*1 H041050. Sixth Dist. June [No. 2016.] PEOPLE,
THE Plaintiff and v. Respondent, CORDOVA,
JOHNNY MELENDEZ Defendant and Appellant. THE SUPREME COURT OF CALIFORNIA GRANTED REVIEW IN THIS MATTER Court, 31, 2016, (see 8.1105(e)(1)(B), 8.1115(e)) Cal. Rules of rules S236179. August *5 Counsel
Keith Allen under the Court of for Defendant Wattley, appointment by Appeal, and Appellant. Harris, General,
Kamala D. Gerald A. Chief Assistant Attorney Engler, General, Laurence, General, M. Assitant Attorney Jeffrey Acting Attorney Bovarnick, General, Catherine A. Rivlinand and Karen Z. Deputy Attorneys for Plaintiff and Respondent.
Opinion RUSHING, P. J. Melendez Cordova is a sen- Defendant Johnny serving tence of 25 to life under the “Three Strikes” law. He the trial years petitioned 1170.126), (section court for under Penal Code section 1170.126 resentencing which is of the Three Strikes Reform Act of also known as part Act). (Reform him That act entitled to a reduction his Proposition sentence unless such a reduction would an unreasonable risk of “pose danger 1170.126, (§ (1) (section 1170.126(1)).) to subd. The trial court public safety.” found this condition to be and denied his on that present petition ground. While this from that was voters the Safe appeal ruling pending, adopted Act, (Safe and Schools also known as Neighborhoods Neigh- Act), borhoods which narrowed the definition of “unreasonable substantially risk of to as that was “used this danger public safety” phrase throughout Code, 1170.18, (Pen. (c) (section 1170.18(c)).) Code.” subd. We conclude § terms, the new definition accordance with its to applies, plain Act, determinations of under the Reform and that notwith- dangerousness it standing presumption against statutory retroactivity, applies petitions that had been when it was we will already adjudicated adopted. Accordingly, reverse with directions to conduct a new on defendant’s hearing petition 1170.18(c)’s which section definition of will dangerousness govern determination whether will an unreasonable risk of resentencing pose danger This renders moot defendant’s to the public safety. disposition challenge *6 of the evidence to sustain the trial court’s under the sufficiency ruling prior (1) standard. We defendant’s contentions that relief on reject conditioning laws; (2) violates his to of the nondangerousness right equal protection failing to a a reasonable doubt violates his prove dangerousness jury beyond trial; constitutional a favors right jury “strong presumption” however, We that the state bears the burden of resentencing. emphasize, would create an unreasonable risk of as proving resentencing danger 1170.18(c). defined section
BACKGROUND A. Strikes. Defendant’s 19,
In at the defendant was with a number of May age charged felonies from two incidents on successive One incident involved arising days. which, a home invasion to the defendant robbery according police report, held a woman and her children at while violence gunpoint threatening against court, them. to a later decision this defendant According by eventually accumulated four convictions for serious or violent felonies—commonly law, known as strikes—for of the Three Strikes Penal Code sections purposes 25, 1998, H015896) (Nov. 667 and 1192.7. v. Cordova (People [nonpub. opn.].)1
B. Three Strikes Law. convictions, Two decades after defendant sustained the voters foregoing Code, (Pen. and the the Three Strikes law.2 Legislature, respectively, adopted 667; 12, 1, 71; Code, former Stats. ch. Pen. former 1170.12 p. § § § voters, 8, 1994)].) (Nov. as Gen. Elec. From its [Prop. approved by enactment until it that a defendant with a strike who was provided prior convicted of would receive what came to be known as any subsequent felony sentence, i.e., a “second strike” for “twice the term otherwise imprisonment Code, 667, (Pen. (e)(1), as subd. as Stats. provided punishment.” adopted by § 12, 1, 71; Code, 1170.12, (c)(1), ch. Pen. subd. as adopted by § § 184.) One with two strikes who suffered a conviction Prop. subsequent felony granted respondent’s request judicial opinion We have for notice of the cited as well as an opinion concerning possession earlier one of the 1973 offenses and a 1982 offense for of a 27, 1985, (Dec. A028169) (People [nonpub. opn.].) firearm a convicted felon. v. Cordova below, According attorney’s opposition charge to the district memorandum the latter arose plainclothes firing hunting shooting range. when a officer saw defendant rifle at a Defendant $1,100 recently purchased weapon planning told the officer that “he had for and . . . was on hunting ... in Idaho.” singular recognizing adopted We refer to the law in the while that it was in two not, however, vary materially present purposes. versions—which do *7 Code, (Pen. would receive a “third strike” sentence of 25 to life. former years 667, 1994, 12, 1, 71]; (e)(1), (2)(A)(ii), subd. as Stats. ch. adopted by p. §§ § Code, 1170.12, (c)(1), (2)(A)(ii), Pen. former subd. as adopted by Prop. § 184.)
C. Third Strike Conviction. Defendant’s In December 1995 defendant was arrested on a a charge carrying 12020, concealed dirk or a violation of Penal Code former section dagger, Code, 21310.) (a). (See In him subdivision now Pen. 1996 a found July jury § “wobbler,” i.e., is) (and of that offense. The offense was still a it could guilty if be either as a misdemeanor or a as a it prosecuted felony; punished felony, (Pen. would a maximum of three ordinarily carry penalty years’ imprisonment. Code, 12020, 1994, 23, 4, (a), former subd. as Stats. ch. adopted by § § 132; Code, 18, 1976, 1139, 98, Pen. former as Stats. ch. p. adopted by § § 5089; Code, 21310, 1170, striker, (h).) see now Pen. subd. As a third §§ however, defendant was sentenced to for 25 to life.3 This court prison years Cordova, H015896.) affirmed the conviction and sentence. v. (People supra, D. Act. Reform 6, 2012,
Defendant was the above sentence on November serving when voters the Reform Act. It has two chief “the first adopted components: is the sentence to be future three part prospective only, reducing imposed Code, (Pen. strike cases where the third strike is not a serious or violent felony similar, 1170.12); the second is but not part retrospective, providing §§ identical, relief for third strike sentences cases prisoners already serving Code, (Pen. where the third strike was not a serious or violent felony 1170.126).” (Kaulick) (2013) v. Court (People Superior Cal.App.4th § (Kaulick).) More Cal.Rptr.3d specifically, prospec 856] tive make new non-strike felonies provisions generally punishable by maximum sentence of double the base term—a former second strike sen Code, 1170.12, (Pen. of the number of strike tence—regardless priors. §§ (c)(2)(C), (e)(2)(C).) subd. subd. The section retrospective provision, 1170.126(1), entitles third strikers who would be for reduced sentenc eligible if their convictions were new to for recall of sentence. ing petition 1170.126(1) Section directs that a who satisfies the criteria for petitioner court, in “shall be resentenced” as a second striker “unless the its eligibility life, probation years consisting officer recommended a sentence of 31 of the third Code, (See plus one-year prior strike life sentence six enhancements for convictions. Pen. 667.5, case, (b).) According stayed subd. to our decision in that the trial court § them, procedure nothing enhancements. The correct was to strike but has been made of the (See People Langston trial court’s failure to do so. v. 33 Cal.4th 1241 [17 865].) any 95 P.3d The trial court also denied a motion to strike of the priors. “strike” *8 550
discretion, determines that the would an unrea- resentencing petitioner pose In sonable risk of to the discretion thus danger public safety.” exercising “(1) the court consider: The criminal conviction granted, may petitioner’s committed, the of crimes the extent of to history, including type injury victims, commitments, the and the remoteness of the length prior prison crimes; (2) The record and record of rehabilitation petitioner’s disciplinary [¶] incarcerated; court, (3) while and other evidence the within its Any [¶] discretion, in determines to be relevant whether a new sentence deciding {Id., in would result an unreasonable risk of to danger public safety.” However, subd. the act contains no definition of ‘“unreasonable risk of (g).) which, to a at the time of its danger public safety,” phrase adoption, appeared in nowhere else the Penal Code.4
E. Petition and Appeal. 22, 2013, On defendant filed a under August petition resentencing 1170.126(1). section The court found that he satisfied the criteria for eligibil- the state does not contest—and counsel to ity—a point appointed represent A him. clinical conducted a mental health exantination and psychologist defendant, old, found no evidence that then 60 would an unreason- years pose However, if able risk of to released. the danger public safety prosecutor over 950 of records an extensive presented pages reflecting history criminal conduct at the of 13. These materials alluded to a beginning age violence, number of crimes or actual uncharged involving incipient including all, In two homicides which defendant was between reportedly implicated.5 12 1973 and defendant was convicted of 17 misdemeanors and felonies. The also cited an extensive prosecutor disciplinary history prison, (1) incidents that to involve violence were although appeared threat defendant 2004 an inmate he believed reported by against reportedly 4 operative language may reviewing have been borrowed from cases decisions that, Hearings deny parole prisoner ground Board of Parole to to a life on the as stated in the governing regulation, prisoner pose danger society “the will an unreasonable risk of if 15, 2402, (Cal. (a).) prison.” Regs., released from Code tit. subd. Cases have often couched § findings danger public safety.” (E.g., such in terms of “an unreasonable risk of Board of (2005) 70]; Superior Cal.App.4th Cal.Rptr.3d Prison Terms v. Court 1221 In re [31 (2012) 608]; Cal.App.4th Cal.Rptr.3d Tapia Moses In re 190].) Cal.App.4th 1106 [144 suspected apparently A number of these offenses and offenses arose out of defendant’s Familia, membership prison gang. January again August in Nuestra a notorious In 2002, prison “drop-out” gang. healing authorities “validated” defendant as a of the At the below, prosecutor argued dropout dangerousness by that his status increased defendant’s making “going engage defending any him a “marked man” who was to have to himself at given given history, regain weapons.” time which . . . his will . . . force him to and utilize Of dropped gang, membership undoubtedly course if defendant had not out of the his would have plausibly—as continuing dangerousness. been cited—far more evidence of “Catch-22” is no part of our Penal Code. *9 was a child molester—an incident attributed both inmates to a misunder- by (2) in a four-inmate the of which officers were standing; fight origins establish, unable to but which one of the inmates was armed apparently blade;6 (3) with a razor a of defendant a cellmate for beating by unknown reasons. Evidence was also adduced of with in-prison employment, favorable as well as various rehabili- reports by supervisor, participation tative and educational The evidence showed a use programs. history drug to a few months before the on the up hearing petition.7 19, 2014,
The trial court denied the on petition May finding “nothing right until the most recent offense to to this Court that the up triggering suggest but a substantial risk to Defendant petitioner presents anything public safety.” took this timely appeal.
F. 47. 4, 2014,
While the was on November the electorate appeal pending, enacted the Safe Act. It reclassified certain and theft- Neighborhoods drug- and, Act, related felonies as misdemeanors the Reform mirroring provided recall of sentences served for the reclassified offenses. The already being 1170.18), (§ Penal Code section 1170.18 echoes resentencing provision, section 1170.126 that the “shall be . . . resentenced . . . directing petitioner court, discretion, unless the its determines that the resentencing petitioner {Id., (b) would an unreasonable risk of subd. pose danger public safety.” on, not, (§ 1170.18(b).) But it as the Reform Act had to define this goes Code, “As used this ‘unreasonable risk of phrase: throughout danger public means an unreasonable risk that the will commit a new safety’ petitioner (iv) (C) violent within the of clause felony meaning subparagraph added.) (e) (§ 1170.18(c), of subdivision of Section 667.” italics paragraph The cross-referenced section sets forth a limited list of “violent felony” offenses, al., (See sometimes known as strikes.” Couzens et “super Frequently 2015) Questions (Nov. Asked <http://www.courts.ca.gov/documents/Prop47 24, 2016].) of June The effect of the new definition is to FAQs.pdf> [as unless the court finds an unreasonable risk that the require resentencing suggest possessor The trial court’s remarks that it found that defendant must have been the self-exculpatory of the blade because the record contains statements the other three said, to, participants. participants reportedly pulled One of the “I had the dude a blade on me.” dude,” nothing identifying any However we see in the record “the and of course to draw any participants’ requires supposition, inference from of the statements for which no appears, speaker speaking truthfully. nothing evidence that the was We find in the records of reasonably this incident that could be characterized as reliable evidence that defendant was its V., (See pt. post.) author. argued painful injuries Defense counsel below that the 2006 assault had inflicted which addiction, prison opiates, triggering relapse, medical authorities treated with thus or which preceded hearing. *10 552 will commit a strike. The here is whether defendant
petitioner super question avail himself of this narrowed definition. Basic may principles statutory construction the conclusion that he can. compel 1170.18(c) I. Section Applicability of
A. Introduction. 1170.18(c)’s The central is whether section definition of “unrea- question sonable risk of to to that as used danger public safety” applies phrase 1170.126(f).8 section On the face of the two statutes the seems to question 1170.18(c) answer itself: Section declares the definition applicable “through- out this Code.” “This Code” can mean the Penal Code. Section 1170.126 Quod is of the Penal Code. est demonstrandum: the definition to part applies 1170.126, i.e., under section 36. petitions It is of course the most fundamental of all principles statutory construction that the role of the court statute is to out applying any carry Proc., (See the intent manifested therein. Code Civ. the construc § [“In instrument, tion of a statute or the office of the is to ascertain Judge simply therein, and declare what is terms or substance contained not to insert omitted, inserted”]; what has been or to omit what has been Santa County of 555, (2016) 244 Clara v. Escobar 562-563 Cal.App.4th Cal.Rptr.3d [198 704, 646]; (2007) 41 v. Co. Cal.4th People Allegheny Casualty [61 689, ‘If 161 P.3d contains no we Cal.Rptr.3d language ambiguity, 198] [“ said, meant what it and the of the presume Legislature plain meaning ”].) statute governs.’ addressing A number of decisions have been issued this and other courts cited, 1170.18(c) applicability petitions. of section to Reform Act Most cannot be either they unpublished begin Supreme granted because were with or because the Court has Court, (See 8.1115(a), 8.1105(e)(1).) exception People
review. Cal. Rules of rules One is v. (2015) Esparza Cal.App.4th (Esparza), 734-737 in which the [195 597] court, opinion, together dissenting author of this with the author and another member of the rejected arguments concurring justice similar to defendant’s. The has also concurred in the (not citable) 1170.18(c) ground applies by result in some cases on the that while section its petitions, apply petitions terms to Reform Act it does not which were filed or decided before say its effective date. It must suffice to that additional information and further reflection have majority analysis reaching led the to view as unsound the in those and other cases conclusions aphorism quoted by inconsistent with the ones we reach here. “The words of the Justice (1949) Rutledge in his dissent in w. Colorado 338 U.S. L.Ed. 69 S.Ct. [93 Wolf comes, 1359], appropriate: ought reject are ‘Wisdom too often never and so one not to it ” merely (Tapia Superior because it comes late.’ v. Court 53 Cal.3d 303 Mosk, (dis. J.).) Cal.Rptr. opn. 807 P.2d 434] *11 conclusion, offers four for a three of which
Respondent arguments contrary are from a case that can no be cited. incorporated by lengthy quotation longer 8, ante.) (See (1) 1170.18(c) fn. The four are section its arguments applies by terms to under the Safe only persons seeking resentencing Neighborhood (2) 1170.18(c) Act’s retroactive the effect of section on Reform provisions; in Act was not mentioned the voter information and thus petitions guide voters; (3) cannot have been intended of the Safe “timing” Neighbor- hood Act makes an intent to alter the Reform Act “illogical”; the new definition to contravenes the applying Proposition petitions in in declaration 47 that this and related sections is Proposition “[n]othing intended to diminish or of case not abrogate finality judgments any 1170.18, (§ (n)). within the of this act” subd. These falling purview argu- not, combination, ments do or override the of section singly plain language 1170.18(c). ”
B. Use “Petitioner. 1170.18(c) We find somewhat that section bewildering argument its terms under the Safe Act. applies by only petitioners Neighborhoods 47,” This conclusion is said to flow from “the plain language Proposition in that the definition refers to “the which petitioner,” according respondent can mean a under section 1170.18. The statute thus “substan- only petitioner the definition to tively Proposition petitions. limit[s]” If This cannot withstand the use of argument scrutiny. anything, “peti- I.C., I.F., (see tioner” is further evidence that the drafters had pt. post) are also mind when applicants—who “petitioner[s]”—in they a new and narrower definition for a used that earlier adopted phrase measure. Given the directive to this definition this explicit apply “throughout Code,” could at best rise to an internal respondent’s argument give ambiguity or contradiction which would have to be resolved favor of the latter phrase as the more definite and concrete intent. But this expression legislative would assume that some clear textual basis could be found for respondent’s The directive that the definition this Code” reading. apply “throughout statute, in the while the actually appears language imputed by respondent does not. There is thus no or conflict to resolve. unmistakable ambiguity By directive, the definition is to wherever the defined As it apply phrase appears. the defined one other Reform happens, phrase appears place—the Act—where it is relevant to determine a to relief. It is “petitioner’s” right therefore its terms to this applicable by plain proceeding.
