The opinion
Filed 6/18/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H037245
(Santa Clara County
Plaintiff and Respondent, Super. Ct. Nos. EE907153, C1100779)
v.
ALLEN DAVID FONG,
Defendant and Appellant.
Defendant Allen David Fong challenges the application of Penal Code section
2933.11 to him. He argues that his admission of a section 12022.7 enhancement
allegation associated with his 2009 felony offense did not bring him within the provisions
of section 667.5, subdivision (c)(8), which would qualify him for application of section
2933.1’s credit limiting provisions. Defendant claims that section 667.5, subdivision
(c)(8)’s reference to section 12022.7 was a time-specific incorporation of the 1977
version of section 12022.7. The 1977 version contained a specific intent requirement that
was deleted in 1995, and which defendant did not admit. We conclude that section 667.5,
subdivision (c)(8)’s incorporation of section 12022.7 was not a time-specific
incorporation. Consequently, defendant is subject to section 2933.1’s credit limiting
provisions.
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Subsequent statutory references are to the Penal Code unless otherwise specified.
I. Background
The facts of defendant’s offenses are not relevant to his appellate contentions. He
pleaded no contest to two counts of assault with a deadly weapon (§ 245, subd. (a)(1))
and one count of dissuading a witness in furtherance of a conspiracy (§ 136.1,
subd. (c)(2)). He also admitted gang allegations (§ 186.22, subd. (b)) attached to both
assault counts and admitted that he had personally inflicted great bodily injury (GBI)
(§ 12022.7, subd. (a)) in the commission of one of the assaults. The assaults occurred in
2009. The dissuading occurred between June 2010 and February 2011. Defendant’s
pleas and admissions were entered pursuant to a plea agreement under which he was
promised a 17-year prison sentence. During the plea colloquy, defendant was advised
that his credit would be limited to 15 percent.
At the August 2011 sentencing hearing, the court imposed the agreed 17-year
prison sentence. The court struck the punishment for the GBI enhancement and for one
of the gang enhancements under section 1385. It awarded defendant 608 days of actual
custody credit and 91 days of conduct credit pursuant to section 2933.1. All of his credit
was applied solely to the assault count with the GBI enhancement. Defendant timely
filed a notice of appeal. His request for a certificate of probable cause was denied.
After judgment was entered, defendant filed a motion to amend the abstract to
correct a mathematical error, to award him additional conduct credit, and to find that his
credit was not limited to 15 percent under section 2933.1. The court corrected the
mathematical error, awarding him one additional day of actual custody credit. It rejected
his other requests. Defendant timely filed a notice of appeal from this order.
II. Analysis
Defendant claims that the trial court erred in subjecting him to section 2933.1’s
credit limitations because he did not admit that he specifically intended to inflict GBI.
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Section 2933.1, subdivision (a) provides: “Notwithstanding any other law, any
person who is convicted of a felony offense listed in subdivision (c) of Section 667.5
shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.”
Section 2933.1, subdivision (c) provides: “Notwithstanding Section 4019 or any other
provision of law, the maximum credit that may be earned against a period of confinement
in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial
farm, or road camp, following arrest and prior to placement in the custody of the Director
of Corrections, shall not exceed 15 percent of the actual period of confinement for any
person specified in subdivision (a).” Thus, both worktime and conduct credit are
restricted to 15 percent for persons who commit offenses listed in section 667.5,
subdivision (c).
