IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
S105781
Plaintiff and Respondent,
Ct. App. 3
v.
C036904
VICTOR RODRIGUEZ MONTES,
Tehama
County
Defendant and Appellant.
Super. Ct. No. NCR52438
Penal Code section 186.22, subdivision (b)(5) (section 186.22(b)(5))
provides that a defendant who commits “a felony punishable by imprisonment in
the state prison for life” for the benefit of a criminal street gang “shall not be
paroled until a minimum of 15 calendar years have been served.” We granted
review to determine whether this provision applies (a) if the defendant commits a
felony which, together with the Penal Code section 12022.53, subdivision (d)
(section 12022.53(d)) enhancement results in a life term, or (b) only if the
defendant commits a felony that, by its own terms, provides for a life sentence.
For the reasons stated below, we conclude that section 186.22(b)(5) applies
only where the felony by its own terms provides for a life sentence.
1
PROCEEDINGS BELOW
On March 8, 2000, defendant shot a rival gang member several times,
inflicting serious injuries requiring surgery. Following a court trial, defendant was
convicted of attempted murder. (Pen. Code §§ 664, 187.)1 The court also found
true that defendant intentionally discharged a firearm while committing the
offense (§§ 12022.5, 12022.53, subds. (b), (c)), inflicted great bodily injury (§§
12022.7, 12022.53, subd. (d)), participated in a criminal street gang (§ 186.22,
subd. (a)), and acted for the benefit of that gang (§ 186.22, subd. (b)(1)). The trial
court sentenced defendant as follows: the midterm of seven years for attempted
murder (§§ 664, 187),2 plus a consecutive term of 10 years for the criminal street
gang enhancement (§ 186.22, subd. (b)(1)(C)), plus a consecutive term of 25 years
to life for the firearm enhancement (§ 12022.53, subd. (d)).
The Court of Appeal, however, held that the trial court erred in imposing
the 10-year enhancement under section 186.22, subdivision (b)(1) (hereafter
section 186.22(b)(1)) and modified the judgment. It struck the section
186.22(b)(1) enhancement and instead imposed the 15-year minimum parole
eligibility date mandated by section 186.22(b)(5),3 which applies when a
1
All further statutory references are to the Penal Code.
2
The Court of Appeal and the parties refer to defendant’s conviction as one
of “attempted second degree murder.” This terminology is erroneous. In People
v. Bright (1996) 12 Cal.4th 652, 665-669, we held that attempted murder is not
divided into degrees. Instead, we stated that “an attempt to commit murder that is
‘willful, deliberate, and premeditated’ does not establish a greater degree of
attempted murder but, rather, sets forth a penalty provision prescribing an
increased sentence (a greater base term) to be imposed upon a defendant’s
conviction of attempted murder when the additional specified circumstances are
found true by the trier of fact.” (Id. at p. 669, fn. omitted.)
3
In People v. Jefferson (1999) 21 Cal.4th 86, 101, we held that section
186.22(b)(5) is properly characterized as an alternate penalty provision.
2
defendant is convicted of “a felony punishable by imprisonment in the state prison
for life,” and provides that the defendant “shall not be paroled until a minimum of
15 calendar years have been served.” The Court of Appeal reasoned that
attempted murder was “a felony punishable by imprisonment . . . for life,” within
the meaning of section 186.22(b)(5) because the underlying felony of attempted
murder and the section 12022.53(d) firearm enhancement together resulted in a
life term. The Court of Appeal affirmed the judgment as modified and directed
the trial court to prepare an amended abstract of judgment that reflected the
modifications.
The Attorney General disagrees. He argues that section 186.22(b)(5)
applies only where the underlying felony itself provides for a life sentence, ruling
out any enhancement not included in the definition of the underlying felony.
Under this view, the trial court correctly computed defendant’s sentence. For the
reasons stated below, we agree and reverse the Court of Appeal’s modification of
judgment.
