Williams v. Superior Court
| Decision Date | 26 September 2001 |
| Docket Number | No. B148802.,B148802. |
| Citation | 92 Cal.App.4th 612,111 Cal.Rptr.2d 918 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Larry Darnell WILLIAMS, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; The People, Real Party in Interest. |
We find that a conviction under section 245, subdivision (a)(1) for an assault with intent to create great bodily injury is not a serious felony within the meaning of section 1192.7, subdivision (c)(31), when it is not an "assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter." Accordingly, we grant the petition for writ of mandate.
The "Three Strikes and You're Out" law (Pen.Code § 667, subds. (b)-(i)),1 requires that a defendant who is convicted of a felony and who has two prior convictions for a "strike," (i.e., a "violent felony" under section 667.5 and/or a "serious felony" under section 1192.7, subdivision (c)), be sentenced to an indeterminate term of life imprisonment, with a specified minimum term. (§ 667, subds.(e)(2)(A), (i).) Section 1170.12, subdivision (b)(1), reiterates that any offense listed in section 1192.7, subdivision (c), constitutes a serious felony for sentencing purposes.
This case presents the question whether violation of section 245, subdivision (a)(1), assault with intent to create great bodily injury, or "aggravated assault," which is not a violent felony under section 667.5,2 qualifies as a prior serious felony under section 1192.7, subdivision (c)(31). To determine the question, we construe sections 7.5 and 1192.7, subdivision (c)(31).
Section 1192.7, subdivision (c), amended by initiative (Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, § 17 (Proposition 21)), effective March 8, 2000, lists in its subparts crimes constituting serious felonies. Section 1192.7, subdivision (c)(31) provides that an "assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245" is a serious felony.
The strike in question occurred in 1999. Petitioner was convicted in that year of violation of section 245, subdivision (a)(1), which states that: "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison. . . ." The conviction was the result of a no contest plea, and the crime was one in which petitioner struck the victim with his fist. No great bodily injury was inflicted.3
On November 29, 2000, a felony information in the present case was filed against petitioner that included a charge, under sections 1170.12, subdivision (a) through (d), and section 667, subdivision (b) through (i) that his 1999 section 245, subdivision (a)(1) conviction, along with another conviction not relevant here, was a prior serious or violent felony.
Petitioner filed a motion to strike the allegation that his section 245, subdivision (a)(1) conviction constituted a serious felony, contending that the language of section 1192.7, subdivision (c)(31) excluded a section 245 conviction when the assault was against neither a firefighter nor peace officer, no deadly weapon, firearm, machine gun, assault weapon, or semiautomatic firearm was used, and great bodily injury was not inflicted. The People opposed the motion, contending that section 7.5 governed construction of Penal Code statutes which cross-referenced other sections by both descriptive language and section number, and that section 7.5 required that section 1192.7, subdivision (c)(31) be construed to include convictions for all violations of section 245. A subsequent motion to strike was made and denied.
Following denial of petitioner's second motion to strike, he filed a petition for writ of mandate; we issued an order to show cause and set the matter for hearing.
Petitioner Larry Darnell Williams is charged in an information with several felonies, among them violations of section 12021, subdivision (A)(1), possession of a firearm by a felon; section 236, false imprisonment; and section 12022, subdivision (A)(2), being armed with a handgun during the commission of an offense. The charging information alleges that petitioner had two prior strike convictions within the meaning of section 1170.12, subdivisions (a) through (d), and section 667, subdivision (b) through (i), one of which was a 1999 violation of section 245, subdivision (a)(1).
On January 23, 2001, petitioner filed a motion to strike the alleged section 245, subdivision (a)(1) strike. The motion was denied, as was a motion for reconsideration. On February 21, 2001, following a mistrial, petitioner filed another motion to strike the section 245, subdivision (a)(1) alleged strike. After that motion was denied, petitioner filed a petition for writ of mandate. We issued an order to show cause and requested briefing.
At issue is the construction of section 7.5, governing statutory construction of penal statutes, and construction of section 1192.7, subdivision (c), which defines a serious felony.
Section 7.5, enacted in 1998, provides:
Section 1192.7, subdivision (c)(31)
Section 1192.7, subdivision (c) states, in pertinent part: "(c) As used in this section, `serious felony' means any of the following: [¶] . . . (31) assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245."
The cited language of section 1192.7, subdivision (c)(31) includes all the assaults in section 245, with the exception of an assault on a civilian by means of force likely to produce great bodily injury, without the use of a deadly weapon.4 Section 1192.7, subdivision (c)(31) was enacted as an amendment by initiative (Prop.21, § 17), and became effective March 8 2000. Prior to March 8, 2000, subpart (c)(31) had read: "[a]ssault with a deadly weapon or instrument on a firefighter."
Proposition 21 amended the section 1192.7, subdivision (c), listing of crimes constituting a serious felony, by enacting the following:5 "(28) any felony offense, which would also constitute a felony violation of Section 186.22 []; (29) assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220; (30) throwing acid or flammable substances, in violation of Section 244; (31) assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245; (32) assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Sections 245.2, 245.3, or 245.5; (33) discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246; (34) commission of rape or penetration by a foreign object in concert with another person, in violation of Section 246.1; (35) continuous sexual abuse of a child, in violation of Section 288.5; (36) shooting from a vehicle, in violation of subdivision (c) or (d) of Section 12034;(37) intimidation of victims or witnesses, in violation of Section 136.1;(38) terrorist threats, in violation [of] Section 422; (39) any attempt to commit a crime listed in this subdivision other than an assault; (40) any violation of Section 12022.53 []." (Italics added.)
Petitioner contends that section 7.5 controls the construction of a Penal Code provision that contains both descriptive language and a numerically referenced code section only when an ambiguity or conflict in interpretation exists between the descriptive language and the referenced section. He maintains that section 1192.7, subdivision (c)(31), which provides that a serious felony means "assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer, or firefighter, in violation of Section 245," (1) is unambiguous; (2) lists qualifying elements beyond the elements of a simple assault which, if proven, elevate an assault to a serious felony, thus narrowing application of section 245; and (3) clearly excludes conviction of violation of section 245, subdivision (a)(1). Petitioner also asserts that if section 1192.7, subdivision (c)(31) is ambiguous, and if a violation of section 245, subdivision (a)(1) is rendered a serious felony by application of section 7.5, then section 7.5 is unconstitutional as applied.
Real party maintains that: (1) an ambiguity or conflict in interpretation is not a precondition to applying the requirement of section 7.5 that a numerically cross-referenced code section control over descriptive...
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