People v. Spears

• Decision Date: 13 December 1995
• Docket Number: No. F022689,F022689
• Citation: 40 Cal.App.4th 1683,48 Cal.Rptr.2d 634
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 9623, 95 Daily Journal D.A.R. 16,643 The PEOPLE, Plaintiff and Respondent, v. Leroy William SPEARS, Defendant and Appellant.

Page 634

48 Cal.Rptr.2d 634

40 Cal.App.4th 1683, 95 Cal. Daily Op. Serv. 9623,

95 Daily Journal D.A.R. 16,643

The PEOPLE, Plaintiff and Respondent, v. Leroy William SPEARS, Defendant and Appellant.

No. F022689.

Court of Appeal, Fifth District, California.

Dec. 13, 1995.

Certified for Partial Publication ^*

Review Denied March 13, 1996.

[40 Cal.App.4th 1685] Larry L. Dixon, under appointment by the Court of Appeal, Jackson, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Michael J. Weinberger and Thomas Y. Shigemoto, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THAXTER, Acting Presiding Justice.

This appeal raises various issues related to PENAL CODE SECTION 667¹, subdivisions (b) through (j), commonly known as the "three strikes" legislation, ² including several constitutional attacks. We will find that some of appellant's attacks are moot in his case and we will reject all of appellant's other contentions.

STATEMENT OF CASE

Following a preliminary examination, defendant and appellant Leroy William Spears was charged with two felony counts by information filed in the Stanislaus County Superior Court. Count I alleged a violation of section 459 (burglary), and further alleged a prior serious felony conviction as defined in section 667, subdivision (d), and two prior prison terms as defined in section 667.5, subdivision (b). Count II alleged a violation of section 496, subdivision (a) (receiving stolen property), and further alleged the same two prior prison terms as were set forth in count I.

After first pleading not guilty to both counts and denying the various enhancement allegations, appellant withdrew his not guilty plea as to count I and entered a plea of no contest to second degree burglary, also admitting a 1990 first degree burglary conviction and a prior prison term. The prosecution subsequently moved to dismiss count II and the attendant enhancement allegations, to which the court consented.

At the sentencing hearing, the court noted that appellant was ineligible for probation under section 667, subdivision (c)(2). On balance, the court found circumstances in aggravation outweighed those in mitigation. Based on discussions at the change of plea hearing and on the recommendations of counsel, the court imposed the middle term of imprisonment, or two years; the court then doubled that term to four years pursuant to section 667, subdivision (e)(1). The court also added a one-year enhancement for the prior prison term under section 667.5, subdivision (b). Appellant's total sentence was thus five years. In addition, the court considered appellant's employment history and ordered a restitution fine in the amount of $500.

During sentencing, appellant requested evaluation for admission to the California Rehabilitation Center (CRC). The court denied the request, both because of appellant's "excessive criminality" and prior prison term, and because CRC referral is barred under section 667, subdivision (c)(4).

The notice of appeal was timely filed.

FACTS ^**

DISCUSSION

I.--IV. ^***

V. The "Three Strikes" Law's Limitation on Custody Credits Does Not Violate the Equal Protection or Due Process Clauses of the State and Federal Constitutions.

Appellant contends that section 667, subdivision (c)(5), which severely limits sentence credits available to defendants sentenced under the "three strikes" legislation, as applied to appellant is arbitrary and violative of the equal protection and due process clauses of the state and federal Constitutions. His theory is twofold: the denial of credits puts him on a different footing from (a) a defendant with an identical record but whose offense preceded enactment of the "three strikes" legislation; and from (b) a defendant whose offense was far more serious, but who lacked a prior "strike."

"... Equal protection is denied because appellant is not accorded the same prison In the second part of his argument appellant is apparently comparing his own situation to that of a defendant "sentenced for a current aggravated violent felony" who lacks a prior "strike." His argument founders on basic principles underlying the equal protection doctrine.

credits based on his own behavior which is granted to other defendants who were sentenced to state prison for offenses committed before enactment of the strikes law and to defendants who commit heinous current offenses. Thus, a defendant sentenced for a current aggravated violent felony may receive heretofore allowable credits for good behavior but appellant, incarcerated for second degree burglary, may not receive credit exceeding one-fifth of his term...."

"The equality guaranteed by the equal protection clauses of the federal and state Constitutions is equality under the same conditions, and among persons similarly situated. The Legislature may make reasonable classifications of persons and other activities, provided the classifications are based upon some legitimate object to be accomplished." (Adams v. Commission on Judicial Performance (1994) 8 Cal.4th 630, 659, 34 Cal.Rptr.2d 641, 882 P.2d 358.)

Appellant is not "similarly situated" to his hypothetical defendant, who has no prior "strike" convictions. The Legislature stated its intent in modifying section 667 was "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).) It is clear the Legislature intended to set appellant and other recidivists with prior "strike" convictions apart from first-time offenders and those with less serious criminal histories; it is equally clear it did so with a legitimate objective in mind.

Nor is appellant "similarly situated" to those defendants whose "current" crimes predate passage of the "three strikes" legislation. The Legislature's power to change sentencing schemes for crimes committed after a certain date is manifest.

"... It is perfectly proper for the Legislature to create a new sentencing procedure which operates prospectively only. Despite the disparity created by rendering different sentences after an admittedly arbitrarily chosen date, prospective application of such a statute does not violate equal protection principles, because of the legitimate public purpose of assuring 'that penal laws will maintain their desired deterrent effect by carrying out the original prescribed punishment as written.' [Citation.]" (People v. Gilchrist (1982) 133 Cal.App.3d 38, 45, 183 Cal.Rptr. 709.)

"... Fixing the day the offense was committed as the watershed results in an entirely reasonable classification and does not deny equal protection to those whose offenses predate [the legislative change]." (People v. Superior Court (Gonzales) (1978) 78 Cal.App.3d 134, 143, 144 Cal.Rptr. 89.)

VI. Legislative Enactment of the "Three Strikes" Law as an Urgency Measure Did Not Violate the Constitutional Procedures for Urgency Legislation.

Article IV, section 8, subdivision (d) of the California Constitution provides in pertinent part:

"Urgency statutes are those necessary for immediate preservation of the public peace, health, or safety. A statement of facts constituting the necessity shall be set forth in one section of the bill. In each house the section and the bill shall be passed separately, each by rollcall vote entered in the journal, two thirds of the membership concurring. An urgency statute may not ... change the ... duties of any office, or grant any franchise or special privilege, or create any vested right or interest." (Italics added.)

In a supplemental letter brief appellant argues that the "three strikes" law changed the duties of judges and prosecutors. Therefore it could not be enacted as urgency legislation,...