People v. Prather

MOSK, J.

I dissent. The majority conclude that the judgment of the Court of Appeal must be reversed. Their ultimate premise is that article I, section 28, subdivision (f), of the California Constitution (hereafter article I, section 28(f)) abrogates the “double the base term” limit of Penal Code section 1170.1, subdivision (g) (hereafter section 1170.1(g)), as applied to sentence enhancements for prior felony convictions. That premise is unsound. As will appear, article I, section 28(f), has no relevant effect on section 1170.1(g) whatever.

I

Defendant was charged with, among other offenses, one count of second degree burglary (Pen. Code, § 459) and two counts of possession of a concealable firearm by a person previously convicted of a felony (id., § 12021, subd. (a)). It was alleged for purposes of enhancement of sentence that he had previously served a prison term (id., § 667.5, subd. (b)), and that he committed one of the firearm violations charged “while . . . released from custody” on another offense (id., § 12022.1, subd. (b)).

Defendant pleaded guilty to the charges and admitted the allegations. The court sentenced him to a total term of six years and four months in prison, as follows: two years for burglary, which was the middle term for the offense and was designated by the court as the base term for purposes of sentencing (Pen. Code, §§ 1170, subd. (b), 1170.1, subd. (a)); eight months for each of the two firearm violations, which were designated the subordi*442nate terms (id., § 1170.1, subd. (a)); two years for the firearm enhancement (id., § 12022.1, subd. (b)); and one year for the prior-prison-term enhancement (id., § 667.5, subd. (b)).

On appeal, defendant contended that his sentence violated the “double the base term” limit of section 1170.1(g): “The term of imprisonment shall not exceed twice the number of years imposed by the trial court as the base term . . . .” The Court of Appeal agreed, and proceeded to modify the judgment to stay two years and four months of the total sentence—the portion that exceeded the “double the base term” limit here of four years.

II

Article I, section 28(f)—which was adopted by the electorate at the June 1982 Primary Election as part of the initiative measure commonly referred to as “Proposition 8”—declares in pertinent part that “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.”

Crucial here is the meaning of article I, section 28(f), especially the phrase “without limitation.” In construing such a provision, a court has as its paramount task to determine the intent of the voters. (E.g., In re Lance W. (1985) 37 Cal.3d 873, 889 [210 Cal.Rptr. 631, 694 P.2d 744].) In carrying out that task, it starts with the language of the measure. (E.g., ITT World Communications, Inc. v. City and County of San Francisco (1985) 37 Cal.3d 859, 866 [210 Cal.Rptr. 226, 693 P.2d 811].) But a court is not constrained by that language. When it finds the words ambiguous, it may attempt to interpret them with the assistance of extrinsic materials reflecting the voters’ intent. (See id. at p. 868.)

What the phrase “without limitation” means is far from clear. This fact has been noted time and again by this court and its members, sometimes expressly and sometimes impliedly. (See People v. Fritz (1985) 40 Cal.3d 227, 230-231 [219 Cal.Rptr. 460, 707 P.2d 833]; id. at pp. 231-233 (conc, opn. of Grodin, J.); People v. Castro (1985) 38 Cal.3d 301, 309-312 [211 Cal.Rptr. 719, 696 P.2d 111] (plur. opn.); People v. Jackson (1985) 37 Cal.3d 826, 837 [210 Cal.Rptr. 623, 694 P.2d 736].) The reason for the difficulty is plain.

“In the context of sentence enhancements, the ‘without limitation’ language has no clear referent. Enhancement of sentences can occur only within a system of rules which prescribes what sorts of prior convictions are to be used for purposes of enhancement, and the criteria and procedure by *443which enhancements are to be computed in relation to the defendant and the crime he has committed. All of these criteria can be viewed both positively and negatively, i.e., as stating the conditions under which enhancement will or may occur, or as stating the circumstances under which they will not. A rule of law which provides that sentences will be enhanced on the basis of certain types of crimes, for example, carries with it the negative implication that enhancement will not occur on the basis of crimes outside the delineated category. Similarly, there is a negative aspect to a rule of law which prescribes the period within which prior crimes must have occurred in order to form the basis for enhancement or the types of crimes of which the defendant must be convicted currently in order that his sentence be enhanced. In the case of each of these criteria, the negative implication of the rule can be viewed as a ‘limitation’ upon enhancement, yet the ‘limitation’ exists only as the flip side of the rule’s ‘positive’ aspect.” (People v. Fritz, supra, 40 Cal. 3d at p. 232 (conc. opn. of Grodin, J.).)

