*1 Dec. S051561. 1996.] [No. PEOPLE,
THE Plaintiff and Appellant, HAZELTON, Respondent. ROYAL Defendant and WILLIAM *3 Counsel District T. and L. Pipes, Deputy District
Gary Yancey, Attorney, Douglas and Attorney, Plaintiff Appellant. Garcetti, Aaron (Los M. Palmer and
Gil District Attorney Angeles), George L. Kent S. and Charles Scheidegger District Singer, Deputy Attorneys, on Plaintiff Hobson Amici Curiae behalf of and Appellant. James, Defender, De- H. and Ron Public
Charles Public Boyer, Deputy fender, for and Defendant Respondent.
Opinion BROWN, The issuein this case is whether an out-of-state conviction J. 184. as “strike" under the “three strikes” provision Proposition qualifies Code,1 (Pen 1170.12.) Unlike its legislative predecessor, (b)-(i), subdivisions is ambiguous regarding section 1170.12 portion conclude, in whether it We includes out-of-state convictions. light intent, evidence of voters’ that the statute is construed properly unequivocal to include such convictions. Background
I. Facts and Procedural in two Defendant was with felonies William Hazelton Royal charged filed in and May August Contra Costa separate complaints County prior felony first he had a single The suffered alleged complaint (d) (e), the and of section subdivisions meaning conviction within complaint alleged of the “three law. The second version strikes” legislative statutory to the unless indicated. 1All references are Penal Code otherwise that defendant had suffered two under section (d) (e), subdivisions one of which was an attempted rape Nevada. Before these cases were the initiative adjudicated, version of the “three law, strikes” Code, which added section 1170.12 to the Penal was adopted and became operative. motion, to defendant’s response the trial court ruled that under section
1170.12, defendant’s out-of-state prior be used for two “may strike . . . not for three-strike purposes.” [but] People’s request reinstate the denied, allegation appealed. (a)(9).)
The Court of Appeal consolidated the appeals and reversed and remanded. *4 We granted defendant’s petition review.
II. Discussion In March enacted its version of the Legislature “Three Strikes and You’re Out” law section 667. In by amending general, legislation provides sentences for longer certain serious or violent prior felonies denoted “strikes.” A popularly “two strike” case involves one prior a “three qualifying felony; strike” case involves two or more prior qualifying felonies. Predicate felonies are prior (d), defined in section subdivision “(1) as: offense defined in Any (c) subdivision of Section 667.5 as a violent or felony any (c) offense defined in subdivision of Section as a 1192.7 state”; serious in “(2) this A felony conviction in another for an jurisdiction that, California, offense if in committed is in punishable by imprisonment the state . . . prison includes all of the [and] elements of the particular (c) as defined in felony subdivision of (c) Section 667.5 or subdivision of 1192.7”; “(3) Section prior juvenile adjudication^].” [Certain] strikes, i.e., A defendant with three “two or more as in (d),” subdivision must be sentenced to an indeterminate of term defined conviction, life for the current imprisonment with a minimum term felony calculated generally as the greater three times the term otherwise provided conviction; for each current or the term felony twenty-five years; required by conviction, section 1170 for the current enhancements. including (§ any (e)(2)(A), Thus, added.) italics because three strikes section 667 refers to all of (d), (d) subdivision and subdivision defines a prior felony as including out-of-state convictions in subdivision (d)(2), there is no that the question version of the three strikes legislative law includes out-of-state convictions for purposes whether some- determining one is eligible for the third strike penalty. codified as section adopted
In November voters Proposition 1170.12, (b), is identical to section virtually Section subdivision 1170.12. “(1) in (d), felony” conviction of as: defining “prior subdivision (c) in as a violent felony subdivision of Section 667.5 offense defined Any (c) of Section as a serious offense defined in subdivision 1192.7 state”; “(2) for an offense in A conviction in another jurisdiction California, state if committed in is punishable . . . includes all elements the particular prison [and] (c) of (c) of Section or subdivision Section defined subdivision However, 1192.7”; “(3) juvenile adjudication^].” prior [Certain] section for the third strike delineating eligible penalty, who (subdivision has (c)(2)(A) (c)(2)(A)), refers to a defendant who subdivision convictions, paragraph (1) “two or more defined Thus, (Italics added.) its . . . .” defendant unlike (b) subdivision argues (c)(2)(A) does not include out-of-state legislative counterpart, it convictions because does not refer subdivi- expressly (b)(2). sion
The case It before us involves crimes committed to November 1994. (b)-(i)) legislative thus arises under the statute subds. rather than (§ 1170.12). (Romero) Court under initiative statute (People Superior *5 789, However, 628].) (1996) 13 Cal.4th 505 917 P.2d Cal.Rptr.2d [53 than defendant asserts that because section 1170.12 is more lenient section (b)-(i), in that it does include subdivisions defendant’s out-of-state strike, conviction a third he is to the of this reduced as entitled benefit (1965) under the of In 63 Cal.2d 745 re Estrada punishment principles 172, 408 We to consider whether Cal.Rptr. proceed P.2d therefore [48 948]. (c)(2)(A) may subdivision be so construed. properly whether out-of-state (c)(2)(A) subdivision to determine construing included, convictions is to and effectuate are “our ascertain primary purpose re (In intent the voters the the of who initiative measure.” passed Littlefield 42].) If (1993) 5 851 “the terms Cal.4th 130 P.2d Cal.Rptr.2d [19 answer, to of a statute no then courts resort extrinsic definitive provide sources, ostensible to be achieved and including objects legislative (1995) v. Coronado 12 Cal.4th history.” (People Cal.Rptr.2d [48 1232].) P.2d whole, the language Read in the context of section 1170.12 as (c)(2)(A) is the inclusion of out-of-state subdivision ambiguous regarding First, convic “prior convictions at least two respects. phrase tions, be as (b),” as defined in could interpreted, subdivision paragraph
defendant to refer to suggests, in which the prior conviction was forum obtained, i.e., an adult criminal proceeding California. This interpretation would, course, convictions, mean that out-of-state which are described in (b)(2), subdivision would not (c)(2)(A)’s for subdivision qualify third strike penalty. the same could be
Alternatively, phrase interpreted highlighting conviction, i.e., nature of the a violent or serious that will felony, as a qualify prior felony conviction in a three strikes case. Because section 1170.12, (b)(2), subdivision includes those out-of-state convictions California, deemed violent or serious in (c)(2)(A) subdivision interpreting refer to the nature of the former conviction would mean that out-of-state convictions would for qualify the subdivision’s third strike penalty.
