PEOPLE v. FLOWERS (1984)

Following a jury trial, appellant was found guilty of one count of robbery in violation of Penal Code section 211.¹  He appeals from a state prison term of 10 years, reflecting the upper base term on the robbery conviction (five years) plus a five-year enhancement for a serious felony prior conviction.

Appellant overtook a Mrs. Delores Pruett and her daughter as they were walking together on a public sidewalk.   Passing quickly in front of Mrs. Pruett appellant punched her in the mouth and with the same motion, grabbed her handbag away from her and fled with Mrs. Pruett's purse in hand.

At trial appellant admitted conviction on two prior serious offenses within the meaning of sections 667 and 1192.7.   The court found appellant guilty of a third, juvenile prior serious offense.   As the court relied on this third offense in imposing the upper five-year term on the robbery charge, enhancements pursuant to section 667 were imposed only for the remaining prior offenses.   The trial court ran the two five-year enhancements concurrent with and not consecutive to each other, but consecutive to the base count, so that the resulting term was ten rather than fifteen years.

Appellant argues that the court erred in refusing to give the lesser included offense instructions on theft.  (CALJIC Nos. 14.23, 17.10 (4th ed. 1979).)  He also contends that the enhancements under section 667 are unconstitutional in that they violate prohibitions against ex post facto applications of criminal law;  they place a criminal defendant twice in jeopardy for the same offense;  and they are part of a statutory scheme which denies a defendant equal protection under the laws.

Respondent suggests that under the language of section 667, the trial court erred in ordering that the five-year sentences on the two priors run concurrent with rather than consecutive to each other.

I. INSTRUCTIONS ON THE LESSER INCLUDED OFFENSE

 Appellant contends that he was prejudiced by the trial court's failure to give the lesser included offense instructions on theft, in that the jury was wrongly deprived of a “third option,” in addition to “guilty” or “not guilty” of robbery.   While appellant correctly states this general principle of law, it is inapplicable to the facts of this case.

Where evidence introduced at trial establishes that if a defendant is guilty at all, he is guilty of a greater offense, the jury need not be instructed on any lesser included offense.  (People v. McCoy (1944) 25 Cal.2d 177, 187, 153 P.2d 315;  People v. Kent (1979) 96 Cal.App.3d 130, 136, 158 Cal.Rptr. 35.)   Appellant maintains that there was “an issue of whether there was sufficient force for a charge under Penal Code § 211.”   But the undisputed evidence at trial was that appellant hit Mrs. Pruett in the face before grabbing her purse.   Appellant cannot successfully argue that a punch in the face does not constitute the use of force contemplated in section 211.

II. ISSUES OF CONSTITUTIONALITY

A. Ex Post Facto Application

 Appellant argues that imposition of additional terms of punishment under the enhancement provisions of section 667 is an ex post facto application of criminal law, since section 667 did not exist at the time that he committed the two prior serious offenses.   A similar contention was put to rest in Ex Parte Gutierrez (1873) 45 Cal. 429, 432, which held that a law authorizing consideration of an offender's past conduct in providing for the punishment of future offenses is not objectionable as ex post facto.   The enhancement provisions of section 667.5 were recently upheld as against an ex post facto challenge in People v. Williams (1983) 140 Cal.App.3d 445, 189 Cal.Rptr. 497, which followed the reasoning of Gutierrez.   As we find no fundamental difference between section 667 and the enhancement statutes which have been upheld in California over the past century, we reject appellant's argument.

B. Double Jeopardy

Appellant maintains further that imposition of additional terms under sections 667 and 1192.7 puts a defendant twice in jeopardy for the same offense, since prior serious felonies are both tried and punished a second time upon conviction of a subsequent offense.   This, appellant maintains, violates both the Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution.

 It should first be pointed out that the scope of any retrial of prior offenses in accordance with California Constitution, article I, section 28, subdivision (f), and section 1158 is limited to a verification of the fact of a previous conviction.   Appellant errs in equating this factual determination with a retrial of the merits of the case.

 More significantly, statutes which mandate an increased punishment for repeat offenses have traditionally withstood double jeopardy challenges in this state.   The cases reason that a defendant is not punished twice for the previous offense, but is punished more severely on the subsequent charge, since “by his persistence in the perpetration of crime he has evinced a depravity, which merits a greater punishment ․”  (People v. Stanley (1873) 47 Cal. 113, 116;  see also In re Foss (1974) 10 Cal.3d 910, 922, 112 Cal.Rptr. 649, 519 P.2d 1073.)

