Opinion
B166151.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. KYLE MARCELLUS BRIGGS, Defendant and Appellant.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph P. Lee and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Kyle Marcellus Briggs appeals from a judgment of conviction entered after he pled no contest to one charge of attempted robbery (Pen. Code, §§ 211, 664). Following his no contest plea, defendant admitted having suffered a prior juvenile adjudication constituting a strike for purposes of the "Three Strikes" Law (id., §§ 667, subds. (b)-(i), 1170.12). The trial court sentenced defendant to state prison for the low term of 16 months, doubled as a second strike to 32 months. It imposed a restitution fine in the amount of $400 (id., § 1202.4, subd. (b)), a parole revocation fine in the amount of $400 (id., § 1202.45) and an assessment and surcharge in an amount to be determined pursuant to Penal Code section 1464 and Government Code section 76000.
On appeal, defendant contends his prior juvenile adjudication did not constitute a strike under the "Three Strikes" Law, and the imposition of the assessment and surcharge was unauthorized. We disagree with the first of these contentions and agree with the latter. Accordingly, we will modify the judgment to strike the unauthorized assessment and surcharge and affirm the judgment as modified.
FACTS
At about 1:00 p.m. on September 26, 2002, defendant approached Thomas Horton (Horton) near the intersection of Elm Avenue and South Street in the City of Long Beach. He pointed a knife at Horton and asked for a pager. Horton said he did not have one. Defendant said, "oh," and left.
Shortly thereafter, Long Beach police officers responding to a disturbance call found defendant in the middle of East Hullet Street, about a block from where he had approached Horton. He appeared to be intoxicated. He said he "didnt do anything." The officers placed him under arrest and took a knife from him. Other officers brought Horton to the scene, and he identified defendant.
DISCUSSION
Prior Juvenile Adjudication
In April 1996, defendant, then a juvenile, was declared a ward of the court pursuant to Welfare and Institutions Code section 602. The juvenile court found true the allegations defendant committed second degree robbery (Pen. Code, § 211) and assault with a deadly weapon (id., § 245, subd. (a)(1)) in December 1995, when he was 16 years old.
Under the "Three Strikes" Law, "[a] prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if: [¶] (A) The juvenile was sixteen years of age or older at the time he or she committed the prior offense, and [¶] (B) The prior offense is [¶] (i) listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, or (ii) [¶] listed in this subdivision as a felony, and [¶] (C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law, and [¶] (D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code." (Pen. Code, § 1170.12, subd. (b)(3); see also Pen. Code § 667, subd. (d)(3).)
In order for a prior juvenile offense to constitute a prior felony conviction for "Three Strikes" purposes, paragraphs (B)(i) and (B)(ii) require that the offense appear on one of "three statutory lists of offenses: the list in Welfare and Institutions Code section 707(b), which establishes a rebuttable presumption of unfitness for treatment under the juvenile court law for juveniles charged with such offenses . . . ; the list of `serious offenses in [Penal Code] section 1192.7, subdivision (c); and the list of `violent offenses in [Penal Code] section 667.5, subdivision (c). The latter two lists delineate . . . the set of offenses that qualify as strikes when they are the subject of a prior adult conviction." (People v. Garcia (1999) 21 Cal.4th 1, 5.) Paragraph (D) sets forth an additional requirement "that in the prior juvenile proceeding giving rise to the qualifying adjudication the juvenile have been adjudged a ward of the court because of a Welfare and Institutions Code section 707(b) offense, whether or not that offense is the same as the offense currently alleged as a strike." (Id . at p. 6.)
Penal Code section 667.5 includes in its list of violent felonies "[a]ny robbery." (Subd. (c)(9).) Section 1192.7 similarly includes in its list of serious felonies "robbery." (Subd. (c)(19).) At the time of defendants juvenile offense and adjudication, robbery was not an offense listed in Welfare and Institutions Code section 707, subdivision (b). It became a listed offense in 2000, as a result of the passage of Proposition 21.
It is defendants contention that because robbery was not an offense listed in Welfare and Institutions Code section 707, subdivision (b), at the time of his juvenile adjudication, it does not qualify as a strike under Penal Code sections 667, subdivision (d)(3), and 1170.12, subdivision (b)(3). He acknowledges this contention has been rejected in People v. Bowden (2002) 102 Cal.App.4th 387, decided by Division Four of this court. He requests that we decline to follow Bowden, however.
In Bowden, the defendant had a juvenile adjudication of robbery predating the passage of Proposition 21. He claimed it could not be used as a strike, in that it was not an offense listed in Welfare and Institutions Code section 707, subdivision (b), at the time of the adjudication. (People v. Bowden, supra, 102 Cal.App.4th at p. 390.)