DISCUSSION
A. The STEP Act
Penal Code section 186.22(b)(5) is a provision that was added to the
California Street Terrorism Enforcement and Prevention Act (STEP Act).
(§ 186.20 et seq.) The impetus behind the STEP Act, which was enacted in 1988,
was the Legislature’s recognition that “California is in a state of crisis which has
been caused by violent street gangs whose members threaten, terrorize, and
commit a multitude of crimes against the peaceful citizens of their neighborhoods.
These activities, both individually and collectively, present a clear and present
danger to the public order and safety and are not constitutionally protected.”
3
(§ 186.21.) The Act’s express purpose is “to seek the eradication of criminal
activity by street gangs . . . .” (Ibid.)
On March 7, 2000, the California electorate passed Proposition 21, which
amended the STEP Act. As is relevant here, section 186.22(b)(1) now provides
that, “Except as provided by paragraphs (4) and (5), any person who is convicted
of a felony committed for the benefit of . . . any criminal street gang, with the
specific intent to promote, further or assist in any criminal conduct by gang
members, shall, upon conviction of that felony, in addition and consecutive to the
punishment prescribed for the felony . . . , be punished as follows: [¶] (A) Except
as provided in subparagraphs (B) and (C), the person shall be punished by an
additional term of two, three, or four years at the court’s discretion. [¶] (B) If the
felony is a serious felony, as defined in subdivision (c) of Section 1192.7, the
person shall be punished by an additional term of five years. [¶] (C) If the felony is
a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be
punished by an additional term of 10 years.”
Additionally, Proposition 21 renumbered section 186.22, former
subdivision (b)(4) as section 186.22(b)(5). Its substantive language was
unchanged. Section 186.22(b)(5) provides: “Except as provided in paragraph (4),
any person who violates this subdivision in the commission of a felony punishable
by imprisonment in the state prison for life, shall not be paroled until a minimum
of 15 calendar years have been served.”
B. Court of Appeal Opinion
The Court of Appeal first noted that a defendant is subject to the section
186.22(b)(5) alternate penalty provision when a court “imposes a life term on a
felony committed for the gang’s benefit.” “This raises the question,” stated the
Court of Appeal, “whether the phrase ‘felony punishable by imprisonment in the
4
state prison for life’ in section 186.22(b)(5) means the underlying felony in the
abstract or the felony actually committed, including conduct that results in
enhanced punishment.”
The Court of Appeal believed that because the “Legislature did not specify
that the felony be punishable by a ‘base term’ of imprisonment in the state prison
for life, nor did it expressly include felonies punishable by life imprisonment as
the result of an enhancement,” the phrase “felony punishable by imprisonment in
the state prison for life” was ambiguous. As such, “courts must construe the
ambiguity in favor of the defendant, giving him the benefit of every reasonable
doubt as to the true interpretation of words or the construction of the statute.
[Citations.] This ‘rule of lenity’ is an appropriate ‘tiebreaker’ where there are
equally plausible interpretations of law. [Citation.]”4 The Court of Appeal,
because it found “no logical reason why a felony punishable by life imprisonment
as a result of an enhancement should be treated differently [than a felony
punishable by a ‘base term’ of imprisonment for life],” struck the section
186.22(b)(1) enhancement and instead imposed the 15-year minimum eligible
parole date of section 186.22(b)(5). We disagree.
4
In People v. Avery (2002) 27 Cal.4th 49, 57-58, we limited the applicability
of the rule of lenity as a means of resolving a perceived ambiguity in a penal
statute: “As Witkin explains, ‘The rule [of lenity] applies only if the court can do
no more than guess what the legislative body intended; there must be an egregious
ambiguity and uncertainty to justify invoking the rule.’ (1 Witkin & Epstein, Cal.
