holding that out-of-state conviction is a “strike” under law providing that a defendant is eligible for a third strike penalty if he has sustained “two or more prior felony convictions”
How later courts described this case
- holding that out-of-state conviction is a “strike” under law providing that a defendant is eligible for a third strike penalty if he has sustained “two or more prior felony convictions”
Written by the judges who cited it.
The opinion
*120 KENNARD, J., Concurring.
In March 1994, the Legislature amended Penal Code section 667 1 to add subdivisions (b) through (i), thereby enacting what is popularly known as the “Three Strikes and You’re Out” law (hereafter also referred to as the Legislature’s Three Strikes law). In November 1994, the voters, by initiative, enacted section 1170.12 (hereafter also referred to as the Three Strikes initiative). Although there is a close resemblance between the two, they are not identical.
Both laws have a “Two Strikes” provision doubling the sentence of a defendant who is convicted of a felony and has one prior conviction for a felony that qualifies as a “strike.” Under both laws, a prior conviction is a “strike” under the Two Strikes provision if it falls within one of these three categories: (1) a California adult conviction for specified violent or serious felonies, (2) a conviction in another state for a crime having the same elements as the California crimes just mentioned (hereafter referred to as an out-of-state conviction), or (3) an adjudication that a juvenile has committed any of the specified violent or serious felonies.
Both laws also have a Three Strikes provision stating that a defendant convicted of a felony who has two qualifying prior convictions or “strikes” shall be sentenced to a term of no less than 25 years to life in prison. They differ in this respect: Under the Legislature’s version (section 667), prior convictions under the Three Strikes provision must fall within one of the three categories pertaining to the Two Strikes provision I described in the preceding paragraph. But under the initiative (section 1170.12), a prior conviction qualifies as a third strike only if it falls within the first of these three categories: that is, a California adult conviction for specified violent or serious felonies.
The majority finds ambiguity in the language of the Three Strikes initiative, section 1170.12, and construes it to permit the prosecution in Three Strikes cases to use a defendant’s prior convictions whenever they fall within one of the three categories pertaining to the Two Strikes provision. Justice Mosk disagrees, expressing the view that the initiative explicitly bars the use of out-of-state convictions and juvenile adjudications as qualifying prior convictions in Three Strikes cases. He concludes, however, that the initiative did not repeal the Legislature’s Three Strikes law, embodied in subdivisions (b) through (i) of section 667, and that in Three Strikes cases the prosecution may properly allege out-of-state convictions and juvenile adjudications as qualifying prior convictions under section 667.
*121 I see no need to consider whether the majority has correctly construed the Three Strikes initiative. (§ 1170.12.) For, like Justice Mosk, I am of the view that the initiative has not repealed the Legislature’s version of the Three Strikes law, which expressly permits the prosecution to allege out-of-state convictions as qualifying prior convictions in Three Strikes cases. Because here defendant was charged under the Legislature’s version of the Three Strikes law, the trial court should not have barred the prosecution from alleging defendant’s out-of-state conviction as a “strike.”
I
This is an appeal of two consolidated cases arising in Contra Costa County, both involving the same defendant.
In case No. 095979-1 in the Walnut Creek Judicial District (the Walnut Creek case), defendant was charged with three counts of robbery. The complaint alleged two prior felony convictions under section 667 (the Legislature’s Three Strikes law): a California conviction for residential burglary and a Nevada conviction for attempted rape. In case No. 090239-5 in the Delta Judicial District (the Delta case), defendant was charged with two counts of robbery (different robberies from those charged in the Walnut Creek case), two counts of false imprisonment, two counts of assault with a deadly weapon, and one count of felon in possession of a firearm. The complaint alleged only one “strike,” also under section 667: the California burglary conviction also alleged in the Walnut Creek case.
The two cases, were consolidated. Judge Richard S. Flier, sitting as a municipal court magistrate, struck the Nevada conviction for attempted rape from the complaint in the Walnut Creek case and barred its use in the Delta case, ruling that it could not be used in a Three Strikes prosecution. The magistrate apparently reasoned that the Three Strikes initiative, which was enacted by the People in November 1994, had superseded or repealed the Legislature’s Three Strikes law, which was enacted in March 1994, and that therefore the prosecution could not allege out-of-state convictions (such as defendant’s Nevada conviction) in Three Strikes cases.
