People v. Lewis

NEWSOM, Acting P. J.

I respectfully dissent from the conclusion of the majority that the sentence for attempted manslaughter is subject to the enhancement provisions of Penal Code section 12022.7 for the infliction of great bodily injury.

Appellant’s argument is founded upon the fundamental sentencing premise stated in Penal Code section 664 that, with the exception of “willful, deliberate and premeditated murder,” an attempted felony “is punishable by imprisonment in the state prison for one-half the term of imprisonment *253prescribed upon a conviction of the offense so attempted . . . ,”1 Under section 664, “. . . the imposition of a jail sentence for an attempt must be limited to one-half of the maximum jail term which can be given for the substantive crime.” (In re Nickelson (1957) 152 Cal.App.2d 579, 581 [314 P.2d 180].) Appellant points out that if he had “actually killed” the victim and been convicted of voluntary manslaughter, the range of permissible sentences would have been three, six or eleven years (Pen. Code, § 193, subd. (a)) with no possible imposition of a great bodily injury enhancement under Penal Code section 12022.7. Where, as here, the victim is not killed and a conviction of attempted voluntary manslaughter eventuated, imposition of a three-year great bodily injury enhancement may result in a more severe sentence imposed upon the defendant for the attempted offense, in contravention of the “one-half the term” sentencing prescription of section 664.2

Thus, argues appellant, imposition of a great bodily injury enhancement for a conviction of attempted voluntary manslaughter “upsets the sentence reduction scheme of Penal Code section 664 and causes incongruous sentencing results.” He maintains that, by implication, attempted manslaughter must be included along with manslaughter in the offenses excepted from the operation of Penal Code section 12022.7. Respondent submits that the statute is unambiguous in the omission of attempted manslaughter from the enumerated crimes not subject to punishment enhancement for great bodily injury, and cannot be interpreted to add exceptions the Legislature has failed to specifically and expressly recognize.

Appellant does not present a claim of cruel and unusual punishment; the issue is solely one of statutory interpretation.3 We must interpret Penal Code section 12022.7 to effectuate the intent of the Legislature. (People v. Woodhead (1987) 43 Cal.3d 1002, 1007 [239 Cal.Rptr. 656, 741 P.2d 154]; People v. Aram (1988) 199 Cal.App.3d 294, 296 [244 Cal.Rptr. 645].) “Penal statutes must be interpreted in light of the objective sought to be achieved, as well as the evil sought to be averted. [Citations.]” (People v. Hernandez *254(1991) 231 Cal.App.3d 1376, 1384 [283 Cal.Rptr. 81].) To ascertain the legislative intent, “we look first to the words themselves.” (Woodhead, supra, at p. 1007; People v. Overstreet (1986) 42 Cal.3d 891, 895 [231 Cal.Rptr. 213, 726 P.2d 1288].) Where possible, significance must be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose. (People v. McCart (1982) 32 Cal.3d 338, 342 [185 Cal.Rptr. 284, 649 P.2d 926].) A statute must be construed in the context of the entire statutory scheme of which it is a part, in order to achieve harmony among the parts. (Woodhead, supra, at p. 1009; Seidler v. Municipal Court (1993) 12 Cal.App.4th 1229, 1234 [16 Cal.Rptr.2d 90].) Also to be considered is the maxim that “ ‘. . . statutes should be interpreted in such a way as to make them consistent with each other, rather than obviate one another. [Citation.]’ ” (City of Lafayette v. East Bay Mun. Utility Dist. (1993) 16 Cal.App.4th 1005, 1015 [20 Cal.Rptr.2d 658]; quoting from Nickelsberg v. Workers’ Comp. Appeals Bd. (1991) 54 Cal.3d 288, 298 [285 Cal.Rptr. 86, 814 P.2d 1328].) Finally, we have been presented with an exception to the great bodily injury punishment enhancement provisions of section 12022.7, which is “ ‘ “to be strictly construed. In interpreting exceptions to the general statute courts include only those circumstances which are within the words and reason of the exception. . . . One seeking to be excluded from the sweep of the general statute must establish that the exception applies.” (Barnes v. Chamberlain (1983) 147 Cal.App.3d 762, 767 [195 Cal.Rptr. 417].)’ ” (Da Vinci Group v. San Francisco Residential Rent etc. Bd. (1992) 5 Cal.App.4th 24, 28 [6 Cal.Rptr.2d 461]; see also City of Lafayette, supra, at p. 1017.)

