People v. Hibbard
The PEOPLE, Plaintiff and Respondent, v. JAMES A. HIBBARD, Defendant and Appellant; In Re JAMES A. HIBBARD on Habeas Corpus
- Area
- criminal
- Panel
- Don R. Work (author)
Analysis
The trial court imposed a 10-year consecutive sentence for multiple traffic misdemeanors, which Hibbard argued violated equal protection by exceeding the maximum term for similar felonies. The Court of Appeal affirmed the judgment, holding that misdemeanants and felons are not similarly situated due to the distinct civil disabilities associated with felony convictions.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Constitutionality of consecutive misdemeanor sentencing under the Equal Protection Clause“Because Hibbard is not similarly situated with that class of persons who could elect to be treated as felons after the effective date of the 1988 amendment to Vehicle Code, section 23175 his sentencing does not violate his right to equal protection of the laws.” | de novo | not reached | agree with court The appellate court held that the trial court's sentencing did not violate the Equal Protection Clause because the defendant was not similarly situated to felons. The court reasoned that felons suffer unique statutory disabilities (such as loss of voting rights and firearm possession) that do not apply to misdemeanants, and the state has a compelling interest in deterring repeat offenders. This aligns with the precedent set in In re Valenti, which rejected the argument that unlimited consecutive misdemeanor sentencing is unconstitutional. The court correctly applied the 'similarly situated' test by highlighting the disparate long-term consequences of felony versus misdemeanor convictions, thereby supporting the conclusion that the sentencing scheme is rationally related to a legitimate state interest. |
Authorities
- relied: In re Valenti (1986) 178 Cal.App.3d 470 — Misdemeanants and felons are not similarly situated for equal protection purposes because felons face unique statutory disabilities and long-term effects not applicable to misdemeanants.
- relied: People v. Powell (1985) 166 Cal.App.3d Supp. 12 — Equal protection requires applying Penal Code section 1170.1 subordinate term limitations to 'wobbler' offenses charged as misdemeanors if the aggregate term would exceed the felony maximum.
- relied: People v. Ross (1985) 165 Cal.App.3d 368 — Misdemeanants and felons are not similarly situated due to differences in the quality and duration of punishment and long-term effects of conviction.
- relied: Sovereign v. People (1983) 144 Cal.App.3d 143 — A felon is uniquely burdened by a diverse collection of statutorily imposed disabilities long after release from prison.
- relied: Newland v. Board of Governors (1977) 19 Cal.3d 705 — When misdemeanants conclude their sentences, there is no further obligation nor loss of civil rights.
- relied: In re Greenwood (1978) 87 Cal.App.3d 777 — The state has a compelling interest to protect law-abiding citizens by discouraging the criminal element from repeatedly violating its laws.
The appellate opinion: sound — The opinion is sound because it correctly applies the 'similarly situated' test from In re Valenti to distinguish the defendant's situation from that of felons, focusing on the disparate civil disabilities. It effectively addresses the defendant's reliance on People v. Powell by noting that Powell applied to 'wobblers' and that the dictum was rejected in Valenti for straight misdemeanors.