The prosecution then moved in superior court to “reinstate” the Nevada conviction in both the Walnut Creek case and the Delta case. (§871.5.) Judge Flier, this time sitting as a superior court judge, reviewed his own ruling and denied the reinstatement motion. On the prosecution’s appeal (§ 1238, subd. (a)(9)), the Court of Appeal reversed, holding that the Three Strikes initiative did not preclude the prosecution from using a defendant’s out-of-state convictions as qualifying prior convictions in Three Strikes cases.
*122 II
The complaints filed by the prosecution in this case allege that defendant’s sentence should be enhanced under the Legislature’s version of the Three Strikes law, embodied in subdivisions (b) through (i) of section 667, rather than the electorate’s Three Strikes initiative, which appears in section 1170.12 and was voted into law after the Legislature’s enactment of the Three Strikes law. It is undisputed that under the Legislature’s Three Strikes law, the prosecution may use a defendant’s previous out-of-state convictions and juvenile adjudications as qualifying prior convictions in Three Strikes cases. Thus, unless the initiative has repealed the Legislature’s version of the Three Strikes law, the prosecution may continue to charge a defendant under the latter law, which expressly includes out-of-state felony convictions as qualifying prior convictions for Three Strikes puiposes.
Repeal of one statute by another may be either express or implied. Because the voters’ Three Strikes initiative makes no mention of the Legislature’s version of the law, it does not expressly repeal it. Therefore, repeal, if any, must be by implication.
The governing principles in determining whether a statute repeals another by implication are well established. “[T]he law shuns repeals by implication, . . .” (Board of Supervisors v. Lonergan (1980) 27 Cal.3d 855, 868 [ 167 Cal.Rptr. 820 , 616 P.2d 802 ].) “The presumption against implied repeal is so strong that, ‘To overcome the presumption the two acts must be irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation. The courts are bound, if possible, to maintain the integrity of both statutes if the two may stand together.’ . . . Courts have also noted that implied repeal should not be found unless ‘. . .the later provision gives undebatable evidence of an intent to supersede the earlier . . . .’” (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 419-420 [ 261 Cal.Rptr. 384 , 111 P.2d 157 ], italics in original.)
Defendant argues that the two versions of the Three Strikes law, the Legislature’s and the voters’, “cannot have concurrent operation.” He points to this language in the initiative: “Notwithstanding any other provision of law, this section shall be applied in every case in which a defendant has a prior felony conviction as defined in this section.” (§ 1170.12, subd. (d)(1).) 2 He argues that this provision precludes the concurrent operation of the Legislature’s Three Strikes law and the voters’ Three Strikes initiative, and that the Legislature’s version, which was enacted first, must therefore be superseded by the initiative.
*123 To determine whether an initiative has repealed existing legislation, “the intent of the drafters may be considered by the court if there is reason to believe that the electorate was aware of that intent [citation] and we have often presumed, in the absence of other indicia of the voters’ intent such as ballot arguments [citation] or contrary evidence, that the drafters’ intent and understanding of the measure was shared by the electorate.” (Rossi v. Brown (1995) 9 Cal.4th 688, 700, fn. 7 [ 38 Cal.Rptr.2d 363 , 889 P.2d 557 ].) Here, it is unlikely that the drafters of the Three Strikes initiative intended to override the Legislature’s Three Strikes law, for when the Three Strikes initiative was drafted, the Legislature’s version of the law had not yet been enacted and therefore did not exist. As this court explained in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504-505 [ 53 Cal.Rptr.2d 789 , 917 P.2d 628 ], the voters’ petition to add Proposition 184 (the Three Strikes initiative) to the ballot for the November 1994 General Election began to circulate on October 7,1993. Five months later, in March 1994, the bill to amend section 667 to add subdivisions (b) through (i) (the Legislature’s Three Strikes law) was approved by both the Assembly and the Senate and signed by the Governor. It is reasonable to infer that when the drafters of the Three Strikes initiative included the provision that section 1170.12 would apply “ [notwithstanding any other provision of law,” they intended to refer to provisions of law in effect when the Three Strikes initiative was drafted, at which time the Legislature had not yet enacted section 667, subdivisions (b) through (i).
It is equally reasonable to infer that in voting for the Three Strikes initiative in November 1994, the electorate did not believe that the initiative, by its use of the phrase “notwithstanding any other provision of law,” would abrogate the Legislature’s March 1994 enactment of the Three Strikes law. The Legislative Analyst, in summarizing the fiscal impact of the voters’ Three Strikes initiative for the ballot pamphlet, said that the initiative “reaffirms the March 1994 changes.” (Ballot Pamp., summary of Prop. 184 as presented to voters, Gen. Elec. (Nov. 8, 1994) p. 32, italics added.) In a more detailed analysis of the initiative, also contained in the ballot pamphlet, the Legislative Analyst stated that the voters’ Three Strikes initiative “proposes amendments to state law that are identical to a law enacted by the Legislature and signed by the Governor in March 1994. Consequently, adoption or rejection of this initiative will have no direct impact on existing law because the measure reaffirms provisions of the law that are already in effect.” (Id., analysis of Prop. 184 by Legis. Analyst, Gen. Elec. (Nov. 8, 1994) p. 33; italics added.)
Similarly, both the arguments for and against the voters’ Three Strikes initiative in the ballot pamphlet reflected the view that the initiative did not *124 repeal the Legislature’s Three Strikes law. Proponents of the initiative claimed that politicians were trying to “weaken” the Legislature’s Three Strikes law; a vote for the initiative, they contended, would “tell politicians, ‘hands off 3 Strikes.’ ” (Ballot Pamp., argument in favor of Prop. 184, Gen. Elec. (Nov. 8, 1994) p. 36.) And opponents of the initiative said its effect would be to “endorse,” not to repeal, the Legislature’s Three Strikes law: “This measure is identical to three strikes legislation already signed into law. Don’t endorse a bad and unworkable law.” (Id., rebuttal to argument in favor of Prop. 184, Gen. Elec. (Nov. 8, 1994) p. 36.)
Thus, through the ballot pamphlet, proponents and opponents of the Three Strikes initiative, as well as the neutral Legislative Analyst, told the voters that the initiative would not repeal the Three Strikes law that the Legislature had enacted in March 1994. It is therefore reasonable to assume that the voters, when they cast their votes for the Three Strikes initiative, did so with the intent not to repeal the law. (See Lungren v. Deukmejian (1988) 45 Cal.3d 727, 740, fn. 14 [ 248 Cal.Rptr. 115 , 755 P.2d 299 ] [“The rule that the ballot pamphlet is an important aid in determining the intent of the voters ... is too well settled to require extensive citation of authority.”].)
For these reasons, I see no “undebatable evidence” (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist., supra, 49 Cal.3d at p. 420 ) that the voters intended the words “ [notwithstanding any other provision of law,” as used in the Three Strikes initiative (§ 1170.12), to supersede or repeal the Legislature’s Three Strikes law (§ 667, subds. (b)~ (i)), which therefore is still in effect.
Conclusion
In this case, the prosecution charged defendant with two enhancements under the Legislature’s version of the Three Strikes law. (§ 667, subds. (b)-(i).) Because that law was not repealed by the voters’ subsequent passage of the Three Strikes initiative (§ 1170.12), and because it is undisputed that under that law (§ 667, subds. (b)-(i)), the prosecution may allege out-of-state convictions as qualifying prior conviction in Three Strikes cases, the trial court in this case was wrong when it ruled that the prosecution was precluded from doing so.
The Court of Appeal directed the trial court to reinstate defendant’s alleged prior Nevada conviction for attempted rape, reasoning that under the voters’ Three Strikes initiative (§ 1170.12) the prosecution could use out-of-state convictions as qualifying prior convictions in Three Strikes cases. *125 Although, as I have explained, I do not adopt the Court of Appeal’s reasoning, I agree with its result. On this basis, I join the majority’s affirmance of the judgment of the Court of Appeal.
Respondent’s petition for a rehearing was denied January 28, 1997.
All subsequent statutory references are to the Penal Code.
The Legislature’s Three Strikes law contains similar language. (§ 667, subd. (f)(1).)