People v. Harrison
| Decision Date | 20 January 1984 |
| Docket Number | Cr. 12656 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Xavier Allen HARRISON, Defendant and Appellant. |
Donald A. Primavera, Sacramento, for defendant and appellant.
John K. Van De Kamp, Atty. Gen., Gregory W. Baugher and Wanda Hill Rouzan, Deputy Attys. Gen., for plaintiff and respondent.
In this case we consider and reject challenges to subdivision (f) of section 28 of article I of the California Constitution, the "Use of Prior Convictions" section of "The Victims' Bill of Rights" enacted by Proposition 8 at the June 1982 Primary Election. We also interpret Penal Code section 667, the habitual criminal statute also enacted by that initiative measure.
Defendant Xavier Allen Harrison appeals from a judgment sentencing him to a total unstayed prison term of eight years after he was convicted of one count of attempted robbery with a finding that he personally used a deadly weapon in the commission of that crime. (Pen.Code, §§ 211/213, 12022, subd. (b).) The trial court found the allegation that defendant had previously been convicted of a serious felony within the meaning of Penal Code section 667 to be true. On appeal defendant contends the trial court erred in: (1) imposing an enhancement to his sentence due to his prior conviction; (2) denying his motion to exclude the use of his prior felony conviction for impeachment purposes in the event he testified; (3) refusing to instruct the jury on lesser included offenses of grand and petty theft and battery; and (4) denying his motion for a mistrial on the charge that he had suffered a prior conviction for robbery. We reject these contentions and shall affirm the judgment.
On the evening of September 15, 1982, Thomas Parker Moore, then 61 years old, was walking on the K Street Mall in Sacramento. He was met by two young men, one of whom asked whether he had change for a dollar. Moore identified defendant as one of the young men. When Moore said he did not have change and attempted to pass, defendant grabbed him by the shirt and threatened him with a knife. Defendant said: "Come up with your change," and "Where is it; I want your change." While defendant held the knife on Moore, his cohort went behind him and put his arm around his neck, and searched his pockets. Moore broke away and ran but was caught within a few steps. The attackers finished searching him and then defendant pushed him and said "Go on." Moore apparently did not have any property taken by the attackers, but he lost his bus schedules and comb, and his glasses were broken.
After he was released Moore walked down the street until he met two police officers. They drove him around until he identified two persons as his attackers. Defendant and his companion were then arrested and a knife was discovered on defendant's person.
Defendant's crime was committed in September 1982, several months after the passage of Proposition 8. The provisions of that initiative measure therefore apply to defendant. (People v. Smith (1983) 34 Cal.3d 251, 257-258, 193 Cal.Rptr. 692, 667 P.2d 149.) Proposition 8 enacted Penal Code section 667, set out in full in the margin, which provides for enhancement of prison sentences for those convicted of serious felonies who have previously been convicted of serious felonies. 1 The term "serious felony" is defined in Penal Code section 1192.7. Included in that statutory definition are the crimes of robbery, any crime in which a deadly or dangerous weapon is personally used by the defendant, and any attempt to commit a listed crime other than an assault. (Pen.Code, § 1192.7, subds. (c)(19), (c)(23) and (c)(25).) Defendant stands convicted of attempted robbery in which he personally used a dangerous or deadly weapon, and it has been found as true that he suffered a prior conviction of robbery. 2 Accordingly, his sentence was enhanced by a five-year term under Penal Code section 667.
Defendant contends that the imposition of the five-year enhancement for a prior conviction which occurred before the effective date of Penal Code section 667 would constitute an ex post facto law and is therefore impermissible. We disagree. A long and unbroken line of decisional authority has rejected this same contention under identical circumstances. (See e.g., In re Rosencrantz (1928) 205 Cal. 534, 540, 271 P. 902; People v. Coleman (1904) 145 Cal. 609, 612, 79 P. 283; Ex Parte Gutierrez (1873) 45 Cal. 429, 432; People v. Calderon (1962) 205 Cal.App.2d 566, 572, 23 Cal.Rptr. 62.) Nor does such enhancement violate principles of double jeopardy, equal protection, or due process of law. (Ibid.)
