Filed 3/17/15 P. v. Culp CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068584
         Plaintiff and Respondent,
                                                                         (Kern Super. Ct. No. BF142707A)
                   v.

MICHAEL WAYNE CULP,                                                                      OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Thomas S.
Clark, Judge.
         Audrey Chavez, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-
                                     INTRODUCTION
       This case presents a straightforward question of statutory interpretation: Does
Penal Code section 181 apply to state prison terms imposed for attempted extortion
pursuant to section 524? We conclude that it does and reject defendant’s argument to the
contrary. As a result, we will affirm the judgment while ordering one minor change to
the abstract of judgment.
                                      BACKGROUND
       There was evidence adduced at trial that defendant and several accomplices
kidnapped a man and attempted to extort $50,000 from his boss.2 Defendant, who had
been charged with several crimes, was only convicted of one: A lesser included offense
of attempted extortion.
       The court sentenced defendant to a total of six years in prison: Three years on the
attempted extortion conviction, which was doubled due to defendant’s prior strike.
(§ 667, subd. (e).)
       Defendant’s sole contention on appeal is that his sentence is not authorized by the
relevant statutes.
                                        DISCUSSION
   I. THE PARTIES’ CONTENTIONS AND STATUTORY BACKGROUND
       Defendant argues that his six-year prison term was impermissibly long because
attempted extortion is only punishable by a prison term of one year or less. (§ 524.)
Even if that maximum term is doubled for defendant’s prior strike, the maximum
sentence becomes two years. Thus, he contends his six-year term is unauthorized.


       1   All further statutory references are to the Penal Code unless otherwise noted.
       2 “Since appellant raises only sentencing issues in this appeal, we need not recite
the facts of the underlying charge.” (People v. Logsdon (1987) 191 Cal.App.3d 338,
341.)




                                               2.
       We disagree with defendant’s submission that the Penal Code only provides for
state prison terms of one year or less on attempted extortion convictions. Instead, as
explained below, we conclude that the Penal Code does permit a three-year prison term to
be imposed for attempted extortion. (§§ 17, 18, 524.) When that maximum permissible
term is doubled pursuant to defendant’s prior strike, the term becomes six years.
Defendant’s sentence was authorized.
       Section 524
       Both parties agree that section 524 governs defendant’s sentencing for attempted
extortion. That statute provides:

              “Every person who attempts, by means of any threat, such as is
       specified in Section 519 of this code, to extort money or other property
       from another is punishable by imprisonment in the county jail not longer
       than one year or in the state prison or by fine not exceeding ten thousand
       dollars ($10,000), or by both such fine and imprisonment.” (§ 524.)

II. THE PERMISSIBLE LENGTHS OF STATE PRISON TERMS IMPOSED UNDER
              SECTION 524 ARE GOVERNED BY SECTION 18
       The core dispute centers around section 524’s language dealing with
incarceration, which provides that attempted extortion “is punishable by imprisonment in
the county jail not longer than one year or in the state prison .…” (§ 524.)
       Defendant submits this language means that the “maximum term of imprisonment
for attempted extortion is one year of incarceration” regardless of whether the defendant
is sentenced to county jail or state prison. Accepting this interpretation would have us
accrediting awkward syntax while ignoring section 18 altogether.
       Section 18 provides, in part:

              “Except in cases where a different punishment is prescribed by any
       law of this state, every offense declared to be a felony is punishable by
       imprisonment for 16 months, or two or three years in the state prison unless




                                             3.
       the offense is punishable pursuant to subdivision (h) of Section 1170.”3
       (§ 18, subd. (a).)


