Moore v. Superior Court

• Decision Date: 22 January 2004
• Docket Number: No. C044242.,C044242.
• Citation: 117 Cal.App.4th 401,12 Cal.Rptr.3d 383
• Parties: Paul Roger MOORE, Petitioner, v. The SUPERIOR COURT of Sutter County, Respondent; The People, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

12 Cal.Rptr.3d 383

117 Cal.App.4th 401

Paul Roger MOORE, Petitioner, v. The SUPERIOR COURT of Sutter County, Respondent The People, Real Party in Interest.

No. C044242.

Court of Appeal, Third District.

January 22, 2004.

Michael L. Chastaine, Rothschild, Wishek & Sands, Sacramento, CA, for Petitioner.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Senior Assistant Attorney General, Brian R. Means, Supervising Deputy Attorney General, and Julia Bancroft, Deputy Attorney General, for Real Party in Interest.

NICHOLSON, Acting P.J.

Petitioner Paul Roger Moore seeks a writ of mandate, contending he is eligible for probation under Proposition 36, the Substance Abuse and Crime Prevention Act of 2000. (Pen.Code, §§ 1210, 1210.1, 3063.1; Health & Saf.Code, § 11999.4 et seq.)¹ Proposition 36 requires the court to grant probation and drug treatment to any defendant convicted of a nonviolent drug possession offense and prohibits incarceration as a condition of probation. (§ 1210.1, subd. (a).)

However, as relevant here, Proposition 36 shall not apply to a defendant previously convicted of a serious or violent felony unless he or she has satisfied a so-called five-year "washout" period, that is, "unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in (A) a felony conviction other than a nonviolent drug possession offense...." (§ 1210.1, subd. (b)(1), italics added.)

The sole issue is whether it is the commission or the conviction of the prior disqualifying felony that begins the washout period. We hold that the washout period commenced when petitioner committed the disqualifying prior felony, as opposed to when he was convicted of that felony. We shall therefore direct the issuance of the writ of mandate sought by petitioner.

FACTUAL AND PROCEDURAL BACKGROUND

In 1997, in San Francisco, petitioner was charged with several felonies, all of which were alleged to have been committed on or about May 5, 1997. Following his arrest, petitioner was incarcerated in the county jail for only three days, on May 5, 6 and 7, 1997.

The 1997 charges were not resolved for more than three-and-one-half years. In December 2000, petitioner pleaded no contest to the felony of assault with intent to commit rape (§ 220), under a plea bargain providing for five years' probation, no further jail or prison time, and dismissal of all remaining charges. In January 2001, petitioner came before the San Francisco Superior Court for sentencing. The court suspended imposition of sentence and granted probation on the condition petitioner serve three days in jail, but credited against that term the three days he served in 1997.

Thus, petitioner's prior conviction for assault with intent to commit rape is considered to have occurred in either December 2000 or January 2001. (See People v. Mendoza (2003) 106 Cal.App.4th 1030, 1033, 131 Cal.Rptr.2d 375 [generally, the term "convicted" has no uniform meaning in California, and may refer to either a guilty plea or the judgment pronounced on the plea].)² Petitioner served no prison time for the conviction, even though assault with intent to commit rape is a "violent" and "serious" felony. (§§ 667.5, subd. (c)(15), 1192.7, subd. (c)(10).)

The current Sutter County case originated in October 2002, when petitioner was charged in a criminal complaint with possession of methamphetamine. (Health & Saf.Code, § 11377, subd. (a).) He allegedly committed the new offense on or about October 19, 2002, — more than five years after he committed assault with intent to commit rape (in May 1997), but less than five years after he was convicted of that felony (in December 2000 or January 2001).

Prior to the preliminary hearing, petitioner filed an "Application for A Determination of Eligibility Pursuant to Penal Code § 1210.1 [Prop. 36]." Petitioner argued that the five-year washout period applied, rendering him eligible for Proposition 36 probation, because he committed the disqualifying felony more than five years before allegedly committing the current nonviolent drug possession offense. The People countered that the washout period was not satisfied because petitioner was convicted of the disqualifying felony less than five years before allegedly committing the new offense.

