People v. Van Buren

In People v. Van Buren (2001) 93 Cal.App.4th 875, the defendant was convicted of second degree robbery, and the trial court limited his custody credits pursuant to section 2933.1. The Court of Appeal rejected the claim that section 2933.1 applied only if the present offense was listed in section 667.5 when section 2933.1 was adopted in 1994. In doing so, Van Buren acknowledged the rules of statutory construction of statutes that incorporate other statutes as articulated by our Supreme Court in Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 58-59, 195 P.2d 1. "'Where a statute adopts by specific reference the provision of another statute, regulation, or ordinance, such provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified . . . .' ," but "'where the reference is general instead of specific, such as a reference to a system or body of laws or to the general law relating to the subject in hand, the referring statute takes the law or laws referred to not only in their contemporary form, but also as they may be changed from time to time.'" ( Van Buren, supra, 93 Cal.App.4th at p. 879.) Van Buren determined that the reference to section 667.5 in section 2933.1 was a specific one. But Van Buren also observed that even where there is a specific rather than a general reference to another statute, where there is an incorporation of a "'system or body of laws' concerning determinate sentencing," later amendments to the sentencing statutes are included. ( Van Buren, supra, 93 Cal.App.4th at p. 879.) Van Buren noted that "a clear expression of legislative intent governs application of the Palermo rules in specific cases" (ibid.), and, quoting from In re Jovan V. (1993) 6 Cal.4th 801, 816-817, 863 P.2d 673, "no modern decision applies the Palermo rule 'without regard to other indicia of legislative intent.'" (Van Buren, at p. 879.) Van Buren thereby refocused the inquiry from whether the reference to the incorporated statute was specific or general to the legislative intent. Van Buren applied these principles to section 2933.1, reviewing its legislative history which confirmed that "the Legislature was considering crimes of violence as a category of offense which may evolve over time." ( Van Buren, supra, 93 Cal.App.4th at p. 880.) Legislative committee reports and the Legislative Counsel's Digest repeatedly mentioned "violent felony" or "violent felonies," typically without mentioning the statutory designation. "These references to violent felonies support the conclusion that the Legislature contemplated application of section 2933.1 to the evolving scheme of 'extraordinary crimes of violence against the person' to which section 667.5, subdivision (c) is directed. . . . Stated differently, there is no basis to believe that the Legislature intended that the same defendant could be sentenced as a violent felon without suffering a corresponding limitation on custody credits, or that he or she could suffer a limitation on custody credits without being sentenced as a violent felon. It is also not reasonable to believe that the Legislature intended to require a parallel amendment to section 2933.1 each time section 667.5, subdivision (c), was amended. " ( Id. at pp. 881-882.) The purpose of section 2933.1 is to protect the public from dangerous offenders who might otherwise be paroled at an earlier date. This intent can be fully effectuated only if section 2933.1 incorporates offenses defined in section 667.5 as "violent felonies" at the time of enactment or thereafter. ( Van Buren, supra, 93 Cal.App.4th at p. 880.) Van Buren concluded: "The scope of the statute, together with its legislative history, establish that section 2933.1 was intended to apply generally to felonies listed in section 667.5, subdivision (c), as that subdivision is amended from time to time." ( Van Buren, supra, 93 Cal.App.4th at p. 880.)