Criminal Law (3d ed. 2000) Introduction to Crimes, § 24, p. 53.) . . . [¶] Thus,
although true ambiguities are resolved in a defendant’s favor, an appellate court
should not strain to interpret a penal statute in defendant’s favor if it can fairly
discern a contrary legislative intent.”
5
C. Analysis
As stated earlier, the STEP Act was enacted in 1988. At that time, the
language that now appears in section 186.22(b)(5) was contained in section
186.22, subdivision (b)(3).5 While current section 186.22(b)(5) has been
renumbered several times since 1988, the section’s substantive language has
remained the same since 1988, through the voters’ passage of Proposition 21.6
Where a voter initiative contains a provision that is identical to a provision
previously enacted by the Legislature, in the absence of an indication of a contrary
intent, we infer that the voters intended the provision to have the same meaning as
the provision drafted by the Legislature. (See People v. Trevino (2001) 26 Cal.4th
237, 241 [“Section 190.2 was enacted by voter initiative in 1978, but the language
of its subdivision (a)(2) is identical to a provision that the Legislature enacted as
part of the 1977 death penalty law. [Citation.] In the absence of anything
suggesting the contrary, we infer that the voters who enacted section 190.2
intended subdivision (a)(2) to have the same meaning as the identically worded
5
As enacted in 1988, section 186.22, subdivision (b)(3) provided: “Any
person who violates this subdivision in the commission of a felony punishable by
imprisonment in the state prison for life, shall not be paroled until a minimum of
15 calendar years have been served.” (Stats. 1988, ch. 1256, § 1, p. 4180.)
6
In 1991, when the STEP Act was repealed and reenacted effective January
1, 1993 by the Legislature, then section 186.22, subdivision (b)(3) was
renumbered as section 186.22, subdivision (b)(2). (Stats. 1991, ch. 661, § 2, p.
3039.) Its language was unchanged. In 1995, the Legislature amended the STEP
Act. At that time, then section 186.22, subdivision (b)(2) was renumbered as
section 186.22, subdivision (b)(4). (Stats. 1995, ch. 377, § 2, p. 1942.) Again, its
language was unchanged. The provision remained designated as former section
186.22, subdivision (b)(4) until the passage of Proposition 21. As noted, it was
then renumbered as section 186.22(b)(5) by Proposition 21 and, while the
initiative added the phrase “[e]xcept as provided in paragraph (4),” the section’s
substantive language otherwise remained unchanged.
6
provision drafted by the Legislature.”].)7 Because there is no evidence of a
contrary intent here, we infer that the voters intended section 186.22(b)(5) to have
the same meaning as the identically worded provision drafted by the Legislature in
1988.
In
People v. Casteneda (2000) 23 Cal.4th 743, 746-747, we stated: “ ‘In
construing the relevant provisions of the STEP Act, as with any statute, we strive
to ascertain and effectuate the Legislature’s intent.’ [Citations.]” “We begin by
examining the words of the [statute]; if the statutory language is not ambiguous,
then we presume the Legislature meant what it said, and the plain meaning of the
language governs. [Citations.] If, however, the statutory language lacks clarity,
we may resort to extrinsic sources, including the ostensible objects to be achieved
and the legislative history. [Citation.] In such situations, we strive to select the
construction that comports most closely with the Legislature’s apparent intent,
with a view to promoting rather than defeating the statute[’s] general purposes.
[Citation.] We will avoid any interpretation that would lead to absurd
consequences. [Citation.]” (People v. Walker (2002) 29 Cal.4th 577, 581
(Walker).)
1. Ambiguity
It is unclear, focusing solely on the statutory language, whether the section
186.22(b)(5) phrase “a felony punishable by imprisonment in the state prison for
7
The issue here is distinguishable from the issue that was before us in Robert
L. v. Superior Court (2003) 30 Cal.4th 894, 904-905, where the voters, subsequent
to failed legislative efforts to amend Penal Code section 186.22, subdivision (d),
passed Proposition 21, which contained the amended version of section 186.22,
subdivision (d) that the Legislature failed to enact. In this situation, we held that
evidence of the intent behind those failed legislative efforts was irrelevant in
ascertaining the voters’ intent because such evidence was not presented to the
voters.
