*1 Dist., A024927. First Div. One. June [No. 1984.] al., Petitioners, JOYCE M. McMILLON et THE SUPERIOR OF COURT THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; PEOPLE,
THE Real Party Interest. [Opinion certified partial publication.*] 2, post,
*See footnote page 656.
Counsel Brown, Keane, Lisa Defender, Jeff Public Peter Chief C. Attorney, G. Defender, & Shaiken and Shaiken Galler Dewberry, Public Deputy Stephen for Petitioners.
No for appearance Respondent. General, Jensen Frances Marie John K. Van de Ann K. Attorney Kamp, General, Real Interest. Dogan, Deputy Attorneys Party Opinion Bell, seek and James E.
NEWSOM, J.Petitioners, M. Joyce 1538.5, (i) Code, (Pen. mandate subd. writs of and/or §§ prohibition to their motions 999a1) grant to the San Francisco compel information of the amended evidence and to set aside suppress portions noted, are to the Penal Code. expressly statutory otherwise all references 1Unless seen, on file against them. As will be we writ with grant respect certain of the section 12022.1 and deny petition in all other respects.2
I. The section 12022.1 enhancements. *3 By 24, 1983, an amended information filed on August petitioners are with a not charged codefendant a to this with seven (together party petition) (§ 211). counts of the robberies The victims the dates of robbery alleged 1983; Mak, 20, 1983; 19, are: Bill Tayseir Origat, Tommy June June 1983; 21, 1983; 20, Causemaker, June Richard De June Michael Wong, 22, 1983; 1983; Canales, 22, June June and Edward A. Wagner, Maria 24, Collins, June 1983. As to the amended information al- robbery, each Bell within the leges enhancements mean- against petitioners 12022.1, i.e., of on bail or on ing custody section that each was out of his/ her own while trial in offense felony an earlier at the recognizance pending time of the of commission the robbery.3 McMillon,
As to petitioner a was entered at the stipulation preliminary that, offenses, examination at the time of the commission of the she was the 110852, defendant in San Francisco Court No. had been released Superior on her own in that on recognizance, guilty case pleaded robbery May 9, Bell, 1983. As to a at the petitioner was entered stipulation preliminary examination he that was the defendant San Francisco Court No. Superior offenses, at the time of the had been bail in charged granted that 22, 1983, 1983, case on and remained on bail June February through on which date he entered a on guilty of and was released bail. plea again Notably, the makes no reference to the time of the stipulation plea. II they 2Parts and III of this opinion publication are not for do not certified meet the 976(b), publication standards for contained in rule California Rules Court. 3In entirety, “Any its provides: person felony section 12022.1 convicted of a offense which person was while on custody committed that was released from bail or on his her shall, recognizance own pending felony upon on trial an earlier offense conviction of the offense, felony subject later be penalty to a enhancement as follows: “(a) offense, person felony If the is convicted of a for the earlier is sentenced to state offense, prison offense, for the felony any earlier and is convicted of a for later the state addition, prison sentence for the later offense shall be consecutive to the earlier sentence. In the by sentence for the later offense years. shall be enhanced an term of two additional “(b) offense, If person felony granted is convicted of a for the probation earlier is for offense, offense, the earlier felony any prison and is convicted of for a the later state sentence for years. the later be offense shall enhanced additional term of two an “(c) If the earlier offense be appeal, conviction is reversed shall reconviction, suspended pending Upon retrial of felony. that retrial and the enhancement reimposed. person shall be longer custody upon If is no later offense recon- offense, discretion, viction of the may, reimpose earlier the court at its enhancement and order him or her custody." recommitted to course, are, 12022.1 to section
Enhancement pursuant allegations (Mendella) Court Superior motion. v. (People to a section 995 subject 1081]; 661 P.2d (1983) Cal.Rptr. 33 Cal.3d 756-757 [191 61].) (Price) trial” . . pending words “while . At here of the meaning issue is that, trial” means just that in section 12022.1. Petitioners contend “pending commencement so that the words not be read to mean may “pending Thus, they argue, of judgment.” sentence” or pronouncement “pending which allegedly as to robberies must be stricken of their guilty pleas.4 were committed after the entry “can only trial” that the “pending General Attorney argues phrase sen to and including up be to include the logically proceedings interpreted *4 of statu principle It is a “well-established We tencing.” disagree. about the or doubt uncertainty, that if no tory interpretation ambiguity, to be its according of a is to applied statute the meaning appears, provision (In re Atiles construction. judicial terms without further [Citation.]” 910].) It is 805, 452, equally 662 P.2d 811 Cal.Rptr. Cal.3d [191 in favor in must be construed well settled that statutes “ambiguities penal ” (1980) 28 offender, (In re Jeanice D. Cal.3d of the not the prosecution. 455, The literal 210, 1087].) language 617 P.2d Cal.Rptr. [168 (In results. of if it would lead to absurd a statute bemay disregarded only D., 226; 210, High Joint Union Valley re Jeanice 28 Cal.3d Amador supra, 208, 245 (1978) 22 Cal.3d Dist. v. State Equalization Sch. Bd. of 1281].) 583 P.2d It may not be more specific. The of section 12022.1 could language when, here, crimes guilty be to committed not used enhance sentence where, offenses, necessarily, had been entered in pleas already prior no trial was therefore pending. (Price), supra,
