.2d 826.  Hall holds that when a prior felony conviction is an element of the current offense, the defendant must be allowed to stipulate to the existence of the prior out of the presence of the jury, thereby preventing the jury from hearing evidence about it.

 For the above reasons, we have concluded that the trial court erred in denying the defense motion for bifurcation.   We have also concluded that the error was not harmless.   As a result of the court's ruling on the Bracamonte motion, the defendant waived jury and consented to a court trial on the issue of the priors.   At the court trial, the prosecution introduced certain documentary evidence regarding the priors.   The documents were deficient in identifying defendant as the person who had suffered the prior conviction, and the court so found.   By coincidence, one of the prior convictions was sustained before the same trial judge, who remembered defendant.   Based on his own recollection, and not on the evidence furnished by the prosecution, the court determined that defendant was the person who suffered the priors.   The Attorney General contends that this action by the trial judge was proper, in that he merely took judicial notice under subdivision (d) of Evidence Code section 452.   We disagree.   The documents were already properly admitted into evidence;  what the trial judge added was his own personal knowledge.   This procedure does not fall within Evidence Code section 452.   In reality the judge was himself acting as a witness without complying with Evidence Code section 703, which requires that before the trial judge can become a witness he must notify all parties in advance and obtain their consent.   Under section 703, the defendant had a right to a mistrial and reassignment of his case to another judge upon learning of the trial court's intention to use his prior personal observations as a basis for his ruling.   Although inadvertent, it was improper for the trial judge here to act as a witness.  (See McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 534, 116 Cal.Rptr. 260, 526 P.2d 268, overruled on another point in Spruance v. Commission on Judicial Qualifications (1975) 13 Cal.3d 778, 799, fn. 18, 119 Cal.Rptr. 841, 532 P.2d 1209.)   Accordingly, we will remand the matter for trial on the limited issue of the defendant's prior felony convictions.   Consistent with our comments, the court shall reinstate the defendant's original request for trial by jury as to the priors.

III

District Attorney Misconduct

We have reviewed the transcript of the trial.   The proceedings were often rancorous;  the case was hard-fought on both sides.

 Four examples of prosecutorial misconduct are cited by defendant.   We resolve each as follows:

(1) At the close of his case and in the presence of the jury, the prosecutor stated:  “[W]ith regards to the court trial portion [on the issue of the priors], we do have evidence that we would like to offer.”

At defense counsel's request, the court admonished the jury not to speculate regarding the prosecutor's other evidence.   It is a fact well known to juries that legal issues arise which the court is called upon to decide out of the presence of the jury.   During the jury selection process herein, the court advised the jury that legal rulings would be made out of the jury's hearing.   Here, the prosecutor did not comment on the nature or the type of evidence to which he was referring.   No harm appears to have been done by the prosecutor's comments about “other evidence”.   In any event, the court admonished the jury to disregard the comment.

(2) The prosecutor forced the victim to testify.

The purpose of the subpoena power is to compel the attendance of reluctant witnesses.   It requires no citation of authority to observe that litigants take their witnesses as they find them;  the subpoena process is a proper method of compelling the attendance and testimony of uncooperative witnesses.

(3) During his opening argument, the prosecutor anticipated that the defense would argue self defense and stated:  “It's a ludicrous argument, but I am sure one that will be made.   It's a contrived defense because it's a defense that does not exist.”

It is misconduct for the prosecutor to assert without support in the record that defense counsel fabricated a defense.  (People v. Nelson (1964) 224 Cal.App.2d 238, 254, 36 Cal.Rptr. 385.)   We are convinced, however, given the entire record, that the prosecutor's statement in this case was harmless error.   In fact, in the defense argument defense counsel capitalized on the prosecutor's tactical error:  “I am not going to stand here in front of you and argue self-defense because I think you are more intelligent and I don't think the evidence supports that.”   In the context of the entire trial, the prosecution was hurt more than the defense by the comments.

(4) The prosecutor interjected his personal beliefs in argument.

The prosecutor never expressed his personal opinion regarding the defendant's guilt.   To do so would have been misconduct.  (See People v. Bain (1971) 5 Cal.3d 839, 848, 97 Cal.Rptr. 684, 489 P.2d 564.)   His comments, rather, primarily constituted his interpretation of the evidence, which is proper.   (See People v. Kirkes (1952) 39 Cal.2d 719, 724, 249 P.2d 1.)

The undisputed evidence showed that defendant struck his wife;  his counsel so acknowledged during argument.   The only genuine issue, as defense counsel acknowledged in his argument to the jury, was whether defendant was guilty of either of the felonies as urged by the prosecutor, or of one of the misdemeanor offenses as urged by the defense.   Given the victim's fractured rib and ruptured spleen, it seems inevitable the jury would have chosen the felony offense of assault by means of force likely to produce great bodily injury.

 To the extent the prosecutor may have wandered over the line permitted of aggressive advocacy, we have concluded his behavior did not contribute to the verdict and was therefore harmless.

IV

Continuance Over Defense Objection

On September 15, at the completion of voir dire, the prosecutor announced to the court that his witness had failed to appear and that he was not prepared to proceed.   The witness had not been subpoenaed.   The court trailed the case to September 16, at which time the witness appeared and the case proceeded.   Defendant objected at all times to the continuance.