C. Equal Protection

Appellant's equal protection challenge to section 667 is based on his observation that there is an area of overlap between sections 667 and 667.5 which leaves persons similarly situated subject to different punishment.   Appellant contends that depending on the whim of the prosecutor in charging enhancements under sections 667 or 667.5, a person with a less severe prior record could end up being sentenced to a longer term than one with a more severe record.

Appellant recognizes that no equal protection problem would exist if section 667 impliedly repealed section 667.5 in the areas of overlap, but argues that “a court would be hard-pressed to explain the interrelationship on this basis.”   We disagree.   Section 667 was added to the Penal Code by Proposition 8.   In Brosnahan v. Brown (1982) 32 Cal.3d 236, 256, 186 Cal.Rptr. 30, 651 P.2d 274, it was recognized that Proposition 8 may have repealed or modified by implication existing statutory provisions.

 We acknowledge that the doctrine of implied repeal is not favored and will be applied only where two enactments concern the same subject matter and are in irreconcilable conflict.  (In re Thierry S. (1977) 19 Cal.3d 727, 744, 139 Cal.Rptr. 708, 566 P.2d 610.)   Where there is such an irreconcilable conflict, however, the most recently enacted statute will be held to have repealed inconsistent provisions of the former statute.   (Ibid.;  see also In re White (1969) 1 Cal.3d 207, 212, 81 Cal.Rptr. 780, 460 P.2d 980.)

 Section 667.5 imposes a one-year consecutive enhancement for each prior separate prison term served unless both the present offense and the prior offense were “violent felonies” in which case the enhancement is three years.   The term “violent felony” includes a very limited number of specific crimes within its definition.   Section 667 substantially increases the number of crimes for which recidivism may result in increased enhancement and denominates such offenses “serious felonies;”  it increases the additional enhancement for prior offenses to five years;  and it discards the requirement that the accused served a prior prison term for his prior “serious felony.”   Section 667 is manifestly irreconcilable with section 667.5 and must be held to have impliedly repealed that section where they are inconsistent.   We, therefore, reject appellant's equal protection challenge to section 667.

III. SENTENCING ERROR

 Respondent contends that the trial court erred by ordering that the five-year sentences on the two prior convictions run concurrent with each other.   He correctly points out that this court has the authority to set aside an unauthorized sentence and impose a proper sentence in its place, “even though it is more severe than the original unauthorized pronouncement.”  (People v. Serrato (1973) 9 Cal.3d 753, 764, 109 Cal.Rptr. 65, 512 P.2d 289, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1, 189 Cal.Rptr. 855, 659 P.2d 1144.)

The directive of section 667, that “[t]he terms of the present offense and each enhancement shall run consecutively,” would seem dispositive of the issue.

People v. Lopez (1983) 147 Cal.App.3d 162, 195 Cal.Rptr. 27, however, holds to the contrary.   The Second District reasoned in Lopez that the language of section 667, as derived from California Constitution, article I, section 28, subdivision (f) is not sufficiently clear to prevent a trial court from rendering section 667 enhancements unenforceable under section 1385.   For the following reasons we disagree.

 We first examine the language of section 667 itself.   The use of the mandatory “shall” in subdivision (a) does not necessarily indicate that section 1385 is inapplicable (People v. Williams (1981) 30 Cal.3d 470, 483, 179 Cal.Rptr. 443, 637 P.2d 1029), and the statute does not explicitly state that judicial discretion under section 1385 is precluded.   Nevertheless, subdivision (b) of section 667 does plainly state when the section shall not be applied:  “․ when the punishment imposed under other provisions of law would result in a longer term of imprisonment.”   This specified exception to the application of section 667 by necessary implication excludes all other exceptions.  (People ex rel. Cranston v. Bonelli (1971) 15 Cal.App.3d 129, 135, 92 Cal.Rptr. 828.)

 In addition, section 667 specifies how its provisions may be changed.   Subdivision (c) permits the Legislature to increase the length of the enhancement by majority vote;  in contrast, any other amendments to the section require either a two-thirds vote of both houses of the Legislature or a statute effective only on approval by the voters.  (Pen.Code, § 667, subd. (e).)  The necessary implication of this restriction on the Legislature's power to ameliorate the mandate of section 667 is that the electorate did not intend trial courts to be able to nullify that mandate entirely by striking priors, or rendering them otherwise ineffective.

Moreover, in ascertaining legislative intent, we must not read section 667 in isolation, but must construe it with reference to the whole system of law of which it is a part.  (People v. Ruster (1976) 16 Cal.3d 690, 696, 129 Cal.Rptr. 153, 548 P.2d 353, disapproved on other grounds in People v. Jenkins (1980) 28 Cal.3d 494, 503, fn. 9, 170 Cal.Rptr. 1, 620 P.2d 587.)   Acts relating to the same subject or having the same general purpose must be read together.  (Isobe v. Unemployment Ins. Appeals Bd. (1974) 12 Cal.3d 584, 590, 116 Cal.Rptr. 376, 526 P.2d 528.)   Accordingly, we must read section 667 in conjunction with the entire initiative of which it was a part, and, more specifically, in connection with other provisions of that initiative which refer to prior convictions.

