PEOPLE v. OVERSTREET (1985)

The sole issue presented is whether the mandate of Penal Code 1 section 12022.1, imposing a two-year enhancement for persons convicted of a felony committed while on bail or personal recognizance “pending trial” in an earlier felony, applies where the defendant was convicted of a felony committed while on his own recognizance pending sentencing on an earlier felony.   Appellate decisions are in disagreement.   For the reasons which follow, we conclude the meaning of “pending trial” within the context of section 12022.1 includes sentencing.   Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 8, 1983, Freddie Lee Overstreet pleaded guilty to receiving stolen property.   Before sentencing Overstreet was charged in a separate pleading with having committed murder (§ 187) on January 7, 1984, while free on his own recognizance pending trial on the earlier felony offense (§ 12022.1).   After Overstreet entered a bargained plea of guilty to involuntary manslaughter (§ 192, subd. 2), the trial court found the section 12022.1 allegation to be true and enhanced his sentence two years.

DISCUSSION

Overstreet contends section 12022.1 ² does not encompass felonies committed while released on his own recognizance for an earlier felony after plea but before sentencing.   He urges the statutory language is clear and explicit, intended only to apply to individuals awaiting trial, not sentencing.   In McMillon v. Superior Court, 157 Cal.App.3d 654, 204 Cal.Rptr. 52, the Court of Appeal, confronting the precise issue before us stated:  “The language of section 12022.1 could not be more specific.   It may not be used to enhance sentence for crimes committed when, as here, guilty pleas had already been entered in the prior offense, and where, necessarily, no trial was therefore pending.”  (Id., at p. 657, 204 Cal.Rptr. 52.)   Thus, the McMillon court held the phrase “pending trial” could not be read to include “sentencing,” explaining:

“It is a ‘well-established principle of statutory interpretation that if no ambiguity, uncertainty, or doubt about the meaning of a statute appears, the provision is to be applied according to its terms without further judicial construction.  (Citation.)’  [Citation.]  It is equally well settled that ‘ambiguities in penal statutes must be construed in favor of the offender, not the prosecution.’  [Citation.]  The literal language of statute may be disregarded only if it would lead to absurd results.  [Citations.]”  (McMillon v. Superior Court, supra, 157 Cal.App.3d 654, 657, 204 Cal.Rptr. 52.)

The People contend Overstreet and the McMillon court construe the phrase “pending trial” too narrowly and contrary to the manifest legislative intent underlying the provision, citing People v. Superior Court (Price), 150 Cal.App.3d 486, 198 Cal.Rptr. 61.   There the court stated “any person ․ lawfully subjected to custody under charges filed either before a magistrate or in superior court is ‘pending trial.’ ”  (Id. at p. 489, 198 Cal.Rptr. 61.)   Following the same rules of statutory construction cited in McMillon while stressing the fundamental rule of ascertaining the underlying legislative intent, the court said:

“The clear meaning of section 12022.1, consistent with the obvious intent of the Legislature, is that any person who has been lawfully subjected to custody under charges filed either before a magistrate or in superior court is ‘pending trial.’   The purpose of section 12022.1 is to deter, by punishing, those persons released on bail or their own recognizance from committing new felonies while awaiting trial court judgment on the felony charge.   To exempt individuals released by the magistrate before preliminary examination would frustrate the legislative plan and create distinctions among individuals accused of felonies based on the timing of their arraignment in superior court.”  (People v. Superior Court (Price), supra, 150 Cal.App.3d 486, 489, 198 Cal.Rptr. 61.)

The McMillon court acknowledged Price but respectfully disagreed, explaining:

“Price reads section 12022.1 to apply to persons ‘awaiting trial court judgment,’ finding it absurd, apparently, to make distinctions between those who have and have not pleaded or been found guilty at trial.   In doing so, however, the Price court creates another arbitrary distinction—between those felons who have been sentenced and might, perhaps, be out of custody pending appeal or pending commencement of sentence, and those awaiting sentence.   With all respect, the Price court's attempt to define the ‘obvious' is, perhaps, the best example of why the literal language of a statute should not be disregarded.   Moreover, a further logical extension of the conclusion of the Court in Price is that any felony arrest could, by parity of reasoning, be said to trigger the enhancement—something the Legislature arguably could, but did not, do.”  (McMillon v. Superior Court, supra, 157 Cal.App.3d 654, 658, 204 Cal.Rptr. 52.)

Guided by the established rules for statutory construction,³ we conclude it is “[f]ar more compatible with the apparent legislative purpose and in resolution of the ambiguity inherent in use of the words ‘pending trial,’ ․ to view those words as relating to the trial process as a whole, to and including the imposition of sentence.”  (Conc. and dis. opinion of J. Holmdahl in McMillon v. Superior Court, supra, 157 Cal.App.3d 654, 659, 204 Cal.Rptr. 52.)  “When a statutory or judicial rule of law turns on the scope of ‘the trial,’ courts have commonly defined the term ‘trial’ or ‘tried’ to comprehend the judicial examination of issues of law or fact up to the time of judgment in the trial court and not including appeal.”  (Leigh v. United States (9th Cir.1978) 586 F.2d 121, 122.)   Similarly, our Supreme Court in People v. McKamy (1914) 168 Cal. 531, 535–536, 143 P. 752, defined trial within the criminal context as embracing those “steps tending to and culminating in a judgment of conviction or acquittal.   An appeal is no part of a trial.   It is a means for remedying errors which have occurred at a precedent trial.” ⁴  After conviction and where probation is denied, judicial pronouncement of judgment only occurs upon imposing a fine on the defendant or sentencing him/her to imprisonment.  (People v. Hartsell, 34 Cal.App.3d 8, 13, 109 Cal.Rptr. 627.)   Indeed:

“[a] trial has, by authority been declared to be, in common parlance, a session beginning with arraignment and terminating with verdict and sentence [citations].  The trial in a criminal case is not over until the sentence of the court is entered in the minutes of the court.   The pronouncement of sentence is the judgment of the court in a criminal case [citation].”  (People v. Betillo (1967) [53 Misc.2d 540] 279 N.Y.Supp.2d 444, 450–451;  see contra Strong v. State (Wis.1967) [36 Wis.2d 324] 152 N.W.2d 890, 892.)

