People v. Smith

Opinion

STRANKMAN, J.

The sole question in this appeal is whether imposition of a five-year enhancement under Penal Code section 667 denied appellant equal protection because the statute contains no washout provision for remote convictions, as do other recidivist enhancement statutes. We reject appellant’s constitutional challenge to the statute, and affirm the judgment.

[601]

I

Appellant Kenneth James Smith, Sr., pled guilty to two counts of robbery and one count of attempted robbery. (Pen. Code, §§ 211, 664.)

1

The trial court found true the allegation that appellant had a prior serious felony conviction of robbery. (§§ 667, 1192.7, subd. (c).)

2

The court sentenced him to a total of four years and eight months for the robbery and attempted robbery convictions and to a consecutive five-year term for the prior serious felony enhancement.

Appellant’s prior robbery conviction occurred in 1965. He was committed to state prison in that year, was released on parole in December 1969, and was discharged from parole in February 1973. At trial in the instant case appellant moved to strike that prior, arguing that imposition of the five-year enhancement violated fundamental principles of fairness and constituted cruel and unusual punishment. The trial court denied the motion. It reasoned in part that the statute was presumptively constitutional and that the 1986 amendment to section 1385 had eliminated its discretion to strike a section 667 enhancement.

II

Section 667, which was enacted by initiative in June 1982, mandates a five-year enhancement of the sentence of any person convicted of a serious felony who has previously been convicted of a serious felony in this state. Serious felonies within the meaning of section 667 are those serious felonies listed in section 1192.7, subdivision (c).

Appellant contends that application of section 667 to enhance his present sentence because of his 23-year-old conviction violates equal protection, as the statute has no washout period for remote convictions as do other enhancement statutes. In particular, he compares the statute to section 667.5, subdivision (a), which authorizes a 3-year enhancement when a defendant convicted of a “violent felony” as defined in that statute has served a prior separate prison term for a violent felony; that additional term may not be imposed “for any prison term served prior to a period of 10 years in which defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”