When the voters enacted section 667, they also amended the state's Constitution by adding section 28, subdivision (f), to article I.   That subdivision provides in relevant part:  “Any prior felony conviction of any person in any criminal proceeding ․ shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.”  (Emphasis added.)   The unequivocal language, “without limitation,” also evidences voter intent to prohibit any discretion not to use a prior conviction for enhancement.  (Cf. People v. Williams, supra, 30 Cal.3d at pp. 482–484, 179 Cal.Rptr. 443, 637 P.2d 1029 [no provision of death penalty statute seeks to limit exercise of trial court's power to dismiss allegations].)

We must also assume that the electorate had in mind existing laws when it enacted section 667.  (See Bailey v. Superior Court (1977) 19 Cal.3d 970, 977, fn. 10, 140 Cal.Rptr. 669, 568 P.2d 394.)   Section 667.5 authorizes enhancement of sentences for prior separate prison terms served for felonies.   The version of Penal Code section 1170.1 in effect when Proposition 8 was enacted acknowledged the trial court's discretionary power to strike the additional punishment set out in section 667.5 and other sections, but circumscribed that power by permitting its exercise only if the trial court determined that there were mitigating circumstances for striking the punishment, and stated on the record the reasons for its decision.  (People v. Johnson (1979) 95 Cal.App.3d 352, 356, 157 Cal.Rptr. 150;  Pen.Code, § 1170.1 [Stats.1977, ch. 165, § 17, p. 649, amended Stats.1982, ch. 1515, No. 11 West's Cal.Legis.Service, p. 8203].)  While the electorate made numerous constitutional and statutory changes with Proposition 8, it did not amend section 1170.1 to add section 667 to the list of additional punishment enhancements which the trial court could strike provided it satisfied section 1170.1.   That omission is a clear indication of intent to withhold the power to strike.

Furthermore, we must not engage in statutory construction which would render legislation a nullity (People v. Tanner (1979) 24 Cal.3d 514, 520, 156 Cal.Rptr. 450, 596 P.2d 328), and must avoid results which are absurd in light of the legislative purpose.  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245, 149 Cal.Rptr. 239, 583 P.2d 1281.)   Were we to construe section 667 as the Lopez case suggests, we would have to conclude that the voters intended the trial court to have broader discretion to strike a prior serious felony conviction than it had under existing law to strike a prior for which a separate prison term had been served.

 In construing initiative measures, courts may look to extrinsic evidence such as the legislative analysis included in the voters' pamphlet.  (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, supra, 22 Cal.3d at pp. 245–246, 149 Cal.Rptr. 239, 583 P.2d 1281.)   According to that analysis prepared for Proposition 8, “Under existing law, a prison sentence can be increased ․ if the convicted person has served prior prison terms ․  [¶]  This measure includes two provisions that would increase prison sentences for persons convicted of specific felonies.   First, upon a second or subsequent conviction, ․ 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.”  (Original emphasis omitted;  emphasis added.)  (Analysis by the Legislative Analyst, Ballot Pamp., Proposed Amend. to Cal. Const., Primary Election (June 8, 1982);  reprinted in the appendix to Brosnahan v. Brown, supra, 32 Cal.3d at pp. 302–304, 186 Cal.Rptr. 30, 651 P.2d 274.)

An argument might be made that the analyst's use of the term “could” suggested to the voters that imposition of the five-year term would not be mandatory.   However, the common sense message of the analysis, read in its entirety, was that only where a longer term could be imposed by some other provision would the five-year term for a prior conviction not be given.

In sum, we conclude that the electorate has indicated with sufficient clarity that the mandatory provisions of Penal Code section 667 are not subject to judicial discretion pursuant to Penal Code section 1385.

The trial court erred in sentencing appellant to concurrent terms on the prior serious felonies.   The two five-year terms should run consecutively, increasing appellant's state prison sentence to a total of 15 years.

The sentence is ordered modified to reflect consecutively imposed enhancements adding 10 years, instead of 5 years, to the sentence for robbery.   The trial court is directed to prepare an amended abstract of judgment which reflects this modification and forward a certified copy of same to the appropriate authorities.   As so modified the judgment is affirmed.

FOOTNOTES

1.   Unless otherwise specified, all statutory references are to sections of the Penal Code.

ANDERSON, Associate Justice.

SCOTT, Acting P.J., and BARRY–DEAL, J., concur.