Construing the phrase “pending trial” to include the entire trial process through imposition of sentence avoids potential absurd results flowing from drawing artificial and unnatural lines of segmentation within the trial process.   It is consistent with the natural demarcation of trial and appeal, the restriction on the right to bail and the increasing role of judicial discretion in granting bail as the trial process nears completion, and the normal procedure for exonerating bail upon sentencing and the requirement for a separate application for bail pending appeal after filing of a notice of appeal.   Moreover, the underlying dual purpose of section 12022.1 of encouraging trial courts to release defendants during the trial process while deterring through threat of additional punishment defendants from committing new felonies while released applies equally to releases before adjudication of guilt and after determination of guilt through imposition of sentence.

Disposition

Judgment affirmed.

FOOTNOTES

FN1. All statutory references are to the Penal Code..  FN1. All statutory references are to the Penal Code.

2.   Section 12022.1 provides:  “Any person convicted of a felony offense which was committed while that person was released from custody or bail or on his or her own recognizance pending trial on an earlier felony offense shall, upon conviction of the later felony offense, be subject to a penalty enhancement as follows:“(a) If the person is convicted of a felony for the earlier offense, is sentenced to state prison for the earlier offense, and is convicted of a felony for the later offense, any state prison sentence for the later offense shall be consecutive to the earlier sentence.   In addition, the sentence for the later offense shall be enhanced by an additional term of two years.“(b) If the person is convicted of a felony for the earlier offense, is granted probation for the earlier offense, and is convicted of a felony for the later offense, any state prison sentence for the later offense shall be enhanced by an additional term of two years.“(c) If the earlier offense conviction is reversed on appeal, the enhancement shall be suspended pending retrial of that felony.   Upon retrial and reconviction, the enhancement shall be reimposed.   If the person is no longer in custody for the later offense upon reconviction of the earlier offense, the court may, at its discretion, reimpose the enhancement and order him or her recommitted to custody.”

3.   As we summarized in Honey Springs Homeowners Assn. v. Board of Supervisors, 157 Cal.App.3d 1122, 1136, fn. 11, 203 Cal.Rptr. 886, we interpret the disputed section mindful we should ascertain and effectuate the purpose of the law, attempting to give effect to the usual and ordinary import of the statutory language;  harmonizing the provision within the context of the statutory framework as a whole;  seeking a reasonable and common sense interpretation consistent with the apparent legislative purpose and intent, practical rather than technical in character and upon application resultant of wise policy rather than absurdity;  and, considering generally the context, the object in view, the evils to be remedied, the history of the times, legislation upon the same subject, public policy and contemporaneous construction.

4.   “[T]he term ‘conviction’ has historically had, and continues to have, at least two accepted meanings:  (1) the jury verdict, and (2) the judgment following the verdict.”  (Helena Rubenstein Internat. v. Younger, 71 Cal.App.3d 406, 413, 139 Cal.Rptr. 473.)   For a review of how the word conviction has been interpreted in California, see ibid. at pages 415–418, 139 Cal.Rptr. 473.   Generally, “[i]n the context of statutes or constitutional provisions imposing civil penalties or disabilities, [the term conviction has] never been construed to mean the verdict of guilt.   Such penalties or disabilities have not been found applicable until at least a court judgment has been entered.   The California decisions are in this respect in accord with the weight of authority in other jurisdictions.   As the Supreme Court of Oregon recently stated:  ‘Where civil penalties and disabilities are involved ․ a large majority of jurisdictions accept the technical meaning of “conviction” and hold that conviction takes place only after a determination of guilt and a pronouncement of the judgment of the court.  [Citations.]’  (Vasquez v. Courtney (1975) 272 Ore. 477 [537 P.2d 536, 537].)”  (Helena Rubenstein Internat. v. Younger, supra, 71 Cal.App.3d 406, 418, 139 Cal.Rptr. 473.)However, in Ex Parte Brown, 68 Cal. 176, 8 P. 829, our Supreme Court construed the term “conviction” in section 1272 regarding bail pending appeal as signifying a finding of guilt only.   Nevertheless, the court noted in legal “parlance” the phrase conviction often signifies the final judgment of the court (Ex Parte Brown, supra, at p. 178, 8 P. 829) but that:  “[W]hile the word may be used as signifying the sentence pronounced on the verdict, or the record of conviction, including inter alia the verdict and sentence, still such meaning ought not to be attributed to it, unless there is something in the context to indicate that it was used in such sense, ․”  (Id., at p. 180, 8 P. 829.)   Here, however, People v. McKamy, supra, 168 Cal. 531, 535–536, 143 P. 752, defined trial as embracing “steps tending to and culminating in a judgment of conviction or acquittal.”   Accordingly, within this enhancement context and the definition of trial as culminating in a judgment of conviction, we conclude the duration of a trial includes imposition of sentence.

WORK, Associate Justice.

STANIFORTH, Acting P.J., and BUTLER, J., concur.