People v. Drake

• Citation: 566 P.2d 622,139 Cal.Rptr. 720,19 Cal.3d 749
• Decision Date: 25 July 1977
• Docket Number: Cr. 19418
• Court: California Supreme Court
• Parties: , 566 P.2d 622 The PEOPLE, Plaintiff and Appellant, v. Fred Austin DRAKE, Defendant and Respondent.

Page 720

139 Cal.Rptr. 720

19 Cal.3d 749, 566 P.2d 622

The PEOPLE, Plaintiff and Appellant, v. Fred Austin DRAKE, Defendant and Respondent.

Cr. 19418.

Supreme Court of California, In Bank.

July 25, 1977.

John K. Van de Kamp, Dist. Atty., John E. Howard, Acting Dist. Atty., Harry B. Sondheim and Daniel L. Bershin, Deputy Dist. Attys., for plaintiff and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., William A. Smith, Dist. Atty., Fresno, and Brinton N. Bowles, Asst. Dist. Atty., as amici curiae on behalf of plaintiff and appellant.

Wilbur F. Littlefield and Richard S. Buckley, Public Defenders, John M. Moore, Chief Deputy Public Defender, Harold E. Shabo, Francis J. Bardsley and Dennis A. Fischer, Deputy Public Defenders, for defendant and respondent.

MOSK, Justice.

The People seek to appeal a ruling of the Superior Court of Los Angeles County modifying a finding that defendant was guilty of robbery (Pen.Code, § 211) to a finding that he was guilty of grand theft from the person of another (Pen.Code, § 487, subd. 2). The People contend that the trial judge acted solely out of a desire to exercise leniency toward defendant, rather than from an assessment of the evidence as contemplated by Penal Code section 1181, subdivision 6. ¹

Defendant was tried without a jury on charges of first degree robbery. The parties stipulated that the question of guilt would be submitted to the court on the basis of the preliminary hearing transcript. The only evidence adduced at the preliminary hearing was the testimony of the victim, one Jimmy Sheldon, a cab driver. ² The judge initially found defendant guilty of robbery in the first degree. ³ At the hearing on defendant's motion for new trial and application for probation, the court denied a new trial; however, citing the authority of Penal Code section 1181, subdivision 6, the judge, over the People's objection, modified his earlier ruling by finding defendant guilty of grand theft in violation of Penal Code section 487, subdivision 2, a lesser offense included in the crime of robbery. ⁴

The People point to several features of the record in support of their assertion that the judge did not modify his finding after reevaluating the evidence against defendant as required by section 1181, subdivision 6. They rationalize that if the court had disbelieved Sheldon's testimony it would have granted the motion for a new trial, and that the facts of the case make it implausible that defendant could have taken Sheldon's property without some force or threat of force. Furthermore, they point to the argument of defense counsel on the hearing of the new trial motion, which stressed defendant's character and record. ⁵ Finally, the People cite comments made by the judge on sentencing, after he had modified his earlier finding, commending defendant for the 'exemplary life which he's lived up to this point' and otherwise indicating a desire to show leniency.

Defendant urges, in response, that the record does not exclude the possibility that the judge reweighed the evidence against him; indeed, the judge, on modifying his earlier finding, stated he found 'that the defendant is guilty under the facts in this case, and under the evidence of this case, of 487.2 of the Penal Code. . . .' The comments seized upon by the People were made after the modification was already ordered, and were uttered in connection with the grant of probation. Defendant then relies on the broad presumption that the court fulfilled its statutory duty. (People v. Oliver (1975) 46 Cal.App.3d 747, 752, 120 Cal.Rptr. 368.)

Before the propriety of the trial court's ruling may be reviewed, a determination must first be made that an appeal by the People is permissible. This threshold question involves two aspects: whether the law provides for an appeal in this case; and whether, even if provided by statute, such an appeal would violate constitutional guarantees against double jeopardy. (U.S.Const., 5th Amend.; Cal.Const., art. I, § 15.) Because we conclude there is no statutory authorization for an appeal by the People from an order under section 1181, subdivision 6, which modifies a verdict or finding to that of a lesser included offense, we reach neither the question of the propriety of the trial court's action nor the constitutional issue. ⁶

'The Legislature has determined that except under certain limited circumstances the People shall have no right of appeal in criminal cases.' (People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 497, 72 Cal.Rptr. 330, 335, 446 P.2d 138, 143.) Those circumstances are enumerated in section 1238. The People contend that authorization for the appeal in this case may be found in any one of several paragraphs of section 1238, subdivision (a); but they concentrate on subsection 6 thereof, which provides for an appeal by the state 'from an order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed.'