How this analysis was made · dispute it
unusual dispositionThe trial court sentenced Hibbard for a nonviolent honor-camp escape to a term consecutive to a 10-year composite sentence made up of 12 fully consecutive alcohol- and drug-related traffic misdemeanors, and Hibbard argued the aggregate misdemeanor term denied equal protection because it exceeded what section 1170.1 would allow for an equal number of nonviolent felonies. The Court of Appeal rejected the equal protection claim on the ground that misdemeanants and felons are not similarly situated, denied the habeas petition, dismissed the part of the appeal attacking the earlier final misdemeanor sentencing, affirmed the judgment, and remanded only to strike an erroneous consecutive-sentence reference from the abstract of judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Imposition of fully consecutive misdemeanor sentences aggregating 10 years without the section 1170.1, subdivision (a) subordinate-term limits, challenged as a denial of equal protection (reviewed on habeas corpus)“Because Hibbard is not similarly situated with that class of persons who could elect to be treated as felons after the effective date of the 1988 amendment to Vehicle Code, section 23175 his sentencing does not violate his right to equal protection of the laws.” | de novo | correct | agree with court The constitutional question was decided as a matter of law. Section 1170.1 by its terms applies only to sentence chains including felonies, and In re Valenti had already rejected the Powell dictum, holding misdemeanants and felons are not similarly situated because of differences in the nature, place and collateral consequences of punishment. Hibbard sought the felony sentencing cap while retaining misdemeanant status for jail placement and post-release purposes, which supports the court's conclusion that the classes are not similarly situated; the opinion follows published authority directly on point. |
Appealability of the challenge to the earlier misdemeanor consecutive sentencing in the present appeal from the escape conviction“that portion of the appeal purporting to address the constitutionality of sentencing which could have been addressed in Hibbard’s final earlier appeal is dismissed” | de novo | correct | agree with court The misdemeanor sentencing was imposed in a separate earlier proceeding that had become final; an appeal from the later escape judgment cannot reopen it, so dismissal of that portion of the appeal is procedurally proper. The court nonetheless addressed the merits through the companion habeas petition, so Hibbard lost nothing by the dismissal. |
Abstract of judgment reciting that the escape sentence runs consecutive to case No. CR80482“The matter is remanded solely to permit the superior court to modify the abstract of judgment by striking its reference to Hibbard’s sentencing running consecutive to case No. CR80482.” | unclear | error (other) | unsure The opinion directs the abstract be corrected but the reasoning supporting this correction is in the unpublished portion (parts I-III) and is not before me; the disposition itself is a routine clerical correction and nothing in the published portion suggests it was wrong. |
Authorities
- relied: In re Valenti (1986) 178 Cal.App.3d 470 — Misdemeanants and felons are not similarly situated for equal protection purposes because of differences in the quality and duration of punishment and the long-term disabilities attending a felony conviction; the Powell dictum on consecutive misdemeanor sentencing is not persuasive.
- relied: People v. Powell (1985) 166 Cal.App.3d Supp. 12 — Where the People elect to file wobblers as misdemeanors, equal protection requires section 1170.1 subordinate-term limits so aggregate misdemeanor terms do not exceed the felony maximum; the court distinguished its facts and rejected its dictum extending that reasoning to straight misdemeanors.
- relied: People v. Ross (1985) 165 Cal.App.3d 368 — Felons and misdemeanants are not similarly situated given the differing consequences of their convictions.
- relied: Sovereign v. People (1983) 144 Cal.App.3d 143 — A felon is uniquely burdened by statutorily imposed disabilities long after release from prison.
- relied: Newland v. Board of Governors (1977) 19 Cal.3d 705 — When misdemeanants complete their sentences there is no further obligation or loss of civil rights.
- relied: In re Greenwood (1978) 87 Cal.App.3d 777 — The state has a compelling interest in protecting law-abiding citizens by discouraging repeat offenders.
The appellate opinion: sound with gaps — The court answered the equal protection argument with the controlling published authority (Valenti) that had already rejected the Powell dictum, and correctly noted Hibbard sought felony sentencing limits without accepting felony status or consequences. It did not, however, discuss the level of scrutiny applicable to sentencing classifications affecting personal liberty or fully engage the asymmetry argument that a misdemeanant may serve far longer than a felon for equivalent conduct, resting instead on the similarly-situated threshold.