C. Voter Understanding.
1. No Voter Presumption Ignorance. The decision states its chief ratio- no-longer-citable quoted by respondent nale as follows: 47’s ballot materials and Proposition proposed ‘“[B]ecause contained whatsoever to that statutory language nothing suggest Proposition 47 would have on the who was a any impact resentencing anyone serving nonserious, sentence for a crime other than one of the nonviolent specified crimes, or it is inconceivable that voters intended for property drug (c) subdivision of section 1170.18 to restrict the of a court to severely ability under the Reform Act a convicted of reject resentencing petition by person crimes other than one of the or crimes and whom the specified property drug court considered 47 ballot materials contained no dangerous. Proposition added.) (First mention such a . . . .” and fourth italics possible consequence This two rhetorical devices passage exemplifies generally employed obscure rather than illuminate the truth. The first is known as “honor by association,” in in which a false statement is to a true one that coupled hopes the latter’s luster will attach to the former the mind of the listener. It here the of the “and appears coupling phrase proposed statutory language” with “ballot materials.” It is true that the ballot materials contain no reference to the measure’s effect on But it is false that Proposition petitions. patently contained whatsoever to statutory language “nothing suggest 47 would have on sentences for Proposition any impact” persons serving crimes other than those for which 47 reduced the its penalty. By terms, Code,” (§ 1170.18(c)) the statute would this plain apply “throughout which would include else the defined was used. The anywhere phrase attempt substance to a it to a true statement grant contrary premise by coupling more about the of the than it does about the says insecurity speaker’s position merits of the controversy.
A more serious defect is reflected use of an quoted passage’s ad or from which the argumentum ignorantiam, argument ignorance, absence of evidence for a is asserted as of the premise proof opposite when, here, Such an is offensive as there is premise. argument doubly i.e., evidence of the which is disputed premise, plain statutory language, best, reliable, indeed the most evidence of the at issue. The point safest is that the absence of affirmative argument’s implicit major premise extrinsic evidence to the voters can be not to have contrary, presumed *13 understood the effects of the measures however they adopt, unmistakably those effects flow from the The court’s reluctance to may language adopted. understandable, enunciate this alone defend it—is since premise—let entirely it contravenes fundamental of construction as well as principles statutory any and, of restraint not of concept judicial surprisingly, nearly century precedent. The correct rule is that voters “must be assumed to have voted law, an amendment to their the whole text of which intelligently upon organic was each of them to the election and which must be supplied prior they considered, in assumed to have of insufficient recitals the duly regardless any instructions to voters or the and con of its advocates or arguments pro the text of the measure.” v. Jordan opponents accompanying proposed (Wright 704, 915].) (1923) 192 Cal. P. This has been reaffirmed principle [221 that, in the “Petitioners’ entire through years: argument approving Proposition 8, the voters must have been misled or confused is based the upon improb able that the did not know what were It is assumption people they doing. that, faced with crime statistics and frustrated equally arguable startling them, of the criminal perceived inability justice system protect event, In knew what were we should not people exactly they doing. any that the voters did not know what were about lightly presume they Rather, tradition, 8. accordance with our ‘we ordinar approving Proposition should assume that the voters who a constitutional amendment ily approved law, “. . . have voted an amendment to their intelligently upon organic whole text which was each them to the election and which supplied prior of ’ ” (Brosnahan must be assumed to have considered” v. Brown they duly 236, 30, (Brosnahan),9 (1982) 32 Cal.3d 651 P.2d Cal.Rptr. [186 274] Amador Joint Union Sch. Dist. v. State Bd. quoting Valley High (1978) 22 Cal.3d 243-244 583 P.2d Equalization Cal.Rptr. [149 873, 890, (Amador see In re Lance W. 37 Cal.3d fn. Valley); 1281] 694 P.2d “truth evidence” Cal.Rptr. [upholding provision 744] 8; “The is to be aware of laws and Prop. adopting body presumed existing thereof.”].) construction judicial
Here voters—faced with the fiscal and human costs of earlier startling reactions to concluded that certain classes of crime—manifestly prison inmates should never have been the first the case imprisoned place—or Act, of the Reform should not have been for life—and should imprisoned Jordan, Wright supra, p. spoke only In v. 192 Cal. at the court of amendments to the law,” (See “organic state’s which is a reference to the state Constitution. Black’s Law Dict. (10th 2014) 2.) readily appears apply ed. col. However no basis a different rule to measures, purely statutory and indeed the measure at issue in Brosnahan included both Brosnahan, (See 242-245.) statutory supra. pp. constitutional and amendments. 32 Cal.3d at *14 556 “MAKE THE
therefore be resentenced to better suited to punishments CRIME,” FIT THE PUNISHMENT as the of the Reform Act proponents Guide, (Voter in the voter information Information loudly proclaimed guide. 6, 36, 2012) 52.) (Nov. Gen. Elec. text of We must assume that Prop. p. Act, the Safe with its modification of the on enacting Neighborhoods grounds which such relief could be denied—a modification declared explicitly appli cable the code—voters “knew what were throughout exactly they doing.” 252.) (Brosnahan, 32 Cal.3d at supra, p.
A of voter is all the more when presumption incomprehension repugnant (Amador the measure at issue was and debated.” “extensively publicized Brosnahan, 243.) 22 In Cal.3d at the court a Valley, supra, p. rejected contention that the measure at issue could be denied effect on the that ground voters, its . . . have led to confusion or “complexity may deception among who were uninformed the contents of the measure.” assertedly regarding 251.) (Brosnahan, In 32 Cal.3d at addition to the information supra, p. observed, voter information the court voters had been guide, exposed the measure: radio and tele “widespread publicity” concerning “Newspaper, vision editorials focused on its and extensive debate provisions, public candidates, editor, etc., letters to the described the and cons of involving pros below, 252.) (Brosnahan, the measure.” at As demonstrated the same is p. 47, editorials, true of at least to the extent of Proposition newspaper opinion Further, and web its merits.10 47 was far pieces, pages debating Proposition Brosnahan, less than the measure under as to which the complex scrutiny court alone could vitiate the voters’ rejected suggestion complexity “ manifested will: ‘Our the rules objectively society being complex, govern it whether or initiative will be ing adopted by legislation necessarily complex. initiative, Unless we are to or use of the risk of confusion repudiate cripple ” 252, (Brosnahan, must be borne.’ at Fair Political Practices quoting (1979) Com. v. Court 25 Cal.3d 599 P.2d Superior Cal.Rptr. [157 46].) Lawmakers are not to be aware of the contents of their only presumed “ ‘
enactments; are “deemed to be aware of statutes and deci- they judicial existence, sions and to have enacted or amended a statute already light ’ ” thereof.” v. Scott 58 Cal.4th (People Cal.Rptr.3d [171 initiatives; 827].) 324 P.3d This has been to voter principle applied indeed, it has been 47. v. specifically applied Proposition (People (2015) 240 Scarbrough Cal.App.4th 125] [court post, specific In addition to the materials discussed in more detail which address the effect Proposition petitions, sample many reflecting 47 on of the other articles public preceding Proposition appears appendix. debate 47’s enactment in the
557 would “deem the voters to have been aware of’ of judicial “interpretation” 47”].) in cause Reform Act “when good provision they approved Proposition Thus, “| a| hscnt we that the voters intend the ambiguity, presume meaning on the face of an initiative measure and the court not apparent may [citation] add to the statute or rewrite it to conform to an assumed intent that is not Communications, (Lesher in its Inc. v. apparent language. City [Citation.]” of 531, 1, 317].) (1990) If Walnut Creek 52 Cal.3d 543 802 P.2d Cal.Rptr. [277 the of a voter-enacted measure is “clear and there language unambiguous, is no need for construction. We that the voters ordinarily presume [Citations.] measure, intended the on the face of the and our meaning apparent inquiry (Woo (2000) ends. v. Court 83 975 Superior Cal.App.4th [Citation.]” [100 156]; (2003) cf. Robert L. v. Court 30 Cal.4th 901 Cal.Rptr.2d Superior 951], 69 P.3d italics added ‘When the is Cal.Rptr.2d language [135 [“ intent, “we refer to other indicia of the voters’ ambiguous, particularly in and contained the official ballot analyses arguments pamphlet.” [Citation.]’ 208, 245-246, [Citation.]”]; Amador Cal.3d italics added Valley, supra, ballot and to the elector summary arguments analysis presented [“[T]he in in ate connection with a measure be particular may helpful determining uncertain probable meaning language.”].) of
Here no That should end the This result is ambiguity appears. inquiry. construction, mandated not the most basic but only by principles statutory In also the constitutional a ballot measure separation powers. enacting the voters are no less than exercising legislative power worthy respect Const., IV, 1; (Cal. that of their Sacramento. art. see representatives § Brosnahan, 32 Cal.3d at Amador supra, p. quoting Valley, supra, Cal.3d at is our solemn duty jealously guard sovereign [“it initiative ‘it one of the most of our people’s power, being precious rights ”].) democratic To because voters’ atten process’ nullify statutory language tion was not drawn to it the voter information strikes at specifically guide and, the heart of the initiative more at the power fundamentally, sovereign of the branch. Due for that dignity legislative regard dignity requires when will is clear whose effects are not legislative expressed language intent, absurd and do not frustrate other manifestations of positive legislative lawmakers—here, voters—must be deemed to have intended the effect of enactments, their whatever courts believe about their may subjective expecta tion, or level of understanding, insight.
This which should be too obvious to need is reflected principle, saying, countless decisions. For In re Gabriel G. example, Cal.App.4th 847], this court a contention that the rejected of a statute could be because it led to unintended plain meaning disregarded *16 statute, must recall that ‘that which is consequences: construing ‘“[W]e construed is the text.’ Evidence inadver- statutory legislative [Citation.] of tence would have to be we would quite compelling ignore plain before the law. The evidence of inadvertence the language [Citation.] of offers is its assessment of the unintended Department consequences will have. has unintended But we change Legislation consequences. often cannot construe the amendment in a manner its text wholly unsupported by (Id. to avoid the unintended at merely purported consequences. [Citation.]” 1436-1437, added.) italics pp.
The tacit of is that the literal effect of premise respondent’s argument 1170.18(c) section on Reform Act is an unintended petitions consequence which courts can and should avert effect to the by refusing plain statutory But a cannot be deemed unintended when the most language. consequence reliable evidence of intent—the lawmakers as the language adopted objective manifestation of their and directs it. ‘“Courts will—clearly unambiguously course, of even which leads to absurd results or may, disregard plain language (Ornelas contravenes clear evidence of a intent.” v. contrary legislative 560].) (1993) 4 Cal.4th 847 P.2d Randolph [17 “ ‘ However, in the absence of such a ‘“there is no need for predicate, ’ ” construction, 1105-1106, (Id. and courts should not in it.” at fn. indulge pp. v. Court 50 Cal.3d quoting Delaney Superior Cal.Rptr. 934].) 789 P.2d Since there is no evidence that voters intended not to the effect courts have no alternative but to produce question, legitimate effect to the statute as it is written. give
2. Voter Guide as Sole Evidence Voter Information
Understanding. warranted, If further into voter intentions were there would be no inquiry sound reason to confine it to the contents of the voter information guide, time, which are constrained considerations of by space, subjective determinations of The official ballot measure is materiality. summary any Code, 9087, 9086, (Elec. authored the office of the Legislative Analyst. §§ (b).) subd. is set forth an summary required only ‘“generally manner the information the voter needs to impartial average adequately Code, 9087, added.) (Elec. (b), understand the measure.” subd. italics Note § the absence of directive that the any Legislative Analyst attempt provide measure, voters with a of the which would be a complete understanding event; few or would be so practical impossibility any judges lawyers law, as to understand at arrogant profess they completely any provision (See least the sense of able to forecast all of its effects. In re being
559 G., Gabriel at often has supra, Cal.App.4th [“Legislation fact, In unintended manifest of this consequences.”].) recognition govern- statute states that the ballot contain” such “back- ing only summary “may (Elec. information” as “the effect of the measure on law.” ground existing Code, 9087, added.) (b), subd. italics The is thus called Legislative Analyst § to make a rational about what effects are most to upon only judgment likely voters, matter to and to describe them a fair and Inherent intelligible way. in this is the of informational undertaking necessity triage—of determining what details are to form an and what necessary “adequate[] understanding],” details be omitted. The of such a exercises may preparer summary necessarily a function courts to allow considerable latitude when discretionary requiring (See the result is as or inaccurate. Brennan v. Board challenged incomplete (1981) 125 with Supervisors Cal.App.3d Cal.Rptr. 677] [“Faced the difficult task of a the Committee drafted a simplifying complex proposal, which, if not at least described its summary all-encompassing, briefly major subjects.”].)