We that recognize There, Five of this Division different result. reaches a when the 12022.1 allegation court addressed the section propriety Hold- offense. on the first hearing defendant had not to yet gone preliminary the meaning trial” status within that the defendant was in “pending ing 12022.1, of section section, “The clear meaning the code the court said: who any of the is that person with obvious intent Legislature, consistent As to McMillon, would be stricken. 12022.1 enhancements petitioner to all section 4As Bell, Wagner, Maria Canales the Michael those associated with petitioner took offenses Wagner and Canales are affected. While Edward A. Collins robberies at the (June 22, 1983) presented was plea, no evidence on the as Bell’s place same pre- committed or offenses were concerning whether or not the preliminary examination post-plea. has been lawfully subjected to under filed either custody before a charges inor magistrate superior court is trial.’ The ‘pending purpose deter, 12022.1 is to by those released bail or their punishing, persons own from recognizance new committing awaiting felonies while trial court judgment on the felony To charge. individuals released exempt mag- istrate before preliminary examination would frustrate legislative plan and create distinctions individuals accused of felonies based among on the (Id., of their timing at arraignment superior court.” p. italics added.) comment, however, with an suggests problems attempt go the literal
beyond terms of the Price section: reads section to apply absurd, persons “awaiting trial court it judgment,” finding apparently, to make distinctions between who not those have and have or been pleaded however, found so, at trial. In guilty the Price court creates another doing arbitrary distinction—between those felons who been sentenced have be might, out of perhaps, commence- custody pending appeal pending sentence, ment of and those awaiting respect, sentence. With all the Price is, court’s to define the attempt “obvious” the best perhaps, example why the literal Moreover, of a statute should not be language disregarded. a further extension of logical the conclusion of the Court Price is that *5 could, arrest any felony be said the en- parity reasoning, trigger could, not, but did hancement-something arguably do. Legislature II.* Let a writ peremptory issue the San restraining Francisco prohibition al., (1) Court Bell et Superior v. James No. follows: People dismissal, from further taking any other than proceedings, concerning pen- alty James Bell allegations against defendant charged pursuant to Penal Code 12022.1 in the alleged counts of amended infor- 22, 1983; mation which charge offenses committed or after June dismissal, from further other than taking any proceedings, concerning pen- alty enhancement charged Joyce defendant against In pursuant Penal Code section 12022.1. all other respects, petition on file herein is denied and writ is discharged. the alternative stay heretofore effect until the of this finality shall remain in imposed opinion until further order this court. J.,
Racanelli, P. concurred. ante, page
*See footnote 656. and Dissenting. HOLMDAHL, J., Concurring respectfully dissent from I the majority (the I opinion, part enhancements). § I would to reach prefer a result consistent with v. Court Superior (Price) (1984) Cal.App.3d and “consistent with 61] the obvious intent of (Id., 489.) the Legislature.” at p.
The majority states the of section 12022.1 could “language not be more specific” its use of trial,” when, here, the words “pending “as especially guilty pleas had already offense, where, been entered in the nec- prior no essarily, trial however, was therefore That will pending.” specificity, become quite in future ambiguous cases when trial” felonies are “pending shaded between those which will have been committed between the first second of a days trial, 10-day trial, or on the fifth of a or on day 10-day the last of a trial. On which 10-day of these was the trial still “pend- Is trial ing”? still once it has “pending,” commenced?
Far more with compatible and in apparent legislative resolu- purpose tion inherent in ambiguity trial,” use of the words would “pending be to view those whole, words as to the trial relating as a to and process including imposition of sentence. the Price
Applying rule that Penal Code section 12022.1 applies through “trial court judgment” (People (Price), supra, 489), I would uphold enhancement allegations against both petitioners.
In all other I respects, concur in the majority opinion.