Second, 1170.12, (b), subdivision provides: “Notwithstanding any other section, of law and for provision this purposes of a shall 1170.12, be defined as” California including (§ convictions (b)(1)), subd. out-of-state (b)(2)), subd. and juvenile adjudications (§ (b)(3)). (b) Subdivision thus defines a prior conviction for the entire section and without to include broadly qualification out-of-state noted, however, convictions and As juvenile adjudications. sub- (c)(2)(A) division states that a defendant is for the third strike eligible if he or she penalty convictions, has sustained “two or more prior felony in paragraph (1) (b).” subdivision (Italics added.) Subdivision defined (c)(2)(A), therefore, a different and
arguably proffers inconsistent definition to the extent it limits the definition of a of the three purposes strikes adult California convictions. By concluding (c)(2)(A)’s reference (b)(1) to subdivision identifies the simply forum, nature of the conviction and not the incon- rendering potential *6 in definition is sistency avoided. Even if subdivision (c)(2)(A) could be construed as an merely to the more exception definition of subdivi- general (b), sion there is still a (b)’s tension between subdivision lan- unqualified and the guage of such an subsequent presence in subdivision exception (c)(2)(A). reasons,
For these the is whether statutory language ambiguous regarding out-of-state convictions are in (c)(2)(A). included subdivision We therefore turn to the initiative’s legislative to determine which of these con- history structions best effectuates the voters’ intent.
The initiative’s an history demonstrates intent on the of unequivocal part the voters to a scheme identical to the version of adopt sentencing legislative the initiative as The described legislative analyst the three strikes law.2 state law that are identical amendments to “This measure proposes follows: the Governor March signed Legislature by to a law enacted the by no initiative will have of this or Consequently, adoption rejection of the measure reaffirms provisions on law because direct existing impact 184 as (Ballot of analysis Prop. are in effect.” Pamp., the law that already 8, 33, voters, added.) 1994) The (Nov. Elec. italics Gen. p. presented the “reaffirms” and “iden that initiative version twice reiterated analysis 32, 34.) the of (Id., version. at proponents tical” to the legislative pp. the version. was to legislative initiative stated that its purpose “strengthen” 8, 36.) Even (Nov. 1994) (Id., in favor of Gen. Elec. Prop. p. argument initiative of that the the stated “Proposition opponents Does Not This to three strikes legislation measure is identical Change the Law. [cf[] (Id., into favor of already Prop. law.” rebuttal signed argument contrast, added.) In (Nov. 1994) there is no Gen. Elec. italics p. version, or in that the intended to the change legislative evidence voters a more lenient three strikes law. particular, adopt Moreover, in later codified the initiative’s third strike describing penalty, (c)(2)(A), the made no distinction between legislative analyst stated, Thus, the “Both California and out-of-state convictions. analyst a who is measures and initiative that legislative require person versions] [the or convicted of a who been convicted of one more has felony previously violent or serious felonies, be sentenced as follows: [<H . . . [1] If the person convictions, the has two or more serious or violent manda previous a or (not sentence for new serious violent tory just minimum (1) is life felony) greater with the term being three law new times term otherwise under for the required conviction, (2) or the term the court for the new years, by determined [^Q . conviction. . . Both measures also crimes com specified require minor, crime, mitted at as who was least 16 at the time count by age the same conviction. These crimes include previous generally specified crimes defined as serious and violent Prior to March crimes felonies. dealt committed minors and with court did count juvenile (Ballot supra, convictions.” previous felony Pamp., analysis Prop. p. stated, Likewise, initiative italics original.) proponents California, are counted “Felonies committed outside by juveniles, strikes,” no distinction between the two strikes drawing penalty *7 1170.12, of subdivision (c)(1), subdivision and the three strikes penalty 184, (c)(2)(A). (Id., 36.) p. in favor of argument Prop. supra, hereby grant request judicial petition 2We the initiative and ballot People’s for notice of (Romero), Superior supra, 13 Cal.4th at (People Court regarding Proposition v. statement 504, 1.) p. fn. Indeed, legislative and initiative versions are in all identical other For the stated of sentencing aspects. both example, purpose legislative and initiative versions is to longer “ensure sentences and prison greater those who commit and have been punishment felony previously (Ballot convicted of serious and/or violent felony offenses.” text of Pamp., 64; 667, addition, (b).) In supra, subd. “When a defendant is Prop. p. § convicted of a and it is that he has committed felony, pleaded proved ‘serious,’ one or more felonies defined ‘violent’ or prior sentencing under the Three proceeds Strikes law other law.’ ‘[notwithstanding any 1170.12, (§ (c); (a).) subd. subd. Prior felonies as ‘serious’ qualifying § or ‘violent’ are taken into regardless age. (§ account of their subd. 1170.12, (c)(3); (a)(3).) subd. current not be need ‘violent’ felony § (c); (a).) or ‘serious.’ subd. subd. . . (§667, §1170.12, . on Sentencing all (c)(6)-(8); current offenses is consecutive subds. (§ generally 1170.12, (a)(6)-(8)) subds. without term limitation any aggregate (§ § 1170.12, (c)(1); subd. (a)(1)). subd. not the court sentencing, grant § (c)(2); execution or probation, sentence subd. suspend (§ imposition 1170.12, defendant, (a)(2)), subd. divert the the defendant commit § 1170.12, than any (§667, (c)(4); other state subd. facility subd. prison (a)(4)).” (Romero), Court 13 Cal.4th at (People Superior supra, pp. 505-506.)
