PEOPLE v. WALL (1984)

OPINION

FACTS

The facts of the underlying offense are not relevant to this appeal.   Following the entry of a plea of guilty to the charge of assault with intent to commit rape (Pen.Code § 220) and the admission of one alleged prior serious felony conviction, defendant was sentenced to a base term of four years in the state prison and an additional five years stemming from the prior serious felony conviction.

Defendant raises three grounds for this appeal:  (1) that the sentence imposed violates the twice-the-base-term limitation of Penal Code section 1170.1, subdivision (g);  (2) that the court failed to exercise its discretion to strike the enhancement for purposes of punishment pursuant to Penal Code section 1385;  and (3) that a five-year enhancement for a prior conviction which did not result in imprisonment is cruel and unusual punishment.

In support of defendant's first contention he relies on section 1170.1, subdivision (g) ¹ which provides:  “The term of imprisonment shall not exceed twice the number of years imposed by the trial court as the base term ․ unless the defendant stands convicted of a ‘violent felony’ ․ or a consecutive sentence is being imposed ․ 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.”   Defendant reasons that because his base term was fixed at four years and because none of the express exceptions set out in section 1170.1, subdivision (g) apply, the “twice-the-base-term” limit of that section should be applied.   We do not agree.

The conduct resulting in the charges which defendant faced occurred after June 9, 1982, when the initiative measure known as “Proposition 8” became effective.   That measure contained two provisions affecting defendant's contention in the instant matter.   First, it added section 28, subdivision (f) to article I of the California Constitution and, second, added section 667 to the Penal Code.²

 The Attorney General argues that section 1170.1 was repealed by implication with the enactment of article I, section 28, subdivision (f) and Penal Code section 667, even though, as he acknowledges, such an implied repeal is disfavored.   Indeed, there exists a presumption against repeal by implication.  (In re Thierry S. (1977) 19 Cal.3d 727, 744, 139 Cal.Rptr. 708, 566 P.2d 610.)

 The better course, where there are two potentially conflicting statutes, is to seek to harmonize the two unless they are “irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.”  (In re White (1969) 1 Cal.3d 207, 212, 81 Cal.Rptr. 780, 460 P.2d 980.)   Short of such a dramatic conflict the court has a duty to attempt to maintain the integrity of both statutes so that they may stand together, if possible.  (In re Thierry S., supra, 19 Cal.3d 727, 744, 139 Cal.Rptr. 708, 566 P.2d 610.)   We do not see such an irreconcilable conflict between the sections involved in this matter as to require a conclusion that 1170.1, subdivision (g) was repealed by implication.

Further, we are satisfied that the provisions involved are clear and unambiguous.   It is proper to consider the history of the statute and official statements made to voters when determining the intent of the electorate in adopting an initiative measure.  (See Diamond International Corp. v. Boas (1979) 92 Cal.App.3d 1015, 1033–1034, 155 Cal.Rptr. 616.)   In the California ballot pamphlet distributed to voters prior to the June 8, 1982, election, the Legislative Analyst's view was stated, in relevant part, as follows:  “․ This measure includes two provisions which 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 Initiative Statutes and Amendments to Cal. Const. with Arguments to Voters, Prim.Elect. (June 8, 1982), Analysis by Legislative Analyst, pp. 54–55, original emphasis.)

 The statement of purpose found in article I, section 28, subdivision (a) suggests that the enactment was intended to effect “broad reforms in the procedural treatment of accused persons and the disposition and sentencing of convicted persons․”  (Emphasis added.)   Historically, procedural limitations on the use of prior convictions had developed in cases such as People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.   It seems clear that the use of the term “without limitation” was primarily intended to abrogate the rule of Beagle.  (Witkin, Cal.Crim.Procedure (1983 Supp.), Part 1 p. 56.)   A fair viewing of the context of the debate surrounding Proposition 8, its history, and the obvious emotional response to such procedural restrictions suggests that, rather than establishing a conflict between 1170.1, subdivision (g) and 667, the real intention of the electorate was to modify or amend 1170.1, subdivision (g) to provide another exception to the “twice-the-base-term” provision.   We concur with the view expressed in People v. Weaver (1984) 84 Daily Journal D.A.R. 3609 and People v. Rivera (1984) 84 Daily Journal D.A.R. 3751 that Proposition 8 unambiguously modified section 1170.1, subdivision (g) and it must now be read with an additional constitutionally mandated exception:  “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 an enhancement is imposed pursuant to sections 667 and 1192.7 for a prior serious felony conviction.   We think that the term “without limitation” found in section 28, subdivision (f) is not contradictory to or inconsistent with section 667 which simply creates an additional exception to 1170.1, subdivision (g) as indicated.

 Viewing 1170.1, subdivision (g) as having been so amended, it follows that defendant's sentence was proper even though it exceeded the twice the base term limitation.