The majority concede the ambiguity of the phrase “without limitation.” “[W]e do not suggest that article I, section 28, subdivision (f), is without ambiguity or that its application will be obvious in all cases. On the contrary, we recognize that the phrase ‘without limitation’ can present unique interpretive difficulties.” (Maj. opn., ante, at p. 437.) The majority’s concession is compelled by the force of their own analysis. At one point, they seem to say that the phrase must be construed literally and, so construed, yields the result they reach. “[T]he enactment of article I, section 28, subdivision (f), ‘was an unambiguous expression of the electorate’s intent to supersede the twice the base term rule as it applied to [prior felony] enhancements.’ ” (Id. at p. 436.) But at another point, they seem to say that the phrase must not be construed literally, lest it yield an untenable result. “[T]he ‘without limitation’ language, taken to its literal extreme, might render meaningless all legislative criteria for sentence enhancements based on prior felony convictions because any affirmatively expressed criterion for enhancement necessarily ‘limits’ by implication the use of others not specified.” (Id. at p. 437.)

Faced with ambiguity in the meaning of the phrase “without limitation,” I turn to extrinsic aids that may reveal indications of the intent of those who voted for Proposition 8. Such aids include, for example, the analysis of the Legislative Analyst and the ballot arguments. (E.g., ITT World Communications, Inc. v. City and County of San Francisco, supra, 37 Cal.3d at p. 868.)

Contrary to the apparent view of the majority, the analysis of the Legislative Analyst provides little if any assistance in this matter. The relevant portion is as follows.

*444“Longer Prison Terms. Under existing law, a prison sentence can be increased from what it otherwise would be by from one to ten years, depending on the crime, if the convicted person has served prior prison terms, and a life sentence can be given to certain repeat offenders. Convictions resulting in probation or commitment to the Youth Authority generally are not considered for the purpose of increasing sentences, and there are certain limitations on the overall length of sentences.

“This measure includes two provisions that would increase prison sentences for persons convicted of specified felonies. First, upon a second or subsequent conviction for one of these felonies, the defendant could receive, on top of his or her sentence, an additional five-year prison term for each such prior conviction, regardless of the sentence imposed for the prior conviction. This provision would not apply in cases where other provisions of law would result in even longer prison terms. Second, any prior felony conviction could be used without limitation in calculating longer prison terms.” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Primary Elec. (June 8, 1982), analysis of Prop. 8 by Legis. Analyst, pp. 54-55, boldface and italics in original.)

As pertinent here, the above analysis does little more than paraphrase article I, section 28(f), as it applies to the use of prior felony convictions for enhancement. And it does absolutely nothing more than quote (without quotation marks) the phrase whose meaning must here be determined.

More helpful by far are the ballot arguments. It is clear from the arguments in favor that Proposition 8 was framed, at least in part, to overrule and preempt judicial decisions that the Legislature had failed or refused to overrule or preempt. (See People v. Castro, supra, 38 Cal.3d at p. 312 (plur. opn.) [recognizing that “[t]he dissatisfaction of the proponents with the appellate courts was expressed in the literature that supported the initiative”].)

One proponent argued in relevant part: “It is time for the people to take decisive action against violent crime. For too long our courts and the professional politicians in Sacramento have demonstrated more concern with the rights of criminals than with the rights of innocent victims. This trend must be reversed. By voting ‘yes’ . . . you will restore balance to the rules governing the use of evidence against criminals, you will limit the ability of violent criminals to hide behind the insanity defense, and you will give us a tool to stop extremely dangerous offenders from being released on bail to commit more violent crimes.” (Ballot Pamp., Proposed Stats, and Amends. *445to Cal. Const, with arguments to voters, Primary Elec. (June 8, 1982), arguments in favor of Prop. 8, p. 34, italics added.)