Thus, initiative, (1) like the version of the three strikes law: legislative in its statement of specifically targets with serious purpose persons and/or violent felony convictions without to Cali- limiting group target felons; (2) fornia defines a conviction to include foreign prior conviction other and for the “[notwithstanding law provision pur- 1170.12, (b)); of this poses (§ (3) section” subd. that a provides foreign prior conviction will felony certain trigger mandatory sentencing consequences 1170.12, (§ (a)(l)-(8)); (4) subd. mandates that other “[notwithstanding any law,” the of section 1170.12 shall be provisions applied every case in which a defendant has a foreign prior (§ conviction (5) (d)(1)); subd. that a provides foreign prior felony quali- fies (c)(1)). as a strike in a two strikes case Interpreting include 1170.12 to convictions when the sentence foreign calculating in a three case is strikes consistent with scheme. statutory we see no evidence in the that the voters history
Accordingly, legislative intended to exclude out-of-state convictions from the of the initia- purview tive’s third or ameliorate the of section penalty, strike effect punitive (b)-(i). subdivisions We therefore conclude of subdivision that the language (c)(2)(A), convictions, “two or more prior as defined paragraph (b),” is most to the nature construed properly referring conviction, i.e., serious, to the violent or rendering *8 as a strike for an conviction qualifies out-of-state Accordingly, forum. (c)(2)(A)’s third strike of subdivision penalty. purposes “the have been misled to believe that may Defendant asserts voters [the in-state out-of- makes the same distinction between and legislative version] An such as this invite felonies that 184 makes. error would state Proposition evidence, We find terms of the initiative.” no explicit no from departure however, made a distinction that the voters understood that section 1170.12 which there is no basis on between in-state and out-of-state felonies. Thus “identical," the ballot conclude that in the statutes as describing we may voters as to the of section subdivisions misled the provisions pamphlet event, we terms (b)-(i), not section 1170.12. In have concluded that the of the initiative are not but “explicit” ambiguous. addition, federal state due
In defendant that the and argue attempts of those who committed crimes of section rights passage after process case, but to our in this will be violated because decision that (c)(2)(A) failed to those notice out-of-state give persons convictions are included within does not raise this its Defendant purview. behalf, on his because claim own his alleged perhaps recognizing offenses were effective of section he committed to the date Nor, however, claim cannot his to notice was violated. right given that constitutional are no and is rights generally personal exception applica here, (Cf. ble assert re M.S. defendant this claim on behalf of others. 1365]; 10 Cal.4th P.2d People Cal.Rptr.2d [42 Moreover, 266].) (1995) 36 480-481 Sipe Cal.App.4th Cal.Rptr.2d [42 the mere fact that a new statute does not make it requires interpretation unconstitutionally vague.3
Conclusion Court affirmed. judgment Appeal J., Baxter, J., Chin, J., C. and concurred. George, reach, viz., MOSK, affirmance of I concur the result that the majority J. of the Court of judgment Appeal. discussion, But I in the I in their concur result. cannot majority’s join which, as will is not also but unsound. appear, only unnecessary 3By concluding ambiguous reasonably construed to include that section 1170.12 is convictions, provisions out-of-state we have concluded that relevant of section further (b)-(i) unnecessary it is to decide 1170.12 section subdivisions are consistent. Hence (b)-(i). repealed section whether subdivisions
110
I This cause involves both of the two statutes referred as the popularly “Three Strikes and You’re Out” laws.
Penal Code section 667 was amended the effective March Legislature, 7, 1994, scheme, (b) (i), establish a sentencing its subdivisions through for fixing the term of imprisonment for convicted of a any person who had been convicted of one or previously (Stats. more felonies. specified 1994, 12, 1-2.) ch. This is the first “Three Strikes” law. §§ voters, section 1170.12 was
Subsequently,
added to the Penal Code
9,
Const.,
10,
(Cal.
II,
effective November
(a)),
1994
art.
to establish
§
scheme for
the term of
sentencing
fixing
for
any person
convicted of a
who had
been convicted of one or more
previously
measure,
184,
(Initiative
1,
voters,
felonies.
specified
as
Prop.
approved by
(Nov.
1994).)
Gen. Election
This is the second Three Strikes law.
