People v. Vessell (36 Cal. App. 4th 285, 1995)

Opinion

NOTT, J.

This case of first impression presents the question of whether the “three strikes” law prevents a trial judge from sentencing a “wobbler” as a misdemeanor. We hold that it does not.

The People appeal from a judgment entered following respondent Kenneth Lester Vessell’s no contest plea to a charge that he violated Penal Code section 273.5, subdivision (a), after he punched his girlfriend and pushed her against a wall during an argument on April 23, 1994. Under the provisions of section 17, subdivision (b), the trial court reduced the crime to a misdemeanor, imposed sentence, and granted probation. We affirm.

Contentions

The People urge that (1) they have the right to appeal from the imposition of an unlawful sentence; (2) section 17 conflicts with the legislative intent of section 667; (3) by requiring a state prison term, section 667 has restricted the trial court’s power to impose a misdemeanor sentence; (4) the Legislature has the power to restrict the application of section 17; and (5) the trial court improperly engaged in plea bargaining.

Procedural Background

Respondent was charged with a violation of section 273.5, subdivision (a), which is punishable either as a felony or a misdemeanor in the discretion of the court. It was further alleged, pursuant to section 667, subdivisions (b) to (i), that in August 1987, respondent suffered a prior conviction for a serious or violent felony in the form of assault with a firearm in violation of section 245, subdivision (a)(2), with a section 12022.5 allegation. It was also alleged, pursuant to section 667.5, subdivision (b), that this same prior conviction resulted in a prison term.

On July 18, 1994, the matter was called for trial. Respondent pleaded no contest to the section 273.5 violation and admitted the truth of the prior conviction. On August 1, 1994, under section 17, subdivision (b)(1), the trial court reduced the charge to a misdemeanor, sentenced defendant to serve 365 days in county jail after a waiver of credit for time already served in custody, and granted probation.

This appeal followed.

Discussion

I. Right to Appeal.

Respondent challenges the People’s right to appeal under section 1238.

Under section 1238, subdivision (a)(10), the People have the right to appeal from “[t]he imposition of an unlawful sentence, whether or not the court suspends the execution of the sentence. . . .” That section defines “an unlawful sentence” as “the imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court which strikes or otherwise modifies the effect of an enhancement or prior conviction.”

The People’s argument on appeal is that section 667, commonly known as the “three strikes” law, mandates a state prison term, and therefore the trial court’s reduction of the felony charge to a misdemeanor without a resulting state prison term was not authorized by law. We agree with the People that the appeal is based not on the sentence of probation itself but on the trial court’s failure to apply section 667, resulting in an arguably unlawful sentence. Accordingly, we need not address the People’s alternative arguments regarding appealability under section 1238, subdivision (a)(1), (a)(4) and (a)(8).

II. Section 17 Does Not Conflict With the Legislative Intent of Section 667.

A. The Legislative Intent of Section 667 and Section 17, Subdivision (b).

A statute must be construed so as to conform to the legislative purpose, in light of the context of the entire scheme of law. of which it is a part. (Lambert Steel Co. v. Heller Financial, Inc. (1993) 16 Cal.App.4th 1034, 1040 [20 Cal.Rptr.2d 453].) When the language of a statute is clear, the court should follow its plain meaning. (Great Lakes Properties, Inc. v. City of El Segundo (1977) 19 Cal.3d 152, 155 [137 Cal.Rptr. 154, 561 P.2d 244].) The courts assume that the Legislature, when enacting a statute, was aware of existing related laws and intended to maintain a consistent body of rules. (Scott Co. v. Workers’ Comp. Appeals Bd. (1983) 139 Cal.App.3d 98, 105 [188 Cal.Rptr. 537, 34 A.L.R.4th 949].) However, a particular or specific provision will take precedence over a conflicting general provision. (Code Civ. Proc., § 1859; Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 420 [128 Cal.Rptr. 183, 546 P.2d 687].) Moreover, “ ‘[a] basic rule of statutory construction is that two potentially conflicting statutes must be construed whenever possible in such a manner that harmonizes and gives effect to both. [Citations.]’ [Citation.]” (Michaelis v. Schori (1993) 20 Cal.App.4th 133, 136 [24 Cal.Rptr.2d 380].)

Section 667 was amended to include the three strikes legislation, effective March 7, 1994. The amendment significantly increases the sentence of persons convicted of any felony offense who have previously been convicted of one or more serious or violent felonies. The stated purpose is to “. . . ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.” (§ 667, subd. (b).)

The People urge that section 667, subdivision (c) and the sentencing provisions of subdivision (e) were intended to supersede any other provision of law, including section 17, subdivision (b), which states, in part: “When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [