JACK LEAMING, Petitioner, v. THE MUNICIPAL COURT FOR THE SAN JOSE-MILPITAS JUDICIAL DISTRICT OF SANTA CLARA COUNTY, Respondent; THE PEOPLE, Real Party in Interest, 12 Cal. 3d 813

Opinion CLARK, J. Charged with indecent exposure in a felony complaint alleging three prior convictions of the same offense (Pen. Code, § 314), petitioner seeks a writ of prohibition to restrain respondent court from conducting a preliminary hearing. Petitioner contends that indecent exposure is a misdemeanor, regardless of prior convictions. He argues that the provision of

section 314 making repeated offenses felonies punishable by imprisonment in state prison for not less than one year was invalidated in its entirety when the indeterminate life-maximum sentence for such offenses was declared unconstitutional in In re Lynch (1972) 8 Cal.3d 410 [105 Cal.Rptr. 217, 503 P.2d 921]. We deny the writ. The petitioner in Lynch was a state prison inmate convicted over five years earlier of indecent exposure with a like prior and sentenced to an indeterminate life-maximum term. His petition for writ of habeas corpus raised the question “whether the aggravated penalty for second-offense indecent exposure provided by Penal Code

section 314 violates the prohibition of the California Constitution against cruel or unusual punishments. (Cal. Const., art. I, § 6.)” (8 Cal.3d at p. 413.) This court held the penalty violated that prohibition because “although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” {Id. at p. 424; fn. omitted.) However, -by holding that “the recidivist provision of

section 314 is void” (8 Cal.3d at p. 439), this court invalidated only the indeterminate life-maximum term — not the entire recidivist provision. The narrow scope of the holding was made clear in the final paragraph of the opinion. Addressing the question of relief, the court set forth the two alternative theories also advanced by the parties to this case: that second offense indecent exposure either reverts to the misdemeanor status it shared with simple indecent exposure prior to the 1952 amendment of the statute, or remains a felony but is punishable by the general five-year maximum term of imprisonment prescribed by

section 18. No choice was made between these theories, the court concluding that whichever was correct, the petitioner bad been imprisoned long enough to be entitled to immediate release. (8 Cal.3d at p. 439.) Thus, in Lynch, because it was unnecessary to do so, this court did not decide the issue now presented. Inasmuch as cases are not authority for propositions not considered (In re Tartar (1959) 52 Cal.2d 250, 258 [339 P.2d 553], and cases cited therein), we can examine this issue afresh. In 1952, the statute prohibiting indecent exposure, then: numbered

section 311, was amended to add the recidivism provision challenged here. “Upon the second and each subsequent conviction under subdivision 1 of this section, or upon a first conviction under subdivision 1 of this

section after a previous conviction under

Section 288 of this code [lewd or lascivious acts upon a child under 14], every person so convicted is guilty of a felony, and is punishable by imprisonment in the state prison for not less than one year.*’ (Stats. 1953, First Ex.Sess. 1952, ch. 23, § 4, p. 381; italics added.) The question presented by this case is whether the italicized provision, held unconstitutional in Lynch, is sever-able from the remainder of the statute. An unconstitutional provision is severable from a statute if the remainder is “complete in itself” and would have been adopted without the severed provision. (People v.

Navarro (1972) 7 Cal.3d 248, 260 [102 Cal.Rptr. 137, 497 P.2d 481]; In re Bell (1942) 19 Cal.2d 488, 498 [122 P.2d 22].) The remainder of the recidivist provision in

section 314 is complete in itself if the unconstitutional life-maximum term is severed from it. Read in light of

section 18, it provides that a recidivist is guilty of a felony punishable by imprisonment in state prison for not more than five years. It is contended the recidivist paragraph would not have been adopted without the severed provision.

The Legislature made recidivism a felony punishable by imprisonment in state prison — so the argument goes — simply as a means of subjecting recidivists to the state’s control for a life-maximum term, such a term for a misdemeanor punishable by a county jail sentence being “an analytic oddity and a practical impossibility.” Be that as it may, the conclusion that the invalidated life-maximum term should therefore be held inseverable from the remainder of the recidivism paragraph is a complete non sequitur.