Section 667.5, subdivision (c) lists many offenses, including “[a]ny felony in
which the defendant inflicts great bodily injury on any person other than an accomplice
which has been charged and proved as provided for in Section 12022.7, 12022.8, or
12022.9 on or after July 1, 1977 . . . .” (§ 667.5, subd. (c)(8), italics added.) Defendant
was convicted of a felony in which he inflicted great bodily injury on a non-accomplice,
and the GBI enhancement was “charged and proved as provided for in Section
12022.7 . . . .” Nevertheless, defendant contends that section 2933.1’s credit limitations
do not apply to him because in 1977, when section 667.5, subdivision (c)(8) first became
operative, former section 12022.7, which became operative at the same time, contained a
specific intent requirement. Although section 12022.7 no longer contains a specific
intent requirement, he maintains that, since former section 667.5, subdivision (c)(8)’s
reference to section 12022.7 was specific rather than general, former section 667.5,
subdivision (c)(8) incorporated former section 12022.7 as it existed in 1977, rather than
the post-1995 version of section 12022.7, which contains no specific intent requirement.
Defendant relies on Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53
(Palermo). “ ‘It is a well established principle of statutory law that, where a statute adopts
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by specific reference the provisions of another statute, regulation, or ordinance, such
provisions are incorporated in the form in which they exist at the time of the reference
and not as subsequently modified, and that the repeal of the provisions referred to does
not affect the adopting statute, in the absence of a clearly expressed intention to the
contrary.’ ” (Palermo, at pp. 58-59.) “ ‘It also [ ] [must] be noted that there is a cognate
rule, recognized as applicable to many cases, to the effect that where the reference is
general instead of specific, such as a reference to a system or body of laws or to the
general law relating to the subject in hand, the referring statute takes the law or laws
referred to not only in their contemporary form, but also as they may be changed from
time to time, and (it may be assumed although no such case has come to our attention) as
they may be subjected to elimination altogether by repeal.’ ” (Palermo, at p. 59.)
“Moreover, where the words of an incorporating statute do not make clear whether it
contemplates only a time-specific incorporation, ‘the determining factor will
be . . . legislative intent . . . .’ ” (In re Jovan B. (1993) 6 Cal.4th 801, 816.)
We acknowledge that section 12022.7, unlike section 667.5, is not “ ‘a system or
body of laws,’ ” nor are we convinced that section 12022.7 is “ ‘the general law relating to
the subject in hand.’ ” (Palermo, supra, 32 Cal.2d at pp. 58-59.) Therefore, section
667.5, subdivision (c)(8)’s reference to section 12022.7 does not fall within the “ ‘cognate
rule’ ” identified in Palermo as one means for identifying situations where the Legislature
intended a general reference. (Palermo, at p. 59.) However, this conclusion does not end
our analysis. “[T]he Palermo rule is not to be applied in a vacuum. The determining
factor is legislative intent.” (People v. Pecci (1999) 72 Cal.App.4th 1500, 1505.)
Therefore, we proceed to a consideration of whether the Legislature intended section
667.5, subdivision (c)(8) to make “a time-specific incorporation” of the 1977 version of
section 12022.7. (In re Jovan B., supra, 6 Cal.4th at p. 816.)
Section 667.5 and section 12022.7 were originally enacted in 1976 by a single
legislative act. (Stats. 1976, ch. 1139, § 268 [§ 667.5], § 306 [§ 12022.7].) The 1976
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version of section 667.5, subdivision (c) began: “For the purpose of this section ‘violent
felony’ shall mean any of the following crimes . . . .” The 1976 version of section 667.5,
subdivision (c)(8) provided that it applied to “[a]ny other felony in which the defendant
inflicts great bodily injury on person [sic] other than accomplices has been [sic] alleged
and proved as provided for in Section 12022.7 if convicted after the effective date of this
section or as specified prior to the effective date of this section in Sections 213, 264, and
461.” (Stats. 1976, ch. 1139, § 268.) Former sections 213, 264, and 461 contained GBI
penalty provisions applicable where GBI was inflicted with specific intent on the victim
of a robbery (former § 213; Stats. 1967, ch. 149), rape (former § 264; Stats. 1967,
ch. 151), or burglary (former § 461; Stats. 1967, ch. 150). These penalty provisions
applied where, “with the intent to inflict such injury, [the perpetrator] inflicted great
bodily injury on” the victim and that fact was charged and found true. (Stats. 1967,
chs. 149, 150, 151.) The 1976 version of section 12022.7 provided for the imposition of
a three-year enhancement term “[i]n any case, except a homicide offense, in which
defendant is convicted of a felony in which the infliction of great bodily injury is not an
element of the crime but in the course of the commission of said crime and with the intent
to inflict such injury, the defendant inflicts such injury upon any person other than
accomplices . . . .” (Stats. 1976, ch. 1139, § 306, italics added.) The 1976 act was not to
become operative until July 1, 1977. (Stats. 1976, ch. 1139, § 351.5.)