I agree with appellant that omission of attempted manslaughter from the crimes excepted from the operation of Penal Code section 12022.7 creates a sentencing scheme which may often contravene the fundamental directive of Penal Code section 664 to impose terms of imprisonment for attempted felonies which are “one-half the term of imprisonment prescribed upon a conviction of the offense so attempted.” If, for instance, a lower or middle term is imposed upon a defendant convicted of attempted voluntary manslaughter, enhanced by a three-year great bodily injury enhancement, the aggregate term will be respectively greater than or equal to that which may be imposed for voluntary manslaughter without the addition of a section 12022.7 enhancement. I do not believe the Legislature, in the enactment of section 12022.7, intended sentencing results so inconsistent with the existing law embodied in section 664.4 Including by implication attempted manslaughter in the crimes to which section 12022.7 does not apply furthers the *255rule of statutory interpretation that absurd consequences are to be avoided and properly achieves harmony among the sentencing statutes. (Cf. People v. Hull (1991) 1 Cal.4th 266, 272 [2 Cal.Rptr.2d 526, 820 P.2d 1036]; People v. Pieters (1991) 52 Cal.3d 894, 899 [276 Cal.Rptr. 918, 802 P.2d 420].)

The possibility that a great bodily injury enhancement may be stricken in the discretion of the trial court pursuant to Penal Code section 1170.1, subdivision (h), 5 does not, in my view, negate the incongruous sentencing results which may occur if attempted manslaughter is excluded from the crimes given exemption from the operation of Penal Code section 12022.7 as the Attorney General claims. A great bodily injury enhancement may be stricken only if mitigating circumstances predominate, and only upon the exercise of discretion. (Cf. People v. Roe (1983) 148 Cal.App.3d 112, 120 [195 Cal.Rptr. 802]; People v. Hughes (1980) 112 Cal.App.3d 452, 463 [169 Cal.Rptr. 364].) In all other cases, a great bodily injury enhancement is imposed, leaving the sentencing result for convictions of attempted manslaughter disproportionately severe as compared to manslaughter convictions where no such enhancement is ever permitted under section 12022.7.

Nor am I inclined to ignore the sentencing incongruities that result from adding a three-year Penal Code section 12022.7 enhancement to an attempted manslaughter sentence by the rule that when two or more enhancements may be imposed for a single offense, “. . . only the greatest enhancement shall apply” under Penal Code section 1170.1, subdivision (e). Even if by operation of subdivision (e) of Penal Code section 1170.1 the lesser enhancement is stricken—as was the one-year enhancement for use of a deadly weapon in appellant’s case—the sentence imposed for attempted manslaughter, with the addition of the three-year great bodily injury enhancement, may and often will exceed one-half of the term for manslaughter, thereby contravening the sentencing formula stated in Penal Code section 664.

I think the language of Penal Code section 12022.7 indicates a legislative intent to treat the reference to “manslaughter” as one of the enumerated offenses exempt from the statute as including attempted manslaughter by *256necessary implication. The first paragraph of section 12022.7 specifically precludes imposition of a three-year enhancement if “. . . infliction of great bodily injury is an element of the offense” of which the defendant is convicted. (See also People v. Pitts (1990) 223 Cal.App.3d 1547, 1559 [273 Cal.Rptr. 389]; People v. Parrish (1985) 170 Cal.App.3d 336, 344 [217 Cal.Rptr. 700].) Murder and manslaughter, two of the four exempted crimes listed in the third paragraph of section 12022.7 will, of course, always include great bodily injury. (Cf. Pitts, supra, at p. 1559.) Only attempted murder and attempted manslaughter may not have as elements of those offenses great bodily injury. Thus, having already expressly excluded offenses which have as an element great bodily injury, the Legislature had no reason to refer to murder and manslaughter as listed exempt offenses except for the purpose of excluding attempts to commit those offenses from the provisions of the statute. Otherwise, the references to murder and manslaughter in section 12022.7 would have no apparent meaning or purpose. I adhere to the maxim of statutory interpretation that “. . . where possible, significance should be given to every word, phrase, sentence and part of an act in furtherance of the legislative purpose.” (People v. McCart, supra, 32 Cal.3d 338, 342; Harroman Co. v. Town of Tiburon (1991) 235 Cal.App.3d 388, 395 [1 Cal.Rptr.2d 72].) An interpretation of a statute which makes some words surplusage is to be avoided. (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844 [157 Cal.Rptr. 676, 598 P.2d 836]; Ingredient Communication Council, Inc. v. Lungren (1992) 2 Cal.App.4th 1480, 1492 [4 Cal.Rptr.2d 216]; Kriz v. Taylor (1979) 92 Cal.App.3d 302, 311 [154 Cal.Rptr. 824].) Failure to include by necessary implication attempted manslaughter as an exempted offense not only leads to anomalous sentencing results, but also renders superfluous the specific reference to manslaughter as one of the statutory exceptions.

I am not persuaded to follow those cases which have concluded that attempted murder does not fall within the Penal Code section 12022.7 exempted offenses. (See People v. Allen (1985) 165 Cal.App.3d 616, 631 [211 Cal.Rptr. 837]; People v. Wells (1983) 149 Cal.App.3d 497, 505 [195 Cal.Rptr. 608]; People v. Young (1981) 120 Cal.App.3d 683, 695 [175 Cal.Rptr. 1]; People v. Gray (1979) 91 Cal.App.3d 545, 551 [154 Cal.Rptr. 555]; People v. Superior Court (Grilli) (1978) 84 Cal.App.3d 506, 513, fn. 5 [148 Cal.Rptr. 740], overruled on other grounds in People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 758 [191 Cal.Rptr. 1, 661 P.2d 1081].) I find unconvincing the prevailing rationale of those cases—that attempted murder is a “separate and distinct crime” not specifically mentioned as an *257exception. (Ibid,.)6 Conviction for attempted commission of a crime requires both proof of the specific intent to commit that crime, and a direct but ineffectual act taken toward its commission. (Pen. Code, § 21a; People v. Morales (1992) 5 Cal.App.4th 917, 925 [7 Cal.Rptr.2d 358]; People v. Bishop (1988) 202 Cal.App.3d 273, 283 [248 Cal.Rptr. 678]; People v. Valdez (1985) 175 Cal.App.3d 103, 108 [220 Cal.Rptr. 538].) Mere preparation to commit the target crime is not enough; the act must include “some appreciable fragment of the crime” which would result in commission of the crime but for the intervention of extraneous circumstances. (People v. Memro (1985) 38 Cal.3d 658, 698 [214 Cal.Rptr. 832, 700 P.2d 446]; People v. Bishop, supra, 202 Cal.App.3d at p. 283; People v. Meyer (1985) 169 Cal.App.3d 496, 504 [215 Cal.Rptr. 352]; People v. Cole (1985) 165 Cal.App.3d 41, 49 [211 Cal.Rptr. 242].) “[A] crime necessarily includes an attempt to commit that crime. [Citations.]” (People v. Anderson (1979) 97 Cal.App.3d 419, 424 [158 Cal.Rptr. 727].) Thus, attempted manslaughter is necessarily included in the offense of manslaughter. (Cf. People v. Martinez (1980) 105 Cal.App.3d 938, 942-943 [165 Cal.Rptr. 11]; People v. Heffington, supra, 32 Cal.App.3d 1, 11.) While manslaughter and attempted manslaughter are not the same crime, I believe the Legislature intended the latter to be included in the former by necessary implication for the purpose of defining the offenses exempt from section 12022.7.7

*258Accordingly, I conclude that attempted manslaughter is an offense exempted from the great bodily injury enhancement provisions of Penal Code section 12022.7. I would therefore modify the judgment by striking the three-year enhancement for great bodily injury and remand the case to the trial court for resentencing in accordance with the views expressed herein.

