People v. Sweet

Decision Date11 January 1989
Docket NumberNo. B037255,B037255
Citation207 Cal.App.3d 78,254 Cal.Rptr. 567
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Jaime Allen SWEET and James Lee Crook, Defendants and Appellants. Crim.

James L. Crowder, Santa Barbara, for defendant and appellant Jaime Allen Sweet in Case No. 279930.

S.R. Balash, Jr., Santa Barbara, for defendant and appellant James Lee Crook in Case No. 278440.

Thomas W. Sneddon, Jr., Dist. Atty. and Gerald McC. Franklin, Senior Deputy Dist. Atty., for plaintiff and respondent.

STONE, Presiding Justice.

May a statute which increases punishment on a new drunk driving conviction where the defendant has incurred prior convictions for that offense within seven years be applied to prior convictions entered when five years was the maximum period in which prior convictions could be used for that purpose? We find that it may. Defendants Sweet and Crook appealed to the superior court appellate department from the municipal court's denial of their challenges to use of prior drunk driving convictions to increase their punishment on the present convictions of Vehicle Code section 23152. 1 The appellate department consolidated both cases for purposes of its opinion, affirmed the municipal court's ruling, and we granted appellants' request to certify the question to this court for resolution. (Cal.Rules of Court, rule 63.)

At the time appellants entered pleas which led to their prior convictions for driving under the influence (former § 23102, subd. (a)), the law provided for enhanced punishment of a person previously convicted of drunk driving within five years of the current offense (former section 23102, subd. (d)). In 1981, the Legislature redefined the offense of driving while intoxicated and increased the criminal penalties. ( §§ 23152, 23153, 23165, 23170, 23175.) Sections 23165, 23170 and 23175 provided enhanced punishment according to the number of prior convictions within five years of the current offense. In 1986, the Legislature extended the period to seven years in which prior convictions could be alleged to enhance punishment on a present conviction of sections 23103, 23152, or 23153. (Stats.1986, ch. 1117, § 2 ( § 23165), § 3.5 ( § 23170), § 6 ( § 23175).)

Appellants claim that use of their prior convictions incurred over five years before the current offense, though less than seven years, is barred. Specifically, they argue that: (1) they had a "vested right" in a defense of a five year statute of limitations on the prior convictions and that the priors "expired" at the end of the fifth year; (2) they were promised that five years was the outer limit on use of the prior conviction at the time they entered their pleas, were justified in relying on the clear language of the waiver forms and the law in effect at the time of their pleas, and should have the benefit of their plea bargain; (3) application of the longer statute is unconstitutional since it deprives them of a vested defense in violation of ex post facto principles; (4) the amendments must apply only to offenses committed after January 1, 1982 or within five years of January 1, 1987, the effective date of the amendment; and (5) it is "simply unfair" and in violation of due process to impose additional punishment based upon unforeseen changes in the law.

1. Amendment not ex post facto

An ex post facto law is one which punishes as a crime an act previously committed and innocent when committed, aggravates the crime or makes it greater than when committed, makes more burdensome the punishment for a crime after its commission, alters the legal rules of evidence, receiving less or different testimony than the law required at the time of the offense was committed, or deprives one charged with crime of any defense legally available when the act was committed. (Miller v. Florida (1987) 482 U.S. 423, ----, 107 S.Ct. 2446, 2450, 96 L.Ed.2d 351, 359; Calder v. Bull (1798) 3 Dall. 386, 1 L.Ed. 648.) The central concern to the ex post facto prohibition is " 'the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.' " (Miller v. Florida, supra, 482 U.S. at p. ----, 107 S.Ct. at p. 2450, 96 L.Ed.2d at p. 360, quoting Weaver v. Graham (1981) 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17.)

To fall within the ex post facto prohibition, the law must apply to events occurring before its enactment, and must disadvantage the offender affected by it. (Miller v. Florida, supra, 482 U.S. at p. ----, 107 S.Ct. at p. 2451, 96 L.Ed.2d at p. 360.) However, no ex post facto violation occurs if the change is merely procedural. (Ibid.) An example of changes deemed merely procedural would be a statute which, after indictment, enlarges the class of persons who may be witnesses at the trial, or rules of evidence after the indictment which render admissible against the accused evidence previously held inadmissible. (Beazell v. Ohio (1925) 269 U.S. 167, 170-171, 46 S.Ct. 68, 68-69, 70 L.Ed. 216.) Even if the law operates to the defendant's detriment, it is not ex post facto if it does " 'not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt.' " (Miller v. Florida, supra, 482 U.S. at p. ----, 107 S.Ct. at pp. 2452-53, 96 L.Ed.2d at p. 362.)