When the fails to mention some effect of a ballot Legislative Analyst measure, it remains to the measure’s official and open proponents opponents to use their the voter information to lack. space guide supply any perceived But too must their are restricted to 500 words they practice triage; arguments Code, 9062, 9069, id., (See to and 250 words rebuttal. Elec. cf. open §§ 9041.)11This means the advocates must select a limited number of points § include their voter information on other media to guide arguments, relying Here, issues deemed of lesser moment. both sides concluded pursue evidently 1170.18(c) that the effect of section on was not a petitions to warrant mention That powerful enough ground argument guide. decision can furnish an occasion for nullification. hardly judicial governing arguments. There seem to be a number of lacunae in the statutes ballot The Code, appear chapter cited sections in article 6 of 1 of division 9 of the Elections which is Voters,” “Arguments Concerning entitled Measures Submitted to and which seems to address supporting opposing argument situations where no or has otherwise been submitted. There arguments by are two references to a “time limit” for submission of other members of the Code, (Elec. (c), 9064), public regulation subd. but we find no other statute or §§ prescribing chapter seemingly such a limit. A addressed to non-initiative measures includes a requirement supporting opposition arguments Secretary that be “submitted to the of State” Code, (Elec. 9043.) by designated” by provides a date “to be that officer. Another statute that § arguments by legislators, they may “by if are not submitted be submitted interested voters Code, (Elec. 9044.) printing Secretary date sufficient to meet ballot deadlines.” of State § (Elec. required begin publicizing printed pamphlet days is Code, 9094, at least 45 before the election. (b).) constituting subd. The materials the ballot must be delivered to the state § printing days prior required delivery office “at least 40 to the date for to the elections officials Code, (Elec. 9082.) provided proposed as in Section 9094.” And the contents must be made § Code, (Elec. public inspection days delivery printer. available for at least 20 before to the 9092; Code, 88006.) suggests arguments Secretary Gov. This must be submitted to the § § days any of State at least 105 before the election. However we have found no indication of may actually respect deadline that officer have set with to the November 2014 election. *18 560
3. Public Debate. As noted and as reflected 47 aroused a already appendix, Proposition deal of debate. Much of it was devoted to various of the great public aspects measure’s reclassification of offenses to misdemeanors. prospective specified But of the measure also to its narrowed definition opponents sought publicize and the effect that definition would have on other dangerousness proceed- for under the Reform Act. ings, specifically including petitions resentencing site, Thus one Web as archived 36 before the election opposition days placed this effect at the of a list of reasons to vote the measure: 47 top against “Prop will release Three Strikes inmates. 47 far dangerous Prop goes beyond petty crimes. It rewrites our laws to make it easier for violent Three Strikes felons 36) to release. The Three Strikes reform law gain early (Proposition [¶] release, allowed certain Three Strikes to for as as prisoners petition early long did not ‘an unreasonable risk of to 47 they pose danger public safety.’ Prop [¶] law, law, would rewrite the Three Strikes to including give California Reform the term ‘unreasonable risk to a narrow danger public safety’ very definition, Under the 47 an inmate to commit Prop only likely [¶] definition. murder, or a handful of other rare crimes like of a
rape, possession weapon If mass destruction can be behind bars as a kept danger public safety. [¶] 47 violent Three Strikes inmates who commit Prop passes, might robbery, abuse, arson, assault with a child deadly weapon, felony kidnapping, spousal abuse, abduction, child and scores of other serious felonies will carjacking, If no be defined as under California law. the inmate is longer ‘dangerous’ release under either 47 or the Three Strikes Reform eligible early Prop law, (Facts—No (archived the court will be it.” on 47 powerless stop Prop 28, 2014) Sept. <https://web.archive.Org/web/20140928005627/http:// 24, 2016].)12 of June votenoprop47.org/No_On_Prop_47_Facts.html> [as site, form, Another Web accessible archived listed the opposition table, (Californians effect on Reform Act as follows petitions Against 8, 2014) (archived 47 I No on Oct. Prop. Proposition <http://web.archive. of June org/web/20141008185016/http://californiansagainst47.com/> [as 2016]): language appeal' page This same continued to in versions of the cited web archived as (Facts—No
recently April Prop <https://web.archive.org/web/ as 2016. on 20160414023618/http://votenoprop47.org/No_On_Prop_47_Facts.htm> of June [as 31, 2016, 2016].) May page apparently Between that date and was modified to remove all (See Prop <https://web.archive.org/web/ references to 36. Facts—No on 20160531140507/http://votenoprop47.org/No_On_Prop_47_Facts.html> of June [as 2016]; Prop <http://www.votenoprop47.org/No_On_Prop_47_Facts.html> Facts—No on site].) [original of June Web [as 2016]
Current Law Implications proposed language Many potentially Under the Three Strikes violent 1170.18(c) Reform Act of 2012 Penal Code individuals will be re- § 36), (Proposition require prosecu- they Penal would the leased—not because provides prove, pose Code 1170.126 tion to and the court do not a violent § find, resentencing petitioners society, for to that the defendant is risk to but be- previously sentenced to an unreasonable risk to soci- cause the Act has unrea- pursuant ety sonably life terms to the because he or she would limited the (Penal likely sexually scope Three Strikes Law commit a of what is consid- offense, murder, 667(b)—(i) danger Code violent cer- ered a risk of to §§ 1170.12) society whose commit- tain sex crimes with children and what the ting prosecution present offense was non- under solicitation to can murder, violent and non-serious. commit assault with to counter the defend- gun peace eligibility. a machine on a ant’s officer, possession weap- of ons of mass destruction or a punishable by crime death or imprisonment. life
Another archived on the same Web site criticisms page recapitulated leveled the California District Associa- against Proposition by Attorneys (CDAA): tion Three Strikes Reform Act of 2012 . . . for provides ‘“[T]he sentenced to life terms to the resentencing petitioners previously pursuant Three Strikes Law whose offense was non-violent and committing [citations] non-serious. Penal Code that when a meets the requires petitioner §1170.126 basic criteria for the court shall resentence the offender unless the eligibility, ‘an unreasonable risk of to . . . petitioner poses danger public safety.’ standard, this is a it a fair balance and allows Although demanding provides and court to on several sources and areas of risk to prosecution rely establish that the individual is unsuitable for Penal Code resentencing. [¶] . . . that standard to an unreachable level. changes altogether §1170.18 find, . . . would to and the court to that the require prosecution prove, [It] defendant is an unreasonable risk to because he would commit society likely Further, this 667(e)(2)(C)(iv). one of the listed violent crimes . . . § [¶] [¶] new is not limited to proposed ‘dangerousness’ only types definition of Act, terms crimes this but to serving applies any offenders resentencing permitted by affected
the Penal Code. 1170.18(c) Penal Code Proposed § states, Code, ‘As used this “unreasonable risk of to throughout danger public means an unreasonable risk that the will commit a new safety[”] petitioner 1170.18, 667(e)(2)(C)(iv)].’ (§ violent within the subd. c felony meaning [§ ’ ‘Code, added].) 1170.18 would cdter the By referring meaning § [emphasis ’ ‘unreasonable risk not as it is danger public safety, applied of §1170.18 but in all other on the resentencing hearings, hearings rely *20 result, standard the entire Code. As a the dangerousness throughout prosecu- tion would face the barrier when impossible opposing resentencing for Moreover, Three Strikes under Penal Code 1170.126. for § [¶] defendants |sic the Three Strikes denied based any previously resentencing [ of defendants a and upon judicial finding dangerousness, may appeal ruling request of the court now this new standard a further apply dangerousness, resulting of (Californians cost to a court system already struggling financially.” Against 10, 2014) (archived 47 I About Oct. Prop. Proposition <https://web. archive.org/web/20141010054701/http://californi ansagainst47.com/about- 24, added; 2016], A of June italics see 47: proposition-47/> Proposition [as 28, 2014) Cruel Fraud available online at (Aug. <http://www.co.mendocino. 24, of June ca.us/da/pdf/ Proposition47_A_Cruel_Fraud.pdf> [as 2016] of June <http://docplayer.net/1464582-Proposition-47-a-cruel-fraud.html> [as 24, of CDAA [apparent copies report].) 2016] A
Nor did these on Web sites. Davis arguments appear only opponents’ ran an a court several newspaper op-ed piece by superior judge enumerating flaws the Safe Act. ‘“Most he perceived Neighborhoods significantly,” wrote, under the three-strikes ‘“Prop. expands resentencing provisions law. enacted the voters 2011 sic Prop. permits resentencing [ \. offenders, certain strike unless to do so would create an ‘unreasonable risk of to Broad discretion was to to determine danger public safety.’ given judges who would such a its more restrictive pose danger. Prop. imposes [¶] on sentenced under the three-strikes law. dangerousness people definition of now a third-strike sentence will be allowed to submit a People serving under the more liberal even request resentencing provisions Prop. for has determined are too to though judge cdreacly they dangerous get relief (Couzens, under the law.” 47: a from the bench existing Prop. perspective 28, 2014) (Oct. <http://www.davisenterprise.com/forum/opinion-columns/ 24, 2016]; of June see prop-47-a-perspective-from-the-bench/> <http:// [as of June www.davisenterprise.com/print/?edition=2014-10-28&ptitle=A6> [as Greenwald, edition]; on print Analysis: Perspectives 2016] [facsimile 29, 2014) (Oct. Davis People’s Vanguard <http://www.davis of June vanguard.org/2014/10/analysis-perspectives-on-proposition-47/> [as Couzens article and effect on Reform Act [discussing noting 2016] petitions].)
The Web sites for several newspapers published opinion pieces, typically officials, local law enforcement Web site signed by echoing opposition first above: “This also rewrites our laws to quoted deceptive proposition make it easier for violent Three Strikes inmates to release. The gain early Alliance for a Safer California ‘The Three Strikes reform law says, 36) allowed certain Three Strikes (Proposition prisoners petition early release, as as did not “an unreasonable risk of long they pose danger public ’ law, 47 would rewrite the Three safety.” Prop including [¶] California
563 law, Strikes to the term ‘unreasonable risk to give danger public Reform of definition, narrow Under the 47 an inmate safety’ very Prop definition. murder, (like to commit or a handful of other rare crimes likely rape, destruction) of a of mass can be behind bars as a possession weapon kept If to 47 violent Three Strikes inmates danger public safety. Prop passes, [¶] abuse, who commit assault with a child robbery, deadly weapon, felony arson, abuse, abduction, child and scores of kidnapping, spousal carjacking, other serious felonies will no be defined as under Califor- longer ‘dangerous’ Police, 24, 2014) (Our (Oct. nia law.” Readers sheriffs no to Say: say Prop <http://www.redlandsdailyfacts.com/opinion/20141024/our-readers-say- 24, added; 2016], of June italics see police-sheriffs-say-no-to-prop-47> [as San Bernardino Police Chiefs and Sheriffs Association No on County says: 47, 24, 2014) (Oct. News: Prop Highland Community Opinion <http://www.highlandnews.net/opinion/san-bernardino-county-police-chiefs- -1 Ie4-8c0f- and-sheriff-s-association-says/article_ld3fb9f8-5bc3 24, chiefs, 2016]; 47acl94ced49.html> of June sheriffs County police [as 47, 27, 2014) (Oct. no on say VVdailypress.com: Opinion <http://www. of June vvdailypress.com/article/20141027/OPINION/141029812> [as 2016],)13
Two of the three to the the voter signatories opposition argument information were associated with on this guide public opposition ground. Guide, 4, 2014) Guide), (See (Nov. (2014 Voter Information General Elec. argument against Prop. <http://vig.cdn.sos.ca.gov/2014/general/en/ One, 2016].) of June pdf/proposition-47-arguments-rebuttals.pdf> [as “President, W. was identified the 2014 Guide as California Christopher Boyd, other, Otero, {Ibid.) Police Chiefs Association.” Gilbert G. is named as “President, {Ibid.) California District Association.” Attorneys According contributors, online records of California Police Chiefs Association campaign contributed to the lead Californians opposition entity, Against Proposition (CAP47). (California Finance Secretary State—CalAccess—Campaign ?id=1368083& <http://cal-access. ss.ca.gov/Campaign/Committees/Detail.aspx 24, 2016].) session=2013&view=received> of June CAP47 created a Web [as measure, above, site to the described which opposition including page sets forth what it describes as an “extensive evaluation of necessarily way Our research is confined to web-accessible sources. We have no knowing exposed through ephemeral to what extent voters were to similar information more handbills, (See broadcasting, mailings, flyers. Prop. penalties media such as or 47 would cut California, (Oct. 2014) <http://www.latimes.com/local/ for 1 in 5 criminals in L.A. Times politics/la-me-ff-pol-proposition47-20141012-story.html> [opponents of June [as 2016] $288,000 reported raising campaign, go companies “have for the No most of it earmarked to noted, mail”].) campaign just example, highly appeared that send out As relevant articles Facts, News, Daily Highland Community online versions of the Redland and the Daily likely appeared print Victorville Press. While it seems that these articles also in the publications, way testing supposition. editions of those we have no *22 (Californians from the 47 I About Against Prop. Proposition [CDAA].” 5, 2014) (archived Oct. <https://web.archive.Org/web/20141010054701/http:// 24, 2016].) of June californiansagainst47.com/about-proposition-47/> [as It thus that one author was of an appears opposition president organization that wrote and circulated a 47 for its paper specifically attacking Proposition effect on Reform Act those that had been petitions—including already Another was of an that contrib- adjudicated. opponent president organization uted to an whose Web site that effect as a reason to vote entity highlighted in no. Their failure to cite this effect the voter information an guide supports inference, noticed, not that the effect was too obscure to be but that did not think it a for inclusion the opponents powerful enough argument limited available to them. This turn that space suggests by invalidating voters, the will of the we would be plainly expressed handing opponents not, not, of the measure a could knew could win victory they they they at the ballot box. event,
In this to the measure on the any given public opposition very here, at issue it cannot be said that voters were unaware of grounds simply the effect when 47. The of course challenged they adopted Proposition reality is that some voters were aware of it and some were not. It is no role of proper the courts to at these numbers or to thresholds of voter guess impose which must be met to our satisfaction before we will comprehension carry out the terms of voter-enacted We are constrained legislation. separa- tion of to trust not the voter information but powers only guide, arguments ideas, to ensure that measures reflect the public marketplace adopted In actual will of the voters. the absence of constitutional absurdity, infirmity, or frustration of an manifested statute affirmatively purpose, voter-adopted must be effect to its given according plain meaning. ”
D. “Illogical Timing. decision brief asserts no-longer-citable incorporated respondent’s 47’s made it that section Proposition “timing” “illogical” suppose “ 1170.18(c) would to Reform Act ‘The Reform Act apply petitions: required to be within two unless a court concluded that there petitions brought years 1170.126, Code,] ([Pen. (b).) was cause for a late-filed subd. good petition. § effect, the time 47 took two remained By days a Reform Act No rational voter could have two-year period filing petition. moment, intended to the rules for Reform Act at the last change petitions when all would have been filed and most of them nearly petitions already ” adjudicated.’
