People v. Sipe

• Decision Date: 30 June 1995
• Docket Number: No. C018599,C018599
• Citation: 36 Cal.App.4th 468,42 Cal.Rptr.2d 266
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 5184, 95 Daily Journal D.A.R. 8712 The PEOPLE, Plaintiff and Respondent, v. Joseph Lee SIPE, Defendant and Appellant.

Page 266

42 Cal.Rptr.2d 266

36 Cal.App.4th 468, 95 Cal. Daily Op. Serv. 5184,

95 Daily Journal D.A.R. 8712

The PEOPLE, Plaintiff and Respondent, v. Joseph Lee SIPE, Defendant and Appellant.

No. C018599.

Court of Appeal, Third District, California.

June 30, 1995.

As Modified on Denial of Rehearing July 25, 1995.

Review Denied Sept. 28, 1995.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., Margaret Garnand Venturi and Janett H. Shaw, Deputy Attys. Gen., for plaintiff and respondent.

MORRISON, Associate Justice.

This case arises under the so-called "three strikes" legislation (Pen.Code, § 667, subds. (b)-(i); Stats.1994, ch. 12, §§ 1-2). In late 1993 defendant entered a plea of guilty to one count of residential burglary (Pen.Code, § 459; all further statutory references are to the Penal Code unless otherwise specified), a serious felony under section 1192.7, subdivision (c)(18). He was granted probation, with time in jail. Less than one month after the Legislature enacted the "three strikes" law, defendant walked away from an honor farm where he was serving his time. He was originally charged only with escape while charged with a felony (§ 4532, subd. (b)), but the complaint was amended to allege a prior felony conviction under new section 667, subdivision (d), enacted in 1994 effective March 7, 1994, as an urgency measure. (Stats.1994, ch. 12, § 2.) Defendant pleadedguilty to escape and admitted the prior conviction. He was sentenced under section 667, subdivision (e)(1) to twice the midterm or four years in prison. Defendant obtained a certificate of probable cause and appeals. We affirm.

We reject defendant's various challenges to the "three strikes" law. We find the law permits the use of pre-March 7, 1994 convictions as "strikes." Defendant fails to show the law is unconstitutionally vague on its face and it is not vague as applied to him. The "three strikes" law does not violate due process as it bears a rational relationship to a legitimate state interest. We find no equal protection violation in the reduction of credits he may receive against his sentence. We reject defendant's various arguments that using his prior conviction both to establish felony escape and as a "strike" is a prohibited dual use of facts. And we find no error in permitting the complaint to be amended.

DISCUSSION

I. Use of Pre-March 1994 Prior Convictions

We begin with defendant's attack on the "three strikes" law. The Legislature amended Penal Code section 667 to add subdivisions (b) through (i) in March 1994 as an urgency measure. (Stats.1994, ch. 12, §§ 1- 2.) The Legislature stated the purpose of the new law as follows: "It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses." (§ 667, subd. (b).) The following November, the voters passed a "three strikes" initiative measure (Prop. 184) that added section 1170.12 to the Penal Code. This section is substantially similar to subdivisions (c) through (g) of section 667. Since defendant committed his offense in April 1994, this case arises under section 667.

Subdivision (e) of section 667 provides an alternate sentencing scheme for felons who have previously been convicted of certain felonies or "strikes." Subdivision (d) defines a prior conviction of a felony or "strike" to include:

"Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state. The determination of whether a prior conviction is a prior felony conviction for purposes of subdivisions (b) to (i), inclusive, shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor. None of the following dispositions shall affect the determination that a prior conviction is a prior felony for purposes of subdivisions (b) to (i), inclusive:

"(A) The suspension of imposition of judgment or sentence.

"(B) The stay of execution of sentence.

"(C) The commitment to the State Department of Health Services as a mentally disordered sex offender following a conviction of a felony.

