30 Cal.4th 894, S100359, Robert L. v. Superior Court

Docket Nº:S100359
Citation:30 Cal.4th 894, 135 Cal.Rptr.2d 30, 69 P.3d 951
Party Name:Robert L. v. Superior Court
Case Date:June 05, 2003
Court:Supreme Court of California
 
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Page 894

30 Cal.4th 894

135 Cal.Rptr.2d 30, 69 P.3d 951

ROBERT L., Petitioner,

v.

THE SUPERIOR COURT OF ORANGE COUNTY, Respondent;

THE PEOPLE, Real Party in Interest.

S100359

Supreme Court of California

June 5, 2003

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Superior Court, Orange County Super. Ct. No. J-1764-765, Judge: Gregory W. Jones, Temporary Judge[*]

Carl C. Holmes, Public Defender, Deborah Kwast, Chief Deputy Public Defender, and Kevin J. Phillips, Assistant Public Defender, for Petitioner.

No appearance for Respondent.

Tony Rackauckas, District Attorney, and Brian N. Gurwitz, Deputy District Attorney, for Real Party in Interest.

OPINION

MORENO, J.

At the March 7, 2000 Primary Election, the California electorate passed Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998.Section 4 of Proposition 21 added Penal Code, section 186.22, subdivision (d) (section 186.22(d)),1]

which provides that, "[a]ny person who is convicted of a public offense punishable as a felony or a misdemeanor," committed for the benefit of a criminal street gang, shall be punished by imprisonment in the county jail, or by imprisonment in the state prison for one, two, or three years. In this case, we decide two issues: (1) whether section 186.22(d) is a sentence enhancement, an alternate penalty provision, or a substantive offense; and (2) whether section 186.22(d) applies to all misdemeanors and all felonies or only to "wobblers"; namely, those public offenses that are punishable, in the alternative, as a misdemeanor or a felony.2]

The Court of Appeal concluded that section 186.22(d) was an alternate penalty provision that applied to all misdemeanors and all felonies. We agree and affirm the judgment of the Court of Appeal.

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I. Factual and Procedural Background

The Orange County District Attorney's Office filed an amended petition against petitioner under Welfare and Institutions Code, section 602 alleging, in count one, a violation of section 186.22(d) as a substantive offense; in count two, a violation of section 186.22, subdivision (a), active participation in a criminal street gang; and in count three, a violation of section 242, misdemeanor battery. Petitioner demurred on the grounds that section 186.22(d) did not create a substantive offense and applied only to wobblers. The trial court overruled the demurrer and petitioner sought a writ of prohibition/mandate in the Court of Appeal. The Court of Appeal held that section 186.22(d) created a penalty provision that applied to any gang-related misdemeanor or felony. It ordered the trial court to sustain the demurrer as to count 1 of the amended petition, with leave to amend.

II. Discussion

Section 186.22(d) provides in full: "Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is committed for the benefit of, at the direction of or in association with, any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years, provided that any person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until he or she has served 180 days. If the court grants probation or suspends the execution of sentence imposed upon the defendant, it shall require as a condition thereof that the defendant serve 180 days in a county jail."

A. Characterizing Section 186.22(d)

As a threshold matter, we must determine whether section 186.22(d) is a sentence enhancement, an alternate penalty provision, or a substantive offense. This distinction is of practical import because, as pointed out by the Court of Appeal, "By interpreting the statute as a penalty provision [as opposed to a substantive offense], prosecutors would be free to charge . . . section 186.22(d) along with the predicate offense needed to satisfy that section without running afoul of the necessarily included offense rule."

By definition, a sentence enhancement is "an additional term of imprisonment added to the base term. "(Cal. Rules of Court, rule 4.405(c); People v.

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Jefferson (1999) 21 Cal.4th 86, 101 [86 Cal.Rptr.2d 893] (Jefferson).) Section 186.22(d) is not a sentence enhancement because it does not add an additional term of imprisonment to the base term; instead, it provides for an alternate sentence when it is proven that the underlying offense has been committed for the benefit of, or in association with, a criminal street gang. Neither is it a substantive offense because it does not define or set forth elements of a new crime. (See, e.g., People v. Bright (1996) 12 Cal.4th 652, 661 [49 Cal.Rptr.2d 732] (Bright).)