In People
(Romero) (1996)
Court
Superior
“Meanwhile, 7, 1993, on October to add 184 to the petition Proposition ballot for the November 1994 General Election to circulate for began signatures. initiative was based on Bill No. loosely Assembly likewise to add a new section 1170.12 to the Penal Code . . . proposed 3, 1994,
“On while January 184 was Proposition circulating, sponsors Bill No. Assembly 971 amended it to conform to the language initiative, with The bill further underwent its exceptions. [certain] amendment significant on when the was made to January proposal codify (b) its (i) subdivisions provisions through [Penal Code] rather than as a new section 1170.12. Both the Senate and the [Penal Code] bill Assembly on March 1994. The Governor it on approved signed March It7. took effect as an measure the same urgency day. 7, 1994,
“March was also the last on which 184 could day Proposition 6, 1994, circulate of State lawfully On signatures. April Secretary ballot, it at the General voters approved and the the initiative for certified 8,1994. codified as the next day, [Penal It took effect on November Election *10 13 (Romero), supra, Court v. (People Superior section 1170.12.” Code] 504-505.) at Cal.4th pp. 1170.12 constitute Romero, Code sections 667 and we that Penal stated v. Superior . . . .” (People schemes statutory
“two . . . identical nearly 504.) (Romero), 13 Cal.4th at supra, p. Court a
Thus, Code: “When of the Penal both sections 667 and 1170.12 under he has and it is pleaded proved is convicted of felony, defendant ...[,] sentencing pro- felonies committed one or more [specified] prior 667, Code,]; (c); subd. ([Pen. other law’ ceeds . . . ‘[notwithstanding any § taken into account felonies ... are (a).) subd. Prior §1170.12, [qualifying] 1170.12, 667, (a)(3).) (c)(3); subd. ([/<£,] of their subd. regardless age. § § 667, (c); ([Id.,] subd. not be The current need felony [qualifying], § felony (a).) If the defendant has one §1170.12, qualifying subd. conviction, term if the (or the minimum term of prescribed imprisonment sentence) the term is ‘twice current offense calls for an indeterminate ([Id.,] conviction.’ felony for the current otherwise provided punishment 667, 1170.12, or the defendant has two (e)(1); (c)(1).) subd. If subd. § § felonies, the sentence is ‘an indeterminate more prescribed prior qualifying 1170.12, 667, (e)(2)(A); ([Id.,] . . . .’ subd. term of life imprisonment § § who sentenced to life become (c)(2)(A).) eligible subd. Those defendants are a ‘minimum term.’ on calculated reference to by a date parole (a) the term otherwise pro- ‘minimum term’ is the of: three times greater conviction; (c) or the term (b) for the current twenty-five years; vided conviction, including section 1170 for the current by required [Penal Code] 1976), the term (the Act Sentencing enhancements Determinate any homicide), or the term section 190 (concerning required [Penal Code] sentences). ([Id.,] life (concerning section 3046 required by [Penal Code] 1170.12, (c)(2)(A)(i)-(iii).) (e)(2)(A)(i)-(iii); Sentencing subd. subd. § § ([id.,] (c)(6)- subds. on all current offenses is consecutive generally § 1170.12, limitation (8); (a)(6)-(8)) term aggregate subds. without any § (a)(1)). In the court ([id.,] (c)(1); sentencing, subd. subd. § § ([id.,]\ of sentence not execution or imposition grant probation, suspend defendant, or commit (c)(2); (a)(2)), subd. divert the subd. § § (c)(4); ([í<¿.,] subd. other than state the defendant to any facility prison § (Romero), supra, v. Court (a)(4)).” subd. §1170.12, (People Superior 505-506.) Cal.4th at pp. (Romero), supra, Court (People Superior identical” “nearly
Although are and 1170.12 added), Code sections 667 at italics Penal Cal.4th p. so. totally will here—under Penal Code section Thus—as turn out be pertinent the otherwise insofar as it for twice requires imprisonment appli- both conviction, and also when there is one felony cable term specified prior more, or it for life when there are two insofar as imprisonment requires includes, (e), all conviction its subdivision through qualifying prior felony (c) “(1) three of the offense defined Any following: [Penal in subdivi- Section as a violent offense defined Code] (c) as a serious sion Section 1192.7 [Penal Code] Code, 667, “(2) A (Pen. (d)(1).) conviction another state. . . .” California, committed in for an offense if punishable jurisdiction of a in the state A particular prison. *11 includes include a conviction in another for an offense that jurisdiction shall as defined” as a California felony all of the elements particular (d)(2).) “(3) (Id., A prior juvenile “violent” or “serious” subd. felony. § (Id., (d)(3).) in circumstances. subd. adjudication” particular § 1170.12, contrast, matters are different. Under Penal Code section Penal Code section 1170.12 It is true insofar as requires imprison- one ment for twice the otherwise term when there is applicable speci- includes, conviction, fied a conviction felony qualifying prior “(1) (c)(1), all three of the offense following: Any its subdivision through (c) of Section 667.5 as a violent felony defined in subdivision [Penal Code] (c) in subdivision of Section 1192.7 or offense defined any Code] [Penal Code, 1170.12, (Pen. (b)(1).) subd. in this state. . . .” felony serious § that, if “(2) A in another for an offense committed conviction jurisdiction California, A the state prison. punishable by imprisonment a conviction in another conviction of a shall include felony particular for an offense that includes all of the elements of particular jurisdiction (Id., as a California “violent” or “serious” as defined” felony felony. 1170.12, “(3) (b)(2).) subd. A adjudication” particular prior juvenile § (Id., (b)(3).) subd. circumstances. §
But, life Code insofar as Penal section requires imprisonment convictions, a when there are two or more qualifying specified prior felony limited, (c)(2)(A), conviction is its subdivision felony through viz., (b),” “[a]ny such “as defined in of subdivision paragraph [its] [is] (c) Section 667.5 as a violent defined in subdivision of offense [Penal Code] (c) Section offense defined felony [Penal Code] (b)(1)). (id., in this 1192.7 as a serious state” felony II with various magistrate before charged by complaint Defendant Code 667 became committed on 1994—after Penal section May felonies effective, was enacted. For impris- but before Penal Code section 1170.12 term, under Penal onment for twice the otherwise he was applicable alleged Cali- to have been convicted of the “serious” Code previously of an house. fornia inhabited felony burglary dwelling an- defendant was before charged by complaint Subsequently, separate with on June and July other various felonies committed magistrate after the effective date of Penal Code section 667 but before 1994—again the enactment of Penal Code section life he was 1170.12. For imprisonment, under Penal Code section 667 to have been convicted alleged previously house, the “serious” California of an inhabited burglary dwelling above, which is referred to and also a Nevada attempted rape. Later, he was an amended with an additional charged by complaint committed on August effective,
After Penal Code section 1170.12 was enacted and became
consolidated,
after the causes were
struck the alle
assigned magistrate
of defendant’s Nevada
the extent
gation
attempted rape felony
*12
that, if
it would
for life under Penal Code
proved,
require imprisonment
section 667.