The court noted that Proposition 21 also made additions to Penal Code sections 667.1 and 1170.125. These provide that "for all offenses committed on or after the effective date of this act, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, [and in Section 1170.12,] are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act." The court concluded that "[b]ecause the March 7, 2000 initiative measure both (1) changed the cutoff date in the Three Strikes law and (2) changed Welfare and Institutions Code section 707, subdivision (b) to include simple robbery, and the present crimes were committed after the March 7, 2000 amendments, the prosecutions proof that [defendant] suffered a prior juvenile adjudication of simple robbery is sufficient to prove the strike." (People v. Bowden, supra, 102 Cal.App.4th at p. 391, italics omitted.)
Division Two of this district reached a similar conclusion in People v. James (2001) 91 Cal.App.4th 1147. In James, defendant had prior convictions of assault with a firearm and shooting at an inhabited dwelling house. When he committed those offenses, they were not serious felonies within the meaning of Penal Code section 1192.7 unless he personally used a firearm or inflicted great bodily injury. Proposition 21 made them serious felonies without personal firearm use or infliction of great bodily injury. (James, supra, at p. 1149.) The trial court concluded that application of Penal Code sections 667.1 and 1170.125 to make defendants prior convictions strikes would violate the constitutional prohibition against ex post facto laws. (James, supra, at p. 1149.)
The court of appeal rejected this conclusion. It noted that following the enactment of the "Three Strikes" Law, there were numerous claims that the law did not apply to convictions incurred before its enactment. (People v. James, supra, 91 Cal.App.4th at p. 1150.) The courts held that "use of a prior conviction suffered before the effective date of the three strikes law as a prior strike does not violate the prohibition in either the California or United States Constitution against ex post facto laws." (Id. at p. 1151.)
The court held "that if a defendants current offense was committed on or after the effective date of Proposition 21, a determination whether the defendants prior conviction was for a serious felony within the meaning of the three strikes law must be based on the definition of serious felonies in Penal Code section 1192.7, subdivision (c) in effect on March 8, 2000." (People v. James , supra, 91 Cal.App.4th at p. 1150.) Since defendants prior offenses were serious felonies on March 8, 2000, they qualified as strikes, even though they were not listed as serious felonies at the time of their commission. (Id . at p. 1151.)
Defendant argues that neither Bowden nor James "discussed the specific requirement of Penal Code section 667, subdivision (d)(3)(D) [and section 1170.12, subdivision (b)(3)(D)] that the juvenile must have been adjudged a ward of the juvenile court for an offense listed in Welfare and Institutions Code section 707, subdivision (b). In the instant case [defendant] simply could not have been so adjudged because in 1996 Welfare and Institutions Code section 707, subdivision (b) did not include simple robbery."
As Bowden pointed out, Proposition 21 added Penal Code sections 667.1 and 1170.125, which provide that "for all offenses committed on or after the effective date of this act, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, [and in Section 1170.12,] are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act." (People v. Bowden, supra, 102 Cal.App.4th at p. 391.) This means that in determining whether defendant "was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because [he] committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code" (Pen. Code, §§ 667, subd. (d)(3)(D), 1170.12, subd. (b)(3)(D)), we look to the list of offenses in section 707, subdivision (b), as it existed on March 8, 2000. We do not look to the list of offenses as it existed at the time of defendants adjudication. As in Bowden, "[b]ecause the March 7, 2000 initiative measure both (1) changed the cutoff date in the Three Strikes law and (2) changed Welfare and Institutions Code section 707, subdivision (b) to include simple robbery, and the present crimes were committed after the March 7, 2000 amendments, the prosecutions proof that [defendant] suffered a prior juvenile adjudication of simple robbery is sufficient to prove the strike." (People v. Bowden, supra, 102 Cal.App.4th at p. 391, italics omitted.)
Assessment and Surcharge
Penal Code section 1464 and Government Code section 76000 provide for penalty assessments on fines for criminal offenses. Restitution fines and parole revocation fines imposed under Penal Code sections 1202.4 and 1202.45 are not subject to these penalty assessments, however. (People v. Allen (2001) 88 Cal.App.4th 986, 992-993; People v. McHenry (2000) 77 Cal.App.4th 730, 734.) Accordingly, the assessment and surcharge imposed by the trial court pursuant to Penal Code section 1464 and Government Code section 76000 was unauthorized and must be stricken. (Allen, supra, at p. 998.)
The People request that we remand the case to allow the trial court to make a determination as to whether to exercise its discretion to impose a penalty assessment pursuant to some other code section. Absent any indication in the record that the trial court wanted specifically to impose a penalty assessment and would exercise its discretion to do so if the case were remanded, we decline the Peoples request.
The judgment is modified to strike the assessment and surcharge imposed pursuant to Penal Code section 1464 and Government Code section 76000. As so modified, it is affirmed.
We concur: VOGEL (MIRIAM A.), J. and MALLANO, J.