 The prosecutor had failed to subpoena the witness, and therefore “good cause” did not exist for a continuance.  (See Gaines v. Municipal Court (1980) 101 Cal.App.3d 556, 560, 161 Cal.Rptr. 704.)   However, September 15 was only the 57th day after the filing of the information.   Penal Code section 1382 requires that a defendant be brought to trial within 60 days after the filing of the information.   In order to obtain a continuance within the statutory time, “good cause” need not be shown.  (See People v. Arnold (1980) 105 Cal.App.3d 456, 460, 164 Cal.Rptr. 367;  People v. Kessel (1976) 61 Cal.App.3d 322, 325, 132 Cal.Rptr. 126.)   The court properly trailed the matter from the 57th day to the 58th day after the filing of the information.   The case was properly brought to trial within the sixty-day period.

V

Victim's Control Over the Case

After her injuries healed and her life was out of danger, the victim let it be known to the district attorney that she did not want criminal charges to be pursued against her husband.   Also, after the conviction, she advised the probation officer and later testified in court that she did not want her husband to be sentenced to state prison.   Both these requests were rejected.   Defendant contends that both the district attorney and the court erred in refusing to acceed to her requests.   His position is predicated upon Proposition 8, “The Victims' Bill of Rights”.

The status of the law, absent Proposition 8, is clear.   Insofar as the filing and maintenance of criminal charges are concerned, discretionary power reposes exclusively in the district attorney and the victim has no legal standing to control the exercise of such discretion.  (People v. Municipal Court (1972) 27 Cal.App.3d 193, 199–206, 103 Cal.Rptr. 645.)   While Penal Code section 1203 compels a sentencing court to consider all relevant circumstances in imposing judgment, and therefore, presumably, the wishes of the victim, it is clear that the sentencing function is vested exclusively in the judicial branch of government.  (People v. Tenorio (1970) 3 Cal.3d 89, 94, 89 Cal.Rptr. 249, 473 P.2d 993.)

Does Proposition 8 alter either of these conclusions?   Defendant contends:  “The Victim's Bill of Rights, Article I, Section 28(a) of the California Constitution, elevates the rights of victims of crime to Constitutional dimensions.”   He cites the first and second paragraphs of subdivision (a) section 28, which state:

“The People of the State of California find and declare that the enactment of comprehensive provisions and laws ensuring a bill of rights for victims of crime, including safeguards in the criminal justice system to fully protect those rights, is a matter of grave statewide concern.

“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 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.”

 This statement of principles is not self-executing;  the last paragraph of subdivision (a) states:  “To accomplish these goals, broad reforms in the procedural treatment of accused persons and the disposition and sentencing of convicted persons are necessary and proper as deterrents to criminal behavior and to serious disruption of people's lives.”   Thereafter, the reforms are listed.   These reforms dealing most directly with the rights of victims are contained in section 6 of Proposition 8 which adds Penal Code section 1191.1, Penal Code section 3043, and Welfare and Institutions Code section 1767.  (See Brosnahan v. Brown, supra, 32 Cal.3d 236, 301, 186 Cal.Rptr. 30, 651 P.2d 274.)   Each of those sections enacts a common theme:  at sentencing proceedings (Pen.Code, § 1191.1), at state prison parole eligibility hearings (Pen.Code, § 3043), and at Youth Authority parole eligibility hearings (Welf. & Inst.Code, § 1767) the victim, or next of kin if the victim has died, has certain rights, including the right to notice of the hearing, the right to attend the hearing, and the right at the hearing to “express his or her views concerning the crime, the person responsible, and the need for restitution.”   The court, the Board of Prison Terms, or the Youth Authority, according to the respective sections, have the duty to “consider the statements of victims and next of kin.”   None of the statutes require the sentencing or release decision to be dictated by the victim;  they merely provide that the victim's statement be “considered.”   We therefore conclude that Proposition 8 does not give victims the power to determine what sentence should be imposed by the trial court.

 Moreover, we find nothing in Proposition 8 which implies that victims may control the actions of the prosecution.   Indeed, Proposition 8 implies the continuing existence of an independent prosecutor.   For example, section 7 adds section 1192.7 to the Penal Code and discusses the “prosecuting attorney” and the “people's case” in the context of plea bargaining.   We therefore conclude that the district attorney's powers to control the prosecution of criminal cases are unaffected by Proposition 8.

The conviction of assault by means of force likely to produce great bodily injury is affirmed.   The sentence imposed for the two prior felony convictions is vacated and the matter is remanded to the Riverside Superior Court for retrial and resentencing, if appropriate, on the two prior felony convictions alleged as enhancements.

FOOTNOTES

FOOTNOTE.  

1.   In this exploration of the voters' intentions, we are cautioned by the words of Learned Hand:  “When we ask what Congress [or the voters] ‘intended’, usually there can be no answer, if what we mean is what any person or group of persons actually had in mind.   Flinch as we may, what we do, and must do, is to project ourselves, as best we can, into the position of those who uttered the words, and to impute to them how they would have dealt with the concrete occasion.”  (United States v. Klinger (2d Cir.1952) 199 F.2d 645, 648.)

KENNEDY *, Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

MORRIS, P.J., and RICKLES, J., concur.