Another proponent argued: “Crime has increased to an absolutely intolerable level. [fl] While criminals murder, rape, rob and steal, victims must install new locks, bolts, bars and alarm systems in their homes and businesses. Many buy tear gas and guns for self-protection. Free People Should Not Have to Live in Fear, [fl] Yet, higher courts of this state have created additional rights for the criminally accused and placed more restrictions on law enforcement officers. This proposition will overcome some of the adverse decisions by our higher courts, [fl] This Measure Creates Rights for the Victims of Violent Crimes. It enacts new laws that those of us in law enforcement have sought from the Legislature without success. ” (Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with arguments to voters, Primary Elec. (June 8, 1982), arguments in favor of Prop. 8, p. 34, emphasis in original, italics added.)

The majority disagree with this reading of the intent of the framers of Proposition 8. They say that “the ballot arguments supporting Proposition 8 evinced . . . discontent with both the courts and the Legislature.” (Maj. opn., ante, at p. 435, fn. 7, italics in original.) That is true. But read in their historical context, those arguments evinced discontent with the Legislature essentially because it had failed or refused to overrule or preempt decisions by the courts—and especially this court. The majority also say that “[i]n the sentence enhancement context” the ballot arguments had no “distinct line of judicially created law” prior to Proposition 8 to reject. (Id. at p. 435.) That also may be true. But as stated, the framers’ apparent intent was not simply to overrule decisional law already made but also to preempt the making of similar law in the future.

In view of the foregoing, I conclude that the phrase “without limitation” must be construed to mean—if it can be construed to mean anything at all—“without judicially created limitation.” Such an interpretation accords with what we can infer to have been the intent of the voters, i.e., to overrule and preempt judicial decisions limiting the use of prior felony convictions for enhancement. It also avoids an untenable result, i.e., a construction that would undermine the existence of enhancements at the same time that it would bar limitation on their use. (Cf. People v. Castro, supra, 38 Cal.3d at p. 312 (plur. opn.) [effectively construing the phrase to mean “without judicially created limitation” insofar as it qualifies the applicability of art. I, § 28(f), to the use of prior felony convictions “for purposes of impeachment”].)

*446The majority construe the phrase “without limitation” differently. They appear to understand it to mean that statutory restrictions on the use of an enhancement that are “conditional” or “definitional” (maj. opn., ante, at p. 439) are allowed, but those that are not are barred. That construction, however, is nothing more than the so-called “internal/external” interpretation under a different label. “The problem with such an interpretation,” as the majority themselves appear to recognize, “is that ‘such a distinction, . . . quite apart from the fact that it finds no support in the language or history of the initiative, makes no sense. Why would the voters care whether the “limitation” imposed by the Legislature is contained in the same statute or the provision for enhancement, or in a different statute?’ ” (Id. at p. 438.) In a word, the majority’s construction renders the “without limitation” mandate an empty formal requirement for the drafting of statutes. Such an interpretation cannot be accepted.

In spite of their formalistic construction of the phrase, the majority discern therein a substantive requirement barring any “general cap on the overall length of a sentence.” (Maj. opn., ante, at p. 438.) I cannot. If the Legislature retains the authority to define and condition enhancements—as the majority evidently believe it does—it may then introduce a “general cap” into any given enhancement as part of its definition or one of its conditions. Thus, it may define an enhancement to include all in a given class whose total sentence, excluding the enhancement, is less than double the base term. Or it may subject the application of an enhancement to the condition that the total sentence, including the enhancement, does not exceed double the base term. Therefore, the majority’s formalistic construction of the phrase is inconsistent with the existence of a substantive requirement barring any “general cap on the overall length of a sentence” (ibid.), or at the very least renders such a requirement nugatory.

Ill

It follows from the analysis presented above that the majority are wrong when they conclude that article I, section 28(f), abrogates the “double the base term” limit of section 1170.1(g) as applied to enhancements for prior felony convictions. As explained, the crucial phrase “without limitation” contained in article I, section 28(f) means, if anything, “without judicially created limitation.” The “limitation” effected by section 1170.1(g) was created not by the courts but—obviously—by the Legislature. Therefore, article I, section 28(f), has no relevant effect on section 1170.1(g) whatever.

*447IV

In conclusion, I have reviewed the decision of the Court of Appeal and have found it unobjectionable. Therefore, I would affirm the judgment of that court.

Broussard, J., concurred.

Appellant’s petition for a rehearing was denied May 17, 1990. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted.