227 Cal. App. 4th 1198
Cal. Ct. App.2014Background
- Defendant Lance Jernigan is serving two concurrent 25‑year‑to‑life terms imposed under California's Three Strikes law based on a 1997 conviction and findings of two prior serious felonies (robbery and attempted forcible oral copulation).
- In October 2013 Jernigan petitioned for resentencing under Penal Code § 1170.126 (Prop. 36). The trial court denied the petition on threshold eligibility grounds, concluding his prior attempted forcible oral copulation was a disqualifying prior serious/violent felony.
- The trial court relied on prior information, verdict forms, minute orders, and an abstract of judgment reflecting the prior attempted forcible oral copulation conviction.
- The Attorney General argued that the prior attempted forcible oral copulation falls within the disqualifying category because sections cross‑refer to Welfare & Institutions Code § 6600(b), and the statutory scheme and voter intent support treating attempts as disqualifying.
- The Court of Appeal examined the statutory text of § 1170.126(e), the cross‑references to §§ 667 and 1170.12, and the definition of “sexually violent offense” in Welf. & Inst. Code § 6600(b), concluding the definition enumerates completed offenses and does not include attempts.
- The court reversed and remanded: Jernigan is not categorically barred from seeking resentencing by his attempted forcible oral copulation prior; the trial court must determine on remand whether resentencing would pose an unreasonable risk of danger to the public.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prior conviction for attempted forcible oral copulation is a disqualifying prior under § 1170.126(e) (via §§ 667/1170.12 and Welf. & Inst. Code § 6600(b)) | Attempted forcible oral copulation should be treated as a disqualifying prior because §§ 667/1170.12 refer to a prior serious felony conviction (which can include attempts) and the statute should be read to effectuate voter intent to keep dangerous sexual offenders incarcerated | The statutory text of Welf. & Inst. Code § 6600(b) enumerates completed ‘‘sexually violent offenses’’ and does not include attempts; thus an attempted forcible oral copulation is not among the disqualifying offenses | Held for Defendant: attempted forcible oral copulation is not listed in § 6600(b) and therefore does not categorically bar eligibility under § 1170.126; remand for the trial court to exercise its discretion on dangerousness under § 1170.126(f) |
| Whether ambiguity in the cross‑referenced provisions or in voter materials permits judicial insertion of attempts into § 6600(b) | Voter intent to keep dangerous criminals incarcerated supports construing the disqualifying list to include attempts | No textual ambiguity exists in § 6600(b); extrinsic materials (voter pamphlet) do not support rewriting the statute to add attempts | Held for Defendant: plain statutory language controls; courts will not rewrite the statute based on general voter materials |
| Whether the trial court properly denied the petition on threshold eligibility without addressing dangerousness under § 1170.126(f) | Disqualification by prior attempted forcible oral copulation justified denial on eligibility grounds | Even if eligible, court must still determine whether resentencing would pose unreasonable risk; eligibility should be resolved correctly first | Held: eligibility was improperly decided against defendant; on remand the court must decide dangerousness only after resolving eligibility correctly |
| Appellate jurisdiction to review denial of § 1170.126 petition | The order is appealable as an order after judgment affecting substantial rights | Defendant agrees appealable; court noted Supreme Court guidance pending in other cases | Held: the Court of Appeal treated the order as appealable under § 1237(b) and precedent pending Supreme Court resolution |
Key Cases Cited
- People v. Superior Court (Kaulick), 215 Cal.App.4th 1279 (discusses trial court’s two‑step eligibility and dangerousness analysis under § 1170.126)
- People v. Yearwood, 213 Cal.App.4th 161 (explains Prop. 36 purposes and voter material context)
- Garcetti v. Superior Court, 85 Cal.App.4th 1113 (notes § 6600(b) does not include attempts)
- People v. McGee, 38 Cal.4th 682 (use of prior record to determine whether prior conviction is a serious felony)
- People v. Reed, 13 Cal.4th 217 (examining the record of conviction to determine prior offense nature)
- People v. Woodell, 17 Cal.4th 448 (evaluating entire record of prior conviction for elements analysis)
- People v. De Porceri, 106 Cal.App.4th 60 (distinguishing assault with intent and attempt in sexual offense context)
- People v. Gutierrez, 58 Cal.4th 1354 (rules for statutory construction and interpreting voter initiatives)
- Vasquez v. State, 45 Cal.4th 243 (courts may not rewrite statutes to reach desired results)
- People v. Leal, 33 Cal.4th 999 (limits on judicial rewriting of legislative text)
- People v. Garcia, 21 Cal.4th 1 (same)