Appellant’s petition for review by the Supreme Court was denied March 24, 1994. Mosk, J., was of the opinion that the petition should be granted.

Section 664 “fixes the penalties for crime attempts not punishable under other statutes,” including voluntary manslaughter. (People v. Heffington (1973) 32 Cal.App.3d 1, 10-11 [107 Cal.Rptr. 859].)

The following sentence possibilities are available for voluntary manslaughter and attempted voluntary manslaughter, depending upon whether the victim lives or dies, if a great bodily injury enhancement is added to the sentence for the latter offense under section 12022.7: for the lower term, four and one-half years if the victim lives, but only three years if the victim dies; a middle term of six years whether the victim lives or dies; an upper term of eight and one-half years if the victim lives and eleven years if the victim dies.

I would certainly not find the punishment scheme of Penal Code section 12022.7 to be unconstitutional, even if I were to construe the statute as authorizing a three-year great bodily injury enhancement of attempted manslaughter convictions.

Section 12022.7 was enacted in 1976 (Stats. 1976, ch. 1139, § 306, p. 5162) and operative July 1, 1977, long after the enactment of the “one-half the term of imprisonment” prescription for attempted crimes provided in section 664. In enacting statutes, the Legislature is presumed *255to be aware of existing laws in effect at the time legislation is passed and to have enacted statutes in light of such existing laws. (People v. Overstreet, supra, 42 Cal.3d at p. 897.)

In pertinent part, subdivision (h) of section 1170.1 provides that “. . . the court may strike the additional punishment for the enhancements provided in Sections . . . 12022.7 . . . , if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment." (See also People v. Alexander (1992) 8 Cal.App.4th 602, 605 [10 Cal.Rptr.2d 450].)

The cited cases engaged in but superficial statutory analysis, making no mention of the sentencing results that may eventuate upon imposition of a great bodily injury enhancement for attempted murder and manslaughter, leading to greater punishment for attempted than completed offenses.

I also place no particular significance upon the stated rationale that “in the first paragraph of Penal Code section 12022.7, the statute specifically mentions that enhancements apply to persons who ‘in the commission or attempted commission of a felony’ inflict great bodily injury on other persons. Yet, in the third paragraph, where exempted crimes are listed, there is no specific exemption for attempts. This evidences an intent of the Legislature not to exclude attempted murder from the provisions of the section.” (See People v. Wells, supra, 149 Cal.App.3d at p. 505.) The reference to “attempted commission” of felonies in paragraph 1 of section 12022.7 merely encompasses all felonies within the general scope of the great bodily injury enhancement, both attempts and completed crimes; I find in it no further apparent meaning or import. The list of exempted crimes in the third paragraph is an entirely separate matter. I can as easily infer a legislative intent to include attempted murder and manslaughter within the exemption based upon the earlier mention of attempts in the statute as to view the statutory language in the manner suggested in Wells.

I may further observe that the sentencing schemes for murder and attempted murder with imposition of a great bodily injury enhancement under section 12022.7 do not result in sentences which grievously offend the “one-half the term of imprisonment” prescription of Penal Code section 664 for unsuccessful attempts to commit crimes. The sentence for first degree murder is 25 years to life. The sentence for second degree murder is 15 years to life. The sentence for attempted murder with premeditation and deliberation plus the great bodily injury enhancement under section 12022.7 is three years to life. The sentence for attempted murder without premeditation and deliberation plus the great bodily injury enhancement is 8 years, 10 years and 12 years. (Pen. Code, §§ 190, 193, 12022.7.)