People v. Vessell

• Decision Date: 29 June 1995
• Docket Number: No. B087864,B087864
• Citation: 36 Cal.App.4th 285,42 Cal.Rptr.2d 241
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Daily Journal D.A.R. 8689 The PEOPLE, Plaintiff and Appellant, v. Kenneth Lester VESSELL, Defendant and Respondent.

Page 241

42 Cal.Rptr.2d 241

36 Cal.App.4th 285, 95 Daily Journal D.A.R. 8689

The PEOPLE, Plaintiff and Appellant, v. Kenneth Lester VESSELL, Defendant and Respondent.

No. B087864.

Court of Appeal, Second District, Division 2, California.

June 29, 1995.

Review Denied Sept. 28, 1995.

[36 Cal.App.4th 287] Gil Garcetti, Dist. Atty. of Los Angeles County, Brent Riggs and Diana L. Summerhayes, Deputy Dist. Attys., for plaintiff and appellant.

Michael P. Judge, Public Defender of Los Angeles County, Albert J. Menaster, Lisa-Marie Krause, and Alex Ricciardulli, Deputy Public Defenders, for defendant and respondent.

NOTT, Associate Justice.

This case of first impression presents the question of whether the "three strikes law" prevents a trial judge from sentencing a "wobbler" as a misdemeanor. We hold that it does not.

The People appeal from a judgment entered following respondent Kenneth Lester Vessell's guilty plea to a charge that he violated Penal Code section 273.5, subdivision (a), ¹ after he punched his girlfriend and pushed her against a wall during an argument on April 23, 1994. Under the provisions of section 17, subdivision (b), the trial court reduced the crime to a misdemeanor, imposed sentence, and granted probation. We affirm.

CONTENTIONS

The People urge that (1) they have the right to appeal from the imposition of an unlawful sentence; (2) section 17 conflicts with the legislative intent of section 667; (3) by requiring a state prison term, section 667 has restricted the trial court's power to impose a misdemeanor sentence; (4) the Legislature has the power to restrict the application of section 17; and (5) the trial court improperly engaged in plea bargaining.

PROCEDURAL BACKGROUND

Respondent was charged with a violation of section 273.5, subdivision (a), ² which is punishable either as a felony or a misdemeanor in the discretion of the court. It was further alleged, pursuant to section 667, subdivisions (b) to (i), that in August 1987, respondent suffered a prior conviction for a serious or violent felony in the form of assault with a firearm in violation of section 245, subdivision (a)(2), with a section 12022.5 allegation. It was also alleged, pursuant to section 667.5, subdivision (b), that this same prior conviction resulted in a prison term.

On July 18, 1994, the matter was called for trial. Respondent pleaded no contest to the section 273.5 violation and admitted the truth of the prior conviction. On August 1, 1994, under section 17, subdivision (b)(1), the trial court reduced the charge to a misdemeanor, sentenced defendant to serve 365 days in county jail after a waiver of credit for time This appeal followed.

already served in custody, and granted probation.

DISCUSSION

I. Right to Appeal.

Respondent challenges the People's right to appeal under section 1238.

Under section 1238, subdivision (a)(10), the People have the right to appeal from "[t]he imposition of an unlawful sentence, whether or not the court suspends the execution of the sentence...." That section defines "an unlawful sentence" as "the imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court which strikes or otherwise modifies the effect of an enhancement or prior conviction."

The People's argument on appeal is that section 667, commonly known as the "three strikes law," mandates a state prison term, and therefore the trial court's reduction of the felony charge to a misdemeanor without a resulting state prison term was not authorized by law. We agree with the People that the appeal is based not on the sentence of probation itself but on the trial court's failure to apply section 667, resulting in an arguably unlawful sentence. Accordingly, we need not address the People's alternative arguments regarding appealability under sections 1238, subdivisions (a)(1), (a)(4) and (a)(8).

