People v. Hazelton

MOSK, J.

I concur in the result that the majority reach, viz., affirmance of

the judgment of the Court of Appeal.

But I concur only in the majority’s result. I cannot join in their discussion, which, as will appear, is not only unnecessary but also unsound.

*110I

This cause involves both of the two statutes popularly referred to as the “Three Strikes and You’re Out” laws.

Penal Code section 667 was amended by the Legislature, effective March 7, 1994, to establish a sentencing scheme, in its subdivisions (b) through (i), for fixing the term of imprisonment for any person convicted of a felony who had previously been convicted of one or more specified felonies. (Stats. 1994, ch. 12, §§ 1-2.) This is the first “Three Strikes” law.

Subsequently, section 1170.12 was added to the Penal Code by the voters, effective November 9, 1994 (Cal. Const., art. II, § 10, subd. (a)), to establish a sentencing scheme for fixing the term of imprisonment for any person convicted of a felony who had previously been convicted of one or more specified felonies. (Initiative measure, Prop. 184, § 1, as approved by voters, Gen. Election (Nov. 8, 1994).) This is the second Three Strikes law.

In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [53 Cal.Rptr.2d 789, 917 P.2d 628] (hereafter sometimes Romero), we presented the “legislative history” of Penal Code sections 667 and 1170.12, as follows.

In its present form, Penal Code section 667 “began as Assembly Bill No. 971, which was introduced on March 1, 1993. (Assem. Bill No. 971 (1993-1994 Reg. Sess.).) As originally introduced, the bill would have added a new section 1170.12 to the Penal Code .... The bill failed in the Assembly Committee on Public Safety on April 20 of that year. A motion to reconsider was granted, but no further hearings on the bill would take place until 1994.

“Meanwhile, on October 7, 1993, a petition to add Proposition 184 to the ballot for the November 1994 General Election began to circulate for signatures. The initiative was loosely based on Assembly Bill No. 971 and likewise proposed to add a new section 1170.12 to the Penal Code. . .

“On January 3, 1994, while Proposition 184 was circulating, the sponsors of Assembly Bill No. 971 amended it to conform to the language of the initiative, with [certain] exceptions. The bill underwent its only further significant amendment on January 13, when the proposal was made to codify its provisions as subdivisions (b) through (i) of [Penal Code] section 667, rather than as a new [Penal Code] section 1170.12. Both the Senate and the Assembly approved the bill on March 3, 1994. The Governor signed it on March 7. It took effect as an urgency measure the same day.

“March 7, 1994, was also the last day on which Proposition 184 could lawfully circulate for signatures. On April 6, 1994, the Secretary of State *111certified the initiative for the ballot, and the voters approved it at the General Election on November 8,1994. It took effect the next day, codified as [Penal Code] section 1170.12.” (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 504-505.)

In Romero, we stated that Penal Code sections 667 and 1170.12 constitute “two . . . nearly identical statutory schemes . . . .” (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504.)

