People v. Rodriguez

life imprisonment, with parole ineligibility for 20 years. On appeal, defendant contends section 667.7, subdivision (a), required the prosecution to prove he “personally” committed the offenses underlying his prior prison terms, i.e., voluntary manslaughter, robbery involving the use of force or a deadly weapon, and assault with a deadly weapon. He maintains the statute does not apply to persons who served prior prison terms for convictions based on their liability as aiders and abettors (§ 31). It is undisputed the prosecution did not introduce any evidence that defendant personally committed the crimes which resulted in his previous incarcerations.

The pertinent portion of section 667.7, subdivision (a), reads: “Any person convicted of a felony in which the person inflicted great bodily injury ... or personally used force . . . likely to produce great bodily injury, who has served two or more prior separate prison terms . . . for the crime of . . . voluntary manslaughter; . . . robbery involving the use of force or a deadly weapon; . . . [or] assault with a deadly weapon; ... is a habitual offender . . . .” For the reasons which follow, we conclude the Legislature did not intend the statute to apply only to defendants who “personally” commit the crimes for which they served prison terms.

When statutory language is clear and unambiguous, “ ‘there is no need for construction, and courts should not indulge in it.’ ” (People v. Cole (1982) 31 Cal.3d 568 , 572 [ 183 Cal.Rptr. 350 , 645 P.2d 1182 ]; see also Solberg v. Superior Court (1977) 19 Cal.3d 182 , 198 [ 137 Cal.Rptr. 460 , 561 P.2d 1148 ].) The words used in a statute must be accorded their commonly accepted meaning as understood by persons of ordinary intelligence. (People v. Medina (1988) 206 Cal.App.3d 986 , 991 [ 254 Cal.Rptr. 89 ].)

The crucial phrase “who has served two or more prior separate prison terms . . . for [the specified crimes]” (§ 667.7, subd. (a), italics added) is to our mind perfectly straightforward and comprehensible. Webster’s Third New International Dictionary (1986) page 886 defines “for” to mean “because of’ (usage 8a). Thus, we may read the provision in question

as: “who has served two or more prior separate prison terms . . . [because of the specified crimes].” Nothing in these words remotely suggests the defendant had to “personally” engage in the conduct constituting the crimes for which prior prison terms were served.

The content of section 667.7 and related statutes demonstrates the Legislature knows quite well how to limit the application of an enhancement provision to the actor and not the abettor. In section 667.7 itself, the words “person” and “personally” appear. They declare the statute will come into play only if the defendant was the one who inflicted, or used force likely to produce, great bodily injury in connection with the commission of the crime for which he or she is on trial. Similarly, other enhancement laws, such as sections 12022, subdivision (b), 12022.5 and 12022.7, contain the word “personally." The inclusion of “personally” in an enhancement statute expressly reflects the legislators’ desire that direct rather than derivative culpability be a precondition to increasing a sentence. (See discussion in People v. Cole, supra, 31 Cal.3d at pp. 573-574, and People v. Reed (1982) 135 Cal.App.3d 149 , 152 [ 185 Cal.Rptr. 169 ].)

Defendant insists the use of “person” and “personally” in one part of section 667.7, subdivision (a), requires the other parts to be construed as if they included those terms. We come to the opposite conclusion. The Legislature’s election not to use accepted words of legal art in the portion of section 667.7 before us is an unequivocal signal the prior convictions need not have resulted from the defendant’s directly culpable conduct. We see our interpretation as consistent with the general rule that “if a statute is intended to impose a derivative liability on some person other than the actor, there must be some legislative direction that it is to be applied to persons who do not themselves commit the proscribed act.” (People v. Walker (1976) 18 Cal.3d 232 , 241-242 [ 133 Cal.Rptr. 520 , 555 P.2d 306 ].)

A construction of section 667.7, subdivision (a), in the manner proposed by defendant would in effect insert additional words into the subject clause, so that it read, “who has served two or more prior separate prison terms . . . for [personally committing] the crime of . . . .” We are unwilling to engage in this sort of judicial legislation in the face of what seems to us to be an utterly clear expression of legislative will. “The judicial function is that of interpretation; it does not include the power of amendment under the guise of interpretation.” (West Coast Hotel Co. v. Parrish (1937) 300 U.S. 379 , 404 [ 81 L.Ed. 703 , 715, 57 S.Ct. 578 , 108 A.L.R. 1330 ].)

In support of his proposed construction, defendant has included in his brief considerable discussion of the legislative history of section 667.7.

According to defendant, the record establishes that the legislation was never “aimed at” individuals who were derivatively liable for their prior offenses. He says the object of the statute is instead to increase the penalties for those who repeatedly and personally commit dangerous offenses. Other than the obvious goal of protecting society from chronic criminals, we find nothing of help in the legislative history on the issue we face here. Thus, “this is a case for applying the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute.” (Greenwood v. United States (1956) 350 U.S. 366 , 374 [ 100 L.Ed. 412 , 419, 76 S.Ct. 410 ].)

Even if the legislative background disclosed an intent to require personal liability for the prior crimes, the legislators failed to carry out this purpose by the words a majority of them chose to use in their final product. We may not ignore the plain and obvious meaning of the statute in order to correct the Legislature’s “aim.” (Cf. San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850 , 862-863 [ 191 Cal.Rptr. 800 , 663 P.2d 523 ].) Our decision will, however, give it the opportunity to improve on its marksmanship if necessary.

Finally, we do not believe we are in violation of the Walker rule of construction that an absence of explicit language one way or the other in an enhancement statute presents an ambiguity which warrants a narrow construction in favor of the defendant. (See People v. Piper (1986) 42 Cal.3d 471 , 477, fn. 5 [ 229 Cal.Rptr. 125 , 722 P.2d 899 ].) We do not see it as applicable. The wording we construe is descriptive of an individual’s status as a repeat offender, not of his or her conduct. (See In re Foss (1974) 10 Cal.3d 910 , 922 [ 112 Cal.Rptr. 649 , 519 P.2d 1073 ].) Were the terms involved descriptive of conduct rather than status, perhaps we would be inclined to apply the Walker principles. However, in this instance, the plain meaning of the statutory language is apparent; there is no ambiguity. (People v. Cole, supra, 31 Cal.3d at p. 572.) Rules of construction exist to resolve doubts, not create them.

We know of nothing to prohibit the Legislature from requiring the enhancement of a sentence when the convicted person has served a prior prison term for an offense for which he or she was derivatively or vicariously responsible. If one has shown a propensity to assist or encourage others to perpetrate serious felonies, such that he or she is deemed to be equally as culpable as the actor (§31), the Legislature has every right to determine the person should suffer additional punishment when he or she graduates to a higher level of criminal conduct.