People v. Green

ANDREEN, J. Concurring and Dissenting.

I concur with the opinion except for that portion under the heading “Evidentiary Sufficiency— Prior Prison Term.”

There was substantial evidence before the jury to establish that the defendant was imprisoned pursuant to a judgment in action No. 19418. Although no showing of completion of the term was made,1 such is unnecessary in the sense argued for by the majority. The statutory purpose of subdivision (g) of section 667.52 is to prevent two enhancements for a single sentence to state prison where parole was violated without a new commitment. (People v. Espinoza (1979) 99 Cal.App.3d 59, 70-71 [159 Cal.Rptr. 894].)

The evident purpose of section 667.5 is “.. . the sensible one of providing courts with added punishment possibilities for prior imprisoned recidivist offenders.” (People v. Mathews (1980) 102 Cal.App.3d 704, 711 [162 Cal.Rptr. 615].) It fosters the general purpose of determinate sentencing, which is, “to increase the penalties incurred by repeat offenders and thus deter recidivism.” (People v. Butler (1980) 104 Cal. App.3d 868, 884 [162 Cal.Rptr. 913].)

The Legislature’s evident purpose of preventing enhancements for parole violations was inartfully expressed when it utilized the term *598“continuous completed” in subdivision (g). However, this imperfect use of the English language should not lead us into a grotesque result unintended by the Legislature.

As our Supreme Court stated in Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208 [149 Cal.Rptr. 239, 583 P.2d 1281]: “The literal language of enactments may be disregarded to avoid absurd results and to fulfill the apparent intent of the framers. (See Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259 In re Kerman (1966) 242 Cal.App. 2d 488, 491 ....)” (At p. 245.)

“The primary rule of statutory construction, to which all other such rules are subject, is that the courts must ascertain the intent of the legislature, whenever possible, in order to effectuate the purpose of the law. That intent must be gathered from the whole of a statute rather than from isolated parts or words.” (58 Cal.Jur.3d, Statutes, § 100, p. 468, fns. omitted.)

I recognize that judicial preference for reasonable statutory construction in keeping with legislative purpose does not permit a rewriting of a statute. Such is unnecessary in order to bring reason to subdivision (g). The section is an attempt to define the words “prior separate prison term” as they are used in subdivisions (a) and (b). Subdivision (g) is a limitation on the court’s power to impose an enhancement, so as to preclude two enhancements in the case of a reimprisonment either for a parole violation or following an escape. In the context considered here, it serves no other purpose.

People v. George (1980) 109 Cal.App.3d 814, 823 [167 Cal.Rptr. 603], upon which the majority relies, results in absurd consequences. If, in the instant case, the defendant faithfully obeyed the law and served his term and was released on parole, he should be in no worse position than if he escaped. But in the first case he would serve an additional year for enhancement; in the latter, he would escape the enhancement by escape from confinement. Such fallacious reasoning should be avoided. (People v. Bulter, supra, 104 Cal.App.3d at pp. 883-884.)

Can it be that a defendant who obeyed the law, served his term and is paroled is in a worse position than if he escaped? This is precisely the result of the George holding and which the majority countenances by its reliance on the flawed logic of that opinion. On conviction for a new of*599fense a parolee would suffer an additional one-year enhancement while an escapee would slip through the loophole of the majority’s interpretation of subdivision (g) as facilely as he did prison security.3

The irony of the majority’s interpretation of subdivision (g) is that it is an attempt to follow legislative dictates but thwarts the purpose of the sentencing law—to increase the penalties incurred by repeat offenders and thus deter recidivism. (See People v. Butler, supra, 104 Cal. App.3d at p. 884; People v. Espinoza, supra, 99 Cal.App.3d at pp. 73-74.)

Section 667.5 is not unlike one interpreted by the Supreme Court in People v. McKinley (1934) 2 Cal.2d 133 [39 P.2d 411]. While not mentioning section 1158, the California Supreme Court held in McKinley that a finding that a defendant suffered the prior conviction charged was a sufficient finding to subject that defendant to the term prescribed under former section 667,4 a predecessor statute to section 667.5,5 although former section 667 required that a prior prison term have been served to subject a defendant to the increased penalties of that section. The defendant was charged with petty theft with a prior. The only evidence of a prior conviction was a judgment of conviction of a crime and an affidavit that the judgment of conviction accompanied the defendant when he was committed to the Oklahoma state prison. On this sketchy evidence, the judgment was affirmed, the court stating: “In the present case the information in each count alleged the prior conviction and that the defendant had served a term in a penal institution therefor. The verdict as to each count found the defendant guilty of the particular offense after prior conviction of a felony as charged in the information. The judgment as to each count recited that the defendant had been *600found guilty of petty theft after prior conviction of a felony, the judgments to run concurrently. There is no necessity for the further statement in the judgment that the defendant had served time for a pri- or felony, when, as here, the fact was charged, proved and found by the jury, in order to subject him to the term prescribed by section 667 of the Penal Code.” (At pp. 135-136.)

It should be noted that the only proof that the defendant had served a term in prison was that he was committed and that the judgment of conviction accompanied him to the institution. There was no proof that he served any time there. For all that appears, he could have escaped during intake processing.

The proof at bench is no weaker than in McKinley. There is no indication in the record that appellant escaped or did anything other than complete his term.

The judgment should be affirmed in all particulars.

At sentencing, the trial court noted the defendant was on parole. However, the record is devoid of evidence to establish that fact.

All statutory references are to the Penal Code.

It is no answer that escape is punishable as an independent crime, for if there is a conviction for escape, a defendant should suffer the statutory penalties for that crime in addition to appropriate punishment for other derelictions.

Former section 667 provided: “Every person who, having been convicted of any felony either in this State or elsewhere, and having served a term therefor in any penal institution, commits petty theft after such conviction, is punishable therefor by imprisonment in the county jail not exceeding one year or in the State prison' not exceeding five years. ...” (Italics added.)

Statutes 1976, chapter 1139, sections 267 and 268, pages 5137-5139, repealed section 667 and enacted section 667.5. Following passage of the Uniform Determinate Sentencing Act of 1976 subdivision (g), inter alia, of section 667.5 was amended in particulars not relevant to this appeal. (Stats. 1977, ch. 165, § 13, p. 644; Leg. Counsel’s Dig. of Assem. Bill No. 476, 3 Stats. 1977 (Reg. Sess.) Summary Dig., p. 41.)