565 In We find this flawed at levels. the first argument badly multiple place, courts cannot effect to because find deny plain statutory language merely they rule, it some The most noted “illogical” unexplained way. nearly apposite above, is that be overlooked when its literal plain language may application would absurd results. Patrol v. produce (Department Highway of California 726, (2008) Court 158 736 Superior Cal.App.4th Cal.Rptr.3d [70 280] [“The literal be meaning unambiguous statutory language ‘may disregarded 22 avoid absurd results . . . Amador Cal.3d 245 Valley, supra, rule context of initiative constitutional [acknowledging effecting sweeping amendment].) The rationale is that the cannot have underlying Legislature effect, if intended to about an so a literal has that bring absurdity, application (See the statute must fail to true intent. accurately express Legislature’s Park, (2013) L.P. v. Palo Alto 57 Cal.4th 1203 Sterling City [163 2, 310 P.3d “would lead to absurd Cal.Rptr.3d [proposed interpretation 925] intended”]; results the cannot have Fireman’s Fund Ins. Co. v. Legislature 768], Court 196 1281 fn. Superior Cal.App.4th Cal.Rptr.3d [127 omitted cannot conclude that our intended such absurd Legislature [“We results.”]; (2008) 44 Simmons v. Ghaderi Cal.4th 187 P.3d statutes must be as written “unless the [unambiguous applied 934] statutes cannot be to their terms or so would lead to applied according doing results, absurd intent of the thereby violating presumed Legislature”].) There is even “absurd” about effect to the nothing remotely giving Indeed, 1170.18(c) definition section to its we according plain meaning. tacit, see about it. Where we do find is nothing illogical patent illogic to the of the measure’s unexplained assumption—contrary opinions oppo- nents, as described above—that the definition of newly adopted dangerous- or, most, ness could cases not filed at not only apply yet yet adjudicated. decision the flexible deadline for quoted acknowledged, only ignore, i.e., “within two after the effective date of the Proposition petitions, years act that added this section or at a later date a cause.” upon showing good Code, 1170.126, added.) (Pen. (b), subd. italics We think it highly likely § determinations, that the of a new standard adoption governing dangerousness if otherwise to a would be held to cause” applicable petition, provide “good for its later But the is almost academic presentation. question certainly that, because it is true as the decision probably quoted acknowledged, nearly all would have been filed when petitions already Proposition took effect.14 The limitation could have no on those two-year impact petitions course, implicit petitions might Of the court’s admission that a few remain unfiled or unadjudicated reasoning. ground is also fatal to its A statute cannot be denied effect on the justify nothing “illogical” a court finds the number of beneficiaries too small to relief. There is extending remedy persons might about to less than the entire universe of to whom it have that, anything “practical” refusing provision been extended. Nor is there about effect to a its terms, drown, plain may has such an effect. That there are too few life rafts means some not *24 All because had been filed within the allotted time. or all of those they nearly were on when 47 took effect. The petitions probably appeal Proposition voters, then, before was not whether question any Proposition petitions remained but whether the benefits of the new definition should unadjudicated that had extend to been We discuss that petitions already adjudicated. 1(F), in post. question part
E. Finality Judgments. of also a from the above-mentioned uncitable Respondent adopts passage in decision which the court concludes that literal of section application 1170.18(c) is barred another subdivision of the same section that by declaring in this and related sections is intended to diminish or the abrogate “[njothing case not within the in finality falling purview’ of this act.” judgments any Code, 1170.18, (Pen. (n) (section 1170.18(n)).)15 in subd. The first flaw this § 1170.18(c) is that insofar as section reasoning applies petitions brought Act, i.e., under the Reform those are within the statute’s petitions “purview,” “limit, (Merriam-Webster’s (10th its or Diet. ed. purpose, scope.” Collegiate Second, 1999) 950.) 1170.18(c) the of section to Reform Act application in does not “diminish or the those petitions abrogate finality judgments” If cases. defendant’s here is whether or not section petition ultimately granted, outcome, 1170.18(c) in a material role that it will be the Reform Act plays “diminish[edj itself that has or the of his conviction abrogate[d] finality” that he be resentenced unless found to an unreasonable requiring present 47 now the test to be the danger. Proposition supplies applied determining issue, latter but it is not 47 that the of his Proposition impairs finality original conviction. That is the Reform Act’s The such a case is doing. petitioner not 47 as a basis to or attack the but invoking Proposition reopen judgment, issue, as the source for the rule of decision governing subsidiary accordance with 47’s terms. with that mandate Proposition plain Complying if does not “diminish or the even it abrogate” original judgment, proves Act, of the It is still the Reform not dispositive petition. Proposition of his sentence. impairs finality
Had the drafters and voters intended to achieve the result urged by “in could have this Code” with respondent, they simply replaced “throughout contrary require explanation that all must do so. A conclusion would a far' more substantial appears quoted than in the decision. states, 1170.18, (c)’s quoted passage “‘Applying section subdivision definition throughout necessarily abrogate finality judgments” the Penal Code would “diminish or cases, Act, subject purview like those to the Reform that do not fall “within the of’ Act, petition petitions, 47. Defendant’s under the Reform like most such seeks to abrogate finality judgment of a Three Strikes in a case that does not involve one of the . . . Thus, 1170.18, (n), 47], [specified Proposition “[n]othing” crimes under section subdivision ” apply petition.’ in section 1170.18 was intended to to his *25 1170.18(c). in this act” section We must effect to all of the give language voters, 1170.18(c)’s chosen the the directive that section defini- by including tion of determinations of that issue dangerousness govern proceedings. 1170.18(c)
We conclude that section to Reform Act applies petitions its terms and that no meritorious has been cited for from ground departing of those terms. This us to the whether plain meaning brings question of that to this case would offend the application provision particular presump tion retroactive effect to against giving statutory provisions.
F. Retroactive Effect. Lstrada and Brown.
1. q/ Effect In his brief defendant an based on the opening anticipated objection as follows: ‘“The rule is that a new presumption against retroactivity, general statute which lessens will be to a non-final punishment applied judgment. (In re Estrada 63 Cal.2d 408 P.2d Cal.Rptr. [48 948] (Estrada).) The to the rule is that a statute will not be exception given instance, (Id.) In retroactive effect when it contains a clause. this savings there is no clause section 1170.18 with to the savings respect operation ” the new definition of ‘unreasonable risk of danger public safety.’ counters that the absence of an clause Respondent express retroactivity 1170.18(c) renders section unavailable to defendant’s and persons position, that Estrada was v. Brown People of its inapplicable light interpretation (2012) 54 Cal.4th 324-325 278 P.3d 1182] (Brown).
The briefs thus echo a number of cases which have addressed the question between Estrada if as it were a matter of retroactivity choosing Estrada, Brown. We find this In of the issue while the framing inadequate. defendant was for an from awaiting sentencing escape custody, underly- statute was amended to reduce the minimum sentence and eliminate a ing restriction on The court held that he was entitled to the parole eligibility. benefit of the amendment: “When the amends a statute so as to Legislature lessen the it has determined that its former punishment obviously expressly was too severe and that a is as penalty lighter punishment proper punishment for the commission of the act. It is an inevitable inference that the prohibited must have intended that the new statute the new Legislature imposing lighter now deemed to be sufficient should case to which it penalty apply every could act constitutionally apply. amendatory imposing lighter punish- ment can be to acts committed before its applied constitutionally passage *26 568 the the defendant of the act is not final. This
provided judgment convicting obvious, intent seems because to hold otherwise would be to conclude that the was motivated a desire for a conclusion not Legislature by vengeance, Estrada, (In in view of modern theories of re permitted penology.” supra, 740, 745.) Cal.2d time,
For some Estrada was understood to create a counter to presumption, a more that a statute general presumption against statutory retroactivity, penal in criminal would favor of all defendants whose reducing penalties operate (See 1 convictions were not final. Witkin & Cal. Criminal Law yet Epstein, Crimes, 49, However, 2012) 89-90.) (4th ed. Introduction to Brown pp. § {Brown, an limitation on this placed important counter-presumption. supra, 314.) Cal.4th The defendant there to take of a liberalized sought advantage formula for calculation of conduct credits for confinement local custody. no indication that the intended to credits retroac- Finding Legislature grant the court held that the statute to increase credits for time tively, operated only after its effective date. The defendant other custody argued, among things, that a conclusion was warranted Estrada. The court limited contrary by Estrada's to cases where a statute the counter-presumption ”mitigat[es] (Id. added.) for a criminal at italics punishment particular p. offense.” this limitation here to make Estrada it Assuming operates inapplicable, means that Estrada's of retroactive presumption application favor does not aid defendant. It does not follow that the statute does not operate As the Brown court at the outset of its retroactively. acknowledged analysis, is, ‘“Whethera statute or at least the operates prospectively retroactively instance, (Brown, first a matter of intent.” 54 Cal.4th at legislative supra, 319; (1996) 12 see v. Cal.4th People Nasalga [50 910 P.2d ascertain whether a statute should be retroac- applied 1380] [‘“To consideration.”]; intent is the v. tively, legislative ‘paramount’ Evangelatos (1988) 44 Court Cal.3d 753 P.2d Superior Cal.Rptr. 585] whether a statute is to or question apply retroactively prospec- [‘“Because is, instance, in the first for the which tively policy question legislative body statute, enacts the before constitutional we must reaching any question whether, determine as a matter of statutory interpretation, Proposition retroactive.”].) should be construed as or It thus remains properly prospective to determine whether the retroactive effect here presumption against applies or whether the is overcome evidence of intent to presumption legislative not, not, Estrada's need and does enter into contrary. counter-presumption our analysis. 1170.18(c)
We have concluded that section must be held available to defendant and others his for at least seven position partly interlocking 1170.18, (b) reasons: and structure of section subdivisions language
569 (c), and indicate that were aimed at strongly they deliberately Proposition in with the intention of the number of denials of relief petitions, reducing cases; (2) those such a a that the purpose implies legislative finding prior restrictive, in was the denial of relief where relief regime unduly resulting (3) should have been the statute to cases such as this granted; failing apply manifested, one would or thwart the intent thus because all or largely entirely all that could have been under 36 would nearly petitions brought Proposition effect; (4) have been heard when the new definition took to the extent already the statute still reach a few it would be absurd might unadjudicated petitions, to reward them for while who acted delayed filing punishing prisoners 36; (5) to seek relief under speedily Proposition overarching purposes both 36 and the conclusion that the Proposition Proposition support (6) latter’s modification of the former was intended to operate retroactively; retroactive effect would also ensure that 36 achieved the cost (7) it was intended to and the statute was ameliorative or savings yield; intent, i.e., in curative it was an undesirable designed remedy consequence law, and this characteristic also favors retroactive prior application.
2. Presumption Against Retroactivity. It is a law that statutes long-standing presumption Anglo-American (See unless a intent U.S. v. operate only prospectively contrary clearly appears. Paterson, J.) (1806) Heth 7 U.S. L.Ed. a (opn. 479] [“Words clear, statute not to have a unless are so ought retrospective operation, they them, and that no other can be annexed to or strong, imperative, meaning satisfied.”].) unless the intention of the cannot be otherwise legislature California law as our Court seems to from pronounced by Supreme diverge the common law a number of However that is the presumption respects. bound, law which we are and which we shall undertake to apply. California courts have a number of and even pronounced competing rules for whether a statute to a case conflicting determining applying given contravenes the We extract from these cases the that a presumption. principle (1) if statute will be denied effect case the effect would be given “retroactive” for of the an intent to about purposes presumption bring Brown, (See such an effect is not manifested the statute. clearly supra, 314, 319, Court, Cal.4th v. Cal.3d quoting Evangelatos Superior supra, “ 1188, 1208 is or clear and [presumption negated by ‘express language [a] ” Brown, unavoidable of intent to cf. at implication’ operate retroactively]; Court, ‘in v. at 1208-1209 quoting Evangelatos Superior supra, pp. [“ the absence of an a statute will not be express retroactivity provision, applied *28 570 unless it is clear from extrinsic sources that the
retroactively very Legisla- ”].)16 ture . . . must have intended a retroactive application’ We will assume for of our section purposes analysis applying 1170.18(c) to defendant’s would indeed constitute a retroactive effect petition note, to California’s version of the common law We subject presumption. however, that this is not harmonized with the proposition readily presump (See (1945) tion’s rationale. Sekt v. Justice’s Court 26 Cal.2d 308 P.2d the reason for the rule ceases the rule should not [159 17] [“Where Code, 3510, 3511.) Civ. The common law is apply.”]; presumption §§ understood to rest on the same as the constitutional generally principle ex facto laws and laws prohibitions against post impairing obligation contracts: there is a risk of a new law so as to great applying unfairness diminish or that arose to the enactment of the rights enlarge obligations prior Trout, (See (1989) law. Inc. v. State Water Resources Control Bd. California 184], italics added of a Cal.App.3d Cal.Rptr. [“Application [255 statute is retroactive when it a different and only gives potentially legal unfair law.”]; effect to actions taken reliance on the Mahon v. preenactment Safeco (1988) Title Ins. Co. 620-621 Cal.App.3d Cal.Rptr. 103] [“The of the rule is to avoid the unfairness that point disfavoring retroactivity attends the law after action has been taken reliance on changing justifiable Hence, the former law. the characterization of the of a application [Citation.] unfairness.”].)17 statute as retroactive on the Thus the depends propensity has often been described as when a statute presumption arising only impairs (I.N.S. or liabilities that arose under law. v. St. rights enlarges prior Cyr last-quoted passage potentially require The is mischievous if taken to extrinsic evidence expressly of retroactive intent whenever lawmakers fail to declare such intent. Such a rule greater dignity would imbue “extrinsic sources” with a than the text itself. To illustrate its only posit awarding grants unsoundness one need disaster, a measure cash to the victims of a natural failing clearly operate but to declare itself retroactive. Such a statute must retroac us; tively, at least in the same sense and to the same extent as the statute now before otherwise operate require it cannot at all. To “extrinsic sources” to this effect would be absurd. What is apparently quoted language justify meant is that extrinsic sources alone cannot operation they very plainly. retroactive unless do so leading statutory treatise on construction likewise notes that the common law presumption perception application usually rests on a that “retroactive of new laws is unfair'.” al., 41:2, (2 (7th 2009), Singer Statutory p. et Sutherland Statutes and Construction ed. § (Sutherland).) scope presumption depending fn. omitted It describes the of the as on “under circumstances, effects, extent, purposes, what for what with what and to what unfairness results Retroactivity may from the time frame within which a retroactive statute exerts its influence. ways. may be a factor in court decisions in either of two It be asserted that an act’s Or, retroactivity grounds. makes it so unfair' as to render it invalid on constitutional application may only unfairness that would attend retroactive be a reason to construe it 390-391, omitted; (Sutherland, §41:2, §41:5, prospectively.” supra. pp. fns. see id.. explicitly unqualifiedly prohibits fn. omitted where a constitution enactment of [“Even statutes, retrospective usually retroactivity courts strike down those statutes whose results unfairness.”].) in measurable
571 289, 347, 121 533 U.S. 321 L.Ed.2d S.Ct. statute has [150 2271] [“A ‘ retroactive effect when it “takes or vested away impairs rights acquired laws, under or creates a new a new or existing obligation, imposes duty, attaches a new to transactions or considerations disability, respect already ’ ”]; (1994) v. USI Film Products 511 U.S. past.” Landgraf 229, 114 L.Ed.2d S.Ct. ... the statute contains no . . . [128 1483] [“When command, the court must determine whether the new statute would express effect, i.e., have retroactive whether it would a impair rights party possessed acted, conduct, when he increase a for or new party’s liability past impose duties with to transactions respect already completed.”].)