Before the 1976 act could become operative, both sections were amended by a
single 1977 legislative act. (Stats. 1977, ch. 165, § 13 [§ 667.5], § 94 [§ 12022.7].)
Section 667.5, subdivision (c)’s introductory sentence remained the same. Subdivision
(c)(8) was amended to provide: “Any other felony in which the defendant inflicts great
bodily injury on any person other than an accomplice which has been charged and proved
as provided in Section 12022.7 on or after July 1, 1977, or as specified prior to
July 1, 1977, in Sections 213, 264, and 461 . . . .” (Stats. 1977, ch. 165, § 13.) Section
12022.7 was amended to apply to “[a]ny person who, with the intent to inflict such injury,
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personally inflicts great bodily injury . . . .” (Stats. 1977, ch. 165, § 94, italics added.)
The 1977 act took effect immediately and became operative on July 1, 1977. (Stats.
1977, ch. 165, §§ 98, 100.)
Subdivision (c)(8)’s reference to “Section 12022.7 on or after July 1, 1977” has
remained unchanged since 1977. (Stats. 1977, ch. 165.) Section 12022.7’s specific
intent requirement was deleted in 1995. (Stats. 1995, ch. 341, § 1; § 12022.7, subd. (a).)
In 1997, the introductory sentence of section 667.5, subdivision (c) was changed to read:
“For the purposes of this section, ‘violent felony’ means any of the following . . . .”
(Stats. 1997, ch. 504.)
Section 667.5, subdivision (c)(8)’s reference to section 12022.9 was added in
1988. (Stats. 1988, chs. 70, 432.) Section 12022.9 imposes a five-year enhancement
where a perpetrator who intends to inflict injury and knows that the victim is pregnant
causes termination of the pregnancy. (§ 12022.9.) Section 667.5, subdivision (c)(8)’s
reference to section 12022.8 was added in 2006. (Stats. 2006, ch. 337, § 30, p. 2635.)
Section 12022.8 provides for a five-year enhancement on “[a]ny person who inflicts great
bodily injury, as defined in Section 12022.7, on any victim” of certain sex offenses.
(Stats. 1997, ch. 109, § 2.) That language in section 12022.8 has not changed since it was
enacted in 1979. (Stats. 1979, ch. 944, § 18.) Section 12022.8 does not require a specific
intent because it did not incorporate former section 12022.7’s specific intent requirement
but only its definition of great bodily injury. (People v. Martinez (1993) 13 Cal.App.4th
23, 29.)
The “words” of section 667.5, subdivision (c)(8) “do not make clear whether it
contemplates only a time-specific incorporation,” so that determination must rest on
evidence of the Legislature’s intent. (In re Jovan B., supra, 6 Cal.4th 801, 816.) We
glean from the history of section 667.5, subdivision (c) that the Legislature did not intend
for section 667.5, subdivision (c)(8)’s reference to section 12022.7 to be a time-specific
incorporation. Throughout its history, beginning with the original 1977 operative version
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of section 667.5, subdivision (c)(8), the application of the subdivision has been premised
on infliction of GBI “which has been charged and proved as provided in Section 12022.7
on or after July 1, 1977.” The Legislature’s use of the words “on or after July 1, 1977” is
a strong indication that it did not intend a time-specific incorporation of the July 1, 1977
version of section 12022.7. Section 12022.7 had never been operative prior to
July 1, 1977. Hence, there would have been no reason to preclude the application of
section 667.5, subdivision (c)(8) to defendants subjected to section 12022.7’s provisions
prior to that date. The only other purpose that language could serve was to indicate that
the Legislature wished to incorporate any changes to section 12022.7’s provisions “after
July 1, 1977.”
