THE PEOPLE, Plаintiff and Respondent, v. ROBERT GREEN, Defendant and Appellant.
Crim. No. 5387
Fifth Dist.
July 30, 1982
134 Cal.App.3d 587
Jin Ishikawa, under appointment by the Court of Appeal, for Defendant and Appellant.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Susan R. Bunting, Robert G. Mendez and James T. McNally, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BROWN (G. A.), P. J.—Appellant was convicted after jury trial of burglary (
MIRANDA
Appellant contends that his statements made at the crime scene and at the police station were improperly admitted at trial because the prosecution failed to show the requisite warnings and waivers under Miranda v. Arizona (1966) 384 U. S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]. Appellant‘s failure to object below on Miranda grounds precludes his present contentions. (People v. Bennett (1976) 60 Cal.App.3d 112, 116 [131 Cal.Rptr. 305].)
Appellant charges that his trial counsel was ineffective for failing (1) to raise the above Miranda contentions by voir dire of the officer and objection and (2) to bring about appellant‘s admission, outside the jury‘s presence, of the alleged prior prison terms.
The governing rules appear in People v. Pope (1979) 23 Cal.3d 412 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R. 4th 1].
With regard to the alleged admissions made at the scene, appellant has failed to identify the testimony of which he complains by citation to the record. Suffice it to state that the first statement occurred before appellant was arrested after the officer, in response to appellant‘s question, explained that he was a vehicle burglary suspect. His trial counsel may have reasoned that appellant was not in custody within the meaning of Miranda and that his statement was not a product of interrogation or its functional equivalent.
With regard to the other admissions made at the scene after appellant‘s arrest, the rеcord suggests that these were the products of interrogation. It does not, however, indicate whether or not appellant had received Miranda warnings before being questioned. Further, appellant made the same statements later at the police station, after being advised per the standard department-issued card. For all the present record shows, no Miranda violation occurred at the scene. Or maybe counsel reasoned that he might as well let the statements in, since the lаter, station house statements were not excludable.
But, appellant argues, the officer failed to lay an adequate foundation for the admissibility of the station house statements because the record does not reveal the content of the card which was read. The officer neglected to bring the standard card to court, but counsel probably figured that objection would be a waste of time because the officer, if pressed, could probably get ahold of the card within a matter of minutes.
In sum, appellant has failed to establish ineffectiveness related to Miranda.
Despite the advice of counsel and repeated, clear warnings from the trial court as to the likely adverse consequences, appellant refused
Obviously, introduction of evidence as to the priors didn‘t help the defense as to the current burglary, but the record shows that trial counsel did urge appellant to admit them. The matter was discussed at length, in all its ramifications, with appellant at first unwilling, then willing, then finally unwilling to admit them. Appellant fails to show that anything else counsel might have done would have changed his client‘s mind. Since what happened was attributable to appellant‘s own intransigence in the face of sound advice, he stands in poor position to castigate counsel. Moreover, the prosecution case was otherwise overwhelming.
No ineffectiveness appears.
EVIDENTIARY SUFFICIENCY—PRIOR PRISON TERM
Finally, appellant contends that the record lacks substantial evidence to establish that he served the alleged prior prison term for burglary within the meaning of
The prosecution evidence consisted of (1) a certified copy of a Kern County Superior Court abstract of judgment showing that on June 28, 1978, in action No. 19418, appellant was sentenced to three years in state prison for burglary; (2) a Kern County jail release slip showing appellant‘s release on July 3, 1978, to a transportation officer en route to Chino Men‘s Prison; (3) a receipt for records in action No. 19418 and an envelope in which the receipt was mailed.
The receipt is addressed to:
“Bobby Joe Green
% Calif. Institution for Men
P.O. Box 441
Chino, CA 91710”
It is executed by a deputy county clerk and reflects the transmission of “Your сopy one Volume Clerk‘s Transcript on Appeal.” The document purports to reflect the receipt of said records on September 30, 1978, by Bobby Green. The accompanying envelope is addressed to the county clerk and bears the sender‘s name and return address:
“Bobby Green #B-94805
P.O. Box W
California State Prison: Folsom
Represso, Calif. 95671”
Appellant does not specifically attack the admissibility of any of this evidence but argues that it fails to show that he served a “continuous completed period of prison incarceration.” Resрondent counters that the evidence suffices to show that appellant suffered a prior felony conviction and was sentenced to prison.