an
that defendant had made in
Evidently persuaded by
argument
reliance on
(1965)
authorities
In re Estrada
III view, court’s the Court of reverse my right superior Appeal to reinstate the order motion to People’s compel magistrate denying conviction for all of defendant’s Nevada attempted rape felony allegation for life under Penal Code sec- including requiring imprisonment purposes, tion 667. mean Court of was sound in its efforts to
This does not that the Appeal allow, two or construe Penal Code section 1170.12 to for life imprisonment, of the three indicated forms of more convictions specified prior felonies, felonies, certain “violent” and/or “serious” California out-of-state It was not. and particular juvenile adjudications. over the words of Penal Code section Court of stumbled Appeal very allow, life two or more which imprisonment, specified prior (b)” “as defined in subdivision paragraph [its] Code, as “defined in
(Pen. (c)(2)(A)), subd. which means only § or . . .in (c) subdivision Section 667.5 as a violent felony [Penal Code] (c) of Section as a serious in this [Penal Code] (id., 1170.12, (b)(1)). To read the in accor quoted language state” *13 no the exclusion of Certainly, juvenile dance with its sense causes problem. are is not irrational: generally, underlying proceedings adjudications Code, (Welf. 203). Neither is deemed not to be criminal in nature & Inst. § of out-of-state felonies irrational: California felonies may exclusion state, deter threat to this and hence may justify greater evidence greater rence, (see v. 176 McCarthy Cal.App.3d than those elsewhere People 291]; (1979) 100 Cal.App.3d Cal.Rptr. People 596 [222 Hernandez 607]). its language against But to read Cal.Rptr. quoted [160 certain out-of-state felonies and particular juve sense to include impliedly its negating nile as well would the untenable result adjudications yield limitation “serious” California felonies. as to “violent” and/or express its result was not. reasoning wrong, the Court Although Appeal’s that, and we must as undisputed indisputable At the first step, accept life, Code section 667 allows for Penal insofar as it requires indicated of the three more felony any two or specified prior felonies, certain out-of-state California of “violent” and/or “serious” forms felonies, and juvenile adjudications. particular be plain, what to appears we at least assume may
At second step, life, that, Penal Code section as it requires imprisonment insofar namely, in the convictions only two or more 1170.12 demands specified and/or California felonies. form of “violent” “serious” single later although we surprisingly—that, At third step, find—perhaps enacted, not Penal Code section Penal section 1170.12 does displace Code other permits this: Penal Code section 1170.12 expressly 667. reason is were, in it as Penal Code section 667—to as sentencing operate, laws—such it for twice fashion. Both insofar as requires imprisonment supplementary term felony the otherwise when there one specified prior applicable conviction, as for life there and also insofar it when requires imprisonment more, are two or Penal Code section 1170.12 declares itself “apply” “in other exclusively, any but rather addition to enhancements punishment Code, 1170.12, (c), (Pen. italics add- which provisions apply” those of Penal Code ed)—including extent, true indeed
It is to a certain Penal Code section 1170.12 does other Penal laws. But it does not do so with Code section displace regard 667, at least not in here. any aspect pertinent
Thus, (a), in its subdivision Penal Code section 1170.12 states: “Notwith- law, if been of a standing any other a defendant has convicted and it been has more has the defendant one or pled proved convictions, (b), as defined in the court shall adhere mandates, to each of’ certain limitation or reduction broadly prohibit which of a term Penal Code section dis- imprisonment. doing, so laws, other but limit or reduce a term of insofar would places Rather, Penal Code section does not such an effect. have imprisonment. specified it extends increases two or more punishment by allowing convictions in three indicated for life predicates forms *14 imprisonment.
Also, (b), in its Code “Notwith- Penal section 1170.12 states: section, a other of law and for the of this standing any provision purposes In so conviction of a be defined indicated above. felony shall as” laws, Penal but Code section 1170.12 other insofar doing, displaces only to, from, take its definition would add or own they away “prior does conviction of for its Penal Code section 667 own felony” “purposes.” definition “prior not have such an effect. It indeed contain its own of a does Code, (Pen. own but does so for its only “purposes.” of a felony,” (d).) subd. § section 1170.12 states: (d)(1), Penal Code in its subdivision
Similarly, law, section shall be other applied any “Notwithstanding conviction as defined in has a case in which a defendant every other 1170.12 displaces Penal Code section this section. . . .” In so doing, own laws, within its would render it inapplicable but insofar Indeed, effect. it does not have such an Penal Code section 667 sphere. as Penal Code other laws—such sentencing expressly permits insofar as it requires fashion. Both supplementary 1170.12—to operate is one term when there twice the otherwise applicable conviction, imprison- also insofar as it requires specified prior more, 667 declares or Penal Code section life when there are two ment for en- addition to other but rather “in exclusively, itself to “apply” Code, 667, (Pen. which may apply” provisions hancement punishment § section 1170.12. those of Penal Code (e), added)—including italics subd. states Penal Code section 1170.12 expressly deserves emphasis: This point (d)(1)); does not even (id., subd. it be that it “shall applied” § not be. may that other laws suggest impliedly of what be called the I need add little to dispose said all Having before the magistrate, It was defendant “Estrada argument.” urged by here, a different but must meet with be successful. It is urged again proved fate. Estrada, whether Penal Code section threshold is
Under question Estrada, (In supra, re Penal Code section 667. 1170.12 “amend[s]” Indeed, 742.) Penal Code section at The answer no. Cal.2d p. It could not be amend Penal Code section 667. does not even purport 1170.12 to the which would add section otherwise. When Proposition Code, drafted, Penal which would amend Bill No. Penal Assembly form, enacted. had not been yet Code section 667 into its present Estrada, Penal Code Next, is whether the substantive question under section 667. Penal Code punishment” imposed by section 1170.12 “mitigates shown, Estrada, 748.) no. As The answer is (In re 63 Cal.2d at supra, p. and expressly per- itself imposes punishment, Penal Code section 1170.12 Code section 667 to impose punish- laws like Penal mits other sentencing Code, (c).)1 (Pen. ment “in addition.” Penal itself on the face of presents answered in this cause question that need not be 1A (d)(2) of Penal Code Both subdivision Penal Code section 1170.12. 667 and Code section *15 IV efforts to construe have made the majority of Appeal, like the Court Much allow, more two or life imprisonment, Code section 1170.12 Penal forms three indicated in of the any convictions felony prior specified felonies, felonies, certain out-of-state California “serious” “violent” and/or juvenile adjudications. and particular above, that the majority’s it is plain of the analysis presented light whether, for life imprisonment, not It matters unnecessary. is