       The applicability of section 18 to attempted extortion under section 524 is clear.
“California law provides that if a crime is ‘punishable by imprisonment in a state prison’
and no prison term is specified,” then section 18 governs the sentence. (United States v.
Sumlin (8th Cir. 1998) 147 F.3d 763, 765; see §§ 17, 18; People v. Athar (2005) 36
Cal.4th 396, 407 (dis. opn. of Kennard, J.); In re Eric J. (1979) 25 Cal.3d 522, 529; see,
e.g., People v. Taylor (2001) 93 Cal.App.4th 933, 943, 949 (conc. & dis. opn of
Morrison, J.); People v. Jackson (1987) 196 Cal.App.3d 380, 385, fn. 2, criticized on
another point in People v. Rodriguez (1990) 51 Cal.3d 437, 444, fn. 3; People v. Bell
(1984) 159 Cal.App.3d 323, 328.) Attempting to extort money or other property under
section 524 is “a crime … ‘punishable by imprisonment in a state prison’ and no prison
term is specified ….” (United States v. Sumlin, supra, 147 F.3d at p. 765; § 524.)
Consequently, section 18 governs the sentence. (See United States v. Sumlin, supra, at
p. 765.)
       Defendant disputes the minor premise of our syllogism. He contends that section
524 does specify the permissible range of state prison terms by requiring any state prison
term be “not longer than one year.” (§ 524.) We reject this reading of section 524. The
phrase “not longer than one year” limits only terms of imprisonment in the county jail,
not state prison terms. We reach this conclusion for several reasons. First, the phrase “or
in state prison” is separated from the one-year maximum language by the disjunctive
“or,” indicating they are entirely separate options for punishment. Second, and perhaps




       3 The attempted extortion committed by defendant was a felony because it was
punishable by imprisonment in a state prison and none of the events outlined in
section 17, subdivisions (b)(1)–(5) occurred. (§ 17.)




                                             4.
more importantly, several penal statutes with nearly identical language have been
interpreted in this fashion.
       In In re Eric J., supra, 25 Cal.3d 522, the defendant had committed second degree
burglary. (Id. at p. 529.) At the time, section 461 provided that second degree burglary is
punishable “ ‘by imprisonment in the county jail not exceeding one year or in the state
prison.’ [Citation.]” (Ibid.) The Supreme Court held that since the statute provided for
imprisonment in the state prison, but did not specify the term length(s), section 18
applied. (Ibid.; see also People v. Bell, supra, 159 Cal.App.3d at p. 328.) By necessary
implication, the Supreme Court did not read the one-year maximum in then-section 461
to apply to both county jail and state prison terms.
       Language from the case of People v. Jackson, supra, 196 Cal.App.3d 380 is to
similar effect. In that case, the Court of Appeal dealt with several crimes including the
one defined in then Health and Safety Code section 11355. (People v. Jackson, supra,
196 Cal.App.3d at p. 385.) In 1984, that statute provided for punishment “by
imprisonment in the county jail for not more than one year, or in the state prison.”
(Health & Saf. Code § 11355, as amended by Stats. 2011–2012, 1st Ex. Sess., ch. 12X,
§ 4.) The court held that because the statute “did not specify the length of any state
prison term to be imposed as punishment … [v]iolation of section 11355 was” punishable
under section 18. (People v. Jackson, supra, at p. 385, fn. 2.)
         III. CORRECTING THE ABSTRACT OF JUDGMENT ON REMAND
       The abstract of judgment indicates that defendant was sentenced under sections
664 and 518. Section 664 governs sentencing of attempt crimes “where no provision is
made by law for the punishment of those attempts ….” (§ 664.) The punishment for
defendant’s crime is provided for by other law (see §§ 18, 524), and therefore section 664




                                             5.
does not apply. 4 We will order the abstract of judgment amended accordingly to reflect
that defendant was sentenced pursuant to sections 524 and 18, not section 664.
                                      DISPOSITION
       The matter is remanded to the trial court so that it may amend the abstract of
judgment to reflect that defendant was sentenced pursuant to Penal Code sections 524
and 18. The trial court is further directed to have certified copies of the amended abstract
transmitted to the appropriate parties and entities. In all other respects, the judgment is
affirmed.


                                                                  _____________________
                                                                  Poochigian, J.

WE CONCUR


______________________
Cornell, Acting P.J.


______________________
Kane, J.




       4 Both parties agree that section 664 does not apply here. But defendant makes an
alternative argument in his supplemental opening brief in the event we concluded section
664 does apply. Since we conclude section 664 does not apply, we reject defendant’s
alternative argument.




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