II. Section 17 Does Not Conflict with the Legislative Intent of Section 667.

A. The Legislative Intent of Section 667 and Section 17, Subdivision (b).

A statute must be construed so as to conform to the legislative purpose, in light of the context of the entire scheme of law of which it is a part. (Lambert Steel Co. v. Heller Financial, Inc. (1993) 16 Cal.App.4th 1034, 1040, 20 Cal.Rptr.2d 453.) When the language of a statute is clear, the court should follow its plain meaning. (Great Lakes Properties, Inc. v. City of El Segundo (1977) 19 Cal.3d 152, 155, 137 Cal.Rptr. 154, 561 P.2d 244.) The courts assume that the Legislature when enacting a statute was aware of existing related laws and intended to maintain a consistent body of rules. (Scott Co. v. Workers' Comp. Appeals Bd. (1983) 139 Cal.App.3d 98, 105, 188 Cal.Rptr. 537.) However, a particular or specific provision will take precedence over a conflicting general provision. (Code Civ.Proc., § 1859; Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 420, 128 Cal.Rptr. 183, 546 P.2d 687.) Moreover, " '[a] basic rule of statutory construction is that two potentially conflicting statutes must be construed whenever possible in such a manner that harmonizes and gives effect to both. [Citation.]' [Citations.]" (Michaelis v. Schori (1993) 20 Cal.App.4th 133, 136, 24 Cal.Rptr.2d 380.)

Section 667 was amended to include the three-strikes legislation, effective March 7, 1994. The amendment significantly increases the sentence of persons convicted of any felony offense who have previously been convicted of one or more serious or violent felonies. The stated purpose is to "... ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses." (§ 667, subd. (b).)

The People urge that section 667, subdivision (c) and the sentencing provisions of subdivision (e) were intended to supersede any other provision of law, including section 17, subdivision (b), which states, in part: "When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: (1) After a judgment imposing a punishment other than imprisonment in the state prison...."

Specifically, the People point to section 667, subdivision (c) which provides, in pertinent part: "Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following: ... (2) Probation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense.... (4) There shall not be a commitment to any other facility other than the state prison. Diversion shall not be granted nor shall the defendant be eligible for commitment to the California Rehabilitation Center...."

The People cite In re Marriage of Dover (1971) 15 Cal.App.3d 675, 678, at footnote 3, 93 Cal.Rptr. 384 for the proposition that the words "Notwithstanding any other provision of law" in a statute make that statute "sui generis" and controlling over both statutory and decisional law. Thus, the People contend, section 17, subdivision (b)(1) is contrary to the intent of section 667, and the trial court erred in applying its terms.

We disagree with the People's contention. We conclude that the legislative intent of section 17, subdivision (b)(1), as evidenced by its plain language, is to grant to the trial court discretion to decide whether certain crimes should be classed as misdemeanors or felonies after due consideration by the trial court of all the facts evinced prior to sentencing. That purpose does not conflict with the legislative intent of the "three strikes" law. Therefore, section 667, and section 17, subdivision (b)(1) was properly applied by the trial court.

B. For Purposes of Section 17, Subdivision (b), a Conviction is Not Had at the Time of the Plea.

The People assert that whether a crime is a felony for purposes of section 667 is determined at the time of the plea, referring to the general definition of a conviction contained in section 689 which states: "No person can be convicted of a public offense unless by verdict of a jury, accepted and recorded by the court, by a finding of the court in a case where a jury has been waived, or by a plea of guilty." Thus, the People reason that because appellant was convicted of a felony at the time of the plea, his crime was immediately subsumed under section 667, subdivision (c), which supersedes section 17, subdivision (b)(1). Therefore, the People conclude, "wobblers" do not fall within section 17, subdivision (b)(1), but rather, within 17 subdivision (a), which states: "A felony is a crime which is punishable with death or by imprisonment in state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions."

Section 667, subdivision (c) clearly states that the defendant must have been convicted of a felony for 667 to apply, but does not contain within its terms a definition of the word "conviction." "As appears in the case law, the terms 'convicted' or 'conviction' do not have a uniform or unambiguous meaning in California. Sometimes they are used in a narrow sense signifying a verdict or guilty plea, some other times they are given a broader scope so as to include both the jury verdict (or guilty plea) and the judgment pronounced thereon. [Citations.]" (Boyll v. State Personnel Board (1983) 146 Cal.App.3d 1070, 1073, 194 Cal.Rptr. 717, original italics.)

We find People v. Allen (1961) 189 Cal.App.2d 706, 709-710, 11 Cal.Rptr. 440, to be instructive. There, the defendant suffered a prior conviction for narcotics possession which was punishable either as a felony or a misdemeanor. He ultimately served his sentence at...