discussion Penal like the earlier-enacted Penal Code section later-enacted felony or more specified prior allows two Code section section 1170.12 Penal Code forms. That is because three indicated of the 667, which itself so allows. Code section of Penal the operation permits below, will become Furthermore, it plain light analysis presented also unsound. but unnecessary, is not only discussion majority’s that statute,” that, a “courts to construe “undertak[ing] ground It is common (Holmes, Papers Collected Legal the statute means.’ . . . ‘ask what ask what its 207.) (1920) they And when consider question, p. statute, were, its Within integration. it is a complete words mean. For a of its body legislative and exclusive statement it is the final scope, intent, expressions implica all and contemporaneous superseding prior that are tions, but even those those that are directly contrary not only body’s it is the legislative consistent. more accurately, altogether Perhaps enactment, of what all terms and conditions exclusive displacing final and could, would, the meaning been To seek sort that have might passed. ever then stitch definitions and dictionary to look simply up of a statute is statute, Rather, to discern the sense of the results. it is together words, statute has culture. a Obviously, its in the and broader legal therefore no meaning its words have apart no from its words. Similarly, meaning apart Com. v. Fair Pol. Practices are (Kopp from the world in which they spoken.” (conc. P.2d Cal.4th 672-673 Cal.Rptr.2d 1248] [47 omitted; added, Francisco Mosk, cf. San J.), first italics other italics opn. 571, 580 (1992) 2 Cal.4th [7 Assn. Board Supervisors Taxpayers (b)(2) “prior a conviction 1170.12 define of Penal Code section section 667 and subdivision if as, alia, jurisdiction for an offense “conviction in another felony” of a inter California, A conviction prison. in the state punishable committed for an offense that jurisdiction in another particular of a shall include a conviction “violent” or as a California particular as defined” includes all of elements felony” embraces a “prior conviction of a felony. It is clear that a “serious” felony. or "violent” elements "serious" with all the of a non-California of California But it is unclear whether it extends further. *16 118 initiative consti effect as to an P.2d similar 147] [to
Cal.Rptr.2d (1990) 50 Cal.3d amendment]; Court Superior Delaney tutional constitutional legislative 789 P.2d Cal.Rptr. 934] [same: 802-803 [268 Cal.3d 330-331 amendment]; (1982) v. Alvord [182 Carman amendment].) initiative constitutional 644 P.2d Cal.Rptr. 192] [same: threshold, in Penal Code ambiguity claim discern At the majority univocal only clarity. There is section 1170.12. two life when there are Insofar as it requires
To repeat: convictions, 1170.12 Penal Code section more specified (c)(2)(A) to such only its subdivision felony through limits a qualifying prior viz., (b),” offense “[a]ny subdivision paragraph “as defined [its] [is] as a violent (c) Section 667.5 defined subdivision [Penal Code] (c) Section 1192.7 offense defined subdivision [Penal Code] or any (b)(1)). (id., in this state” a serious felony be read can indeed concede that the quoted language The majority two or more for life with its sense to imprisonment, accordance require, of “violent” and/or in the form single convictions specified must. they do no more than felonies. In this regard, “serious” California can be also language on to assert that the quoted But the then majority go allow, two or more specified prior for life read to imprisonment, and, apparently, out-of-state felonies in the form of certain as well. adjudications particular juvenile “violent” limitation to first state that the express the majority support, Code (c)(2)(A) of Penal felonies in subdivision “serious” California
and/or of that limitation to all offenses somehow be without section 1170.12 ante, omitted), out-of-state including at italics “nature” (maj. opn., p. and, The words cannot simply juvenile adjudications. felonies apparently, limitation to a single to bear. The are asked weight they express shoulder the embracing into an transmogrified implied cannot be reasonably form alone unius, needed, it is available: Expressio If Latin is of all three forms together. exclusio alterum.2 and/or to “violent” that the limitation next state express majority Code section (c)(2)(A) of Penal felonies in subdivision California
“serious” ante, 106) with the definition at p. “inconsistent” (maj. opn., bemay (b)(2), includes those majority 2The state: Code] “[Penal ante, p. at (Maj. opn., in California . . . .” deemed violent or serious out-of-state convictions 1, ante.) (See added.) fn. prove. to assert than to italics Easier *17 conviction, includes certain out-of-state which of a qualifying It It merely as well. is not. adjudications and particular juvenile felonies As for life that serve as predicate imprisonment. the kind can limits above, is a limitation not irrational. such explained in ballot the materials to relating Proposition to extrinsic Looking itself, 1170.12 Penal Code section overlooking somehow pamphlet—and an claim to discover set out in its entirety—the majority which is therein voters, to Code section on the the Penal intent part enacting will identical to Penal Code section As appear, enact a provision would be of no consequence. such aim circumstances, to to seek the intent as the it seems voters’
Under improper above, the As Code section 1170.12 in extrinsic materials. explained Penal In intent is the statute itself. the final and exclusive statement such Code that is this: life Penal imprisonment, statement For pertinent part, convictions section 1170.12 demands two more specified prior felonies. The in the form of “violent” and/or “serious” California single definition, are, In some parts, extrinsic materials extrinsic to the statute. offer tenden- they may neutral other they may provide descriptions. parts, however, the itself. tious characterizations. In no are statute they part, if were Even one seek the intent as to Code section to voters’ Penal materials, the extrinsic would find nothing vary 1170.12 he statute’s words. Let us sake assume meaning argument’s Penal Code had in intended to enact section the voters fact enacting identical what to Penal Code section 667. From assumption, course, last, First and Code follows? intended enact Penal they demands, section 1170.12—which two specified or more imprisonment, for life in the “violent” and/or “serious” single form believe—erroneously It is true that had been led to they felonies. California —that Penal Code section to Penal section 667 identical Code and, Code Penal Code that Penal section 667 was identical to consequently, section 1170.12. But must erroneous- have they necessarily inferred—again, Penal Code Penal Code ly—that section made the same demand as section 1170.12. had no do In the ballot reason to otherwise. They surely itself, had which been Penal Code section 1170.12 they given pamphlet, demand; not been Code which makes had Penal they given does not.
