People v. Moore

• Decision Date: 30 March 2004
• Docket Number: No. H025922.,H025922.
• Citation: 12 Cal.Rptr.3d 649,118 Cal.App.4th 74
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Anthony Lee MOORE, Defendant and Appellant.

12 Cal.Rptr.3d 649

118 Cal.App.4th 74

The PEOPLE, Plaintiff and Respondent, v. Anthony Lee MOORE, Defendant and Appellant.

No. H025922.

Court of Appeal, Sixth District.

March 30, 2004.

Certified for Partial Publication.^*

Review Denied August 11, 2004.

J. Wilder Lee, San Francisco, CA, for appellant (under appointment by the Court of Appeal).

Bill Lockyer, Atty. Gen., Robert R. Anderson, Chief Asst. Atty. Gen., Gerald A. Engler, Senior Asst. Atty. Gen., Rene A. Chacon, Supervising Deuty Atty. Gen., Ryan B. McCarroll, Deputy Atty. Gen., for Respondent.

McADAMS, J.

In this appeal we must decide whether a prior conviction for violation of Penal Code section 422¹ qualifies as a "strike" under the 2000 amendments to the Three Strikes Law. We find that it does so qualify and we affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1998 and 1999, defendant threatened to kill his former girlfriend and her new boyfriend on numerous occasions. He pleaded guilty to violating section 422. At the time, section 422 was not listed as a serious felony under the Three Strikes Law. Amendments to the Three Strikes Law, enacted in 2000 by initiative as part of Proposition 21, added "terrorist threats, in violation of section 422" to the list of serious felonies. (§ 1192.7, subd. (c)(38).)

In 2002, defendant sold drugs to an undercover police officer. He was charged with transportation, sale and distribution of methamphetamine. (Health & Saf.Code § 11379, subd. (a).) His prior conviction for violation of section 422 was charged as a serious felony pursuant to the provisions of the Three Strikes Law. (§§ 667.5, subd. (c); 1192.7, subd. (c)(38); 667, subds. (b) — (i); 1170.12.) Defendant pleaded guilty to violating Health and Safety Code section 11379. The prior conviction allegation was tried to the court and found true. Defendant was sentenced to prison for three years on the drug conviction, which term was doubled to six years under the Three Strikes Law.

II. DEFENDANT'S CONTENTIONS

Defendant makes two statutory construction arguments for the invalidation of his prior strike conviction under section 422. First, he argues that only those section 422 convictions post-dating the 2000 amendments to the Three Strikes Law qualify as strikes. Since his conviction occurred in 1999, before the 2000 amendment that added section 422 to the list of strike offenses under section 1192.7, subdivision (c)(38), it does not qualify as a strike. Second, he contends that only "terrorist threats" in violation of section 422 — i.e., threats of violence to intimidate or coerce a government or a community — qualify as strikes. Since his violation of section 422 involved threats to his ex-girlfriend and her new boyfriend, they do not qualify as strikes. For the reasons we discuss below, we find defendant's arguments unpersuasive.

III. SECTION 667.1^**

IV. TERRORIST THREATS

Defendant next contends the Three Strikes Law does not apply to him because his conviction for violating section 422 was not premised on a "terrorist threat." Proposition 21 amended section 1192.7 by adding "terrorist threats, in violation of Section 422" to the list of crimes considered "serious felonies." (§ 1192.7, subd. (c)(38).) Defendant contends that by using the phrase "terrorist threats" in conjunction with section 422, the Legislature intended to designate as "serious felonies" only those criminal threats in violation of section 422 which could be considered "terrorist." He acknowledges that the term "terrorist" is not defined anywhere in the initiative or, we might add, in section 422.⁴ He therefore proposes that we engraft upon the statute the dictionary definition of "terrorist." Under this view, a terrorist threat would be one which threatened the "use of force or violence to intimidate or coerce societies or governments, often for ideological or political reasons." (American Heritage College Dictionary (3rd. ed.1998).) Under this construction of the statute, defendant's conviction would not qualify as a "serious felony" because it arose out of a domestic dispute and not a politically or ideologically motivated one aimed at society as a whole or the government.

We agree with defendant that by using the term "terrorist threat" in conjunction with a statute that no longer uses those words, the drafters of Proposition 21 created an ambiguity that requires us to divine the voters' intent. However, our review of the history and text of both section 422 and Proposition 21 convinces us that no such meaning was intended. We therefore decline to adopt defendant's construction of the statutory language at issue. To do so would violate the voters' intent and lead to absurd results.

