People v. Powell

• Decision Date: 24 January 1985
• Docket Number: Cr.A
• Citation: 166 Cal.App.3d Supp. 12,212 Cal.Rptr. 454
• Court: California Superior Court
• Parties: 166 Cal.App.3d Supp. 12 PEOPLE, Plaintiff and Respondent, v. Charles Cornelius POWELL, Defendant and Appellant. 20748. Appellate Department, Superior Court, Los Angeles County, California

Page 454

212 Cal.Rptr. 454

166 Cal.App.3d Supp. 12

PEOPLE, Plaintiff and Respondent, v. Charles Cornelius POWELL, Defendant and Appellant.

Cr.A. 20748.

Appellate Department, Superior Court, Los Angeles County, California.

Jan. 24, 1985.

[166 Cal.App.3d Supp. 14] Edward J. Horowitz, Los Angeles, for defendant and appellant.

Gary R. Netzer, City Atty., Jack L. Brown and Greg Wolff, Deputy City Attys., for plaintiff and respondent.

BERNSTEIN, Judge.

INTRODUCTION

The instant case presents the question of the constitutionality of unlimited consecutive sentences for persons convicted of multiple misdemeanors. Appellant argues, inter alia, that because PENAL CODE SECTION 1170.1^{1 2} prohibits the general application of unlimited consecutive sentences to persons convicted of multiple felonies, the failure of the Legislature to extend the same sentencing limitations to convicted misdemeanants constitutes a violation of the equal protection clauses of the United States and California Constitutions. We agree, and remand for resentencing. Because the offenses in this case were "wobblers", i.e., were offenses chargeable either as felonies or as misdemeanors, we limit our holding to such cases. We deal with the various contentions of the parties below.

FACTS

Appellant, Charles Cornelius Powell, stands convicted on his plea of 13 counts of grand theft in violation of Penal Code section 487, subdivision 1. ³

Penal Code section 489 ⁴ declares grand theft to be a "wobbler," i.e., an offense punishable as either a misdemeanor (with a maximum custodial sentence of one year in the county jail) or as a felony (state prison commitment of sixteen months, two years or three years; see § 18). Because the People chose to file the charges against appellant as misdemeanors, to which appellant offered no objection, the offenses were fixed as misdemeanors for all purposes pursuant to section 17, subdivision (b)(4). ⁵ The trial court sentenced appellant to six months in the county jail per count, the sentences to run consecutively. Thus, appellant presently faces as a condition of probation six and one-half years in the county jail. Following his release from jail, appellant would remain on probation for an additional six and one-half years.

APPELLANT'S CONTENTIONS

On this appeal, appellant posits two contentions. The first is that the sentence in the instant matter violates article I, section 17 of the California Constitution (the prohibition against cruel and unusual punishment). The second contention, though not clearly articulated by appellant, appears to be that the sentence constitutes a violation of the equal protection clause (art. I, § 7) of the state Constitution inasmuch as appellant asserts that he faces a lengthier period of confinement for his misdemeanor convictions than the maximum period of confinement he could lawfully have been sentenced to had the same charges been brought as felonies. Although we conclude that the cruel and unusual punishment argument advanced by appellant is devoid of merit, we are persuaded that state and federal constitutional equal protection guaranties require that appellant be resentenced.

THE SENTENCE DOES NOT CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT UNDER ARTICLE I, SECTION 17 OF THE CALIFORNIA CONSTITUTION

The state's constitutional guaranty against imposition of cruel and unusual punishment has been construed most recently in People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697. In Dillon, at pp. 477-478, 194 Cal.Rptr. 390, 668 P.2d 697, the California Supreme Court reaffirmed the rule, first adopted in In re Lynch (1972) 8 Cal.3d 410 at p. 424, 105 Cal.Rptr. 217, 503 P.2d 921, that "a punishment may violate ... the Constitution if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity (footnote omitted)."

Measured against the applicable standard, it cannot be said that appellant's six and one-half-year jail term, imposed pursuant to his conviction on 13 counts of grand theft, is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." Thus, we reject this contention.

APPELLANT'S SENTENCE VIOLATES THE EQUAL PROTECTION CLAUSE OF THE CALIFORNIA CONSTITUTION

Appellant argues that his six and one-half-year county jail commitment violates the state Constitution's guaranty of equal protection of the law. This is so, according to appellant, because a sentence of that length could not, consistent with the provisions of section 1170.1, subdivision (a) ⁶ have been imposed upon him had the same charges been filed as felonies. Appellant variously calculates his maximum "felony" sentence to be between seven years and three years and two months. The People counter with their own set of calculations in which they arrive at a figure of nine years as representing appellant's maximum permissible "felony" sentence.