7
life” is limited to those crimes where the underlying felony itself provides for a
term of life imprisonment, or whether section 186.22(b)(5) also includes the
situation where a defendant is sentenced to a term of life imprisonment because
the underlying felony and enhancement together result in a life term.8 Because the
statutory language lacks clarity, we strive to ascertain the meaning that most
closely comports with the voters’ intent. (Walker, supra, 29 Cal.4th at p. 581).9
2. Voters’
Intent
In 1988, when the predecessor to section 186.22(b)(5) was enacted, an
enrolled bill report, written by the Youth and Adult Correctional Agency, analyzed
the financial impact of the provision: “This proposed provision relating to life
terms [former section 186.22, subdivision (b)(3), now section 186.22(b)(5)] would
apply to all lifers (except life without possibility of parole). This would result in
these lifers having their first parole hearing delayed, except for first degree
murderers with a sentence of 25 years to life. Attachment A summarizes the
8
Compare People v. Thomas (1999) 21 Cal.4th 1122, 1127 (for purposes of
sentencing under the three strikes law, the “felony” referred to in the section
667.5, subdivision (c)(7) phrase “[a]ny felony punishable by [life] imprisonment”
“must itself be punishable by life imprisonment [and does not] . . . include any
felony the commission of which may result in a life sentence, even if the sentence
is based on conduct other than the commission of the current felony”) with People
v. Kramer (2003) 29 Cal.4th 720, 723 (for purposes of selecting a “base term”
when determining the longest potential term of imprisonment, the section 654
phrase “[a]n act or omission that is punishable in different ways by different
provisions of the law shall be punished under the provision that provides for the
longest term of imprisonment” directs the sentencing court to consider the
underlying offense plus any enhancements attached to the underlying offense). At
oral argument, the Attorney General conceded that section 186.22(b)(5) is
ambiguous.
9
Defendant asks that we take judicial note of the Legislative Analyst’s
Office Analysis of the 2001-2001 Budget Bill, Board of Prison Terms for the
purpose of showing that determinate terms and indeterminate terms are markedly
different. This request is hereby granted.
8
offenses punishable by imprisonment for life and the current and proposed
minimum eligible parole dates (MEPD). Those with a current MEPD of less than
15 years would serve additional time.” (Cal. Youth and Adult Correctional
Agency, Enrolled Bill Rep. on Assem. Bill No. 2013 (1987-1988 Reg. Sess.)
prepared for Governor Deukmejian (Sept. 1, 1988) p. 2.) Attachment A to that
report, entitled “Summary of Current and Proposed Minimum Eligible Parole
Dates (MEPD) for Lifers” (Attachment A), listed nine felonies potentially
impacted by the predecessor to section 186.22(b)(5).10
10
Attachment A reads in full:
“SUMMARY OF CURRENT AND PROPOSED
MINIMUM ELIGIBLE PAROLE DATES (MEPD)
FOR LIFERS
Description of Current Law Proposed Law
“Penal Code Crime and Penalty MEPD MEPD
“PC § 187/189 First degree murder with- 16 yrs. 8 mos. No change
/189
out special circumstances
(25 yrs. to life)
Second degree murder
10 yrs.
15 yrs.
(15 yrs. to life)
“PC § 209
(a) Kidnapping for ransom 7 yrs.
15 yrs.
[without death or injury]
(life with possibility of parole)
(b) Kidnapping for robbery 7 yrs.
15 yrs.
(life with possibility of parole)
“PC § 217.1 Attempt to murder specified 7 yrs.
15 yrs.
public officials (15 yrs. to life)
“PC § 219
Train derailing [without death] 7 1/2 yrs.
15 yrs.
