Opinion
DIBIASO, Acting P. J.
Defendant Jose Maria Nava appeals from the judgment following his conviction for possession of a weapon in jail and assault with a deadly weapon. (Pen. Code, §§ 4574, subd. (a) & 245, subd. (a)(1).)
The jury also found that defendant had been previously convicted of carjacking (§ 215, subd. (a)), with the personal use of a firearm (§ 12022.5). The trial court sentenced defendant to a prison term of eight years, by doubling the upper term of four years for the weapon possession conviction and running concurrently the term for the assault conviction.
On appeal, defendant contends the trial court: (1) erroneously instructed on reasonable doubt, (2) improperly characterized his prior conviction for carjacking as a “strike” under section 1170.12, subdivision (c)(1), a portion of the initiative version of the “Three Strikes” law, and (3) failed to stay imposition of sentence on the assault conviction. We will modify the judgment and affirm it as modified. In the published portion of this opinion, we hold that a felony such as carjacking which was not in existence on June 30, 1993, may nevertheless constitute a qualifying prior violent or serious felony under section 1170.12.
Statement of Facts
On December 8, 1994, defendant was incarcerated at the Tulare County jail in cell 313, tier 1. From the control box at the end of the tier, Deputy Walter Koerber, who was supervising the inmates’ release for showers, opened defendant’s cell door. Instead of going toward the showers, defendant went to a cell occupied by an inmate named Tell. Then, with a long, rounded, spear-like object, appellant made jabbing motions into Tell’s cell.
Deputy Koerber entered the tier, met appellant, who had returned to his own cell, and took the object from him. It was made from rolled newspapers, wrapped with pieces of sheet, and hardened with either wax or toothpaste and water. A sharpened pencil was embedded in it.
Discussion
I.
Reasonable Doubt
Instruction
II.
Three Strikes
A.
“June 30,
1993”
The initiative version (Proposition 184) of the Three Strikes law is found in section 1170.12.
This statute constituted section 1 of the initiative. In part it describes a “strike” as “any offense defined in subdivision (c) of section 667.5 as a violent felony or any offense defined in subdivision (c) of section 1192.7 as a serious felony in this state.” (§ 1170.12, subd. (b)(1).) Section 2 of the initiative (section 2), which is not a part of section 1170.12, provided that “[a]ll references to existing statutes are to statutes as they existed on June 30, 1993.”
(Ballot Pamp., text of Prop. 184 as presented to voters, Gen. Elec. (Nov. 8, 1994) p. 65.)
On June 30, 1993, both section 667.5, subdivision (c), and section 1192.7, subdivision (c), included a number of specific offenses, such as murder and attempted murder, in their respective listings of violent and serious felonies. Each statute also included several species of generic criminal conduct, such as
any felony
in which the defendant personally used a firearm. (§§ 667.5, subd. (c)(8) & 1192.7, subd. (c)(8); see
People
v.
Jackson
(1985) 37 Cal.3d 826, 832 [210 Cal.Rptr. 623, 694 P.2d 736] .)
Carjacking first became a felony offense on October 1, 1993, when the Legislature enacted section 215. (Stats. 1993, ch. 611, § 6.) At the same
time, the Legislature added “carjacking” by name to the list of violent felonies in section 665, subdivision (c), and to the list of serious felonies in section 1192.7. (Stats. 1993, ch. 611, §§ 11 & 18.5.) Because carjacking did not exist as a distinct crime on June 30, 1993, it was not on that date identified by name in either section 667.5, subdivision (c), or section 1192.7, subdivision (c).
Defendant contends the trial court erred when it deemed his 1994 carjacking conviction to be a “strike” for sentencing purposes. He reads section 2 of the initiative as effectively defining qualifying violent or serious priors as only those felonies which existed as specific “named” crimes on June 30, 1993, and were then enumerated in section 667.5, subdivision (c), or section 1192.7, subdivision (c).
When construing a statute or an initiative measure, we are obliged to give effect to every phrase and paragraph of the law, leaving no part useless or deprived of meaning.
(Lungren
v.
Deukmejian
(1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299];
People
v.
Jackson, supra,
37 Cal.3d 826, 832.) By the same token, however, we are not free to read into the law a stricture which does not exist.
(People
v.
Knowles
(1950) 35 Cal.2d 175, 182 [217 P.2d 1].)
We do not find any support for defendant’s position in section 2 of the initiative. Section 2, when applied to section 1170.12, subdivision (b)(1), does not limit qualifying priors to only those “named” felonies in existence on June 30, 1993, and expressly listed in either section 667.5, subdivision (c), or section 1192.7, subdivision (c). Rather, with respect to the definition of a qualifying prior conviction, section 2 simply adverts to the statutory lists of violent and serious felonies in effect on June 30, 1993. (See
Gonzales
v.
Superior Court
(1995) 37 Cal.App.4th 1302, 1310, fn. 6 [44 Cal.Rptr.2d 144] [commenting on section 667, subdivision (h), a provision of the legislative version of the Three Strikes law comparable to section 2 of Proposition 184].) Thus, whether a defendant has suffered a “strike” is to be determined by referring to the June 30, 1993, texts of section 667.5, subdivision (c), and section 1192.7, subdivision (c), and applying them as of the date the defendant is sentenced under section 1170.12. To adopt defendant’s view of section 2 would emasculate the references to “any felony” in the two definitional statutes by effectively amending them to read, for example, . . any felony
[which existed as a named crime on June
30,1993] in which the defendant personally uses a firearm . . . .” Such a construction finds
no justification in the actual language of either the initiative or sections 667.5, subdivision (c), and 1192.7, subdivision (c).
Defendant’s contention also ignores the intent of the voters in passing Proposition 184. While we need not inquire into the electorate’s intent when, as in this instance, the language of an initiative measure is clear and unambiguous
(Lungren
v.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion
DIBIASO, Acting P. J.
Defendant Jose Maria Nava appeals from the judgment following his conviction for possession of a weapon in jail and assault with a deadly weapon. (Pen. Code, §§ 4574, subd. (a) & 245, subd. (a)(1).)
The jury also found that defendant had been previously convicted of carjacking (§ 215, subd. (a)), with the personal use of a firearm (§ 12022.5). The trial court sentenced defendant to a prison term of eight years, by doubling the upper term of four years for the weapon possession conviction and running concurrently the term for the assault conviction.
On appeal, defendant contends the trial court: (1) erroneously instructed on reasonable doubt, (2) improperly characterized his prior conviction for carjacking as a “strike” under section 1170.12, subdivision (c)(1), a portion of the initiative version of the “Three Strikes” law, and (3) failed to stay imposition of sentence on the assault conviction. We will modify the judgment and affirm it as modified. In the published portion of this opinion, we hold that a felony such as carjacking which was not in existence on June 30, 1993, may nevertheless constitute a qualifying prior violent or serious felony under section 1170.12.
Statement of Facts
On December 8, 1994, defendant was incarcerated at the Tulare County jail in cell 313, tier 1. From the control box at the end of the tier, Deputy Walter Koerber, who was supervising the inmates’ release for showers, opened defendant’s cell door. Instead of going toward the showers, defendant went to a cell occupied by an inmate named Tell. Then, with a long, rounded, spear-like object, appellant made jabbing motions into Tell’s cell.
Deputy Koerber entered the tier, met appellant, who had returned to his own cell, and took the object from him. It was made from rolled newspapers, wrapped with pieces of sheet, and hardened with either wax or toothpaste and water. A sharpened pencil was embedded in it.
Discussion
I.
Reasonable Doubt
Instruction
II.
Three Strikes
A.
“June 30,
1993”
The initiative version (Proposition 184) of the Three Strikes law is found in section 1170.12.
This statute constituted section 1 of the initiative. In part it describes a “strike” as “any offense defined in subdivision (c) of section 667.5 as a violent felony or any offense defined in subdivision (c) of section 1192.7 as a serious felony in this state.” (§ 1170.12, subd. (b)(1).) Section 2 of the initiative (section 2), which is not a part of section 1170.12, provided that “[a]ll references to existing statutes are to statutes as they existed on June 30, 1993.”
(Ballot Pamp., text of Prop. 184 as presented to voters, Gen. Elec. (Nov. 8, 1994) p. 65.)
On June 30, 1993, both section 667.5, subdivision (c), and section 1192.7, subdivision (c), included a number of specific offenses, such as murder and attempted murder, in their respective listings of violent and serious felonies. Each statute also included several species of generic criminal conduct, such as
any felony
in which the defendant personally used a firearm. (§§ 667.5, subd. (c)(8) & 1192.7, subd. (c)(8); see
People
v.
Jackson
(1985) 37 Cal.3d 826, 832 [210 Cal.Rptr. 623, 694 P.2d 736] .)
Carjacking first became a felony offense on October 1, 1993, when the Legislature enacted section 215. (Stats. 1993, ch. 611, § 6.) At the same
time, the Legislature added “carjacking” by name to the list of violent felonies in section 665, subdivision (c), and to the list of serious felonies in section 1192.7. (Stats. 1993, ch. 611, §§ 11 & 18.5.) Because carjacking did not exist as a distinct crime on June 30, 1993, it was not on that date identified by name in either section 667.5, subdivision (c), or section 1192.7, subdivision (c).