How this analysis was made · dispute it
record incompleteOpinion — Work
Opinion
WORK, J.James A. Hibbard appeals a judgment imposing a consecutive sentence after his conviction for violating Penal Code 2 section 4532, subdivision (a) (nonviolent escape from honor camp while confined for a misde *147 meanor). By this appeal and in a companion writ petition, 3 he challenges the imposition of a 10-year term composed of consecutive sentences for 12 alcohol- and drug-related traffic misdemeanors in the earlier sentencing which he was serving when he escaped. He claims this lengthy composite term violates equal protection, because his total consecutive misdemeanor term exceeds the maximum sentence he could have received had he been sentenced pursuant to section 1170.1 for an equal number of nonviolent felonies, assuming each was subject to the sixteen-month, two-year, three-year sentencing framework set forth in section 18.
For the reasons which follow, we find Hibbard’s consecutive misdemeanor sentencing did not deny him equal protection of the laws. We deny the petition for habeas corpus, dismiss so much of the appeal which purports to appeal from the misdemeanor consecutive sentencing and affirm the judgment, remanding with directions to correct the abstract of judgment.
I-III *
IV
Hibbard’s petition for habeas corpus challenges the length of the consecutive terms imposed for his misdemeanor sentences, claiming fully consecutive sentencing denies him equal treatment with felons whose total consecutive sentence term for multiple nonviolent “generic” felonies would be limited by the formula stated in section 1170.1, subdivision (a). That section limits each nonviolent consecutive term to one-third the principal term imposed with the total of consecutive terms limited to twice the base term or five years, whichever is the lesser. (§ 1170.1, subds. (a), (g).) The limitations in section 1170.1, subdivision (a) expressly apply only to a chain of sentences which includes felony offenses. (§ 1170.1, subd. (a).)
Hibbard’s scofflaw conduct has existed without interruption since his first drunk driving conviction in 1972. He was convicted fifteen additional times for drunk driving and related offenses as well as for grand theft, before receiving consecutive misdemeanor sentences after a consolidated trial resulted in three additional drunk driving convictions, each with four alleged priors (Veh. Code, § 23152, subd. (a)); three convictions for driving on *148 suspended license, each with two alleged priors (Veh. Code, § 14601.2, subd. (a)); four convictions for giving false information to a law enforcement officer (Veh. Code, § 31); and two convictions for being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)).
In January 1987, when Hibbard received his multiple consecutive misdemeanor sentences, none could have been charged as felonies. However, Hibbard refers us to the later 1988 amendment to Vehicle Code section 23175 which created “wobbler” status for drunk driving within seven years of three or more drunk driving convictions, with a maximum prison term of three years. Thus, were Hibbard to now be convicted of a felony pursuant to Vehicle Code section 23175, his conviction for the drunk driving with four priors could not exceed a three-year prison term plus a total subordinate term of three years for the remaining convictions, whether charged as felonies or misdemeanors.
Hibbard does not contend the “wobbler” amendment to Vehicle Code section 23175 is retroactive. He cites it only to bolster his claim he is being treated constitutionally unequally by being forced to serve a longer term for fully consecutive misdemeanor sentences than he might have served if he had been charged after January 1, 1989, and tried on the latest charges as felonies. 6
Hibbard’s argument is based on the inherent denial of equal protection to all consecutively sentenced nonviolent misdemeanants, whether charged with “wobblers” or not. He argues by not applying section 1170.1 limitations to consecutive sentencing multiple misdemeanants can and will be sentenced to a longer period of incarceration than a multiple felon who commits the same or more egregious nonviolent crimes, thus violating equal protection principles. He cites People v. Powell (1985) 166 Cal.App.3d Supp. 12 [212 Cal.Rptr. 454], where the court reviewed a case in which the People’s election to file “wobbler” offenses as misdemeanors resulted in the defendant receiving a greater term of incarceration than he could have received were he sentenced as a felon for those identical offenses. On those facts, the court concluded equal protection required the subordinate term limitations of section 1170.1, subdivision (a) be applied to “wobblers” when aggregate misdemeanor terms would otherwise exceed the maximum permitted if they had been sentenced as felonies.