On its face, the language of subsection 6 provides only for appeal from rulings which result in a reduction of the Degree of the offense specified in the original verdict or finding, not from rulings which result in reductions to Lesser included offenses. This impression is fortified when subsection 6 is compared with section 1181, subdivision 6, in which the Legislature is explicit in separately providing for the court's power to make both types of rulings: the latter subdivision (fn. 1, Ante) declares that 'if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, Or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly . . ..' (Italics added.)

The close connection between section 1181 and section 1238 makes it difficult to attribute the more restrictive language of the latter to legislative inadvertence. Subsection 6 was added to section 1238 in 1951, as part of the same legislation which also added subdivision 7 to section 1181 and modified the wording of subdivision 6 of that section to encompass modifications of 'findings' as well as 'verdicts.' (Stats.1951, ch. 1674, pp. 3850, 3855, §§ 117, 134.) Indeed, language was added to section 1238 relating to 'an order modifying the verdict or finding by reducing . . . the punishment imposed' in order to allow the People an appeal from orders authorized by the same legislation in section 1181, subdivision 7. (See Final Rep. of the Special Crime Study Com. on Crim. Law and Proc. (June 30, 1949) Recom. 26, pp. 32--33.)

Clearly the Legislature was aware of the intimate relationship between these two sections of the same code. In this context, the failure to provide in section 1238, subdivision (a), subsection 6, for appeals from orders modifying findings to lesser included offenses, while maintaining a distinct provision in section 1181, subdivision 6, for the authority to issue those orders, raises a strong inference that the Legislature did not intend the orders to be appealable by the People. 'Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject . . . is significant to show that a different intention existed.' (People v. Valentine (1946) 28 Cal.2d 121, 142, 169 P.2d 1, 14.)

Furthermore, in 1951 the Legislature had reason to provide for appeals by the state from degree reductions but not from orders modifying findings to lesser included offenses. At the time, Clifornia case law drew a sharp line between the effect of a conviction of a lesser degree and a conviction of a lesser included offense for the purpose of applying the 'implied acquittal' doctrine. 'In California a distinction (had) been drawn by the courts to the effect that where one is convicted of a lesser offense necessarily included in the charge of a greater offense, he may not be tried again on a charge that he has committed the greater offense. On the other hand, where a crime divided into degrees is concerned, a conviction of a lower degree of the crime (had) been held not to operate as an acquittal of the higher degree.' (Gomez v. Superior Court (1958) 50 Cal.2d 640, 643, 328 P.2d 976, 978.) It was not until Gomez that this court declared there was 'no sound reason' for the distinction, and held that conviction of a lesser degree of a crime also operated as an 'implied acquittal' of the greater offense for purposes of California's double jeopardy clause. (Id. at p. 644, 328 P.2d 976.) It appears that the Legislature, acting in 1951 under the Pre-Gomez rule, believed that an appeal of an order modifying a finding or verdict to a lesser included offense would present potential double jeopardy problems that might not arise when a reduction in degree was appealed by the People. The Legislature then sought to avoid these potential difficulties by declining to provide for an appeal by the People in cases of reductions to lesser included offenses.

Nevertheless, the People seek to bring this appeal under subsection 6 of section 1238 by characterizing it as an order modifying the finding by reducing 'the punishment imposed.' The simple rebuttal to the contention is that when the court acted here sentence has not yet been pronounced and hence there was no existing 'punishment imposed' subject to reduction.

Of course, in general the modification of a finding to a lesser included offense may have the effect of reducing the potential punishment, although that result does not necessarily follow. But the code refers to actual punishment imposed. To hold that any order which might have an effect on eventual punishment is appealable under subsection 6 would distort both the language and the structure of the statute. Such an interpretation would render superfluous...