Thus, under both sections 667 and 1170.12 of the Penal Code: “When a defendant is convicted of a felony, and it is pleaded and proved that he has committed one or more [specified] prior felonies ...[,] sentencing proceeds . . . ‘[notwithstanding any other law’ ([Pen. Code,]; § 667, subd. (c); §1170.12, subd. (a).) Prior [qualifying] felonies ... are taken into account regardless of their age. ([/<£,] § 667, subd. (c)(3); § 1170.12, subd. (a)(3).) The current felony need not be [qualifying], ([Id.,] § 667, subd. (c); §1170.12, subd. (a).) If the defendant has only one qualifying prior felony conviction, the prescribed term of imprisonment (or the minimum term if the current offense calls for an indeterminate sentence) is ‘twice the term otherwise provided as punishment for the current felony conviction.’ ([Id.,] § 667, subd. (e)(1); § 1170.12, subd. (c)(1).) If the defendant has two or more prior qualifying felonies, the prescribed sentence is ‘an indeterminate term of life imprisonment . . . .’ ([Id.,] § 667, subd. (e)(2)(A); § 1170.12, subd. (c)(2)(A).) Those defendants who are sentenced to life become eligible for parole on a date calculated by reference to a ‘minimum term.’ The ‘minimum term’ is the greater of: (a) three times the term otherwise provided for the current conviction; (b) twenty-five years; or (c) the term required by [Penal Code] section 1170 for the current conviction, including any enhancements (the Determinate Sentencing Act of 1976), the term required by [Penal Code] section 190 (concerning homicide), or the term required by [Penal Code] section 3046 (concerning life sentences). ([Id.,] § 667, subd. (e)(2)(A)(i)-(iii); § 1170.12, subd. (c)(2)(A)(i)-(iii).) Sentencing on all current offenses is generally consecutive ([id.,] § 667, subds. (c)(6)-(8); § 1170.12, subds. (a)(6)-(8)) without any aggregate term limitation ([id.,] § 667, subd. (c)(1); § 1170.12, subd. (a)(1)). In sentencing, the court may not grant probation, suspend execution or imposition of sentence ([id.,]\ § 667, subd. (c)(2); § 1170.12, subd. (a)(2)), divert the defendant, or commit the defendant to any facility other than state prison ([í<¿.,] § 667, subd. (c)(4); §1170.12, subd. (a)(4)).” (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 505-506.)

Although “nearly identical” (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504, italics added), Penal Code sections 667 and 1170.12 are not totally so.

*112Thus—as will turn out to be pertinent here—under Penal Code section 667, both insofar as it requires imprisonment for twice the otherwise applicable term when there is only one specified prior felony conviction, and also insofar as it requires imprisonment for life when there are two or more, a qualifying prior felony conviction includes, through its subdivision (e), all three of the following: “(1) Any offense defined in subdivision (c) of [Penal Code] Section 667.5 as a violent felony or any offense defined in subdivision (c) of [Penal Code] Section 1192.7 as a serious felony in this state. . . .” (Pen. Code, § 667, subd. (d)(1).) “(2) A conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined” as a California “violent” or “serious” felony. (Id., § 667, subd. (d)(2).) “(3) A prior juvenile adjudication” in particular circumstances. (Id., § 667, subd. (d)(3).)

Under Penal Code section 1170.12, by contrast, matters are different.

It is true that, insofar as Penal Code section 1170.12 requires imprisonment for twice the otherwise applicable term when there is only one specified prior felony conviction, a qualifying prior felony conviction includes, through its subdivision (c)(1), all three of the following: “(1) Any offense defined in subdivision (c) of [Penal Code] Section 667.5 as a violent felony or any offense defined in subdivision (c) of [Penal Code] Section 1192.7 as a serious felony in this state. . . .” (Pen. Code, § 1170.12, subd. (b)(1).) “(2) A conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined” as a California “violent” or “serious” felony. (Id., § 1170.12, subd. (b)(2).) “(3) A prior juvenile adjudication” in particular circumstances. (Id., § 1170.12, subd. (b)(3).)

But, insofar as Penal Code section 1170.12 requires imprisonment for life when there are two or more specified prior felony convictions, a qualifying prior felony conviction is limited, through its subdivision (c)(2)(A), to only such “as [is] defined in paragraph (1) of [its] subdivision (b),” viz., “[a]ny offense defined in subdivision (c) of [Penal Code] Section 667.5 as a violent felony or any offense defined in subdivision (c) of [Penal Code] Section 1192.7 as a serious felony in this state” (id., § 1170.12, subd. (b)(1)).

II

Defendant was charged by complaint before a magistrate with various felonies committed on May 18, 1994—after Penal Code section 667 became *113effective, but before Penal Code section 1170.12 was enacted. For imprisonment for twice the otherwise applicable term, he was alleged under Penal Code section 667 to have previously been convicted of the “serious” California felony of burglary of an inhabited dwelling house.