Such a holding would entirely frustrate the Legislature’s intent, while severance at least partially fulfills it by permitting the state to retain control ovér recidivists for five years, rather than one. Moreover, the Legislature has expressed it's will on the question of severance. The legislation reenacting the indecent exposure statute as

section 314 concluded with the proviso, “If any provision of this act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.” (Stats. 1961, ch. 2147, § 9, p. 4432.) Amicus curiae contends the severability clause was intended to apply only to the

section of the act substantially revising the law of obscenity, not to the

section merely reenacting the indecent exposure statute. Concern over anticipated attacks on untested provisions of the obscenity legislation may well have been the primary reason for the inclusion of a severability clause in the act. However, the clause appears at the end of the act, not immediately after the

section dealing with obscenity, and applies by its express terms to “any” provision of the act. In its present posture this case does not present the question whether— nor does petitioner contend that — a maximum term of five years imprisonment is cruel or unusual punishment for the crime of indecent exposure with three prior convictions of the same offense. The petition for writ of prohibition is denied. Wright, C. J., McComb, J., Sullivan, J., and Burke, J., concurred. Penal Code

section 314 provides: “Every person who willfully and lewdly, either [¶] 1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby, or, [¶] 2. Procures, counsels, or assists any person so to expose himself or take

part in any model artist exhibition, or to make any other exhibition of himself to public view, or the view of any number of persons, such as is offensive to decency, or is adapted to excite to vicious or lewd thoughts or acts, is guilty of a misdemeanor. [¶] Upon the second and each subsequent conviction under subdivision 1 of this section, or upon a first conviction under subdivision 1 of this

section after a previous conviction under

Section 288 of this code, every person so convicted is guilty of a felony, and is punishable by imprisonment in state prison for not less than one year.” All statutory references in this opinion will be to the Penal Code.

Section 18 provides: “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 in any of the state prisons, not exceeding five years; provided, however, every offense which is prescribed by any law of the State to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both. [¶] This

section shall not be construed to apply to offenses set forth in Division 10 of the Health and Safety Code [§ 11000 et seq.], nor to any offense which is prescribed by any law of this State to be a felony punishable by imprisonment in any of the state prisons, but without alternative of fine.” Petitioner contends

section 18 is inapplicable because it provides that “[t]his

section shall not be construed to apply ... to any offense which is prescribed ... to be a felony punishable by imprisonment in any of the state prisons, but without alternative of fine,” and

section 314 does not provide for the alternative of a fine.

Although it refers to “[t]his section,” the limitation is applicable only to the proviso that “every offense which is prescribed by any law of the State to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.” If the limitation pertained to the remainder of the first paragraph, the state would be without a general punishment provision applicable to felonies for which no fine is specifically authorized as an option.

Offering false evidence is such a felony. (Pen. Code, § 132.) In In re Jones (1971) 5 Cal.3d 390, 393, footnote 1 [96 Cal.Rptr. 448, 487 P.2d 1016], we stated that it was punishable by imprisonment for not less than six months nor more than five years under sections 18 and 18a. Petitioner’s contention that he has been denied a speedy trial lacks merit. He was arraigned on a misdemeanor charge of indecent exposure on 21 November 1972. After a number of continuances, trial was set for 13 February 1973. On that date the misdemeanor complaint was abandoned and petitioner was arraigned on this felony complaint.

Petitioner may not complain of the fact that the misdemeanor trial was set more than 45 days after his arraignment, because the continuances were at his request. (Pen. Code, § 1382.) Nor may petitioner complain of the filing of the felony complaint. Dismissal of a misdemeanor complaint does not bar a felony prosecution. (Pen. Code, § 1387.) There is no evidence in the record to support petitioner’s claim that the felony complaint was filed because he refused to plead guilty to the misdemeanor charge.