V above, Court For the reasons I stated join affirming judgment of Appeal. J.,
Werdegar, concurred. KENNARD, In March amended J., Legislature Concurring. (b) (i), through thereby enacting Code section 6671 to add subdivisions Penal (here- “Three and You’re Out” law known as the Strikes what popularly law). In November to as the Three Strikes Legislature’s after also referred voters, initiative, (hereafter also re- enacted section 1170.12 initiative). is a close resem- Although Three Strikes there ferred to as the two, identical. blance between the are not *18 the sentence of a doubling Both laws have a “Two Strikes” provision conviction for a who is convicted of a and has one prior defendant laws, conviction is a as a “strike.” Under both a prior that qualifies three the Two Strikes if it falls within one of these “strike” under provision violent or serious (1) a California adult conviction for categories: specified felonies, the same (2) a conviction in another state for a crime having (hereafter mentioned referred to as an elements as the California crimes just conviction), has committed out-of-state an that a adjudication juvenile violent or serious felonies. specified that a defendant Both laws also have a Three Strikes provision stating or “strikes” convicted of a who has two convictions qualifying prior to life in They shall be sentenced to a term of no less than 25 years prison. 667), (section prior differ in this Under the version respect: Legislature’s within one of the convictions under the Three Strikes must fall provision I described in the three to the Two Strikes categories pertaining 1170.12), (section But initiative under the paragraph. prior preceding if the first of these as a third strike it falls within qualifies is, violent or three that a California adult conviction categories: specified serious felonies. initia- finds in the of the Three Strikes
The majority ambiguity language tive, in Three and construes it to the prosecution permit whenever fall Strikes cases to use a defendant’s convictions prior Strikes within the three to the Two provision. one of categories pertaining view the initiative bars Justice Mosk expressing explicitly disagrees, as the use of out-of-state convictions juvenile adjudications qualifying concludes, however, that the convictions in Three Strikes cases. He prior law, Three Strikes embodied initiative did not repeal Legislature’s (b) (i) and that in Three Strikes cases subdivisions of section through and juvenile out-of-state convictions may properly allege prosecution convictions under section adjudications qualifying statutory Penal Code. subsequent 1All references are to the construed correctly has majority whether I no need to consider see Mosk, For, 1170.12.) I am of the view like Justice Strikes initiative. Three of the Three version the Legislature’s initiative has repealed that the law, out-of-state allege permits prosecution Strikes which expressly Because in Three Strikes cases. convictions qualifying Three version of the under the Legislature’s defendant was charged here from law, barred the prosecution should not have the trial court Strikes as a “strike.” out-of-state conviction defendant’s alleging I Costa in Contra consolidated cases arising is an of two appeal This the same defendant. both involving County, (the Creek Judicial District Walnut No. in the Walnut
In case 095979-1 case), with three counts of robbery. Creek defendant charged *19 (the under section 667 two convictions alleged complaint law): for residential Three Strikes a California conviction Legislature’s In case No. and a Nevada conviction for 090239-5 attempted rape. burglary case), (the with charged in the Delta Judicial District Delta defendant in Walnut (different robberies from those the charged two counts of robbery with a case), of false two counts of assault imprisonment, Creek two counts The one count of felon in of a firearm. and deadly weapon, possession “strike,” section 667: the California one also under alleged only complaint Creek case. conviction also the Walnut burglary alleged cases, Flier, as a sitting The two were consolidated. Richard S. Judge the conviction for attempted rape court struck Nevada municipal magistrate, use in the Delta the in the Walnut Creek case and barred its from complaint case, The it not be used in a Three Strikes prosecution. that could ruling initiative, which was that the Three Strikes reasoned magistrate apparently the the in November had repealed enacted by People superseded law, that in March Three Strikes which was enacted Legislature’s (such convictions as the could not out-of-state therefore prosecution allege conviction) in Three Strikes cases. defendant’s Nevada Nevada court to “reinstate” the The then moved superior prosecution Delta case. (§871.5.) both the Walnut Creek case and the conviction in Flier, reviewed his own as a court judge, time Judge sitting superior the and denied the reinstatement motion. On prosecution’s appeal ruling reversed, that the Three (a)(9)), holding the Court of Appeal a defendant’s using did from prosecution Strikes initiative not preclude Strikes in Three as convictions out-of-state convictions qualifying prior cases.