 Defendant next contends that the trial court had the discretion to strike the enhancement under the provisions of section 1385.   We disagree with that assertion and find that the clear and unambiguous language in section 667 requires a mandatory five year sentence enhancement for each prior “serious felony” conviction.³

The language of section 667 is mandatory on its face by the use of the words “shall receive” relating to the additional punishment to be imposed.   However, in general, section 1385 permits dismissals in the interest of justice in any situation where the Legislature has not clearly indicated a contrary intent.  (People v. Williams (1981) 30 Cal.3d 470, 482, 179 Cal.Rptr. 443, 637 P.2d 1029.)   The question becomes, then, whether the electorate expressed its intent that the mandatory provisions of section 667 are not to be avoided by employing section 1385.

In addition to the mandatory language used it is worthy of note that section 667, subdivision (b) indicates when it shall not be used:  “․ when the punishment imposed under other provisions of law would result in a longer term of imprisonment.”  (Emphasis added.)   The specification of this exception by necessary implication excludes other exceptions.  (People ex rel. Cranston v. Bonelli (1971) 15 Cal.App.3d 129, 135, 92 Cal.Rptr. 828.)   Further, section 667 contains the formula for its own modification, requiring a two-thirds vote of both houses of the Legislature or voter approval.   Again, looking at the context of the enactment of Proposition 8 together with the foregoing considerations, the conclusion is inescapable that the electorate did not intend trial courts to be able to nullify that mandate entirely by simply striking the priors.   Moreover, in determining the intent behind this legislation we are required to examine the whole act rather than its isolated parts or words.  (California State Psychological Assn. v. County of San Diego (1983) 148 Cal.App.3d 849, 198 Cal.Rptr. 1.)   Taken as a whole Proposition 8 limits, rather than expands, court and legislative power to make procedural or sentencing considerations more lenient or permissive.   Also worthy of note is that at the time of the passage of Proposition 8, section 1170.1 specifically gave the trial court discretion to strike additional punishment set out in section 667.5 and other specified sections under certain mitigating circumstances.   The electorate, in making numerous constitutional and statutory changes with Proposition 8, 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 the electorate's intent to prohibit the court from exercising any discretion to strike the enhancements under 667.

We conclude, therefore, that the trial court was not vested with discretion to strike the challenged enhancement in the instant case.

 Lastly, defendant contends that the imposition of the enhanced confinement period is cruel and unusual punishment.   The task of fitting the punishment to the crime and/or the criminal is, of course, not an exact science.   It is a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will.  (In re Lynch (1972) 8 Cal.3d 410, 423, 105 Cal.Rptr. 217, 503 P.2d 921.)   Certainly, consideration of the danger which the offender represents to society is a relevant policy consideration.   The electorate, in speaking through the initiative process, has indicated in a clear and unambiguous manner that the evil sought to be addressed by the enhancements here in question was recidivism by persons prone to commit serious felony offenses.   Surely the public has a right to express its outrage at repeated threatening behavior by persons whose history has demonstrated an inability or unwillingness to respond to correctional direction.

An examination of the probation report relating to this defendant shows that he fits neatly into the category of persons from whom the public quite appropriately seeks protection.   The circumstances of the instant case indicated that the defendant forcibly entered the home of the victim, a 61-year-old female, struck her repeatedly, forced her to disrobe and attempted to sodomize her.   Previously, in 1975, defendant, dressed in female garb, accosted a 42-year-old female in the carport area of her home, struck her, robbed her of her purse and fled.   The report also demonstrates a sequence of similar assaultive conduct against female victims.   Without doubt, the category of offenses which the defendant has demonstrated he is capable and willing to commit is of the type which represents a high degree of danger to society.   Application of the recidivist statute to the defendant passes muster under Lynch standards at a minimum.   We cannot say that the additional five year period selected by the voters is unreasonable in length or excessive given the danger which the defendant presents to the community.

For the reasons indicated we hold that application of the enhancement to defendant was not cruel and unusual punishment.

Finally, we must observe that this case represents only one more in an increasingly long line of cases construing the provisions of Proposition 8.   Given the diverse nature of the conclusions reached by the multiple appellate courts which have ruled on similar issues, we cannot help but wonder whether the trial courts will not be perplexed and confused by the diversity of decisions and rationales therefor.   Some definitive pronouncements as to the rules and procedures to be applied uniformly in the trial courts must soon emerge.   However, for the reasons indicated herein the judgment appealed from is affirmed.

FOOTNOTES

FOOTNOTE.  

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

2.   California Constitution, article I, section 28, subdivision (f) provides as follows:  “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.)Penal Code section 667, subdivision (a) provides as follows:  “Any person convicted of a serious felony who previously has been convicted of a 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․  The terms of the present offense and each enhancement shall run consecutively.”

3.   Defendant admitted the enhancement allegation of a prior conviction of robbery, Penal Code section 211, a serious felony within the meaning of 667.

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

McDANIEL and RICKLES, JJ., concur.