It is difficult to see how a statute
for
convictions
reducing punishment
past
can ever be said to
a
a
“increase a
“impair
right
party possessed,”
party’s
conduct,”
Sutherland,
(See
for
or
new duties” on
liability
past
“impose
anyone.
41:2,
389, fn. omitted
is not unfair for a law
supra,
p.
retroactively
§
[“It
confer
. . . unless it
some
of the ben-
arbitrarily deprives
people
benefits
cases,
context,
efits.”].)
Nonetheless California
the criminal
particularly
have
without
repeatedly applied presumption against statutory retroactivity
liabilities,
to whether it
or
regard
impaired anyone’s rights, enlarged anyone’s
otherwise inflicted
harm on
or otherwise.
any appreciable
anyone, unfairly
(See,
(1960)
v. Harmon
54 Cal.2d
25-26
e.g., People
Cal.Rptr.
[4
351 P.2d
barred defendant from
later reduction
[presumption
invoking
329]
Estrada,
convicted];
for offense of which he was
In re
punishment
supra,
Cal.2d at
Harmon while
[overruling
endorsing general applicability
Brown,
3. Text. Statutory 1170.18, (b) (c), We find the text of section subdivisions several clear manifestations of an intention to reach for not petitions resentencing under 47 but also under the Reform Act. The most obvious sure, Supreme language echoing To be our Court has sometimes used the narrower (See conception trigger presumption against retroactivity. of what effects will Californians Disability Rights Mervyn’s. v. LLC 39 Cal.4th 138 P.3d “ ‘retroactive,’ [acknowledging argument application of law would not be as we have 207] term, application change legal consequences past defined the because such does not conduct”].) by imposing upon conduct new or different liabilities based such *30 of these is the declaration that the new test of is to dangerousness apply (§ 1170.18(c).) (“unreasonable this Code.” The defined “throughout phrase risk of to at one other location the Penal danger public safety”) appears only 1170.126(f), Code: section which under the governs petitions resentencing Reform Act. The enunciation of a definition to this Code” apply “throughout can have been intended to reach those only proceedings.
This conclusion is reinforced further examination of the relevant by It will be recalled that as the Reform Act language. adopted, required unless the court determined that it would “an unreasonable resentencing pose (§ 1170.126(1).) risk of to This was under- danger public safety.” language stood to vest trial courts with “broad discretion to find dangerousness.” 726, 739; (2014) cf. v. Flores (Esparza, supra, Cal.App.4th People 1070, 1074-1075 Cal.App.4th [rejecting vagueness 390] challenge].)
The drafters of concluded that a narrower test Proposition manifestly was needed. thus mandated unless the court found “an They resentencing unreasonable risk that the will commit a new violent within petitioner felony (iv) (C) of clause of subdivision meaning subparagraph paragraph added.) (e) (§ 1170.18(c), if of Section 667.” italics But their intent was only to make this the test could have governing Proposition petitions, they 1170.18(b). it into section Instead first simply incorporated directly they borrowed the exact used and then phrase Proposition redefined (§ 1170.18(c).) to it a new There was no reason to phrase give meaning if the earlier the intent was narrower incorporate phrase grant discretion under 47 than courts were under the Reform exercising 1170.18(b) Act. Such a would that section mandate regime require only unless the court found an unreasonable risk that the resentencing petitioner words, In would commit a violent other the old could felony. phrase simply have been the new one. This was the most obvious to draft replaced by way an intent to 47 cases—and it statute—assuming apply only Proposition would have had at least three virtues: section 1170.18 simplifying definition, need for a it eliminating any separate shortening by omitting (c), subdivision confusion over the of the new obviating any applicability test to Reform Act That the drafters instead lifted the petitioners. operative from the Reform Act and then it language substantially redefined narrower is an indication that their was to alter the rule in way very purpose Act so as to constrain the discretion courts had been proceedings Reform cases, in those and to correct the denials of relief. exercising resulting statute, the text of a must follow the fundamental reviewing “[I]n [courts] rule of construction that of a statute be statutory requires every part [that] to have some effect and not be treated as unless presumed meaningless
573 if should be to word absolutely necessary. ‘Significance given, possible, every of an act. a construction that renders a word Conversely, surplus- [Citation.] should be avoided. v. Arias 45 age (People [Citations.]’ [Citations.]” 169, 1, Here, 103].) Cal.4th 180 195 P.3d the construction word, advocated would render not a but an entire by respondent merely If in 47 does not alter the standard phrase superfluous. Proposition applicable cases, 36 ‘“unreasonable risk of Proposition phrase danger public 47; in no useful funchon its effect is to safety” performs Proposition and the statute. needlessly complicate lengthen By understanding phrase as aimed at 36 we it the directly Proposition proceedings, give only meaning and effect it can have. We conclude that its is to correct an very purpose treatment of As will unduly parsimonious judicial Proposition petihons. that intent the conclusion that it was also intended to appear, compels govern in that had been filed and denied the trial court. pehtions already 4. Retroactive Intent. Overarching in The both 36 and resentencing provisions Proposition Proposition in were intent. Both measures relieved explicitly retrospective pointedly (See current of on them under law. prisoners penalties duly imposed prior 916, v. 926-927 1170.18 People Scarbrough, supra, Cal.App.4th [‘“section codifies the voters’ intent to reduce retroactively properly imposed punish- offenders”].) ment for certain criminal Each reflected a judgment by electorate that the included inmates who should not be prison population there, remain, or should not because had been for life long they imprisoned 36) on nonviolent offenses or because were (Prop. they imprisoned 47). offenses and ‘“petty” (Prop. proponents Proposition argued, found, voters that these remissions of sentence were impliedly necessary “MAKE THE FIT THE PUNISHMENT CRIME” and conserve thereby “im- financial and law enforcement resources” that were “[p]recious being diverted to life sentences for some non-violent offenses.” properly impose Guide, Elec., 36, (Voter Information Gen. favor of supra, argument Prop. 52.) This was the rebuttal to the p. point repeated opponents’ argument, statement, socks, with the convicted of along “People shoplifting pair (Id., bread or formula don’t deserve sentences.” rebuttal to stealing baby life added.) italics The same intent is argument against Prop. p. expressed, if more somewhat less frequently directly, arguments supporting 47, i.e., it would on crimes “[s]top[] wasting prison space petty and law enforcement resources on violent and serious crime by focus[] low-level nonviolent crimes such as changing simple drug possession Guide, (2014 theft from felonies to misdemeanors.” petty supra, argument added; favor text of at italics see ibid. Prop. p. [“Stops wasting money (italics on for nonviolent crimes” warehousing people prisons petty id., added)]; rebuttal to argument against Prop. “Stops [rebuttal: added)].) (italics on crimes” wasting prison space petty *32 574 initiatives,
In these two voters intended to retroactive enacting clearly grant relief. That is the and essence of the We see very gist resentencing provisions. no coherent reason to that this same intent did not inform the suppose 47, decision to a narrowed test of adopt, Proposition dangerousness its terms to 36 We find it inconceivable applicable by Proposition petitions. voters, twice decided to extend new to current having rights retroactively inmates, intended to limit those the rights depending upon procedural happen- (See (Fla. stance of when a was heard the trial court. Falcon v. State petition 954, 2015) 162 So.3d 962 unfairness of [noting “patent depriving lives, offenders of their for the rest of their indistinguishable juvenile liberty decided”].) based on when their cases were solely 5. Fiscal Effects. An intent to the new test is also apply retroactively suggested by fiscal of the two measures. The estimated that
purposes Legislative Analyst “in 47 could realize annual the low hundreds of millions Proposition savings Guide, 37), (2014 of dollars” supra, analysis Prop. by Legis. Analyst, p. with “the of inmates state which beginning resentencing currently prison,” inmates, “could result the release of several thousand temporarily reducing Likewise, 36). (id. the state at 36 was prison population” Proposition $90 intended to realize estimated at to million savings up per year by future sentences and current inmates shortening resentencing pursuant Guide, Elec., (Voter section 1170.126. Information Gen. supra, analysis 50.) noted Prop. by Legis. Analyst, p. Critically, Legislative Analyst that this number “could be tens of millions of dollars or lower higher factors,” on several first them “the number of third strikers depending among resentenced the court and the rate at which Board of Parole Hearings] [the (Ibid.) would have released third strikers the future under current law.” thus informed voters—that the rate of Legislative Analyst recognized—and denials of would affect the Proposition petitions directly savings actually achieved.
As of institute estimated the annual cost of nonprofit imprisonment $50,000. Sheet, (The in California at Price of Prisons I California Fact nearly <http://www.vera.org/files/price-of-prisons-california-fact-sheet.pdf> [as 24, 2016].)19 $1 June This translates into a cost of million for every Denial of a means—and was understood inmate-years. petition By widely placing imprisonment some circulated estimates were the annual cost of Center, $60,000 (See, higher per e.g., Budget Policy at or inmate. Cal. & Fewer State Prisoners, 7, 2013) Higher (Aug. <http://calbudgetcenter.org/blog/fewer-state- Cost Per Inmate prisoners-higher-cost-per-inmate/> expected spend of June is [as 2016] [“California $60,000 2013-14"’]; McKinney Rodriguez, Response: Proposition about for each inmate in & In 12, 2014) up. Diego (Sept. <http://www.sandiegouniontribune.com/ 47 adds San Union-Tribune news/2014/sep/l 2/in-response-proposition-47-adds-up/> of June [as 2016] [“California $62,300 spends annually”].) to house one inmate
575 voters to mean—that would continue to accrue this by taxpayers expense died, until an inmate earlier release the Board of Parole barring by Hearings. initiatives, i.e., To that extent denial the fiscal of both every impaired purpose to save Given the money by reducing prison population. implied finding 47 that the earlier measure had courts too much Proposition granted in the denial of too is rational latitude—resulting many petitions—it entirely that voters intended to relieve themselves of the costs of suppose ongoing new, those their reexantination under the more restrictive rulings by requiring standard.
Here, defendant had served 17 or 18 of his apparently years 25-year-to-life sentence when he for The denial of his petitioned resentencing. petition meant that he would at least another seven at a spend years prison, $350,000. If cost of some he were not released taxpayer eventually by Board of Parole he could survive another 20 Hearings, easily years, represent- $1 a cost of million. Given that this followed ing upwards imprisonment broad, of a test voters had found too it is application dangerousness entirely him that meant for to be released unless he were shown to likely they satisfy new, more test. Since such a is rigorous nothing approaching showing record, this there is reason to believe that voters intended suggested by every the new test to to his and similar cases.20 apply opposition rehearing petitions Some of the materials alluded to the cost Reform Act as (See against Proposition Against Prop. Proposition a reason to vote 47. Californians 47 IAbout (archived 2014) <https://web.archive.org/web/20141010054701/ http:// Oct. added; 2016], californiansagainst47.com/about-proposition-47/> CDAA, of June italics see [as Proposition <http://www.co.mendocino.ca.us/da/pdf/Proposition47_ CDAA Looks at 9, 2016]; A_Cruel_Fraud.pdf> Proposition <http://docplayer. of Jun. 47: A Cruel Fraud [as 24, 2016], net/1464582-Proposition-47-a-cruel-fraud.html> of June At least one uncitable [as apply decision has also cited this cost as a reason not to infer an intent the voters to section 1170.18(c) retroactively. require degree It does not an advanced in mathematics to discern that proceedings pale by comparison the costs of such to the hundreds of thousands of dollars by taxpayers petition Legislative Analyst that will be borne when a is denied. The estimated resentencing proceedings Proposition generate under 36 could costs of “a few million Guide, Elec., (Voter couple years.” supra, analysis dollars . . . over a Information Gen. 3,000 50.) Prop. by Legis. Analyst, p. Apparently, prisoners potentially eligible some were (Id,, resentencing; any opponents argument this at rate is what told voters. rebuttal to 3,000 Prop. quoting passes, favor of Fresno Bee ‘If about [“ ” serving petition convicted felons life terms under Three Strikes could for a reduced sentence’ intent, (italics (Nov. 2011) omitted)]; Proposed see ‘3 strikes’: law tries to restore SFGate <http://www.sfgate.com/ politic s/article/3-strikes-Proposed-law-tries-to-restore-intent- 24, 2016].) 2296566.php> suggests per resentencing healing of June This an estimated cost [as figures. expenditure negligible against in the low four Such an must be deemed as an annual $50,000 expense imprisonment. of at least for continued *34 576
6. Futility Prospective-only Application. of Once it is 36 were intended benefi- recognized Proposition petitioners 1170.18(c)’s ciaries of section new definition of it becomes dangerousness, that it must or it will have no effect. apparent operate retroactively virtually In in in this the considerations cited the discussed light, “timing” argument I.D., ante, favor of the new definition to cases part operate applying which a 36 has been denied. The factual Proposition petition already premise of that are the deadline for Reform Act had all argument two-year petitions but when 47 took effect. It therefore stands to reason that expired Proposition all inmates would have filed a Reform Act nearly eligible already petition most, all, if when the new definition took effect. Indeed not would nearly have been ruled This follows not from the deadline but already upon. from self-interest. Inmates had no reason to and simple apparent delay every reason to act an inmate waited could be a needless of quickly. Every day day IV, II, V, Therefore, 5.) “base durance.” Part act scene (Shakespeare, Henry insofar as the new definition was intended to 36 apply Proposition it must either reach that had been denied petitions, petitions already court, trial or it was doomed to have no effect. virtually Akin to the constructional is a presumption against superfluous language (See that lawmakers do not Barrett v. presumption adopt pointless legislation. Dawson 1054 will Cal.App.4th 899] [“We act”].) 1170.18(c) If not a futile section presume Legislature engaged case, it, if does not to this and others like it will to few apply apply any 36 cases. It follows that voters intended the new definition to Proposition to as as which apply many Proposition petitions possible, certainly includes which an order of denial was not final.21 any yet 7. Perversity Prospective-only Application.