Both petitioner and real party in interest acknowledge that section 186.22(d) is an alternate penalty provision. We agree. In Bright, supra, 12 Cal.4th at page 669, we determined that the reference in section 664, subdivision (a),3to premeditated attempted murder, "sets forth a penalty provision prescribing an increased sentence . . . to be imposed upon defendant's conviction of attempted murder when the additional specified circumstances are found to be true by the trier of fact." (Fn. omitted.) We distinguished a penalty provision from an enhancement in this manner: "[A] penalty provision prescribes an added penalty to be imposed when the offense is committed under specified circumstances. A penalty provision is separate from the underlying offense and does not set forth elements of the offense or a greater degree of the offense charged. [Citations.]" (Id. at p. 661.)"[S]trictly speaking this portion of section 664 does not constitute an "enhancement' within the meaning of rule 405(c) of the California Rules of Court, which defines "enhancement' as "an additional term of imprisonment added to the base term,' because this statutory provision establishes an increased base term for the crime of attempted murder upon a finding of specified circumstances." (Id. at p. 656, fn. 2.)

In Jefferson, we interpreted former section 186.22, subdivision (b)(4) (now section 186.22, subdivision (b)(5))4as an alternate penalty provision. Former subdivision (b)(4) provided for an alternate increased sentence in the Page 900

form of a higher minimum eligible parole date, for certain felonies punishable by life that were committed for the benefit of a criminal street gang.5]

We stated: "Unlike an enhancement, which provides for an additional term of imprisonment, the 15-year minimum term in [former] section 186.22(b)(4) [now subdivision (b)(5)] sets forth an alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the conditions specified in the statute." (Jefferson, supra, 21 Cal. 4th at p. 101.)6

Like the statutes in Bright and Jefferson, section 186.22(d) prescribes an added penalty when the underlying offense is committed under specified circumstances; here, for the benefit of, at the direction of, or in association with, a criminal street gang. We therefore hold that section 186.22(d) is an alternate penalty provision.

B. Section 186.22(d) Applies to Misdemeanors and Felonies

Petitioner argues that, because section 186.22(d) applies when a person is "convicted of a public offense punishable as a misdemeanor or felony," it is limited to wobblers, because wobblers are the only public offenses punishable as either a misdemeanor or felony. We disagree.

As noted, the electorate passed section 186.22(d) as part of Proposition 21. "In interpreting a voter initiative . . ., we apply the same principles that govern statutory construction. (See Horwich v. Superior Court

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(1999) 21 Cal.4th 272, 276 [87 Cal.Rptr.2d 222] (Horwich).) Thus, [1] 'we turn first to the language of the statute, giving the words their ordinary meaning.' (People v. Birkett (1999) 21 Cal.4th 226, 231 [87 Cal..Rptr.2d 205] (Birkett).) [2] The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme [in light of the electorate's intent]. (Horwich, supra, 21 Cal.4th at p. 276, [280].) [3]When the language is ambiguous, 'we refer to other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet.' (Birkett, supra, 21 Cal.4th at p. 243.)" (People v. Rizo (2000) 22 Cal.4th 681, 685 [94 Cal.Rptr.2d 375] (Rizo).) In other words, our "task is simply to interpret and apply the initiative's language so as to effectuate the electorate's intent." (Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537, 576 [101 Cal.Rptr.2d 653] (Hi-Voltage) (conc. & dis. opn. of George, C. J.).)

1. Ordinary Meaning

Our first task is to give the section 186.22(d) phrase "a public offense punishable as a felony or a misdemeanor" its ordinary meaning as understood by the electorate. Section 15 defines "[a] crime or public offense [as] an act committed or omitted in violation of a law forbidding or commanding it . . . ." Section 16 provides that crimes and public offenses include felonies, misdemeanors and infractions. By its plain language, therefore, section 186.22(d) applies to any crime or public offense that is a felony or a misdemeanor. Any crime or public offense that is an infraction is excluded.

But petitioner contends that section 186.22(d) "perfectly describes wobblers," because "[w]obblers are the only public offenses punishable as a...

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