Subsequently, defendant was charged by separate complaint before another magistrate with various felonies committed on June 2 and July 3, 1994—again after the effective date of Penal Code section 667 but before the enactment of Penal Code section 1170.12. For life imprisonment, he was alleged under Penal Code section 667 to have previously been convicted of the “serious” California felony of burglary of an inhabited dwelling house, which is referred to above, and also a Nevada felony of attempted rape. Later, he was charged by an amended complaint with an additional felony committed on August 2, 1994.

After Penal Code section 1170.12 was enacted and became effective, and after the causes were consolidated, the assigned magistrate struck the allegation of defendant’s Nevada attempted rape felony conviction to the extent that, if proved, it would require imprisonment for life under Penal Code section 667. Evidently persuaded by an argument that defendant had made in reliance on authorities including In re Estrada (1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948] (hereafter sometimes Estrada), the magistrate appears to have reasoned to this effect: Penal Code section 1170.12 “amends” Penal Code section 667; for life imprisonment, Penal Code section 667 allows two or more specified prior felony convictions in any of the three indicated forms of “violent" and/or “serious” California felonies, certain out-of-state felonies, and particular juvenile adjudications, whereas Penal Code section 1170.12 demands such convictions only in the single form of “violent" and/or “serious” California felonies; because Penal Code section 1170.12 “mitigates punishment” imposed by Penal Code section 667 by limiting its availability, and because Penal Code section 1170.12 does not contain a savings clause for Penal Code section 667, Penal Code section 1170.12 should be applied retroactively before its effective date in any pending cause, such as the present, arising under Penal Code section 667.

The superior court proceeded to deny a motion by the People to compel the magistrate to reinstate the allegation of defendant’s Nevada attempted rape felony conviction for all purposes, including requiring imprisonment for life under Penal Code section 667, and issued an order accordingly.

On the People’s appeal in each of the consolidated causes, the Court of Appeal, having consolidated the matters, reversed the superior court’s order. Engaging in statutory construction, it concluded that, insofar as it requires *114imprisonment for life, Penal Code section 1170.12 allows two or more prior felony convictions in any of the three indicated forms, expressly as to “violent” and/or “serious” California felonies, and impliedly as to both certain out-of-state felonies and particular juvenile adjudications.

III

In my view, the Court of Appeal was right to reverse the superior court’s order denying the People’s motion to compel the magistrate to reinstate the allegation of defendant’s Nevada attempted rape felony conviction for all purposes, including requiring imprisonment for life under Penal Code section 667.

This does not mean that the Court of Appeal was sound in its efforts to construe Penal Code section 1170.12 to allow, for life imprisonment, two or more specified prior felony convictions in any of the three indicated forms of “violent” and/or “serious” California felonies, certain out-of-state felonies, and particular juvenile adjudications. It was not.

The Court of Appeal stumbled over the very words of Penal Code section 1170.12, which allow, for life imprisonment, two or more specified prior felony convictions only “as defined in paragraph (1) of [its] subdivision (b)” (Pen. Code, § 1170.12, subd. (c)(2)(A)), which means only as “defined in subdivision (c) of [Penal Code] Section 667.5 as a violent felony or . . .in subdivision (c) of [Penal Code] Section 1192.7 as a serious felony in this state” (id., § 1170.12, subd. (b)(1)). To read the quoted language in accordance with its sense causes no problem. Certainly, the exclusion of juvenile adjudications is not irrational: generally, the underlying proceedings are deemed not to be criminal in nature (Welf. & Inst. Code, § 203). Neither is the exclusion of out-of-state felonies irrational: California felonies may evidence a greater threat to this state, and hence may justify greater deterrence, than those elsewhere (see People v. McCarthy (1986) 176 Cal.App.3d 593, 596 [222 Cal.Rptr. 291]; People v. Hernandez (1979) 100 Cal.App.3d 637, 645 [160 Cal.Rptr. 607]). But to read the quoted language against its sense to impliedly include certain out-of-state felonies and particular juvenile adjudications as well would yield the untenable result of negating its express limitation as to “violent” and/or “serious” California felonies.