In answer to the it be that a handful foregoing reasoning might suggested remained untiled or when Proposition petitions unadjudicated effect, 1170.18(c) 47 took and that section was intended to Proposition apply presents express opinion might This case no occasion to an on what remedies be available petitions dangerousness grounds ruling to those whose were denied on and as to whom that has cases; 1170.18(c) arguable provides become final. It is at least that section relief in those (See certainly opponents expected Against Prop. it to do so. Californians About (archived 2014) Proposition <https://web.archive.Org/web/20141010054701/littp:// Oct. 24, 2016]; californiansagainst47.com/about-proposition-47/> of June 47: A [as <http://docplayer.net/1464582-Proposition-47-a-cruel-fraud.html> Cruel Fraud of June [as <http://www.co.mendocino.ca.us/da/pdf/Proposition47_A_Cruel_Fraud.pdf> 2016] [as here, however, 2016].) question presented June is not and we do not address it. *35 In to them. this view the extension of the new definition to only Proposition futile, cases was not but futile. the factual wholly only mostly Accepting unheard, that some remained the intent—to proposition petitions posited benefit this small class of irrational to the only petitioners—seems point or even this voters intended to extend the absurdity perversity. By logic, restrictive definition of to those who waited newly dangerousness petitioners (or until near the end of the limitations but to beyond) two-year period, withhold it from those who filed and whose as a prisoners promptly petitions, result, had been denied when 47 took effect. already Proposition Code, 3527.) (See the law rewards Civ. The
Ordinarily diligence. § to, effect, in would to voters an intention foregoing reading impute punish in in those who had acted with the relief voters offered them alacrity seeking is, 36. That the the benefit of the only petitioners likely glean new enactment would be those—if there were had waited to file any—who (or, their until the time to do so had on a petitions very nearly expired cause, time). This would not seem to showing good beyond in discriminate favor of the it irrationally against diligent dilatory; in would also the face of the avowed of these fly cost-saving purpose had, relief, in measures those who their by rewarding delay seeking diminished the would realize from a reduction their savings taxpayers sentences. “ noted, courts,
As we have a statute seek to ‘avoid a already applying construction that would absurd which we produce consequences, presume ” (In (2012) did not intend.’ re F. 55 Cal.4th Legislature Greg [146 1160]; (2000) 283 P.3d see v. 23 Cal.4th Cal.Rptr.3d People Mendoza 265].) P.3d a more restrictive Applying standard of who were dangerousness petitioners relatively dilatory relief, while others to additional of confinement at seeking relegating years even the same standard have their public expense though might required well, release as can be characterized as an absurd result which readily counsels favor of the statute to the benefit of defendant construing literally and all others situated. similarly
8. Remedial/Ameliorative Purpose. treatise on construction identifies “three cir leading statutory (1) cumstances where retroactive of a statute be application may justified: where intent or indicates retroactive legislative expressly impliedly applica desirable; nature; tion is where the statute is ameliorative or curative or (3) where fulfillment of the reasonable parties’ expectations may require 41:4, (Sutherland, statute’s retroactive fn. application.” supra, § omitted.) We have concluded that the first circumstance is already present. *36 578 second, i.e., 1170.18(c)’s
The same true of the that section modifica- appears ameliorate, cure, tion of the standard was to or dangerousness adopted in defect the standard 36. The remedy perceived adopted Proposition fact that voters limited the kind of that would very sharply dangerousness denial of dissatisfaction with the manner which justify resentencing implies courts had exercised the broad discretion them the test as granted by original 36. Voters found that courts had adopted Proposition impliedly wrongly denied some number of 36 too that Proposition petitions by readily finding an unreasonable risk of petitioners presented danger.22 sure,
To be
“a remedial
does not
indicate an intent to
purpose
necessarily
Court,
44
the statute
v.
apply
retroactively.” (Evangelatos
Superior
supra,
will, however,
1213.)
Cal.3d at
It
contribute to an inference of such intent
p.
consistent with the more
that such statutes are ‘“entitledto
general principle
liberal construction
order to achieve full fruition of their remedial pur
omitted;
§ 41:11,
(Sutherland,
at
fn.
see
v.
poses.”
supra,
Hellinger
(2001)
Farmers
Inc.
91
1061
Group,
Cal.App.4th
Cal.Rptr.2d
[111
Servosnax,
268],
(1992)
Kim v.
Inc.
10
1356
citing
Cal.App.4th
[13
limitations
was curative and
Cal.Rptr.2d
extending
period
422] [statute
construed”].)
im
‘“should be
Provided no
are
liberally
intervening rights
and no
intent
such
should be more
paired,
contrary
appears,
provisions
freely
(See
to
events than
be the case with non-remedial statutes.
applied
past
may
(2010)
River Garden Retirement Home v. Franchise Tax Bd.
186 Cal.App.4th
62],
Moran
v. Urbach
citing
Towing Corp.
[113
2003)
579 II. Protection Equal
Defendant contends that the scheme enacted 36 violates the by Proposition clauses of the state and federal Constitutions because it equal protection reduces the defendants punishment yet-to-be-sentenced regardless if while relief to current inmates their resen- dangerousness, extending only is not found to an unreasonable risk of tencing pose danger. According defendant, of the same standard for equal protection requires application defendants and defendants sentenced. seeking resentencing currently being issues arise when it that a statute treats
Equal protection appears occurs, If situated this and the treatment similarly people differently. disparate “creates a classification or on the exercise of a fundamental suspect impinges if it is to strict that it will be it right,” subject scrutiny, meaning upheld “only (1994) is to further a state interest.” v. Silva necessary compelling (People 1160, cases, 181].) In other Cal.App.4th Cal.Rptr.2d disparity [33 if “will constitutional it bears a rational to a satisfy requirements relationship (Ibid.) state legitimate purpose.”
The first an claim is whether the question posed by equal protection defendant has been treatment vis-a-vis another class of subjected disparate “ ” that is situated for of the law persons ‘similarly purposes challenged.’ (2002) v. Court 29 Cal.4th (Cooley Superior [127 654], 57 P.3d v. Gibson quoting People Cal.App.3d 56].) Defendant notes that new third strike offenders and Cal.Rptr. third strike sentences share a common criminal persons currently serving “Members of both have at least two convictions for history: groups prior non-serious, serious or violent felonies as well as a current nonviolent offense that would have them to a Three Strike sentence of 25 previously subjected to life.” This makes them situated” for of the years “similarly purposes Act, contends, Reform he because the of that act were “to ‘restore the goals Three Strikes law to the life public’s original understanding by requiring sentences when a defendant’s current conviction is for a violent or serious crime’ and to ‘save hundreds of millions of dollars taxpayer every that the state does not continue to house year’ by ensuring indefinitely people ” life sentences for ‘minor crimes.’ Voter Information serving (Quoting Guide, Elec., 105.) Gen. text of These he supra, Prop. goals, § asserts, were the same with to both and future offenders. respect past
This the rationale of the Reform Act as well as that of the oversimplifies Three Strikes law it was intended to reform. The basic of the Three premise Strikes law was that who committed a third after any person felony being convicted or two or more strike felonies deserved a life sentence. The Reform Act reflects the that a two-strike with a non-violent judgment history coupled *38 current offense does not reflect either or necessarily enough culpability sentence, a life the fiscal enough dangerousness justify particularly given burdens such a sentence the state and its The imposes upon taxpayers. Reform Act reflects a of these three balancing factors—culpability, danger- ousness, and cost—in a manner calculated to the defendant suitably punish and while the financial burdens adequately protect society easing flowing earlier, from the more vindictive approach.
We assume that current third strike inmates and new third strike may offenders are with the same level of However we do chargeable culpability. not believe are situated with to the other two factors. they similarly respect the least of the still real—is the cost Perhaps differences—though very inmates, to be realized from the Reform Act to current as savings applying Defendant, to the that can be realized with new offenders. compared savings noted, as has served much of his sentence. He will become previously already are, in for a few Most of the costs of his sentence all eligible parole years. water under the Were a new offender probability, bridge. being currently record, however, sentenced on an identical the reduction his sentence—and be dramatic: the sentence would be resulting savings—would potential reduced from a minimum to a maximum.23Under the 25-year 12-year figures mentioned, least) (at the costs would be reduced from previously resulting $600,000. I.F.5., most) ante.) (at (See $1.25 million to pt. however,
More are the differences between the two significant, groups the state’s to address on the of the ability perceived dangerousness part An offender. of this must with a review of the role of appreciation point begin as the and dangerousness, perceived by prosecutor sentencing judge, In to be visited a criminal defendant. determining punishment upon exercises the of decid- commencing prosecution prosecutor prerogative exercised, what to and how to it. This is ing charge charge power presumably, of two factors: light primary perceived culpability dangerousness. same considerations inform decision the make with any prosecutor may to a to less than all of the When respect proffered guilty plea charges brought. the matter comes shifts to the trial court to up sentencing, power make decisions the extent of the defendant’s discretionary affecting punish- ment, middle, (lower, most the choice of a base term or perhaps notably and whether to consecutive or concurrent sentences. upper) impose Again these decisions are to be infused with about both likely judgments culpability and dangerousness. term, years three-year plus The 12 would consist of double the maximum base the 6
one-year priors sentencing stayed, although they which the court should instead have been (See 1241.) People Langston, supra. stricken. v. 33 Cal.4th
It follows that whenever a sentence is reduced blanket retroactively by Act, such as the Reform one result be to at least some legislation may nullify intended, and decisions that were at least to prosecutorial judicial part, the from a defendant’s To protect public particular perceived dangerousness. the extent the were sound—and remain sound perceptions dangerousness when the sentence is reduced—the nullification of those actions may expose the to an unreasonable risk of It is these risks which drafters public danger. to avert the trial court to under the sought by empowering deny resentencing Reform Act a that the defendant fact an unreasonable upon finding presents risk of to the danger public. In
This circumstance current inmates from new offenders. the distinguishes latter, court, case of the the followed the will often prosecutor, sentencing still have the to a deemed sufficient to address power shape punishment any The Reform Act eliminates one tool perceived dangerousness. merely they under law—the a sentence possessed prior power impose 25-year-to-life for a non-strike still seek conviction of felony.24 prosecutor may enhancements, additional or more serious or and the court can still charges choices, make the from the defendant’s sentencing designed protect public This is a perceived dangerousness relatively longer periods. protection that the does not have under a across-the-board reduction public categorical, in sentences already imposed. at,
A similar is hinted not the immediate context of an point though claim, v. Yearwood equal protection People Cal.App.4th (Yearwood). The defendant there had been sentenced 901] Act, about a before the of the Reform but the conviction was year adoption not final when that act took effect. He contended that he was entitled to be act, sentenced as a new offender under the without to invoke being required In this contention as a matter of resentencing provisions. rejecting construction, wrote, the court amended statutory “Giving [Penal Code] sections 667 and 1170.12 the Act’s prospective-only application supports the likelihood that who are public safety purpose by reducing prisoners will be released from due to the Act. currently dangerous prison During trial and of the criminal various pretrial, sentencing phases justice system, decisions are available to the and the tried court that discretionary prosecutor can result in a shorter or term of selection of the longer imprisonment (e.g., term, base concurrent or consecutive dismissal of a appropriate sentencing, charge asserting qualifying This of course assumes that the facts would not sustain a a entirely possible prior regime, prosecutor might forgo strike. It is that under the a efforts to felony—perhaps paid plea arrangement— convict a third striker of a serious or violent as of a yield 25-year-to-life because some lesser offense could still sentence. Should such a case Act, prosecutor may by seeking aiise in the wake of the Reform avoid the effects of that act obtaining felony. a conviction of the serious or violent *40 sentenced, strike the interests of Once the defendant is justice). prosecuto- {Yearwood, rial and discretion are exhausted.” at judicial effectively supra, words, added.) In italics other to treat the defendant as a new offender p. he had been sentenced under law would the and prior deprive prosecutor after court of the would otherwise have to craft an outcome powers they reflecting their sense of the defendant’s The same is true of current dangerousness. inmates who invoke the of the Reform Act. This resentencing provisions offenders, them a different than new and places materially position warrants a treatment of their cases that takes the question dangerousness into account.
We conclude that defendant has not demonstrated the threshold require- i.e., ment for an that he be situated to equal protection challenge, similarly the defendants to whom he himself. newly charged compares III. Trial Jury
Defendant contends that the was prosecution required prove dangerous ness to a a reasonable doubt under the v. jury beyond authority Apprendi New 530 U.S. L.Ed.2d 120 S.Ct. Jersey [147 2348] which held that the federal constitutional to a and to (Apprendi), rights jury Const., Amend.; id., Amend., (U.S. a reasonable doubt 6th 14th proof beyond 1) extend to the trial of fact that increases the for a crime ‘“any penalty § 490; the maximum.” at see beyond prescribed statutory (Apprendi, supra, p. (2008) 44 v. Towne Cal.4th 186 P.3d People 10] that ‘“a fact a defendant to a [referring requirement exposing higher doubt”].) sentence be to a a reasonable Defendant proved jury beyond Act, contends that since he is under the Reform eligible resentencing maximum” for his offense is now the second strike ‘“prescribed statutory if sentence of double the base term that would be were imposed resentencing constitutes, contends, An unreasonable risk of thus he a fact granted. danger to a term. he con “'incrcas[ing| penalty” 25-year-to-life Accordingly, cludes, found, all, if that fact must be tried a at a by jury beyond reasonable doubt.
This court has
held that the rule of
does not
already
Apprendi
apply
to a determination of
under a Reform Act
dangerousness
petition. (Esparza,
737-740.)
at
Defendant fails to
us
supra,
Cal.App.4th
pages
persuade
In
that we should reconsider that
was whether
holding. Apprendi
question
motivation,
a
biased
the effect of which was to double the
finding
racially
maximum sentence to which the defendant was
could be
exposed,
properly
made
a
rather than a
The state
that it was not an
judge
jury.
argued
which,
element of the offense but a
factor”
under
Court
‘“sentencing
Supreme
492;
need not be found
530 U.S. at
precedent,
by jury. (Apprendi, supra,
*41
79, 86,
(1986)
see McMillan v.
477 U.S.
L.Ed.2d
Pennsylvania
[91
(McMillan).)
106 S.Ct.
The
Court had
its
of
Supreme
signaled
rejection
2411]
this distinction
a federal
where it held that “under the Due
prosecution
Process Clause of the Fifth Amendment and the notice and
trial
jury
Amendment,
conviction)
(other
of the Sixth
fact
than
guarantees
any
prior
that increases the maximum
for a crime must be
an
penalty
charged
indictment, submitted to a
and
a reasonable doubt.”
jury,
proven beyond
227, 243,
(Jones
(1999)
v. United States
526 U.S.
fn. 6
L.Ed.2d
[143
rule,
1215].) In
119 S.Ct.
it reaffirmed this
insofar as it involved
Apprendi
doubt,
trial and reasonable
and
it to a
under state
jury
applied
prosecution
490, 497.)
law.
at
the court extended the
(Apprendi, supra,
pp.
