People v. Floyd

• Decision Date: 01 February 2002
• Docket Number: No. F037295.,F037295.
• Citation: 95 Cal.App.4th 1092,116 Cal.Rptr.2d 256
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Andre Rene FLOYD, Defendant and Appellant.

116 Cal.Rptr.2d 256

95 Cal.App.4th 1092

The PEOPLE, Plaintiff and Respondent, v. Andre Rene FLOYD, Defendant and Appellant.

No. F037295.

Court of Appeal, Fifth District.

February 1, 2002.

Certified for Partial Publication.^*

As Modified on Denial of Rehearing February 15, 2002.

Review Granted May 1, 2002.

Conrad Petermann, under appointment by the Court of Appeal, Beverly Hills, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Stan Cross and Patrick J. Whalen, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

BUCKLEY, Acting P.J.

Defendant Andre Rene Floyd was convicted on September 1, 2000, of illegally possessing cocaine; allegations that he had suffered five prior felony convictions within the meaning of the three strikes law and had served five prior prison terms were found true. On November 7, 2000, the voters of California enacted by initiative Proposition 36, the Substance Abuse and Crime Prevention Act of 2000. Proposition 36 changed sentencing law so that a defendant convicted of a nonviolent drug possession offense is generally sentenced to probation rather than incarceration with the completion of a drug treatment program.¹ The initiative states that it is to become effective July 1, 2001. Defendant was sentenced on November 9, 2000, to a total term of 28 years to life imprisonment. He filed a notice of appeal on December 22, 2000; this appeal was pending in July 2001.

DeLong, supra, 93 Cal.App.4th 562, 113 Cal.Rptr.2d 385, held that Proposition 36 applies prospectively to convictions occurring on or after July 1, 2001, and that the term conviction as used therein includes both the guilty verdict or plea and the judgment pronounced thereon. Therefore, the initiative applies to otherwise qualifying defendants who had not yet been sentenced on or before July 1, 2001. (Id. at pp. 566-570,113 Cal.Rptr.2d 385.)

In the published portion of this opinion we address defendant's contention that DeLong's holding should be extended to include within Proposition 36's ambit otherwise qualifying defendants who were sentenced before July 1, 2001, but whose cases had not yet reached final disposition in the highest court authorized to review them. The majority has concluded that accepted principles of statutory interpretation require rejection of this position. Our reasoning may be summarized as follows: The initiative plainly states that it applies to individuals convicted on or after July 1, 2001, and that it is to be applied prospectively. Although the term "convicted" or "conviction" does not have a single fixed meaning, it is well established that one is convicted of a crime, at the latest, when judgment is pronounced and sentence imposed. Indeed, the proposition that one is not convicted of a crime until the judgment has been affirmed on appeal has been previously rejected numerous times. There is no evidence before us indicating that, in this instance, the drafters of the initiative or the voters intended the term "conviction" to include an implied qualifier "that is affirmed on appeal."²

DISCUSSION

I. Proposition 36 applies prospectively to convictions occurring on or after July 1, 2001.

"Construction of a statute is a question of law which appellate courts review de novo. [Citation.] Proper interpretation starts with the actual language of the statute." (American Nat. Ins. Co. v Low (2000) 84 Cal.App.4th 914, 923-924, 101 Cal.Rptr.2d 288.) DeLong, supra, 93 Cal.App.4th 562, 113 Cal.Rptr.2d 385 succinctly explains that under the express language of the initiative, Proposition 36 applies prospectively to convictions occurring on or after July 1, 2001. (Id. at p. 567, 113 Cal.Rptr.2d 385.) Subdivision (a) of Penal Code section 1210.1 provides, "Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation." With respect to its effective date, section 8 of Proposition 36 states: "`Except as otherwise provided, the provisions of this act shall become effective July 1, 2001, and its provisions shall be applied prospectively. (Prop.36, § 8.)'" (DeLong, supra, 93 Cal.App.4th at p. 566, 113 Cal. Rptr.2d 385.) The phrase "[e]xcept as otherwise provided" in the sentence quoted above refers to the provisions of the initiative specifying that it applies to otherwise qualifying persons who were on parole or probation on the initiative's effective date. (See Pen.Code, § 1210.1, subd. (e)(3)(D) and § 3063.1, subd. (d)(3)(C).) It does not modify the latter part of the quoted sentence regarding the operative date of the initiative and its prospective application. Recently, In re Scoggins (2001) 94 Cal. App.4th 650, 114 Cal.Rptr.2d 508 and People v. Legault, supra, 95 Cal.App.4th 178, 115 Cal.Rptr.2d 352 followed DeLong's conclusion that Proposition 36 is to be applied prospectively without question.

II. Historically, the term "conviction" has been construed either in a narrow sense signifying entry of a guilty verdict (or plea) or it has been given a broader scope that includes both adjudication of guilt and the judgment pronounced thereon.