Although the Court of Appeal’s reasoning was wrong, its result was not.

At the first step, we must accept as undisputed and indisputable that, insofar as it requires imprisonment for life, Penal Code section 667 allows two or more specified prior felony convictions in any of the three indicated *115forms of “violent” and/or “serious” California felonies, certain out-of-state felonies, and particular juvenile adjudications.

At the second step, we may at least assume what appears to be plain, namely, that, insofar as it requires imprisonment for life, Penal Code section 1170.12 demands two or more specified prior felony convictions only in the single form of “violent” and/or “serious” California felonies.

At the third step, we find—perhaps surprisingly—that, although later enacted, Penal Code section 1170.12 does not displace Penal Code section 667. The reason is this: Penal Code section 1170.12 expressly permits other sentencing laws—such as Penal Code section 667—to operate, as it were, in supplementary fashion. Both insofar as it requires imprisonment for twice the otherwise applicable term when there is only one specified prior felony conviction, and also insofar as it requires imprisonment for life when there are two or more, Penal Code section 1170.12 declares itself to “apply” not exclusively, but rather “in addition to any other enhancements or punishment provisions which may apply” (Pen. Code, § 1170.12, subd. (c), italics added)—including those of Penal Code section 667.

It is true that, to a certain extent, Penal Code section 1170.12 does indeed displace other laws. But it does not do so with regard to Penal Code section 667, at least not in any aspect pertinent here.

Thus, in its subdivision (a), Penal Code section 1170.12 states: “Notwithstanding any other provision of law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions, as defined in subdivision (b), the court shall adhere to each of’ certain mandates, which broadly prohibit limitation or reduction of a term of imprisonment. In so doing, Penal Code section 1170.12 displaces other laws, but only insofar as they would limit or reduce a term of imprisonment. Penal Code section 667 does not have such an effect. Rather, it extends and increases punishment by allowing two or more specified prior felony convictions in any of the three indicated forms as predicates for life imprisonment.

Also, in its subdivision (b), Penal Code section 1170.12 states: “Notwithstanding any other provision of law and for the purposes of this section, a prior conviction of a felony shall be defined as” indicated above. In so doing, Penal Code section 1170.12 displaces other laws, but only insofar as they would add to, or take away from, its own definition of a “prior conviction of a felony” for its own “purposes.” Penal Code section 667 does not have such an effect. It does indeed contain its own definition of a “prior *116conviction of a felony,” but does so only for its own “purposes.” (Pen. Code, § 667, subd. (d).)

Similarly, in its subdivision (d)(1), Penal Code section 1170.12 states: “Notwithstanding any other provision of law, this section shall be applied in every case in which a defendant has a prior felony conviction as defined in this section. . . .” In so doing, Penal Code section 1170.12 displaces other laws, but only insofar as they would render it inapplicable within its own sphere. Penal Code section 667 does not have such an effect. Indeed, it expressly permits other sentencing laws—such as Penal Code section 1170.12—to operate in supplementary fashion. Both insofar as it requires imprisonment for twice the otherwise applicable term when there is only one specified prior felony conviction, and also insofar as it requires imprisonment for life when there are two or more, Penal Code section 667 declares itself to “apply” not exclusively, but rather “in addition to any other enhancement or punishment provisions which may apply” (Pen. Code, § 667, subd. (e), italics added)—including those of Penal Code section 1170.12. This point deserves emphasis: Penal Code section 1170.12 expressly states that it “shall be applied” (id., § 1170.12, subd. (d)(1)); it does not even impliedly suggest that other laws may not be.

Having said all that, I need add little to dispose of what may be called the “Estrada argument.” It was urged by defendant before the magistrate, and proved to be successful. It is urged again here, but must meet with a different fate.