Subsequently
rule to facts that increase the minimum sentence to which a defendant is
_
(2013)
v. United States
570 U.S.
L.Ed.2d
exposed. (Alleyne
[186
2151, 2155],
133 S.Ct.
Harris v. United States
We see no basis on which to this doctrine to the conceptual apply state, created the Reform Act. Here the an resentencing procedure through act of has elected to reduce a under law. lenity, penalty duly imposed prior The fact that the reduction is made to on the or absence of depend presence certain conditions does not make those conditions to elements of equivalent offense; the offense. Defendant has been convicted of the already underlying all facts to the of his sentence were found necessary imposition present duly now is whether the to which that verdict by jury. question punishment him should be reduced. The existence of a condition its subjected precluding reduction is not a fact to increase his necessary punishment purposes For to which that verdict Apprendi. purposes Apprendi, punishment him A was for 25 to life. that he is too exposed imprisonment years finding such a reduction does not increase that dangerous permit punishment. This conclusion is consistent with the and core entirely origins purpose trial as summarized 530 U.S. at jury guarantee, Apprendi, supra, page *42 477: historical foundation for our of these recognition principles ‘“[T]he extends down centuries into the common law. a of guard against spirit ‘[T]o rulers,’ and on the of and ‘as the bulwark of oppression tyranny part great liberties,’ 2 civil and J. Commentaries on the Constitu- political Story, [our] 1873), (4th tion of the United States 540-541 ed. trial has been by jury accusation, in understood to that ‘the truth whether require every preferred of indictment, information, of or should afterwards be con- shape appeal, firmed the unanimous of twelve of and by suffrage equals [the defendant’s] Blackstone, . . . .’ W. Commentaries on the Laws of neighbours England Blackstone) added).” (1769) (hereinafter Here no ‘“accusation” (emphasis is at issue. The relevant accusation defend- any longer preferred against ant had been sustained a before the matter already duly by jury long present true, arose. The is not whether some additional accusation is but question him whether facts exist that bar from the benefits conferred the Reform Act.
Nor can we conceive of a which a such as that under way procedure McMillan, In here could be used as a tool of or scrutiny tyranny oppression. All U.S. at the court alluded to the of a statute supra, page possibility crafted so that the ‘“tail”of a fact of judge-found sentencing ‘“wags dog the substantive offense.” It is to see the vice such a which easy regime, would take from the to whom it is power away body constitutionally entrusted, affiliate, it the hands of an or at least of the place agent, state, from whom the Sixth Amendment was to withhold it. We see designed no which a retroactive of whether conditional way lessening punishment, not, effect, or could ever achieve a similar or otherwise. wittingly
The
here
also be
to one of the
considered
question
may
analogized
points
(2014)
v.
Accordingly, Esparza entitled to a a reasonable doubt. jury finding dangerousness beyond IV. in Favor Burden Persuasion Presumption Resentencing;
Defendant contends that section 1170.126 creates a ‘“strongpresumption” in favor of is on abstractions and resentencing. supporting argument long short on concrete to this case. He does not how such a application suggest exist, if found to would contribute to a of error this presumption, finding case. He asserts that there was a favor of simply presumption resentencing, trial court failed to accord which—implicitly—the proper weight. This court has the contention that section 1170.126 previously rejected creates a favor of presumption resentencing. (Esparza, supra, 726, 739; accord, Kaulick, Cal.App.4th supra, Cal.App.4th 1301-1302.) defendant offers no reason to from that Again compelling depart He asserts that the context is similar to that which led the holding. legal Court to declare that trial courts had “limited” discretion to Supreme only strike strikes so as to avoid a third strike sentence. v. prior imposing (People (Romero) (1996) Court 13 Cal.4th Superior Cal.Rptr.2d [53 (Romero).) In 917 P.2d a later decision the court with quoted approval 628] “ Court of statement that such relief was warranted when ‘the Appeal’s court that an to the scheme sentencing exception “concludes] [Three Strikes] because, should be made for articulable reasons which can withstand scrutiny abuse, this defendant should be treated as he fell outside though actually ’ ” (2004) the Three Strikes scheme.” v. 33 Cal.4th (People Carmony 92 P.3d v. (Carmony), quoting People Strong 369] *44 490].)25 337-338 Defendant Cal.App.4th Cal.Rptr.2d suggests [104 somewhat that this amounted to a obliquely presumption against striking in favor of the the Three Strikes priors—i.e., punishment prescribed by 1170.126(1) in law—and that section effect “reversed” the so presumption, disfavored, that a is and is favored. finding dangerousness resentencing The first with this is that we know of no decision which problem analysis In characterized the under Romero as a Romero itself regime “presumption.” i.e., in the court used that term to a different only referring quite proposition, (Romero, that the intends to enact valid statutes. Legislature constitutionally 509; 518.) In 13 Cal.4th at see id. at the court referred supra, p. p. Carmony (1) an inferred that a court acts presumption by Legislature properly a defendant accordance with the Three Strikes law sentencing (Cannony, that, 376); (2) 33 Cal.4th at a unless shown to have supra, p. presumption “ ‘ acted or court has “acted to achieve irrationally arbitrarily, sentencing im- and its determination to legitimate sentencing objectives, discretionary ’ ” (id. a sentence will not be set aside on review” at pose particular pp. (Alvarez) (1997) 14 v. Court Cal.4th 977-978 quoting People Superior 1171]); (3) 928 P.2d a that Cal.Rptr.2d “strong presumption” any [60 sentence to the Three Strikes law is “both rational and conforming proper” “ 378); (4) at ‘the that a trial court (Carmony, supra, p. presumption ” (ibid., is to have the law’ ordinarily presumed correctly applied [sic] v. quoting People Gillispie Cal.App.4th 462]). Of these the third resembles the advocated only presumption by defendant, and it differs at least one critical it is an respect: appellate of the trial court’s when that to a presumption ruling ruling favor conforms default. Here a would favor a decision statutory comparable presumption the trial court to a Reform Act over the so grant petition objection doing would an unreasonable risk of to the Such a pose danger public. presumption exist, well be said to but it does not assist defendant because the trial might him court here ruled against
Defendant also that a favor of and suggests presumption resentencing arises from the against finding disqualifying dangerousness wording statements, appellate betrays tendency Defendant’s counsel an unfortunate to attribute and quotations, appeal' quotes Carmony. supra. even that do not in the cited sources. He 33 Cal.4th act,” page characterizing “extraordinary phrase at 378 as relief under Romero as an but that appears opinion. findings nowhere in that Elsewhere he describes 36’s “stat[ing]” “represents judgment declarations as that the measure the electorate’s that second- doubling provides punishment strike of a sentence sufficient for offenders whose current thing findings offenses are nonviolent.” The nearest to such a statement in the is that the public’s original understanding by measure would the Three Strikes law to the “[r]estore requiring life sentences when a defendant’s current conviction is for a violent or serious Guide, Elec., 36, 1, (Voter 105.) supra, Prop. Describing crime.” Information Gen text of § may having proper—or effective—advocacy. that which be inferred as been “stated” is not
587 Act, i.e., defendant, if the Reform that a for recall of petitioning eligible sentence, court, discretion, in ''shall be resentenced . . . unless the its determines that would an unreasonable risk of resentencing petitioner pose (§ 1170.126(f), added.) italics He asserts that danger public safety.” “[u]nder construction the ‘shall/unless’ formulation longstanding statutory principles, establishes a But defendant offers no for this strong presumption.” authority assertion, and we have found none. Instead he discusses United States Supreme Court cases the extent to which decisions under state law concerning parole must federal due These cases be characterized satisfy process guarantees. may as that the considered them rise to a holding statutory language gave of sufficient to raise due ‘“presumption” liberty process protections. (E.g., 369, 303, (1987) Board Pardons v. Allen 482 U.S. 377-378 L.Ed.2d [96 (Allen); (1979) 107 S.Ct. v. Nebraska Penal Inmates 2415] Greenholtz (Greenholtz).) 442 11-12 U.S. L.Ed.2d 99 S.Ct. The [60 2100] Allen, 376-377, Montana statute at issue 482 U.S. at did not supra, pages a ‘“shall/unless” structure but rather that be employ required parole granted “when” the board made certain Court nonethe parole findings. Supreme “ less found that the statute a release will presumption parole ‘creafied] (Allen, be when the are made.” at granted’ designated findings supra, 377-378.) The court declared that the same was true of the Nebraska pp. Greenholtz, statute it had earlier considered U.S. at supra, page which did a “shall/unless” construction. employ
However we are not that the found those persuaded “presumptions” cases have on this matter. are not concerned with the any bearing They issue, the trial court’s determination of or those principles governing any review of such an issue. Rather consider whether the governing appellate they state laws at issue rise to such a parole gave “legitimate expectation 12) (Greenholtz, release” U.S. at as to supra, p. generate “liberty (Allen, interest” the due clause 482 U.S. at protected by process supra, 370). from the shared use of the term we fail to see Apart “presumption,” connection between those cases and the matters at issue here. any This is not to that the “shall/unless” construction is suggest meaningless. The “unless” clause constitutes an or and as such clearly exception proviso, should be construed under construc narrowly general principles statutory (See tion. Carter v. Cohen Cal.App.4th [116 E&P, 303], Inc. v. Shell Western Inc. Cal.Rptr.3d quoting Hayter Trucking, (1993) 18 to the Cal.App.4th ‘Exceptions 229] [“ and, in rule of a statute are to be construed general strictly interpreting statute, to the courts include those circumstances exceptions general ”].) which are within the words and reason of the However exception.’ defendant has not couched terms of the construction of the any argument and we do not see how such an be made. proviso, readily argument might *46 588
A more be that “the to on pertinent principle may party seeking rely an to a rule has the burden the exception general proving exception.” (Standard (2009) v. Court 176 834 Corp. Superior Cal.App.4th Pacific added; Co., 295], italics see Inc. v. Gore Cal.Rptr.3d Simpson Strong-Tie [98 1117], (2010) 49 Cal.4th 230 P.3d fn. omitted Cal.Rptr.3d [109 to the rule of construction that the to [referring “longstanding party seeking benefit from an to a statute bears the burden to establish the exception general at v. East exception”]; Simpson Strong-Tie, quoting City Lafayette Mun. Dist. Bay Utility Cal.App.4th 658] ‘ “ ‘One to be excluded from the of the statute must seeking sweep general [“ ” ’ ”].) establish that the Here this meant exception applies.’ unquestionably that the bore the burden of that prosecution evidentiary proving resentencing (Accord, defendant would an unreasonable risk of pose danger. Esparza, 742-743; Kaulick, at at supra, Cal.App.4th pp. supra, Cal.App.4th 1301-1302.) pp.
The record is somewhat with to trial court’s allocation ambiguous respect of the burden of At the outset of the the court said to the persuasion. hearing Carr, burden, “Mr. it is This would seem to prosecutor, your please begin.” reflect that it was the burden to establish that recognition prosecutor’s would an unreasonable risk of to the resentencing pose danger public. However, at the conclusion of the the court its hearing expressed finding terms, that it found until the most recent negative stating “nothing right up offense to to this Court triggering suggest petitioner presents if but a substantial risk to he should be resentenced anything public safety (Italics I’m and released and for those reasons going deny petition.” added.) The court’s reluctance to state as a fact that defendant very positive such a risk casts some doubt on the assiduousness with which actually posed it the burden of it had earlier seemed to We need applied proof acknowledge. further, however, not the court’s remarks for we are attempt parse the matter for further which the burden will rest remanding proceedings, to establish as a fact that would squarely upon prosecution resentencing an unreasonable risk of to the pose danger public.
This conclusion—that bears the burden of on respondent persuasion the issue of the same effect as that the dangerousness—has practical declaring statute creates a rebuttable the burden of evidentiary presumption affecting Code, 605, 115.) (See Evid. And we also that the statute proof. may agree §§ rise to a favor of a gives strong appellate presumption ruling granting that, however, Reform Act we are not convinced that the petition. Beyond statute rise to a relevant or useful sense. gives presumption any
589 V. Rules Evidence Applicability of in defendant the trial court with error
Finally, charges admitting hearsay evidence, his records and including prison disciplinary police reports impli- him, in via the 1981 and 1983 murders and the cating compound hearsay, 1983 arson. He contends that the rules of evidence to trial also applicable 1170.126(1) held to section to determine whether a apply hearings pursuant an unreasonable risk of His petitioner poses danger public safety. argument is, on this less than First he makes a allusion to point again, explicit. cursory 300, states, Evidence Code section which as otherwise “Except provided by statute, in this code action before the Court or a court applies every Supreme court, in or such actions conducted appeal superior including proceedings referee, commissioner, officer, in a court or similar but does not apply Code, 300; id., (Evid. see 105 ‘Action’ grand jury proceedings.”26 § § [“ action.”].) includes a civil action and a criminal On its face this statute would seem to indicate that the codified rules of evidence criminal to which a statute does not apply every proceeding However, declare them a of case law has expressly inapplicable. large body which be characterized as developed may very broadly countenancing evidence—i.e., admission of evidence that would be excluded objectionable if an action to—in ordinary properly objected post-conviction proceedings such as and revocation of or unless the evidence sentencing probation parole, unreliable, unfair, is so or its admission is otherwise so as to infringe upon (2003) the defendant’s due v. O’Connell 107 process rights. (E.g., People 1062, 1066 ‘As as testi- Cal.App.4th Cal.Rptr.2d long hearsay [132 665] [“ bears a substantial of trustworthiness it be mony degree may legitimately see, ”].) used at a revocation So far as we can none of probation proceeding.’ these cases have considered the effect of Evidence Code section 300. Instead constitutional the United States they apply principles largely developed by 396, (See, (2007) Court. v.Abrams 158 400 Supreme e.g., People Cal.App.4th 471, 742], (1972) v. Brewer 408 U.S. 489 Cal.Rptr.3d quoting Morrissey [69 484, L.Ed.2d 92 S.Ct. revocation should be parole ‘process [33 2593] [“the letters, affidavits, flexible to consider evidence and other enough including ”]; material that would not be admissible an criminal trial’ adversary 565], (1999) v. Lamb People Cal.App.4th citing [90 (1949) inter alia Williams v. New York 337 U.S. L.Ed. [93 1079], 69 S.Ct. and Williams v. Oklahoma 358 U.S. L.Ed.2d 79 S.Ct. court consider a broad sentencing may 421] [“a of information whether to range deciding grant probation particular states, question petitioner poses Defendant of whether a an unreasonable risk to “[T]he public safety inquiry separately is an to be conducted from a determination of what the Therefore, appropriate granted sentence should be if he is relief. the rules of [Citation.] (Evid. 300.)"’ apply hearing. evidence must to the risk assessment Code Section *48 case. Due does not that a criminal defendant be afforded the process require A same at as exist at trial. ... evidentiary protections sentencing proceedings consider unsworn or out-of-court state- sentencing judge may responsible (citations ments the convicted life and characteristics.” concerning person’s 711, omitted)]; (1981) v. Winson 29 Cal.3d 713-714 People Cal.Rptr. [175 621, 631 P.2d of federal and state authorities due light concerning 55] [in at or revocation process rights parole probation hearing, prelintinary hearing cause]; was admitted without a transcript improperly showing good 707, 713-714, 676, (1985) v. Maki 39 Cal.3d 716-717 People Cal.Rptr. [217 704 P.2d rental and hotel were but receipts objectionable hearsay, 743] [car reliance on them to absence from state did not offend due prove probationer’s process].)27 course, floor,
Of
constitutional limitations on the admission of evidence are a
statute,
If
not a
restrictions are
then those restric
ceiling.
greater
imposed by
in
tions will
the absence of some distinct
not to
necessarily govern
ground
give
(See
(1993) 12
effect to the statute.
v. Holmes
People
Cal.App.4th
rules
admission and use of evidence are
Cal.Rptr.2d
governing
[16
52] [“The
Code,
in
contained
the Evidence
and the statutes therein
principally
govern
all criminal
unless overridden
constitutional concerns
proceedings
o[r]
added)].)