The evidence does establish that appellant was convicted, sentenced to prison, and in fact imprisoned in action No. 19418. What it does not show is that, when he committed the instant offense, this period of prison incarceration was completed.
In People v. Espinoza (1979) 99 Cal.App.3d 59 [159 Cal.Rptr. 894], the court held that a defendant recommitted to prison for an additional term upon revocation of parole nevertheless had completed service of his prior prison sentence and thus was subject to a
The court added: “One of the primary purposes for the enactment of the determinate sentencing law and the entire legislative purpose in providing for enhanced sentences on account of prior convictions was to increase the penalties incurred by repeat offenders and thus, hopefully, deter recidivism. It is inconceivable that the Legislature intended to provide harsher treatment for a felon who has faithfully and successfully served his or her parole than for a felon who has committed yet another felony while on parole.” (Id., at p. 74.)
In People v. Ruiz (1982) 130 Cal.App.3d 758 [181 Cal.Rptr. 875], this court relied on Espinoza‘s definition of “completed” and upheld an enhancemеnt even though defendant‘s imprisonment was not interrupted by release on parole: “There appears to be nothing in the statute or in logic that requires a period of imprisonment to be interrupted before separate enhancements may be imposed for terms that are completed while in prison. Thus, in the case at bench the five-year 1959 term for the possession of brass knuckles was served separately and completed in 1964 before the 1965 conviction for voluntary mаnslaughter for which he was sentenced to a term of six months to ten years. His term for the manslaughter conviction had been served when he was released on parole in 1975.
“Existing authority is not dispositive of the issue. However, in People v. Espinoza (1979) 99 Cal.App.3d 59 ..., the court stated ‘[a] term of imprisonment which has expired, has been “completed.“’ [Citations.] In the case at bench, the 1959 commitment had expired prior to the com-
People v. George (1980) 109 Cal.App.3d 814 [167 Cal.Rptr. 603], which is directly on point, held: “The cited subsections of the statute make it apparent on their face that in order that the enhancement provisions of
George is completely congruent with Espinoza and Ruiz, since the defendant‘s term of imprisonment had not expired when he escaped and thus wаs not “completed.” We find George persuasive authority. The dissent calls it fallacious and, to this end, relies on selected passages from Espinoza. These out-of-context references make no mention of the above quoted holding (People v. Espinoza, supra, 99 Cal.App.3d at pp. 72-73) and thus distort the meaning of that case.
Before Espinoza came People v. Cole (1979) 94 Cal.App.3d 854 [155 Cal.Rptr. 892], which appeared to preclude enhancement for a defendant recommitted to prison for an additional term upon revocation of parole. Espinoza criticized Cole.2 Subsequent cases have followed Espinoza. The instant case does not turn on interpretation of the “parole revocation” clause discussed in Espinoza and Cole and has nothing to do with enhancement of a parolee recommitted after his parole was revoked. (People v. George, supra, 109 Cal.App.3d at p. 823.)
Therе are three basic answers to this analogy. First, the “harsher treatment” premise is false. Escape from prison is a felony and, on conviction, a defendant is subject to a mandatory consecutive sentence. (
Second, even if the premise were correct, this court may not run roughshod over the plain meaning of
Third, even were the meaning of subdivision (g) not plain on its face, the dissent ignores the true legislative intent. The legislative intent behind
Former section 644 called for habitual offender classification where the defendant had two or more prior convictions of certain felonies. Section 644 required that the defendant have served separate terms for the priors in the state prison or federal penal institution. Sections 644, 666 and 667 had in common that the prosecution was not required to prove the defendant was imprisoned for the full term of his felony sentence; service of a portion of his term sufficed. (People v. James (1957) 155 Cal.App.2d 604, 612 [318 P.2d 175], section 667; People v. Murray (1940) 42 Cal.App.2d 209, 217 [108 P.2d 748]; section 644.) In fact, People v. Carkeek (1939) 35 Cal.App.2d 499, 502 [96 P.2d 132] held former section 644 applied to an escapee.