Statutes enacting punishment for a defendant convicted of violating section 23152 with prior convictions do not have the effect of being ex post facto laws. (See People v. Lujan (1983) 141 Cal.App.3d Supp. 15, 31, 192 Cal.Rptr. 109 disapproved on other grounds in Burg v. Municipal Court (1983) 35 Cal.3d 257, 265, 198 Cal.Rptr. 145, 673 P.2d 732.) It is the law in effect at the time of commission of the offense which controls. (People v. Williams (1988) 200 Cal.App.3d Supp. 1, 4, 246 Cal.Rptr. 464; Miller v. Florida, supra, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351.) Both section 23152 and the enhancement statutes, sections 23165 (one prior conviction), 23170 (two prior convictions), and 23175 (three or more prior convictions), were in force before appellants' present convictions and apprised them of the possible consequences of a new violation. (See People v. Weaver (1984) 161 Cal.App.3d 119, 125, 207 Cal.Rptr. 419.) Without their acts after passage of the new legislation, the enhanced punishment of these statutes would not come into play. (People v. Lujan, supra, 141 Cal.App.3d Supp. at p. 31, 192 Cal.Rptr. 109; People v. Venegas (1970) 10 Cal.App.3d 814, 823, 89 Cal.Rptr. 103.)

Consequently, crimes for which appellants are punished are not the earlier convictions, but the subsequent offense of which the prior conviction constitutes only one element. (People v. Lujan, supra, 141 Cal.App.3d Supp. at p. 31, 192 Cal.Rptr. 109.) The sentence imposed upon an habitual offender is not an additional punishment for the earlier crime, but "a stiffened penalty for the latest crime," which is considered aggravated because of its repetitive nature. (Gryger v. Burke (1948) 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683; see also In re Foss (1974) 10 Cal.3d 910, 922, 112 Cal.Rptr. 649, 519 P.2d 1073 disapproved on other grounds in People v. White (1976) 16 Cal.3d 791, 796-797, fn. 3, 129 Cal.Rptr. 769, 549 P.2d 537.) Additionally, a statute does not function retroactively "merely because it draws upon facts antecedent to its enactment for its operation. [Citation.]" (People v. Venegas, supra, 10 Cal.App.3d 814, 823, 89 Cal.Rptr. 103; accord: People v. Weaver, supra, 161 Cal.App.3d 119, 125, 207 Cal.Rptr. 419.)

There is no constitutional bar preventing application of the statute to later offenses solely because the prior conviction which serves as a basis for enhancement was committed before the habitual offender statute was enacted. (See People v. Jackson (1985) 37 Cal.3d 826, 833, 210 Cal.Rptr. 623, 694 P.2d 736 disapproved on other grounds in People v. Guerrero (1988) 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150.)

2. Former five year period not a statute of limitations

Appellants argue that the cases construing the application of Penal Code section 667 enhancements as not ex post facto--e.g., People v. Jackson, supra,--are inapposite because there was no previous "promise" of limited use or no statute of limitations prior to enactment of section 667. We find the former five year period adds a distinction without difference in the analysis of Jackson and other cases interpreting habitual offender statutes.

The extension of a period of limitations is a change in procedure only, to which the ex post facto doctrine does not apply. (People v. Eitzen (1974) 43 Cal.App.3d 253, 266-267, 117 Cal.Rptr. 772; People v. Sample (1984) 161 Cal.App.3d 1053, 1057, 208 Cal.Rptr. 318.) Only where the limitations period has already expired, barring prosecution, will an amendment effectively extending the statutory period not apply to an offense committed before the legislative change. (People v. Sample, supra, at p. 1057, 208 Cal.Rptr. 318; Sobiek v. Superior Court (1972) 28 Cal.App.3d 846, 106 Cal.Rptr. 516.) This rule is sustainable on grounds other than ex post facto. A statute of limitations in a criminal case is a substantive, rather than procedural, right, and a conviction based on acts occurring outside the statutory period is invalid and may be attacked at any time. (People v. Superior Court (Jennings) (1986) 183 Cal.App.3d 636, 645, 228 Cal.Rptr. 357 disapproved on other grounds in People v. Morris (1988) 46 Cal.3d 1, 18, 249 Cal.Rptr. 119, 756 P.2d 843.) The court has no authority to proceed in a criminal case once the statutory period has run. (Ibid.)

Amendments to statutes which extend periods of probation or parole after the defendant has committed the offense but while still subject to the restraints of probation or parole have been held to be ex post facto. (...

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