Hibbard recognizes Powell reviewed different facts, but relies on its dictum: “[I]t is quite clear that unlimited consecutive sentencing could not constitutionally be abolished for persons convicted of ‘wobblers’ while *149 remaining in force for persons convicted of other, less serious misdemeanors." (P eople v. Powell, supra, 166 Cal.App.3d at p. Supp. 26.) This view was considered and rejected in the context of consecutive sentences for straight misdemeanors in In re Valenti (1986) 178 Cal.App.3d 470 [224 Cal.Rptr. 10]. There, the court found this dicta not persuasive because it fails to consider constitutional and public policy issues. (Id. at p. 476.)
In Valenti, the court concluded misdemeanants and felons are not similarly situated because of differences in the quality and duration of punishment, as well as long-term effects brought about by a felony conviction as opposed to those for a misdemeanor. (Id. at p. 475; People v. Ross (1985) 165 Cal.App.3d 368, 371 [211 Cal.Rptr. 595].) “A felon is uniquely burdened by a diverse collection of statutorily imposed disabilities long after his release from prison.” (In re Valenti, supra, 178 Cal.App.3d at p. 475; Sovereign v. People (1983) 144 Cal.App.3d 143, 148 [192 Cal.Rptr. 469].) 7 On the other hand, when misdemeanants conclude their sentences there is no further obligation nor loss of civil rights. (Newland v. Board of Governors (1977) 19 Cal.3d 705, 712 [139 Cal.Rptr. 620, 566 P.2d 254].) Further, the state has a compelling interest to protect its law-abiding citizens by discouraging the criminal element from repeatedly violating its laws. (In re Greenwood (1978) 87 Cd.App.3d 777, 784 [151 Cal.Rptr. 223].)
Although there is facial appeal to Hibbard’s argument, we conclude it fails. He does not suggest he is willing to accept the disabilities pertaining to his being sentenced as a felon for drunk driving, nor that there is any legal mechanism to impose felony postrelease obligations on him for those convictions. Thus, Hibbard asks to be treated as a felon for the purpose of curtailing his jail sentence term, but to be considered a misdemeanant for postrelease purposes and for placement in jail, rather than prison, to serve that term. 8
Because Hibbard is not similarly situated with that class of persons who could elect to be treated as felons after the effective date of the 1988 amendment to Vehicle Code, section 23175 his sentencing does not violate his right to equal protection of the laws.
*150 Disposition
The petition for habeas corpus is denied, that portion of the appeal purporting to address the constitutionality of sentencing which could have been addressed in Hibbard’s final earlier appeal is dismissed, and the judgment is affirmed. The matter is remanded solely to permit the superior court to modify the abstract of judgment by striking its reference to Hibbard’s sentencing running consecutive to case No. CR80482.
Kremer, R J., and Todd, J., concurred.
All statutory references are to the Penal Code unless otherwise specified.
Both matters have been considered concurrently and have been consolidated for purposes of disposition.
See footnote, ante, page 145.
Nor does he argue his sentence is not commensurate with his criminal culpability.
Included among the staturorily imposed disabilities, a felon is denied the right to vote during the period of parole (Cal. Const., art. II, § 4; Elec. Code, §§ 701, 707); may not engage in certain businesses (Bus. & Prof. Code, § 480); and loses the right to possess arms (§ 12021). (See In re Valenti, supra, 178 Cal.App.3d at p. 475.)
For the purpose of our analysis it is irrelevant that Hibbard achieved felony status by virtue of his escape and potentially because of the grand theft charge for which he had been placed on probation.
Cites, in this corpus
- In Re Valenti B016161 · 1986-03-05
- People v. Ross Crim. 44235 · 1985-03-07
- Sovereign v. People Crim. 14756 · 1983-06-21
- In Re Greenwood Crim. 3841 · 1978-12-22
- Newland v. Board of Governors S.F. 23557 · 1977-07-21
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- People v. Erdelen B093787 · 1996-06-05
- People v. Murray B075104 · 1994-04-08