Prior Assault Without Weapon Cannot Be Deemed a ‘Strike’

Friday, September 28, 2001

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Prior Assault Without Weapon Cannot Be Deemed a ‘Strike’—C.A.

By a MetNews Staff Writer

This district’s Court of Appeal has narrowed the reach of the Three Strikes Law slightly with a ruling that a man’s prior felony assault conviction for trying to slug someone did not count as a “serious felony” under Three Strikes.

In an opinion filed Wednesday, Div. Two granted writ relief to defendant Larry Darnell Williams, who faced a possible life term because of an earlier conviction for assault with intent to inflict great bodily injury that the Los Angeles District Attorney’s Office claimed was a “strike.”

Williams may well have intended to do some serious damage when he made a fist and hit his victim with it. He pled no contest in 1999 to violating Penal Code Sec. 245(a)(1), which makes it a felony to assault someone, with or without a weapon, with force likely to produce great bodily injury.

But the appeals court ruled that the unambiguous statutes outlining what serious felonies may be used for Three Strikes purposes include only felonious assaults with firearms.

Proposition 21

In an opinion by Justice Michael G. Nott of Div. Two, the court noted that Sec. 1192.7, where the serious Three Strikes prior felonies are catalogued, did reference Sec. 245. But he said it also listed in descriptive language added by last year’s Prop. 21 only assaults with firearms on police officers or firefighters.

Prosecutors said the reference to Sec. 245, with its panoply of assault offenses such as the one for which Williams was convicted, must take precedence over the more limited descriptive language. They sought to invoke yet another statute—-Penal Code Sec. 7.5, which provides that in the case of any ambiguity or conflict the statute that is cited by section number is to take precedence over any descriptive language.

Nott said Sec. 7.5 does not apply because there simply was no ambiguity.

No Inherent Illogic

“Because of the variety of circumstances under which a conviction for assault under section 245, subdivision (a)(1) may arise, we perceive no inherent illogic in including as a serious felony the crime of threatening great bodily injury while excluding an assault likely, but failing, to inflict great bodily injury,” Nott said.

“We are similarly unpersuaded by the similarities [the District Attorney’s Office] points out between language contained in the Proposition 21 amendments to section 1192.7, subdivision (c), and descriptive code section titles used by publisher Matthew Bender.” He added. “Even if we were persuaded, this court has no power to rewrite a statute to make it to conform to an unexpressed but presumed intention.”

The case is Williams v. Superior Court, People RPI, 01 S.O.S. 4784.