The precise question presented here appears to be one of first impression, although several decisions, including one of this court (People v. Haendiges (1983) 142 Cal.App.3d Supp. 9, 191 Cal.Rptr. 785), bear upon closely related issues. Despite the People's contention that Haendiges, supra, is controlling and compels rejection of appellant's challenge, we have concluded that neither Haendiges nor any other case has directly addressed the question of the constitutionality of misdemeanor jail sentences which exceed the statutory maximum term of confinement for the identical crimes when charged as felonies. ⁷

Strong support for appellant's argument is found in an opinion issued by the California Attorney General (63 Ops.Cal.Atty.Gen. 199 (1980)). The opinion deals with the question of unlimited consecutive sentencing for convicted misdemeanants found to be Mentally Disordered Sex Offenders, and for persons found not guilty of misdemeanor charges by reason of insanity. The Attorney General noted that for multiple felony convictions, Penal Code section 1170.1 limited the maximum term of imprisonment which could be imposed. The opinion states: "On its face section 1170.1 is not applicable to misdemeanors. Penal Code section 669 provides that a court may order the sentences on multiple convictions to run concurrently or consecutively. The Supreme Court in People v. Carr (1936) 6 Cal.2d 227 held that Penal Code section 669 permitted a court to impose consecutive one year maximum jail terms for multiple misdemeanor convictions. (See Pen.Code, § 19a.) Accordingly, it appears that section 6316.1, subdivision (c) provides that the maximum length of each misdemeanor term is to be aggregated without limit to compute the 'maximum term of commitment,' despite the fact that under subdivision (a) of the same section multiple felony terms are computed on the basis of the Penal Code section 1170.1 formula.

"To accept this construction without limitation would lead to absurd and clearly unintended results in some cases. Take for example the case of an MDSO who has an underlying conviction on seven counts of unlawful intercourse, in violation of Penal Code section 261.5 which is punishable as either a felony (sixteen months, two years in state prison) or a misdemeanor (not more than one year in county jail) depending upon the recommendation of the jury. (See Pen.Code, §§ 18, 264.) Under the above interpretation of section 6316.1, if the MDSO were convicted of seven misdemeanor counts, his maximum term of commitment would be seven years (one year for each offense). However, if he were convicted of seven felony counts, his maximum term of [co]mmitment would be six years." (Fn. omitted.) (Id., at p. 202, emphasis added.)

The opinion further states: "There still remains the issue of whether there is any constitutional limit on the consecutive terms which a court could impose for multiple convictions where one or more of the offenses are misdemeanors. The principle of equal protection of laws guaranteed by both the state and federal Constitutions requires that persons similarly situated must receive like treatment under the law. (In re Moye [1978], 22 Cal.3d 457, 465-466 [149 Cal.Rptr. 491, 584 P.2d 1097]; People v. Olivas (1976) 17 Cal.3d 236 [131 Cal.Rptr. 55, 551 P.2d 375].) In People v. Olivas, supra, the court struck down a provision in the Welfare and Institutions Code which authorized the Youth Authority to maintain control over convicted misdemeanants committed to its care as youthful offenders for a period in excess of the maximum jail term permitted by statute for the offense or offenses committed. The court found the right to liberty to be a fundamental interest and that the state failed to establish a compelling interest justifying a statutory distinction which would permit a youthful offender to be subject to a longer period of confinement than a regular adult offender.

"In the case of an MDSO, we have seen that if section 6316.1 were construed literally without regard to constitutional limitations, in some cases an MDSO with underlying misdemeanor convictions would be subject to a longer maximum term of commitment than that to which he would have been subject had the crimes of which he was convicted been felonies. That interpretation clearly would violate the principle of equal protection of laws.

"However, that interpretation is not required. A statute is presumed constitutional and must be interpreted in harmony with constitutional requirements. (California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 594 [131 Cal.Rptr. 361, 551 P.2d 1193].) Section 6316.1, subdivision (c) limits the maximum term of commitment for multiple misdemeanors to the maximum 'which could have been imposed' by the court. Although the court in In re Eric J. [ (1979) 25 Cal.3d 522, 159 Cal.Rptr. 317, 601 P.2d 549] stated that the one-third formula of Penal Code...