PEOPLE v. COURIE (1984)

Appellant Steve Courie was convicted of attempted voluntary manslaughter (Pen.Code, §§ 664, 192, subd. 1.),¹ and assault with a deadly weapon (§ 245, subd. (a).)  In addition, an allegation of great bodily injury was found true.  (§ 12022.7.)

I–II 2

III 3

Appellant was sentenced to the middle term of two years for attempted voluntary manslaughter.  (Pen.Code, §§ 664, 192.1)  Three years were added for the infliction of great bodily injury under Penal Code section 12022.7.   Appellant argues that his punishment is cruel and unusual because it is greater than he would have received for the completed crime:  the middle term for voluntary manslaughter was then four years (§ 193, subd. (a), see fn. 6, post), and sentence for that crime may not be enhanced for great bodily injury;  voluntary manslaughter (along with murder and arson under Penal Code sections 451 and 452), is specifically excepted from section 12022.7.   In effect, appellant argues that he received a greater punishment for his attempt than he would have received had he succeeded in killing his victim.⁴

Respondent acknowledges that there is “considerable force” in appellant's argument.   In response, it cites People v. Young (1981) 120 Cal.App.3d 683, 695, 175 Cal.Rptr. 1;  People v. Gray (1979) 91 Cal.App.3d 545, 551, 154 Cal.Rptr. 555, and People v. Superior Court (Grilli) (1978) 84 Cal.App.3d 506, 513, footnote 5, 148 Cal.Rptr. 740, disapproved on other grounds in People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 763, 191 Cal.Rptr. 1, 661 P.2d 1081, which hold that “[t]he legislative inclusion of the four crimes as exceptions necessarily excludes any other exceptions [citation].”  These holdings are attributable to the maxim of statutory construction expressio unius est exclusio alterius.   In none of the cited cases, however, did the facts call for an exception to the maxim;  they involved the crime of attempted murder, for which the completed offense is punished more severely than the enhanced attempt.  (§§ 190, 664, 12022.7)  In this respect the case at bench is distinguishable.

“[E]xpressio unius est exclusio alterius is no magical incantation, nor does it refer to an immutable rule.”  (Estate of Banerjee (1978) 21 Cal.3d 527, 539, 147 Cal.Rptr. 157, 580 P.2d 657;  In re Joseph B. (1983) 34 Cal.3d 952, 196 Cal.Rptr. 348, 671 P.2d 852.)   It will not be applied “if such interpretation leads to absurd and undesirable consequences.”  (People v. Hacker Emporium, Inc. (1971) 15 Cal.App.3d 474, 477, 93 Cal.Rptr. 132.)   Application of the rule to permit the sentence for attempted voluntary manslaughter to be enhanced under section 12022.7 would result in a benefit to a defendant upon the death of his victim.   This is an absurd and undesirable consequence if ever there was one.

In a recent discussion of the Eighth Amendment prohibition of cruel and unusual punishment, the United States Supreme Court noticed “it ․ is generally recognized that attempts are less serious than completed crimes.”   (Solem v. Helm (1983) ––– U.S. ––––, ––––, 103 S.Ct. 3001, 3011, 77 L.Ed.2d 637, 651.)   Certainly, this view is shared by our Legislature.  (See § 664.)   However, section 12022.7 need not be declared unconstitutional in order to eliminate its undesirable effect on persons accused of completed or attempted voluntary manslaughter.   The statute may be interpreted in such a way as to render it inoffensive in circumstances such as those at bench.⁵

“We ․ are mindful of the general rule that a judicial body cannot read anything into a statute in order to save it from an unconstitutional defect.   [Citation.]  Nevertheless, an exception to this general rule is made when the judicial construction merely relieves the statute from being applied in an absurd manner and is necessary to prevent an otherwise reasonable and valid law from becoming a nullity.  [Citation.]”  (Findley v. Justice Court (1976) 62 Cal.App.3d 566, 573, 133 Cal.Rptr. 241.)   The case at bench involves just such a set of circumstances.   The exception discussed in Findley applies.

 We conclude that attempted voluntary manslaughter, as punishable at the time sentence was imposed herein,⁶ is excepted from the application of section 12022.7 insofar as the punishment imposed for attempted voluntary manslaughter would be greater than the punishment imposed for voluntary manslaughter under similar circumstances.

 Penal Code section 1260, we believe, permits this court to reduce the punishment imposed here in order to avoid an absurd application of section 12022.7.  (See People v. Schueren (1973) 10 Cal.3d 553, 561–562, 111 Cal.Rptr. 129, 516 P.2d 833.)   Normally, then, we would order the abstract of judgment-commitment modified by (1) deleting “three years” and (2) adding “two years” as the enhancement charged and found pursuant to section 12022.7 in count one and order the “five years” total term imposed changed to read “four years.”   However, it appears that remand for sentencing is required in this case.   The parties have not briefed an additional sentencing error contained in the record.   The jury found appellant violated section 245, subdivision (a) and found a connected allegation under section 12022.7 was true.   However, sentence for these offenses was not imposed.   The trial court purported to be “staying the 245(a), the sentence, and the 12022.7 of the Penal Code, that's stayed.”   This does not comport with rule 449 of the California Rules of Court which provides in pertinent part:  “When a sentence of imprisonment is imposed upon a defendant convicted of more than one crime, the judgment shall set forth the sentence to a base term and applicable enhancements for each of the crimes, computed independently.   If required by statutory limitations on the enhancement resulting from consecutive terms or by the limitations of section 654, the judgment shall stay execution of so much of the term, or on those crimes, for which the imposition of the full sentence is prohibited.”   Under the provisions of this rule, the trial court was required to impose sentence for each offense of which appellant had been convicted, though a stay of execution of sentence to comply with Penal Code section 654 would have been proper.   The Advisory Committee Comment to rule 449 explains that “[t]he computation of sentence and pronouncement of judgment on each point is necessary to protect the record in case of a partial reversal.”   (Advis. Committee com. to 23 West's Ann.Code Civ. and Crim.Court Rules (1981 ed.), Pt. 1, p. 701.)   Upon remand the trial court is instructed to comply with rule 449.

The cause is remanded for resentencing consistent with this opinion.

FOOTNOTES

1.   Statutory references are to the Penal Code.

2.   See footnote * ante.

3.   Part III of this opinion is certified for publication.  (See fn. *, ante, at p. 736.)

4.   Appellant assumes that he would not have received the aggravated term upon conviction for the completed crime.  (But see People v. Duran (1982) 130 Cal.App.3d 987, 990–991, 182 Cal.Rptr. 17.)

5.   Respondent notes that section 12022.7 may have a similar effect upon those convicted of crimes and attempts other than voluntary manslaughter.  (See, e.g., Pen.Code, §§ 226 and 219.1.)

6.   Subsequent to the imposition of sentence in this case, section 193, subdivision (a) was amended to punish voluntary manslaughter by state imprisonment for three, six or eleven years.   Our holding is confined to the application of section 12022.7 prior to the January 1, 1984 effective date of section 193, subdivision (a), as amended.

WHITE, Presiding Justice.

SCOTT and BARRY-DEAL, JJ., concur.