Defendant contends the trial court erred when it deemed his 1994 carjacking conviction to be a “strike” for sentencing purposes. He reads section 2 of the initiative as effectively defining qualifying violent or serious priors as only those felonies which existed as specific “named” crimes on June 30, 1993, and were then enumerated in section 667.5, subdivision (c), or section 1192.7, subdivision (c).
When construing a statute or an initiative measure, we are obliged to give effect to every phrase and paragraph of the law, leaving no part useless or deprived of meaning.
(Lungren
v.
Deukmejian
(1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299];
People
v.
Jackson, supra,
37 Cal.3d 826, 832.) By the same token, however, we are not free to read into the law a stricture which does not exist.
(People
v.
Knowles
(1950) 35 Cal.2d 175, 182 [217 P.2d 1].)
We do not find any support for defendant’s position in section 2 of the initiative. Section 2, when applied to section 1170.12, subdivision (b)(1), does not limit qualifying priors to only those “named” felonies in existence on June 30, 1993, and expressly listed in either section 667.5, subdivision (c), or section 1192.7, subdivision (c). Rather, with respect to the definition of a qualifying prior conviction, section 2 simply adverts to the statutory lists of violent and serious felonies in effect on June 30, 1993. (See
Gonzales
v.
Superior Court
(1995) 37 Cal.App.4th 1302, 1310, fn. 6 [44 Cal.Rptr.2d 144] [commenting on section 667, subdivision (h), a provision of the legislative version of the Three Strikes law comparable to section 2 of Proposition 184].) Thus, whether a defendant has suffered a “strike” is to be determined by referring to the June 30, 1993, texts of section 667.5, subdivision (c), and section 1192.7, subdivision (c), and applying them as of the date the defendant is sentenced under section 1170.12. To adopt defendant’s view of section 2 would emasculate the references to “any felony” in the two definitional statutes by effectively amending them to read, for example, . . any felony
[which existed as a named crime on June
30,1993] in which the defendant personally uses a firearm . . . .” Such a construction finds
no justification in the actual language of either the initiative or sections 667.5, subdivision (c), and 1192.7, subdivision (c).
Defendant’s contention also ignores the intent of the voters in passing Proposition 184. While we need not inquire into the electorate’s intent when, as in this instance, the language of an initiative measure is clear and unambiguous
(Lungren
v.
Deukmejian, supra,
45 Cal.3d at p. 735), it is worth noting that the voters sought to deter recidivism or, in the vernacular of the ballot pamphlet, to keep “career criminals . . . behind bars.” (Ballot Pamp., Prop. 184 as presented to voters, Gen. Elec. (Nov. 8, 1994) p. 36.) There is nothing in the ballot argument favoring Proposition 184 to suggest the voters wished to target only those serious or violent felonies which were on the books as “named” crimes on June 30, 1993, and thereby disqualify conduct which, although made criminal after the June 30, 1993, date, is nevertheless a felony when committed and is described by the language of one or more of the catchall provisions found in the June 30, 1993, versions of section 667.5, subdivision (c), or section 1192.7, subdivision (c). To the contrary, the ballot pamphlet supports the conclusion that section 2 authorizes a sentencing court to apply the initiative version of the Three Strikes law when the defendant has been previously convicted of a felony which the Legislature established after June 30, 1993, if the offense comes within one of the general provisions in the two lists of qualifying priors.
Applying our holding to the present case, we find the trial court did not err in sentencing defendant under the provisions of section 1170.12. Defendant’s 1994 conviction for carjacking was a felony (§ 215). In addition, the prosecutor in the trial court introduced evidence, in the form of the 1994 abstract of judgment, which demonstrated that defendant was expressly found to have personally used a firearm in the commission of the crime (§ 12022.5, subd. (a)). The carjacking conviction was therefore both a “violent felony” and a “serious felony” within the June 30, 1993, version of section 667.5, subdivision (c)(8), and of section 1192.7, subdivision (c)(8), respectively.
B.
“Determination
Clause”
III.
Section 654*
Disposition
The judgment is modified to provide that the term imposed for count 2 is stayed pending the finality of the judgment and defendant’s service of the term imposed for count 1, when such stay shall become permanent. As so modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment and provide it to the appropriate authorities.
Vartabedian, J., and Harris, J., concurred.
Appellant’s petition for review by the Supreme Court was denied November 26, 1996.