Effective July 1, 1977, the Legislature repealed sections 644, 667, and 3024, revised section 666, and adopted section 667.5. New section 666 became an amalgam of former sections 666 and 667. It calls for an increased sentence where a person was convicted of petty theft with a prior conviction of petty theft or of certain theft-related felonies. It requires that the defendant have served a term for the prior in any penal institution or have been imprisoned as a probation condition. As noted, under existing law, this did not require that the defendant have served his full term. In contrast,
For purposes of the instant case, the legislative intent is clear. The inclusion of subdivision (g)‘s special definition, which for the first time required that the defendant have served a completed term on the prior, could only mean the Legislature did not intend the new enhancements to apply where a defendant served only a portion of his term. The Legislature‘s simultaneous revision of
The judgment is reversed insofar as it finds that appellant suffered a prior prison term in action No. 19418 within the meaning of
Hanson (P. D.), J., concurred.
ANDREEN, J. Concurring and Dissenting.—I concur with the opinion except for that portion under the heading “Evidentiary Sufficiency—Prior Prison Term.”
There was substantial evidence before the jury to establish that the defendant was imprisoned pursuant to a judgment in action No. 19418. Although no showing of completion of the term was made,1 such is unnecessary in the sense argued for by the majority. The statutory purpose of subdivision (g) of section 667.52 is to prevent two enhancements for a single sentence to state prison where parole was violated without a new commitment. (People v. Espinoza (1979) 99 Cal.App.3d 59, 70-71 [159 Cal.Rptr. 894].)
The evident purpose of
The Legislature‘s evident purpose of preventing enhancements for parole violations was inartfully expressed when it utilized the term
As our Supreme Court stated in Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245 [149 Cal.Rptr. 239, 583 P.2d 1281]: “The literal language of enactments may be disregarded to avoid absurd results and to fulfill the apparent intent of the framers. (See Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259 ...; In re Kernan (1966) 242 Cal.App.2d 488, 491 ....)”
“The primary rule of statutory construction, to which all other such rules are subject, is that the courts must ascertain the intent of the legislature, whenever possible, in order to effectuate the purpose of the law. That intent must be gathered from the whole of a statute rather than from isolated parts or words.” (58 Cal.Jur.3d, Statutes, § 100, p. 468, fns. omitted.)
I recognize that judicial preference for reasonable statutory construction in keeping with legislative purpose does not permit a rewriting of a statute. Such is unnecessary in order to bring reason to subdivision (g). The section is an attempt to define the words “prior separate prison term” as they are used in subdivisions (a) and (b). Subdivision (g) is a limitation on the court‘s power to impose an enhancement, so as to preclude two enhancements in the case of a reimprisonment either for a parole violation or following an escape. In the context considered here, it serves no other purpose.
People v. George (1980) 109 Cal.App.3d 814, 823 [167 Cal.Rptr. 603], upon which the majority relies, results in absurd consequences. If, in the instant case, the defendant faithfully obeyed the law and served his term and was released on parole, he should bе in no worse position than if he escaped. But in the first case he would serve an additional year for enhancement; in the latter, he would escape the enhancement by escape from confinement. Such fallacious reasoning should be avoided. (People v. Butler, supra, 104 Cal.App.3d at pp. 883-884.)
Can it be that a defendant who obeyed the law, served his term and is paroled is in a worse position than if he escaped? This is precisely the result of the George holding and which the majority countenances by its reliance on the flawed logic of that opinion. On conviction for a new of-
The irony of the majority‘s interpretation of subdivision (g) is that it is an attempt to follow legislative dictates but thwarts the purpose of the sentencing law—to increase the penalties incurred by repeat offendеrs and thus deter recidivism. (See People v. Butler, supra, 104 Cal.App.3d at p. 884; People v. Espinoza, supra, 99 Cal.App.3d at pp. 73-74.)
It should be noted that the only proof that the defendаnt had served a term in prison was that he was committed and that the judgment of conviction accompanied him to the institution. There was no proof that he served any time there. For all that appears, he could have escaped during intake processing.
The proof at bench is no weaker than in McKinley. There is no indication in the record that appellant escaped or did anything other than complete his term.
The judgment should be affirmed in all particulars.
Notes
“Thus, as suggested by both the People and amicus, it is apparent that the Legislature placed the language ‘including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison’ into subdivision (g) to prevent any possibility of an overzealous prosecutor or an unperceptive judge attempting to treat the service of a single sentence to state prison interrupted by a period on parole as two prior separate prison terms, giving rise to two one-year enhancements.” (Espinoza, supra, 99 Cal.App.3d at pp. 70-71.) All statutory references are to the Penal Code.