The application was considered at the preliminary hearing. The magistrate was persuaded by the People's argument, denied the application, and ordered petitioner held to answer for possession of methamphetamine. In April 2003, petitioner renewed his application in the superior court, but it was again denied on the ground petitioner was convicted of the prior felony within five years preceding the current alleged offense.³ The superior court also opined that petitioner's request for a ruling on Proposition 36 eligibility might be premature.

Petitioner filed a petition for writ of mandate and request for stay in this court, which we denied summarily. Petitioner then filed a petition for review in the California Supreme Court. The Supreme Court granted review, transferred the matter to this court with directions to issue an order to show cause why the relief sought in the petition should not be granted, and stayed the superior court proceedings pending further order of this court. (Moore v. Superior Court, review granted Aug. 13, 2003, S117290.) We complied with the Supreme Court's order and have received and considered the People's return.⁴

DISCUSSION

This case requires us to determine the meaning of language in section 1210.1, subdivision (b)(1). "`If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).' (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299; see also Horwich v. Superior Court (1999) 21 Cal.4th 272, 276-277, 87 Cal.Rptr.2d 222, 980 P.2d 927 [general rules of statutory construction apply to initiatives].)" (People v. Mendoza, supra, 106 Cal.App.4th at p. 1033, 131 Cal.Rptr.2d 375.) The language at issue here is clear, unambiguous, and favors the petitioner.

The controlling provision provides that Proposition 36 shall not apply to: "Any defendant who previously has been convicted of one or more serious or violent felonies in violation of subdivision (c) of Section 667.5 or Section 1192.7, unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in (A) a felony conviction other than a nonviolent drug possession offense, or (B) a misdemeanor conviction involving physical injury or the threat of physical injury to another person." (§ 1210.1, subd. (b)(1), italics added.) This language plainly demonstrates that the commission date of the prior disqualifying felony initiates the five-year washout period where, as here, the defendant serves no prison time.

The People's argument that the date on which a defendant is convicted of the prior disqualifying felony triggers the washout period misconstrues the words of the statute. No linguistically correct reading of the statute can yield the meaning urged by the People. Alternatively, the People would rely on the "Argument in Favor of Proposition 36" found in the ballot pamphlet for the November 2000 general election, arguing that petitioner's view is contrary to the voters' intent. However, because the language of the statute is clear, we need not resort to indicia of the voters' intent. (Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735, 248 Cal.Rptr. 115, 755 P.2d 299.)

In any event, the ballot pamphlet excerpt on which the People rely does not aid them.⁵ It reads: "Proposition 36 is strictly limited. It only affects those convicted of simple drug possession. If previously convicted of violent or serious felonies, they will not be eligible for the treatment program unless they've served their time and have committed no felony crimes for five years." (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) argument in favor of Prop. 36, p. 26, italics added.) This supports the meaning proffered by petitioner and which we adopt here.⁶

Finally, the People note that in four other decisions concerning the Proposition 36 washout period — each holding that the washout period must immediately precede the commission of the current nonviolent drug possession offense — the prior disqualifying felony conviction occurred more than five years before the current drug offense. (People v. Superior Court (Martinez) (2002) 104 Cal.App.4th 692, 128 Cal.Rptr.2d 372; People v. Superior Court (Henkel), supra, 98 Cal.App.4th 78, 119 Cal.Rptr.2d 465; People v. Superior Court (Turner), supra, 97 Cal.App.4th 1222, 119 Cal.Rptr.2d 170; People v. Superior Court (Jefferson) (2002) 97 Cal.App.4th 530, 118 Cal.Rptr.2d 529.) For several reasons, the People's reliance on those cases is misplaced.

Each of the four cases addressed the proper interpretation of the phrase "after a period of five years" in section 1210.1, subdivision (b)(1), i.e., a part of the statute different than that at issue here. The date of the prior disqualifying felony conviction was merely incidental to the issue in those cases, and none held that the disqualifying felony conviction date commenced the washout period. Moreover, an examination of those cases shows that their overall import and explicit language defeat the People's position.

For example, People v. Superior Court (Martinez), supra, 104 Cal.App.4th 692, 128 Cal.Rptr.2d 372, stated: "It makes sense to offer drug treatment to nonviolent drug offenders. It also makes sense to offer drug treatment to nonviolent drug offenders who have...