Under Estrada, the threshold question is whether Penal Code section 1170.12 “amend[s]” Penal Code section 667. (In re Estrada, supra, 63 Cal.2d at p. 742.) The answer is no. Indeed, Penal Code section 1170.12 does not even purport to amend Penal Code section 667. It could not be otherwise. When Proposition 184, which would add section 1170.12 to the Penal Code, was drafted, Assembly Bill No. 971, which would amend Penal Code section 667 into its present form, had not yet been enacted.

Next, under Estrada, the substantive question is whether Penal Code section 1170.12 “mitigates punishment” imposed by Penal Code section 667. (In re Estrada, supra, 63 Cal.2d at p. 748.) The answer is no. As shown, Penal Code section 1170.12 itself imposes punishment, and expressly permits other sentencing laws like Penal Code section 667 to impose punishment “in addition.” (Pen. Code, § 1170.12, subd. (c).)1

*117IV

Much like the Court of Appeal, the majority have made efforts to construe Penal Code section 1170.12 to allow, for life imprisonment, two or more specified prior felony convictions in any of the three indicated forms of “violent” and/or “serious” California felonies, certain out-of-state felonies, and particular juvenile adjudications.

In light of the analysis presented above, it is plain that the majority’s discussion is unnecessary. It matters not whether, for life imprisonment, the later-enacted Penal Code section 1170.12, like the earlier-enacted Penal Code section 667, allows two or more specified prior felony convictions in any of the three indicated forms. That is because Penal Code section 1170.12 permits the operation of Penal Code section 667, which itself so allows.

Furthermore, in light of the analysis presented below, it will become plain that the majority’s discussion is not only unnecessary, but also unsound.

It is common ground that, in “undertak[ing] to construe a statute,” “courts . . . ‘ask only what the statute means.’ (Holmes, Collected Legal Papers (1920) p. 207.) And when they consider that question, they ask only what its words mean. For a statute, as it were, is a complete integration. Within its scope, it is the final and exclusive statement by the legislative body of its intent, superseding all prior and contemporaneous expressions and implications, not only those that are directly contrary but even those that are altogether consistent. Perhaps more accurately, it is the legislative body’s final and exclusive enactment, displacing all terms and conditions of whatever sort that could, would, or might have been passed. To seek the meaning of a statute is not simply to look up dictionary definitions and then stitch together the results. Rather, it is to discern the sense of the statute, and therefore its words, in the legal and broader culture. Obviously, a statute has no meaning apart from its words. Similarly, its words have no meaning apart from the world in which they are spoken.” (Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 672-673 [47 Cal.Rptr.2d 108, 905 P.2d 1248] (conc. opn. of Mosk, J.), first italics added, other italics omitted; cf. San Francisco Taxpayers Assn. v. Board of Supervisors (1992) 2 Cal.4th 571, 580 [7 *118Cal.Rptr.2d 245, 828 P.2d 147] [to similar effect as to an initiative constitutional amendment]; Delaney v. Superior Court (1990) 50 Cal.3d 785, 802-803 [268 Cal.Rptr. 753, 789 P.2d 934] [same: legislative constitutional amendment]; Carman v. Alvord (1982) 31 Cal.3d 318, 330-331 [182 Cal.Rptr. 506, 644 P.2d 192] [same: initiative constitutional amendment].)

At the threshold, the majority claim to discern ambiguity in Penal Code section 1170.12. There is only univocal clarity.

To repeat: Insofar as it requires imprisonment for life when there are two or more specified prior felony convictions, Penal Code section 1170.12 limits a qualifying prior felony through its subdivision (c)(2)(A) to only such “as [is] defined in paragraph (1) of [its] subdivision (b),” viz., “[a]ny offense defined in subdivision (c) of [Penal Code] Section 667.5 as a violent felony or any offense defined in subdivision (c) of [Penal Code] Section 1192.7 as a serious felony in this state” (id., § 1170.12, subd. (b)(1)).

The majority concede that the quoted language can indeed be read in accordance with its sense to require, for life imprisonment, two or more specified prior felony convictions only in the single form of “violent” and/or “serious” California felonies. In this regard, they do no more than they must.