(life with possibility of parole)
(footnote continued on next page)
9
In each felony listed in Attachment A, the statute defining the felony itself
provided for a life term. Even those felonies in Attachment A that incorporate
disparate elements (i.e., sections 667.51 and 667.7 [specified prior convictions]
and section 12310 [exploding a device causing great bodily injury]), the life term
is encased in the definition of the felony itself. No statute listed in Attachment A
looked beyond the language of the statute itself, namely, to another section of the
Penal Code, in order to provide for a life term.
The Court of Appeal in the present case looked to a different section of the
Penal Code (section 12022.53(d)), not incorporated in the language of the felony
provision itself (attempted murder), in order to find that the felony provided for a
life term. We decline to interpret the attempted murder statute in the manner
(footnote continued from previous page)
“PC § 664
[P]remeditated attempted 7 yrs.
15 yrs.
murder (life with possibil-
ity of parole)
“PC § 667.51 [Lewd acts on child under 14] 7 1/2 yrs.
15 yrs.
with 2 or more specified sex
crimes (15 yrs. to life)
“PC § 667.7 [F]elony involving great bodily 10 yrs.
15 yrs.
injury, [with] 2 prior separate
prison terms for specified
felonies (20 yrs. to life)
“PC § 4500 Assault by life prisoner
9 yrs.
15 yrs.
[without death] (life without
possibility of parole for 9 yrs.)
“PC § 12310 Exploding destructive device 7 yrs.
15 yrs.”
[causing] mayhem or [GBI]
(life with possibility of parole)
10
suggested by the Court of Appeal because the enactment of a statute that provides
for a term of life imprisonment is best left within the province of the Legislature.
As we stated in People v. Wims (1995) 10 Cal.4th 293, 307: “Nor does [the
dissent] explain why, if our Legislature intended a sentence enhancement to be
‘part of the criminal offense to which it is attached’ [citation], it did not simply say
so. When the Legislature wishes to create a substantive offense having as one of
its elements another substantive offense, it knows how to do so.”11
Our conclusion is buttressed by the fact that section 12022.53(d), the
firearm enhancement at issue here, was enacted in 1997 as part of the “10-20-Life”
bill (Assem. Bill No. 4 (1997-1998 Reg. Sess.)), and thus predates Proposition 21
by more than two years. In that ensuing period leading up to Proposition 21,
section 186.22(b)(5) was left intact by the Legislature and was left intact in
Proposition 21.
But section 186.22, subdivision (b)(4), which was also enacted as part of
Proposition 21 and contains new language,12 provides that where a defendant
11
While the Court of Appeal found support for its interpretation of section
186.22(b)(5) by pointing to the fact that section 186.22(b)(1) “contemplate[s]
enhancements” because it refers to “violent felonies” that incorporate “specified
enhancements,” such as gun use or causing great bodily injury (see, e.g., § 667.5,
subd. (c)(8)), we are not persuaded. In this particular violent felony, like the
felonies in Attachment A that incorporate disparate elements, the statute defining
the felony provision itself contains the so-called enhancement. The Court of
Appeal erred in the present case because it incorporated into the attempted murder
statute a firearm enhancement that is not contained within the definition of the
attempted murder statute.
12
Current section 186.22, subdivision (b)(4) was added by Proposition 21. It
provides in full: “Any person who is convicted of a felony enumerated in this
paragraph committed for the benefit of . . . any criminal street gang . . . shall, upon
conviction of that felony, be sentenced to an indeterminate term of life
imprisonment with a minimum term of the determinate sentence calculated as the
greater of: [¶] (A) The term determined by the court pursuant to Section 1170 for
(footnote continued on next page)
11
commits a gang-related crime such as carjacking (§ 215) or home invasion robbery
(§ 213, subd. (a)(1)(A)), he shall be “sentenced to an indeterminate term of life
imprisonment with a minimum term of the determinate sentence calculated as the
greater of: [¶] (A) The term determined by the court pursuant to Section 1170 for
the underlying conviction including any enhancement applicable under Chapter
4.5 (commencing with Section 1170) of Title 7 of Part 2.” (Italics added.)
