People v. Dat Tan Nguyen

BAMATTRE-MANOUKIAN, J., Concurring.

I concur in the majority opinion. I am not convinced, however, that People v. Olivas (1976) 17 Cal.3d 236 [ 131 Cal.Rptr. 55 , 551 P.2d 375 ] requires application of the strict scrutiny standard here solely on the basis that a criminal defendant is facing incarceration. (People v. Silva (1994) 27 Cal.App.4th 1160, 1167 [ 33 Cal.Rptr.2d 181 ].) I understand Olivas to establish only that persons convicted of the same crime and otherwise similarly situated should not be punished differently absent a compelling state interest. Equal protection does not require equal treatment of convicts with different criminal histories. (People v. Spears (1995) 40 Cal.App.4th 1683, 1687-1688 [ 48 Cal.Rptr.2d 634 ]; People v. Cooper (1996) 43 Cal.App.4th 815, 827-383 [ 51 Cal.Rptr.2d 106 ].) Strict scrutiny is not implicated simply because the Legislature has provided for the potential incarceration of future lawbreakers by defining a crime and distinguishing degrees of culpability. (People v. Mitchell (1994) 30 Cal.App.4th 783, 795-796 [ 36 Cal.Rptr.2d 150 ]; People v. Bell (1996) 45 Cal.App.4th 1030, 1049 [ 53 Cal.Rptr.2d 156 ]; People v. Davis (1979) 92 Cal.App.3d 250, 258 [ 154 Cal.Rptr. 817 ].) In view of these recent cases which question how broadly Olivas applies, I would respectfully invite the California Supreme Court to provide guidance on this issue.

*721 Even if I assume that the higher standard of strict scrutiny applies here, I would agree with the majority that the state interest in distinguishing between these two groups is compelling. More severe treatment is appropriate for criminals who repeat theft-type crimes after prior conviction and punishment. I also believe it is rational for the Legislature to have made this distinction.

A petition for a rehearing was denied May 20, 1997, and appellant’s petition for review by the Supreme Court was denied August 20, 1997. Mosk, J., was of the opinion that the petition should be granted.