But the majority then go on to assert that the quoted language can also be read to allow, for life imprisonment, two or more specified prior felony convictions in the form of certain out-of-state felonies and, apparently, particular juvenile adjudications as well.

In support, the majority first state that the express limitation to “violent” and/or “serious” California felonies in subdivision (c)(2)(A) of Penal Code section 1170.12 may somehow be without limitation to all offenses of that “nature” (maj. opn., ante, at p. 106, italics omitted), including out-of-state felonies and, apparently, juvenile adjudications. The words simply cannot shoulder the weight they are asked to bear. The express limitation to a single form alone cannot reasonably be transmogrified into an implied embracing of all three forms together. If Latin is needed, it is available: Expressio unius, exclusio alterum.2

The majority next state that the express limitation to “violent” and/or “serious” California felonies in subdivision (c)(2)(A) of Penal Code section 1170.12 may be “inconsistent” (maj. opn., ante, at p. 106) with the definition *119of a qualifying prior felony conviction, which includes certain out-of-state felonies and particular juvenile adjudications as well. It is not. It merely limits the kind that can serve as a predicate for life imprisonment. As explained above, such a limitation is not irrational.

Looking to extrinsic materials relating to Proposition 184 in the ballot pamphlet—and somehow overlooking Penal Code section 1170.12 itself, which is set out therein in its entirety—the majority claim to discover an intent on the part of the voters, in enacting Penal Code section 1170.12, to enact a provision identical to Penal Code section 667. As will appear, any such aim would be of no consequence.

Under the circumstances, it seems improper to seek the voters’ intent as to Penal Code section 1170.12 in the extrinsic materials. As explained above, the final and exclusive statement of such intent is the statute itself. In pertinent part, that statement is this: For life imprisonment, Penal Code section 1170.12 demands two or more specified prior felony convictions only in the single form of “violent” and/or “serious” California felonies. The extrinsic materials are, by definition, extrinsic to the statute. In some parts, they may provide neutral descriptions. In other parts, they may offer tendentious characterizations. In no part, however, are they the statute itself.

Even if one were to seek the voters’ intent as to Penal Code section 1170.12 in the extrinsic materials, he would find nothing to vary the meaning of the statute’s words. Let us assume for argument’s sake that, in enacting Penal Code section 1170.12, the voters had in fact intended to enact a provision identical to Penal Code section 667. From this assumption, what follows? First and last, of course, that they intended to enact Penal Code section 1170.12—which demands, for life imprisonment, two or more specified prior felony convictions only in the single form of “violent” and/or “serious” California felonies. It is true that they had been led to believe—erroneously —that Penal Code section 1170.12 was identical to Penal Code section 667 and, consequently, that Penal Code section 667 was identical to Penal Code section 1170.12. But they must necessarily have inferred—again, erroneously—that Penal Code section 667 made the same demand as Penal Code section 1170.12. They surely had no reason to do otherwise. In the ballot pamphlet, they had been given Penal Code section 1170.12 itself, which makes the demand; they had not been given Penal Code section 667, which does not.

V

For the reasons stated above, I join in affirming the judgment of the Court of Appeal.

Werdegar, J., concurred.

A question that need not be answered in this cause presents itself on the face of Penal Code section 667 and Penal Code section 1170.12. Both subdivision (d)(2) of Penal Code *117section 667 and subdivision (b)(2) of Penal Code section 1170.12 define a “prior conviction of a felony” as, inter alia, a “conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined” as a California “violent” or “serious” felony. It is clear that a “prior conviction of a felony” embraces a prior conviction of a non-California felony with all the elements of a California "serious" or "violent” felony. But it is unclear whether it extends further.

The majority state: “[Penal Code] section 1170.12, subdivision (b)(2), includes only those out-of-state convictions deemed violent or serious in California . . . .” (Maj. opn., ante, at p. 106, italics added.) Easier to assert than to prove. (See fn. 1, ante.)