As appears in California case law, the terms "convicted" and "conviction" do not have a uniform or unambiguous meaning. Rather, the meaning of these terms depends upon the context in which the words are used. (Boyll v. State Personnel Board (1983) 146 Cal.App.3d 1070, 1073, 194 Cal. Rptr. 717; People v. Rhoads (1990) 221 Cal.App.3d 56, 60, 270 Cal.Rptr. 266.) One of two different definitions has generally been applied. Either the term is construed in a narrow sense signifying entry of a guilty verdict (or plea) or it is given a broader scope including both the adjudication of guilt and the judgment pronounced thereon. (People v. Rhoads, supra, 221 Cal.App.3d at p. 60, 270 Cal.Rptr. 266.) In People v. Martinez (1998) 62 Cal.App.4th 1454, 73 Cal.Rptr.2d 358, this court explained: "[I]n California, `. . . the word conviction is and has been used with various meanings. [Citation.]' [Citation.] Generally, conviction has been given one of two meanings. `The term "conviction" has been used in two different contexts, as constituting an adjudication of guilt and as constituting a final judgment of conviction from which an appeal may be taken.'" (Id. at p. 1460, 73 Cal.Rptr.2d 358.) Helena Rubenstein Internal v. Younger (1977) 71 Cal.App.3d 406, 139 Cal.Rptr. 473 contains an exhaustive exploration of the history and development of the word "conviction" in California and other jurisdictions supporting the proposition that the term has been given these two meanings. (Id. at pp. 413-418, 139 Cal.Rptr. 473.)

Generally speaking, the broader definition of the term has been adopted when construing statutes affecting the civil consequences of a conviction (see Boyll v. State Personnel Board, supra, 146 Cal. App.3d at pp. 1073-1076, 194 Cal.Rptr. 717; Helena Rubenstein Internal v. Younger, supra, 71 Cal.App.3d at p. 421, 139 Cal.Rptr. 473; Truchon v. Toomey (1953) 116 Cal.App.2d 736, 744, 254 P.2d 638), while the narrower definition has been applied to penal statutes. People v. Castello (1998) 65 Cal.App.4th 1242, 77 Cal.Rptr.2d 314 baldly states that "[t]he ordinary legal meaning of `conviction' is a verdict of guilty or the confession of the defendant in open court, and not the sentence or judgment" (id. at p. 1253, 77 Cal.Rptr.2d 314), and that that the term "conviction is used throughout the Penal Code to indicate the jury verdict." (Id. at p. 1254, 77 Cal.Rptr.2d 314.) In People v. Rosbury (1997) 15 Cal.4th 206, 210, 61 Cal.Rptr.2d 635, 932 P.2d 207, our Supreme Court adopted the narrower definition of the term for purposes of the three strikes law and in People v. Banks (1959) 53 Cal.2d 370 at page 391, 1 Cal.Rptr. 669, 348 P.2d 102, it held that for the purpose of determining if the defendant had acquired the status of a person convicted of a felony, one is "convicted" when a verdict is entered. This court has also concluded that for impeachment purposes, the word "conviction" as used in the Evidence Code refers to an adjudication of guilt. (People v. Martinez, supra, 62 Cal.App.4th at pp. 1460-1463, 73 Cal.Rptr.2d 358.)

III DeLong correctly interpreted the word "conviction" as requiring both adjudication of guilt and imposition of sentence.

It is a generally accepted principle that when construing the language of a penal statute that is reasonably susceptible to two or more different interpretations, the construction that is more favorable to the defendant will ordinarily be adopted if it is not inconsistent with the aims of the statute. (People v. Alday (1973) 10 Cal.3d 392, 394, 110 Cal.Rptr. 617, 515 P.2d 1169; People v. Coelho (2001) 89 Cal.App.4th 861, 885, 107 Cal.Rptr.2d 729.)

We agree with DeLong, supra, 93 Cal. App.4th 562, 113 Cal.Rptr.2d 385 that, unlike the majority of penal statutes, the broader definition of the word "conviction" as referencing both adjudication of guilt and pronouncement of judgment should be applied to Proposition 36. DeLong's analysis is thorough and well-reasoned. Furthermore, Proposition 36 is an ameliorative sentencing statute that has no relevance to the proceedings until after the verdict has been entered. Since it does not affect the burden of proof, elements of the charged offense, or the conduct of trial, the People will not be prejudiced by applying this initiative to defendants who were not sentenced before its effective date.

IV. DeLong should not be extended to include persons who were sentenced before July 1, 2001; the term "conviction" does not include an implied qualifier "and affirmed on appeal."

We now turn to the heart of the issue before us: should the definition of the term "conviction" as used in Proposition 36 be expanded to include cases in which sentence was pronounced prior to July 1, 2001,...