II The filed in this case that defendant’s prosecution complaints allege Three should enhanced under the version of the Legislature’s sentence be law, (i) (b) rather through Strikes embodied subdivisions initiative, Strikes which in section the electorate’s Three than appears law of the was voted into after the enactment Legislature’s Strikes Strikes under the Three Legislature’s Three law. It undisputed law, the use a defendant’s out-of-state convictions prosecution may previous convictions in Three Strikes adjudications and juvenile qualifying prior Thus, initiative has version Legislature’s cases. unless the repealed law, under Three Strikes continue to a defendant charge the prosecution may law, latter includes out-of-state convictions which expressly for Three Strikes puiposes. qualifying another be either or implied. one statute Repeal express no Because the Three Strikes initiative makes mention of the Legis- voters’ law, Therefore, version does it. repeal, lature’s it not expressly repeal if must be any, by implication. whether a statute another governing determining repeals principles law shuns are well established. by implica
by implication repeals “[T]he tion, (Board Lonergan . . .” 27 Cal.3d Supervisors 802].) 616 P.2d “The Cal.Rptr. against implied repeal presumption [167 must be is so ‘To overcome the acts strong presumption two *20 irreconcilable, inconsistent that the two cannot and so clearly repugnant, bound, the concurrent The if to maintain have courts are possible, operation. if the two Courts have of both statutes stand . . . integrity may together.’ that later also noted should not be found unless ‘. . .the repeal implied earlier an intent to the gives undebatable evidence of provision supersede (Western .’” Assn. Air Pollution Monterey Bay . . . Oil & Gas v. Unified 408, 384, P.2d Dist. Cal.3d 111 Control 49 419-420 Cal.Rptr. [261 157], in italics original.) law,
Defendant that the two versions of Three Strikes argues voters’, He and the “cannot have concurrent operation.” points Legislature’s of to this in the initiative: other language “Notwithstanding any provision law, in in which has a this section be case a defendant applied every shall (d)(1).)2 (§ subd. conviction as defined this section.” that the concurrent precludes He argues provision operation initiative, and law and Three Three Strikes the voters’ Strikes Legislature’s first, version, be which was enacted must therefore that the Legislature’s initiative. by the superseded 667, (f)(1).) language. Legislature’s law contains similar
2The Three Strikes
123 has “the repealed existing legislation, determine whether an initiative To the court if there is reason to the drafters be considered by intent of intent and we have that the electorate was aware believe [citation] intent such as in the absence of other indicia of the voters’ often presumed, evidence, that the drafters’ intent ballot or contrary arguments [citation] (Rossi v. Brown of the measure was shared the electorate.” understanding 363, Here, 688, 700, 557].) (1995) Cal.4th fn. 7 889 P.2d 9 Cal.Rptr.2d [38 initiative intended to it is that the drafters of the Three Strikes unlikely law, Three Strikes for when the Three Strikes override the Legislature’s drafted, the law had not been initiative was version of Legislature’s yet enacted and therefore did not exist. As this court People explained (Romero) (1996) Court 13 Cal.4th 504-505 Superior Cal.Rptr.2d [53 628], (the P.2d to add 184 Three the voters’ petition Proposition initiative) to the Strikes ballot for November 1994 General Election 7,1993. later, to circulate on October Five months in March began (b) (i) (the bill to amend section 667 to add subdivisions through Legisla- law) ture’s Three Strikes was both the and the Senate approved by Assembly the Governor. It is reasonable to infer that when the drafters of signed by the Three Strikes initiative included the that section 1170.12 provision “ law,” would other intended apply [notwithstanding any provision to refer to of law in effect Three Strikes provisions when the initiative at drafted, which time the had not enacted section Legislature yet (b) (i). subdivisions through
It is reasonable to infer that for the Three Strikes equally voting initiative, initiative in November the electorate did not believe that the law,” its use of the other would phrase “notwithstanding any March the Three abrogate Legislature’s 1994 enactment of Strikes law. the voters’ Legislative Analyst, the fiscal summarizing impact Three Strikes initiative for the ballot said that the initiative pamphlet, (Ballot the March changes.” Pamp., summary Prop. “reaffirms voters, (Nov. 1994) added.) Gen. Elec. In a presented italics p. *21 initiative, more detailed of the also in the ballot analysis pamphlet, contained the stated that the voters’ Three Strikes initiative Legislative Analyst “pro- amendments to that enacted the poses state law are identical to law and the Legislature Governor in March 1994. signed by Consequently, or of this initiative will have no direct on adoption rejection existing impact law because the measure the law that are provisions already reaffirms 8, (Id., analysis Prop. by Legis. Analyst, (Nov. Gen. Elec. effect.” 33; 1994) added.) italics p. Strikes both the for and the voters’ Three
Similarly, arguments against initiative in the ballot reflected view the initiative did not the that pamphlet of the initiative Proponents the Three Strikes law. Legislature’s
repeal Three were “weaken” the that politicians trying Legislature’s claimed contended, initiative, law; “tell politicians, a vote for the would they Strikes ” 184, Gen. (Ballot favor of Prop. ‘hands off 3 Strikes.’ Pamp., argument 8, 36.) And of the said its effect (Nov. 1994) initiative Elec. p. opponents “endorse,” Three Strikes law: be to not to the repeal, Legislature’s would into law. to three strikes already signed “This measure is identical legislation (Id., rebuttal in favor endorse a and unworkable law.” to argument Don’t bad 1994) 36.) (Nov. Gen. Elec. p. of Prop.
Thus, Three through the ballot pamphlet, proponents opponents initiative, told the voters Strikes as well as neutral Legislative Analyst, Strikes law the Legislature the initiative would not the Three that that repeal It is that the enacted March therefore reasonable to assume had voters, initiative, did so with when their votes for the Three Strikes cast (See not the law. Lungren Deukmejian the intent to repeal that the 755 P.2d rule Cal.Rptr. Cal.3d fn. 14 [248 299] [“The of the voters aid in intent determining ballot is an pamphlet important citation of is too well settled to extensive require authority.”].) ... reasons, Oil & Gas (Western these I see no “undebatable evidence” For Dist., at Air Control 49 Cal.3d Assn. v. Pollution Monterey Bay supra, Unified “ 420) other [notwithstanding any that the voters intended the words p. law,” 1170.12), to (§ in the Three Strikes initiative as used (b)~ law subds. (§ Three Strikes Legislature’s supersede repeal (i)), which therefore is still effect.
Conclusion case, two enhancements defendant with prosecution charged 667, subds. (§ Strikes version the Three law. Legislature’s under the voters’ Because that law was (b)-(i).) subsequent passage repealed 1170.12), because it is (§ undisputed the Three Strikes initiative out-of-state (b)-(i)), under that law subds. may allege prosecution cases, the trial in Three Strikes qualifying prior that the was pre- in this when it ruled prosecution court case wrong from so. cluded doing defendant’s directed the court reinstate
The Court of trial Appeal *22 that under reasoning rape, Nevada conviction attempted alleged prior out-of- 1170.12) could use the prosecution voters’ Three Strikes initiative cases. Strikes Three qualifying prior state convictions as I I do not the Court of have Although, explained, adopt Appeal’s basis, I its On this I with result. reasoning, agree join majority’s affirmance of the of the Court of judgment Appeal. for a was denied
Respondent’s petition rehearing January