A. General Principles of Statutory Construction

"[T]he fundamental goal of statutory interpretation is to ascertain and carry out the intent of the Legislature." (People v. Cruz (1996) 13 Cal.4th 764, 782 55 Cal.Rptr.2d 117, 919 P.2d 731.) "`To determine legislative intent, a court begins with the words of the statute, because they generally provide the most reliable indicator of legislative intent.' ... `If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.'" (Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1046-1047, 80 Cal.Rptr.2d 828, 968 P.2d 539.) However, the court will not follow the plain meaning of the statute if to do so "would inevitably frustrate the manifest purposes of the legislation as a whole or lead to absurd results." (In re Ge M. (1991) 226 Cal.App.3d 1519, 1523, 277 Cal.Rptr. 554.) On the contrary, "[t]o the extent that uncertainty remains in interpreting statutory language, `consideration should be given to the consequences that will flow from a particular interpretation' [citation], and both legislative history and the `wider historical circumstances' of the enactment may be considered. (Ibid.) Further, ambiguities are not interpreted in the defendant's favor if such an interpretation would provide an absurd result, or a result inconsistent with apparent legislative intent. [Citation.]" (People v. Cruz, supra, 13 Cal.4th at p. 782, 55 Cal.Rptr.2d 117, 919 P.2d 731.) All these same principles apply in interpreting a voter initiative. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900, 135 Cal.Rptr.2d 30, 69 P.3d 951.)

B. History of Section 422

"As originally enacted, section 422 made it a felony to `willfully threaten [ ] to commit a crime which will result in death or great bodily injury to another person, with intent to terrorize another or with reckless disregard of the risk of terrorizing another,' if such threats cause another person `reasonably to be in sustained fear for his or her[ ] or their immediate family's safety.' To `terrorize' was defined by section 422.5 as `"creat [ing] a climate of fear and intimidation by means of threats or violent action causing sustained fear for personal safety in order to achieve social or political goals."' (People v. Mirmirani (1981) 30 Cal.3d 375, 381, 178 Cal.Rptr. 792, 636 P.2d 1130.) Thus, read together, the two statutes penalized only threats made with intent to achieve `social or political goals.' (Id. at p. 382, 178 Cal.Rptr. 792, 636 P.2d 1130.) In Mirmirani, the Supreme Court found these statutes unconstitutional because the phrase `social or political goals' was unconstitutionally vague. (Id. at p. 388, 178 Cal.Rptr. 792, 636 P.2d 1130.) Sections 422 and 422.5 were repealed in 1987. (Stats.1987, ch. 828, § 28, p. 2587.)" (In re Ge M., supra, 226 Cal.App.3d at p. 1522, 277 Cal.Rptr. 554.)

Section 422 was amended and reenacted in 1988 as part of the "California Street Terrorism Enforcement and Prevention Act" ("STEP" Act). (People v. Martinez (1997) 53 Cal.App.4th 1212, 1217, 62 Cal.Rptr.2d 303.) With the exception of minor changes not relevant here, the 1988 statute is the same as the statute that exists today, proscribing "criminal" rather than "terrorist" threats. (See People v. Toledo (2001) 26 Cal.4th 221, 228-229, 109 Cal.Rptr.2d 315, 26 P.3d 1051.) As expressed in the STEP Act itself, the Legislature's purpose in enacting the law was to recognize "that it is the right of every person ... to be secure and protected from fear, intimidation, and physical harm caused by the activities of violent groups and individuals.... [¶] The Legislature ... finds that the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods. These activities ... present a clear and present danger to public order and safety ..." (§ 186.21, italics added.)

Then as now, section 422 was the only section included in the Code under Title 11.5. Despite the amendment of the text to reflect its proscription of "criminal threats," the name of Title 11.5 remained "Terrorist Threats" until it was amended in 2000, after the passage of Proposition 21, to say "Criminal Threats." (People v. Toledo, supra, 26 Cal.4th at p. 224, fn. 1, 109 Cal.Rptr.2d 315, 26 P.3d 1051.) Finally, in 2002, the Legislature substituted the word "criminal" for "terrorist" in section 1192.7, subdivision (c)(38). (Stats.2002, ch. 606, p. 2781.) Now, all the relevant provisions dealing with criminal threats — section 1192.7, subdivision (c)(38), section 422, and Title 11.5 — use the same terminology.

Given this history, it is not surprising that from 1987 until recently, case law has continued to refer to violations of section 422 as "terrorist threats," even though the body of the statute has not referenced terror, terrorists, terrorism or social or political goals since the statute was found unconstitutional and repealed in 1987. (See e.g., In re Marcus T. (2001) 89 Cal.App.4th 468, 107 Cal.Rptr.2d 451; People v. Solis (2001) 90 Cal.App.4th 1002, 109 Cal.Rptr.2d 464; People v. Franz (2001) 88...