Because Proposition 21 enacted section 186.22, subdivision (b)(4), a STEP
Act provision that combines an underlying felony with an enhancement in order to
establish a minimum term, it follows that section 186.22(b)(5) would have been
written in the same manner if such was the intent of the voters.
(footnote continued from previous page)
the underlying conviction, including any enhancement applicable under Chapter
4.5 (commencing with Section 1170) of Title 7 of Part 2 [of the Penal Code], or
any period prescribed by Section 3046, if the felony is any of the offenses
enumerated in subparagraphs (B) or (C) of this paragraph. [¶] (B) Imprisonment in
the state prison for 15 years if the felony is a home invasion robbery, in violation
of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213; carjacking,
as defined in Section 215; a felony violation of Section 246; or a violation of
section 12022.55. [¶] (C) Imprisonment in the state prison for seven years, if the
felony is extortion, as defined in Section 519; or threats to victims and witnesses,
as defined in Section 136.1.”
12
The Court of Appeal’s interpretation of section 186.22(b)(5) is also
contrary to the voters’ intent when passing Proposition 21 to impose increased
penalties on those who commit crimes to benefit a criminal street gang. In the
“FINDINGS AND DECLARATIONS” section of Proposition 21, “[t]he people
[found] and declare[d]” that: [¶] “Criminal street gangs have become more
violent, bolder, and better organized in recent years.” (Ballot Pamp., Primary
Elec. (Mar. 7, 2000) text of Prop. 21, § 2, subd. (b), p. 119.) “Gang-related crimes
pose a unique threat to the public because of gang members’ organization and
solidarity. Gang-related felonies should result in severe penalties.” (Id., § 2, subd.
(h), p. 119.) “Dramatic changes are needed in the way we treat . . . criminal street
gangs . . . if we are to avoid the predicted, unprecedented surge in . . . gang
violence.” (Id., § 2, subd. (k), p. 119.)
Yet, if the Court of Appeal’s construction of section 186.22(b)(5) was
correct, the circumstance that a defendant committed a crime to benefit a criminal
street gang would be meaningless in every case where the defendant committed a
gang-related felony providing for a determinate term13 and was found in violation
of the section 12022.53(d) firearm enhancement. This is so because the 15-year
minimum eligible parole date set by section 186.22(b)(5) would not impact the
defendant’s sentence of 25 years to life under section 12022.53(d) since section
2933.1, subdivision (a) mandates that a defendant convicted of a “violent felony”
13
As provided in section 12022.53, subdivisions (a) and (d), such gang-
related felonies include, but are not limited to: attempted murder (§ 664/187),
mayhem (§ 203), kidnapping (§ 207), robbery (§ 211), assault with a firearm,
semiautomatic firearm or machine gun on a peace officer or firefighter (§ 245,
subd. (d)(1)-(3)), rape (§ 261), discharging a firearm at an inhabited dwelling or
occupied motor vehicle (§ 246), and discharging a firearm from an occupied motor
vehicle (§ 12034, subd. (d)).
13
shall accrue no more than 15 percent of worktime credit.14 We decline to thwart
the will of the voters in such a manner.15
14
Section 667.5, subdivision (c)(22) provides that a violation of section
12022.53(d) is a violent felony. Thus, a defendant found in violation of section
12022.53(d) would not be eligible for parole for at least 21 years and three months
for that violation alone.
15
We are mindful that there is a conflict in the Courts of Appeal on the proper
application of section 186.22(b)(5) when the underlying felony itself provides for
a term of 15 years to life, 25 years to life, or life without the possibility of parole.