"(D) The commitment to the California Rehabilitation Center or other facility whose function is rehabilitative diversion from the state prison." (§ 667, subd. (d)(1), emphasis added.)

Defendant focuses on the emphasized language and argues only felony convictions incurred after March 7, 1994, the effective date of the "three strikes" legislation, can be considered "strikes." He contends his 1993 burglary conviction cannot be used as a "strike." Defendant reasons that the determination of whether a prior conviction is a prior felony conviction or "strike" for purposes of the statute can only be made after the statute was in existence. Since the determination is made "upon the date" of the prior conviction, only convictions after March 7, 1994, can be determined to be "strikes."

In interpreting the statute we are guided by well-settled principles. "The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law." (People v. Pieters (1991) 52 Cal.3d 894, 898, 276 Cal.Rptr. 918, 802 P.2d 420.) We begin with the language of the statute. (Ibid.) "The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.]" (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)

Here, the Legislature clearly expressed its intent to provide longer sentences for felons who "have been previously convicted of serious and/or violent felony offenses." (§ 667, subd. (b).) Because of the need to protect the public from the "imminent threat" posed by recidivist felony offenders, the act was declared an urgency measure to take effect immediately. (Stats.1994, ch. 12, § 2.) Nothing in the statute indicates an intent to limit its effect to only those who commit multiple felonies in the future. Indeed, "[t]he basic purpose of the section--deterrence of recidivism--would be frustrated by a construction which did not take account of prior criminal conduct." (People v. Jackson (1985) 37 Cal.3d 826, 833, 210 Cal.Rptr. 623, 694 P.2d 736 [interpreting prior section 667].)

In reading the statute to permit the use of prior convictions only from the statute's effective date, defendant ignores a basic premise of statutory construction. In focusing solely on the requirement that the determination be made "upon the date of that prior conviction," he takes this language out of context and, indeed, ignores the rest of the sentence. In construing a statute, the words must be read in context. (Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735, 248 Cal.Rptr. 115, 755 P.2d 299.) The balance of the sentence provides the sentence imposed shall not affect the determination, unless "the sentence automatically, upon initial sentencing, converts the felony to a misdemeanor." (§ 667, subd. (d)(1).) The statute then sets forth various dispositions that will not affect the felony/misdemeanor determination. Read in context, the "determination" at issue must be whether the prior conviction "is a prior felony conviction" rather than a conviction for a misdemeanor. This determination is made "upon the date" of the conviction, so subsequent events, such as a reduction to a misdemeanor (§ 17, subd. (b)(3)), will not affect its classification as a felony conviction.

This reading permits pre-March 7, 1994 convictions to be used as "strikes," thus implementing the express legislative intent to provide more severe punishment for recidivist felons immediately. It also results in "a reasonable and commonsense interpretation consistent with the apparent legislative purpose and intent, practical rather than technical in character and upon application resultant of wise policy rather than absurdity." (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1406, 241 Cal.Rptr. 67, 743 P.2d 1323.) It is "reasonable and commonsense" to provide a reference point (the date of conviction) for determining whether a conviction is for a felony or a misdemeanor. There is no reason, however, to require a court to determine whether a conviction may serve as a "strike" unless and until the defendant commits another felony.

Since we have found the language of the statute defeats defendant's interpretation, we need not employ the various tools of statutory construction suggested by defendant to reach his interpretation.

Defendant argues using pre-March 7, 1994 prior convictions will result in retroactive application of the law. He provides several reasons why the statute should not be given retroactive application. We disagree with his premise that using convictions prior to enactment of the "three strikes" law results in a retroactive application. "A statute is not retroactive in operation merely because it draws upon facts antecedent to its enactment for its operation." (People v. Venegas (1970) 10 Cal.App.3d 814, 823, 89 Cal.Rptr. 103.) "In the context of habitual criminal statutes, 'increased penalties for subsequent offenses are attributable to the defendant's status as a repeat offender and arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense.' [Citation.]" (...