Defendant argues that rejecting his contention will produce an absurd result in that
a person convicted of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a))
will not fall within the provisions of section 667.5, subdivision (c), while an intoxicated
driver who causes an injury (Veh. Code, § 23153) that amounts to great bodily injury
(§ 12022.7) but does not kill someone will fall within section 667.5, subdivision (c)’s
provisions. While a violation of section 191.5, subdivision (a) does not itself fall within
section 667.5, subdivision (c)’s provisions, a person who violates section 191.5,
subdivision (a) also necessarily violates Vehicle Code section 23153 and inflicts GBI.
Under the Legislature’s scheme, it is therefore up to the prosecutor to decide whether to
charge such a person with a violation of section 191.5, subdivision (a), punishable by up
to 10 years in prison (§ 191.5, subd. (c)), or a violation of Vehicle Code section 23153, a
wobbler punishable by a jail term or at most a prison term of three years (Veh. Code,
§ 23554), and a GBI enhancement that would add at most another three years. We see no
absurdity in the Legislature’s decision to permit the prosecutor to decide whether the
facts of a particular case merit pursuit of a wobbler conviction with a lighter punishment,
which may constitute a violent felony if punished as a felony, or a nonviolent felony
conviction with a much more severe punishment.
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Defendant also contends that People v. Van Buren (2001) 93 Cal.App.4th 875
(Van Buren), disapproved on another point in People v. Mosby (2004) 33 Cal.4th 353,
365, fn. 3, upon which the Attorney General relies heavily, is distinguishable and was
wrongly decided. We agree that Van Buren is distinguishable. In Van Buren, the
defendant contended that section 2933.1’s incorporation of section 667.5, subdivision (c)
was a time-specific incorporation. The Second District Court of Appeal rejected that
contention on the ground that section 667.5, subdivision (c) is “a critical element in the
general body of law,” thereby falling well outside the reach of the Palermo rule. (Van
Buren, at p. 880.) Here, unlike in Van Buren, defendant contends that section 667.5,
subdivision (c)(8)’s incorporation of section 12022.7, a statute that is not an element of a
“general body of law,” was a time-specific incorporation. Our analysis is based solely on
a legislative intent analysis, not on Van Buren.
The Legislature’s wording of section 667.5, subdivision (c)(8) in 1977 provides
ample evidence that section 667.5, subdivision (c)(8)’s reference to section 12022.7 was
not intended to be a time-specific incorporation. Consequently, section 667.5,
subdivision (c)(8) did not incorporate a pre-1995 version of section 12022.7 containing a
specific intent requirement. It follows that the trial court properly subjected defendant to
the credit limiting provisions of section 2933.1.
Defendant’s contention that he is entitled to additional conduct credit under
section 4019 fails due to our holding that section 2933.1, subdivision (c) properly applies
to him. Section 2933.1, subdivision (c) makes him ineligible for section 4019 conduct
credit exceeding 15 percent of his presentence custody time.
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III. Disposition
The judgment and order are affirmed.
_______________________________
Mihara, J.
WE CONCUR:
_____________________________
Premo, Acting P. J.
_____________________________
Márquez, J.
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Trial Court: Santa Clara County Superior Court
Trial Judge: Honorable David A. Cena
Attorney for Defendant and Appellant: Jonathan E. Berger
Under Appointment by the Sixth
District Appellate Program
Attorneys for Plaintiff and Respondent: Kamala D. Harris
Attorney General of California
Dane R. Gillette
Chief Assistant Attorney General
Gerald A. Engler
Senior Assistant Attorney General
Stan Helfman
Supervising Deputy Attorney General
Masha A. Dabiza
Deputy Attorney General
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