(See, e.g., People v. Harper (2003) 109 Cal.App.4th 520, and compare, e.g.,
People v. Ortiz (1997) 57 Cal.App.4th 480, 485-486 with People v. Herrera
(2001) 88 Cal.App.4th 1353, 1364-1365; but see Justice Grignon’s dissent as to
this portion of the Herrera majority opinion, id. at pp. 1368-1370 (conc. & dis.
opn. of Grignon, J.) As that issue is not before us, we express no opinion on the
matter. We do recognize, however, that section 186.22(b)(5) was enacted in 1988
to ensure that a defendant who committed a gang-related felony providing for a
life term would not be eligible for parole until at least 15 calendar years elapsed.
While newer and more powerful sentencing laws, such as section 190, have
sapped the strength of section 186.22(b)(5), section 186.22(b)(5) still has vitality
where, as here, the defendant is convicted of attempted murder without
premeditation. In this situation, section 186.22(b)(5) raises the seven-year
minimum eligible parole date (see § 3046, subd. (a)) to a 15-year minimum
eligible parole date. (See, e.g., People v. Villegas (2001) 92 Cal.App.4th 1217,
1228-1229.)
At oral argument, the Attorney General cited Villegas for the proposition
that defendant’s gang-related attempted premeditated murder sentence under
section 186.22(b)(5) is properly characterized as a 15-year-to-life sentence that
could be added to the 25-year-to-life-sentence for the section 12022.53(d)
violation, resulting in a sentence of 40 years to life. (People v. Villegas, supra, 92
Cal.App.4th at pp. 1228-1229.) The question of whether such a characterization is
appropriate is not before us and we express no opinion on the matter.
14
DISPOSITION
The judgment of the Court of Appeal is reversed insofar as it struck the
section 186.22(b)(1) enhancement and imposed the section 186.22(b)(5) alternate
penalty provision. The Court of Appeal is directed to order the trial court to
amend the abstract of judgment to reflect that defendant was convicted of
attempted murder without premeditation. In all other respects, the judgment of the
Court of Appeal is affirmed.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
BROWN,
J.
15
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Montes
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S105781Date Filed: July 31, 2003
__________________________________________________________________________________
Court:
SuperiorCounty: Tehama
Judge: Dennis E. Murray
__________________________________________________________________________________
Attorneys for Appellant:
Richard A. Levy, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys
General, Jo Graves, Assistant Attorney General, Carlos A. Martinez, Mathew Chan and Charles V.
Fennessey, Deputy Attorneys General, for Plaintiff and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Richard A. Levy21515 Hawthorne Boulevard, Suite 590
Torrance, CA 90503-6559
(310) 944-3311
Mathew Chan
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-5232
2
| Date: | Docket Number: |
| Thu, 07/31/2003 | S105781 |
| 1 | The People (Plaintiff and Respondent) |
| 2 | Montes, Victor Rodriguez (Defendant and Appellant) Represented by Richard A. Levy Attorney At Law 21515 Hawthorne Blvd., Ste 590 Torrance, CA |
| Disposition | |
| Jul 31 2003 | Opinion: Affirmed in part/reversed in part |
| Dockets | |
| Apr 8 2002 | Petition for review filed In Sacramento by counsel for Respondent {The People}. |
| Apr 10 2002 | Note: Counsel for respondent will mail amended proof of service. Service on C/A. |
| Apr 10 2002 | Record requested |
| Apr 12 2002 | Received: Respondent's {The people} amended proof of service. Service on C/A. |
| Apr 18 2002 | Answer to petition for review filed appellant Victor Rodriguez |
| May 21 2002 | Time extended to grant or deny review to and including July 5, 2002. |
| Jun 12 2002 | Petition for Review Granted (criminal case) Votes: George, CJ., Kennard, Baxter, Chin, Brown and Moreno, JJ. |
| Jul 3 2002 | Counsel appointment order filed Richard A. Levy is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed. |
| Jul 15 2002 | Opening brief on the merits filed by counsel (AG) for respondent |
| Aug 2 2002 | Answer brief on the merits filed appellant Victor R. Montes |
| Aug 2 2002 | Request for judicial notice filed (in non-AA proceeding) appellant Victor R. Montes |
| Aug 22 2002 | Reply brief filed (case fully briefed) by counsel (AG) for respondent |
| Oct 16 2002 | Compensation awarded counsel Atty Levy |
| Apr 30 2003 | Case ordered on calendar 5-27-03, 9am, S.F. |
| May 14 2003 | Received letter from: from counsel for appellant re: Additional Authorities that he may cite at oral argument. |
| May 27 2003 | Cause argued and submitted |
| Jun 12 2003 | Filed: by counsel for appellant (V. Montes) letter re: newly issued Court of Appeal decision. |
| Jun 17 2003 | Filed: by counsel for respondent (People) letter in response to appellant's letter filed 6-12-2003. |
| Jun 23 2003 | Filed: by counsel for appellant (Montes) letter re: second newly issued Court of Appeal decision. |
| Jun 26 2003 | Filed: by counsel for respondent (People) letter in response to appellant's letter filed 6-23-2003. |
| Jul 31 2003 | Opinion filed: Affirmed in part, reversed in part OPINION BY: Moreno, J --- joined by George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, JJ. |
| Aug 5 2003 | Filed: (Atty Gen.) counsel for respondent (People) re: corrections to slip opinion |
| Aug 18 2003 | Time extended to consider modification or rehearing The finality of the opinion in the above-entitled appeal is extended to and including August 28, 2003 |
| Aug 29 2003 | Order filed The order filed on August 18, 2003, extending finality of the opinion is amended to read in its entirety, "The finality of the opinion in the above-entitled appeal is extended to and including September 29, 2003." |
| Sep 10 2003 | Opinion modified - no change in judgment The opinion herein, filed on July 31, 2003, appearing at ___ Cal.4th ___, is modified as follows: On page 11, footnote 12, line 5 of the filed opinion, the word "determinate" is changed to read "indeterminate." On page 12, line 3 of the filed opinion, the word "determinate" is changed to read "indeterminate." On pages 13 and 14 of the filed opinion, the following language, commencing with "since section 2933.1, subdivision (a) mandates that a defendant convicted of a 'violent felony' shall accrue no more than 15 percent of worktime credit," and including the entirety of footnote 14, which appears after the word "credit," is deleted. The sentence in which the deleted language appeared is modified to read as follows: "This is so because the 15-year minimum eligible parole date set by section 186.22(b)(5) would not impact the defendant's sentence of 25 years to life under section 12022.53(d)." On page 14 of the filed opinion, footnote 15 is renumbered as footnote 14. On page 14 of the filed opinion, the fifth sentence of former footnote 15 (now footnote 14) reads: "While newer and more powerful sentencing laws, such as section 190, have sapped the strength of section 186.22(b)(5), section 186.22(b)(5) still has vitality where, as here, the defendant is convicted of attempted murder without premeditation." This sentence is modified to delete ", as here," and to change the word "without" to "with." The modified sentence reads as follows: "While newer and more powerful sentencing laws, such as section 190, have sapped the strength of section 186.22(b)(5), section 186.22(b)(5) still has vitality where the defendant is convicted of attempted murder with premeditation." This modification does not affect the judgment. |
| Sep 30 2003 | Remittitur issued (criminal case) |
| Oct 2 2003 | Compensation awarded counsel Atty Levy |
| Oct 10 2003 | Note: records returned attn: Darlene |
| Oct 14 2003 | Received: from CA 3 receipt for remittitur |
| Briefs | |
| Jul 15 2002 | Opening brief on the merits filed |
| Aug 2 2002 | Answer brief on the merits filed |
| Aug 22 2002 | Reply brief filed (case fully briefed) |