Defendant contends, however, that it is improper to enhance his current sentence for his prior conviction because at the time he entered a plea of guilty to the prior charge he was not informed of the possibility of such an extended enhancement in the event of future convictions. Initially, we note that the claim that proper advice was not given before a plea was entered is an attack upon the validity of the prior conviction and the defendant must raise the issue by appropriate procedure in the trial court. (People v. Reeves (1981) 123 Cal.App.3d 65, 68-69, 176 Cal.Rptr. 182; People v. McFarland (1980) 108 Cal.App.3d 211, 220, fn. 3, 166 Cal.Rptr. 429; People v. Davis (1980) 103 Cal.App.3d 270, 275, 163 Cal.Rptr. 22; Salazar v. Municipal Court (1975) 44 Cal.App.3d 1024, 1027, 119 Cal.Rptr. 98.) Defendant did not challenge the validity of his prior conviction in the trial court, nor has he sought to withdraw that plea. He is precluded from doing so for the first time on appeal. In any event, the failure to advise a defendant of the possibility of an increased punishment upon a subsequent conviction does not render a plea invalid. (Ganyo v. Municipal Court (1978) 80 Cal.App.3d 522, 527, fn. 1, 145 Cal.Rptr. 636; People v. Flores (1974) 38 Cal.App.3d 484, 487-488, 113 Cal.Rptr. 272; Hartman v. Municipal Court (1973) 35 Cal.App.3d 891, 893, 111 Cal.Rptr. 126.)
Defendant next argues that Penal Code section 667 must be construed in such a manner as to preclude the imposition of an enhancement based upon a prior conviction entered on a guilty plea. He notes that the language of the section provides that an enhancement can only be imposed for "each [such] prior conviction on charges brought and tried separately." Defendant argues that since he pleaded guilty in the prior proceeding he was not "tried" and consequently his prior conviction cannot be used to enhance his current sentence.
We reject defendant's argument. The language utilized in Penal Code section 667 is not new to this state. Under the former indeterminate sentencing law a defendant could be adjudicated an habitual criminal on the basis of two or more prior convictions "upon charges separately brought and tried." (former Pen.Code, § 644.) In People v. Ebner (1966) 64 Cal.2d 297, at page 304, 49 Cal.Rptr. 690, 411 P.2d 578, the defendant contended he had not been "tried" on his prior conviction because he had pleaded guilty rather than undergo a trial on the merits. The Supreme Court rejected the contention, stating: In other words, as the Court of Appeal later noted in Smith v. Municipal Court (1977) 71 Cal.App.3d 151, 153, 139 Cal.Rptr. 121, "[t]he tendering of a guilty plea pursuant to a plea bargain, followed by acceptance of the plea by the judge, is the functional equivalent of a trial ...." Defendant must be regarded as having been "tried" for his prior robbery despite the fact that his guilty plea obviated the need for a jury trial. 3
Defendant next contends that Penal Code section 667 is vague and ambiguous. He asserts that if it does not mean that the prior charges must have been actually "tried," then it must mean that the enhancing allegations must be tried separately from the charges in the current information. Since, in defendant's view, one cannot determine which of these constructions is proper, there is no notice of what is prohibited. 4 In view of our earlier discussion, we must reject this contention as well. Penal Code section 667 utilizes time-honored and judicially construed terminology. There is no doubt as to its meaning.
In any event, we do not perceive an ambiguity in Penal Code section 667 when it is read as a whole. Under prior determinate sentencing provisions a prison term was enhanced for each prior separate prison term served by the accused. (Pen.Code, § 667.5.) Section 667 was enacted by the People to increase the length of the enhancement for serious felonies, and to require the imposition of the enhancement whether or not a commitment or incarceration had been imposed for the prior conviction. The language "brought and tried separately" was clearly intended as a limiting factor: to permit only one enhancement as the result of each prior proceeding which resulted in conviction of a serious felony, regardless of the actual number of convictions obtained in the prior proceeding.
We conclude that defendant's prior conviction for robbery, by guilty plea, comes within the clear provisions of Penal Code section 667 in this prosecution for attempted robbery with the personal use of a deadly or dangerous weapon. The imposition of a five-year enhancement due to the prior conviction...
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People v. West, Cr. 12694
...when approved by the electors."3 At oral argument, the People relied on language of this court's opinion in People v. Harrison (1984) 150 Cal.App.3d 1142, 1155, 198 Cal.Rptr. 762, that "The language used in subdivision (f) of section 28 is too clear and unambiguous for there to exist and do......
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People v. Harrison
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