(italics
of the Penal Code.”
Yet so far as we can
specific provisions
tell,
it,
the
effect of Evidence Code section 300—and
the
potential
through
rest of the Evidence Code—has
unremarked
these cases.
gone wholly
find, however,
We
that the issue is not
for review. We see no indication
ripe
that defendant ever
to evidence below on the
that it violated
objected
ground
below,
rules codified
the Evidence Code. Defendant did
to evidence
object
but
on the
that it did not meet the constitutional standards
ground
alluded to. Thus he asserted that
of the
previously
specified portions
prosecu-
exhibits,”
tor’s recitation of his
“and all
constituted
history,
supporting
“unreliable
formula
with the concession that reliable
hearsay”—a
pregnant
added.)
would be admissible.
omitted & italics
He
hearsay
(Capitalization
evidence to evidence that had been held
compared
challenged
sufficiently
reliable—or not—to be considered
He
sentencing-related proceedings.
(2004)
the statement
v.
quoted
People
Eckley
Cal.App.4th
“
reliance,
555],
‘a court’s
its
sentencing
probation
People
Cal.Rptr.
A number of cases have cited
v.Arbuckle
A similar attends defendant’s constitutional He ob- difficulty objections. below to sections of the brief “and all jected specific prosecutor’s supporting evidence, exhibits.” Nor does his brief on items of appeal target specific that like Mr. Cordova’s records and stating only “hearsay prison disciplinary murder, arson, him to a prior police investigative reports—linking rape but no convictions—should not have been admitted.” But some resulting records, and even have been admissible over a prison police reports, may (See least business or official records. Evid. hearsay objection—at part—as Code, 1270-1272, 1280-1284.) §§
We that the task of from non- recognize winnowing objectionable when, here, evidence is a one as the state objectionable daunting presents several volumes of evidence with an large documentary nothing resembling is, index or other means of The of the adequate navigation.28 quality copies for the most so that the text cannot be and therefore part, poor digitized cannot be searched.29 The sheer volume and lack of coherent organization such a itself raise of fundamental fairness. Trial presentation may questions difficulty by objection The is illustrated defendant’s below to section “II.A.” of the prosecutor’s opposition supporting memorandum “and all exhibits.” The cited section recounts supposed juvenile history, prosecutor “Report defendant’s for which the cited of Adult Officer, (Exhibit 6).” Perhaps Probation Docket #56487 dated October there was a record, conspicuous appeal only way exhibit tab labeled “6” in the trial court but on to find through transcript looking page bearing this document is to thumb for an otherwise blank legend. apparent practice reducing copies This characteristic is exacerbated the clerk’s by something percent copying appellate transcript. file materials like 33 them for the documents, require transcript specified rules of court to contain not miniatures of those documents. *50 in In avalanche is bad civil cases between well-heeled a
by enough litigants. criminal case between funded counsel it raises at least a whiff busy publicly of denial of due The trial court would act well within its process.30 powers the to a thematic or other index it requiring prosecutor provide making minimum, to frame issues a fashion. At a possible evidentiary manageable the materials should be numbered so that citations to consecutively specific documents do not whole for require paging through transcripts searching numbers, worse, exhibit or titles and dates. event,
In our remand will to eviden- any provide ample opportunity bring focus, issues into as are not the Defendant will tiary they present appeal. be free to assert but should items any ground objection, target challenged if as as the record he to precisely permits, stating grounds specifically, hopes the issue for further review. preserve appellate
DISPOSITION The order the for is reversed for further denying petition resentencing in accordance with this proceedings opinion. J., concurred.
Márquez, PREMO, J., dissent from the Dissenting.—I respectfully majority opinion’s 47’s definition of “an unreasonable risk of holding Proposition danger under 36. public safety” applies petitions resentencing “[I] the basic and constitutional construction recognize principle statutory courts, measure, which mandates that a not undertake to rewrite construing difficulty showing provided by An illustration of the kind of that arises from such a is the 1, 1973, prosecutor’s “rape” supposedly occurring January account of a on when defendant memorandum, According prosecutor’s youth “grabbed” was 18. to the defendant and another 15-year-old passing rape victim as she was a hotel and “forced” her into a room where the account, compromised by occurred. This was indeed the victim’s initial but after it was further Defendant, investigation acknowledged accompanying youths voluntarily. she to the room youth, youth apparently charged the second and a third who was not all claimed that she had this, voluntarily deny also consented to intercourse. She continued to but defendant was charged only disposition charge booked and for intercourse with a minor. The of that is not nothing reliably rape. reflected in the record. But before the trial court established a forcible prosecutor’s history entirely At least two of the items in the criminal of defendant rested on cryptic entries, prosecutor History.” entries in a document cited as a “Manual Criminal “ disposition apart, identical save for arrest and dates about a week state ‘Arrested “ ¡ prison’ rej, int.just.,” prosecutor 4573.6 PC ... . DA/CA which the translates as ‘Arrested (Possession Substance). in Prison’ for a violation of Penal Code of a Controlled Case §4573.6 rejected—Interest was of Justice.” entry history, asserting parole consisting At least one in the violation of access to substances, positive supported by ammunition and tests for controlled is no citations to evidence at all.
593 however, its That rule is not when unambiguous language. applied, [Citation.] used, it clear that a word has been and a appears erroneously judicial correction will best out the intent of the v. carry adopting body.” (People 765, 685, 752].) (1985) Skinner 39 Cal.3d 775 704 P.2d None Cal.Rptr. [217 of the ballot materials 47 mentioned accompanying Proposition Proposition 36, and there is no indication that the electorate intended to modify 36’s definition of an “unreasonable risk of to Proposition danger public I would hold that 47’s definition of “an unreasonable risk safety.” Proposition is to danger public safety” inapplicable Proposition 47 contains a error that must be corrected.1 drafting judicially the concludes that defendant’s that the
Additionally, majority argument rules of evidence under Penal Code section 1170.126 apply hearings review, Code) references are to the Penal is not (unspecified statutory ripe because defendant failed to to the introduction of certain evidence object Here, below. defendant maintains that the court erred admitting hearsay evidence, his records and including prison disciplinary police reports impli- him in I the 1981 and 1983 murders and the 1983 arson. would find cating that defendant’s to the introduction of evidence argument pertaining hearsay in section 1170.126 is meritless. hearings 1170.126,
Defendant’s is undermined section argument significantly by subdivision which authorizes courts to consider (g)(2), expressly petitioners’ A section 1170.126 is a ve- “disciplinary petition postjudgment record[s].” hicle which certain convicted and sentenced inmates benefit by legally may from the later enacted Three Strikes Reform Act.
Thus, view, 1170.126, (1) a section subdivision is more akin my hearing to other as revocation or sentenc posttrial proceedings—such parole hearings trial, it is to where the full of the Evidence Code ing—than protections apply. evidence is admissible at revocation so as it Hearsay parole hearings, long “ ‘ ’ ” trustworthiness,” “bears a substantial as determined degree by (In (2006) trial court. re Miller Cal.App.4th Cal.Rptr.3d [52 256].) It is likewise admissible at so as there is sentencing proceedings, long “a substantial basis for is reliable.” v. Lamb believing (People [it] 664, 683 does not Cal.App.4th process require [90 565] [“Due that a criminal defendant be afforded the same at evidentiary protections trial.”]; (1978) 22 as exist at v.Arbuckle Cal.3d sentencing proceedings People 587 P.2d court consider Cal.Rptr. sentencing may 220] [a information, a broad unsworn or out-of-court range including responsible conclusion, express opinion regarding majority’s Based on this I no conclusion notes, regarding retroactivity majority presently being of the definition. As the this issue is ante, (see 8). Supreme maj. opn., reviewed the California Court at fn. *52 characteristics].) statements the convicted life and There- concerning person’s fore, 1170.126, (f) is admissible at section subdivision so hearsay hearings as there is a substantial basis for the evidence is reliable. long believing do, however, I with the conclusion that defend- agree majority opinion’s merit, ant’s has no need equal protection argument dangerousness finding doubt, not be submitted to a and found a reasonable and there is jury beyond no favor of presumption resentencing. based on conclusion that the 47’s definition of “an
Lastly, my Proposition unreasonable risk of does not to for danger public safety” apply petitions 36, I under would find the trial court did not abuse resentencing its discretion when it concluded that defendant would an unreasonable pose “Where, here, if risk of resentenced. as is danger discretionary power court,” vested the trial the abuse of discretion standard statutorily applies on 235, v. 8 Cal.4th appeal. (People Rodrigues 1].) 885 P.2d that,
Substantial evidence the trial court’s on supports finding previous and defendant has shown himself unable to grants probation parole, largely refrain from of time. Substantial reoffending any appreciable length evidence also the trial court’s conclusion that of defendant’s supports many convictions involved which can weapons, plainly expose public danger. the record shows defendant was convicted of armed Specifically, attempted (twice), armed residential of a firearm a felon robbery, robbery, possession by of a or and of a concealed possession deadly dangerous weapon, possession dirk or The trial court also found that “defendant has numerous dagger. criminal convictions that are associated with under the influence of being which led it to conclude that “addiction and . . . controlled substance drugs,” abuse has ... an role played incredibly significant prior [defendant’s] In criminal behavior.” of its defendant’s support finding regarding drug- convictions, related criminal the court mentioned “the 1983 arson erroneously But, misstatement, for which there was no conviction. jail,” despite substantial evidence nevertheless the court’s that defendant supports finding was convicted of crimes on numerous occasions. The record drug-related times, shows defendant was convicted of under the influence three driving times, of a controlled substance four under the influence possession being of a controlled substance twice. The court’s conclusion that “addiction and . . . controlled substance abuse has ... an played incredibly significant role criminal behavior” is those convic- prior supported by [defendant’s] tions, as well as evidence that defendant admitted to under the being influence of and alcohol the 1973 armed residential drugs during robbery. incarcerated,
With to defendant’s record of rehabilitation while respect substantial evidence the trial court’s that defendant did not supports finding *53 in in for a number of participate any self-help programming years 1170.126, (§ late-2000s. subd. The record further the trial (g)(2).) supports that, court’s that same defendant did not address his finding during period, addiction. While defendant told Dr. Barron that he abstained from drug drug user, use those as a there can be no doubt he during years, longtime drug would have benefitted from continued to address his addiction. programming {Ibid.) The court also considered defendant’s record. properly disciplinary The court noted that defendant had been numerous times correctly disciplined in infractions the months to the of his drug-related leading up filing in in Based on the 2004 incident which defendant was petition. placed administrative after staff was told defendant threatened segregation prison another inmate with a shank and defendant’s 2006 with three other fight inmates, the court concluded that defendant demonstrated “potential aggres- I sive behavior” on two occasions. that the of those incidents agree reports the conclusion that defendant was on both support potentially aggressive occasions. found, events,
The court further based on the same two that defendant has had “continued need to surround himself proximity apparent [to] [an] I with with defendant that substantial evidence does not weapons.” agree In no shank was found and no support finding. disciplinary report was filed. There was a confidential which does not constitute merely tip, reasonable, credible, in and solid evidence that defendant was armed prison 2004. v. Board Administration etc. (Meyers Cal.App.4th “ ‘ “ evidence is evidence of ‘ponder- 560] [substantial ” ’ ” “ ‘ “ nature, credible, able that is ‘reasonable and of legal significance’ ” ’ ”].) In solid value’ found a razor blade six feet from guards away where defendant and three other inmates had a The court physical fight. that defendant was the one who was armed because one of the suggests him inmates said a razor blade was on and the other two said did pulled they fact, In “I not know how the started. defendant told don’t know fight guards, said, know”; A “I what second inmate don’t even a third said he happened.” in and a fourth that a “dude a blade on me.” “just got fight”; reported pulled Those statements do not constitute substantial evidence that the razor blade to defendant. belonged the court considered other relevant evidence as section
Finally, permitted by 1170.126, First, subdivision the court found defendant was (g)(3). “impli- Above, I cated” murders 1981 and 1983. concluded the court was murders, if on evidence of the even it constituted so permitted rely hearsay, as it was reliable. The evidence of defendant’s involvement long murders included the declaration of an with the Santa Clara investigator office, District who also was a retired officer. County Attorney’s police Because the declaration was made a law enforcement under professional I find that it contained sufficient indicia of penalty perjury, reliability *54 due That declaration alone substantial evidence to satisfy process. provides in the court’s conclusion that defendant was two murders. support implicated I in conclude the court did not err on evidence of the Accordingly, relying Second, in murders or that conclusion. the court relied on defend- reaching ant’s mental health and records to find that defendant has not disciplinary overcome his addiction. That is substantial evi- drug finding supported by dence. Defendant’s health records show that he used be- prison morphine tween 2011 and 2014. a desire to January Despite expressing stop using in 2012 and he achieved brief of drug only periods sobriety. Defendant underwent treatment for detox between and morphine January 18, 2014, 2014. Because his health records after are not January February record, in the there is no evidence that he has remained sober since that time.2 sum,
In the court’s factual are substantial findings largely supported by evidence. The court did refer to the 1983 arson as a conviction incorrectly that defendant had been convicted of numerous crimes. finding drug-related However, evidence, because the ultimate is substantial finding supported by the court’s mistaken belief about the 1983 arson was not “critical to its decision” and thus does not establish an abuse of discretion. v. (People Cluff 80].) (2001) 87 Cal.App.4th The court also found that defendant was twice armed which is prison, however, not substantial evidence. That likewise was supported by finding, I not critical to the court’s decision. that the court referred to acknowledge defendant’s “firearms” and “cut- frequent possession weapons, including instruments,” as its concern . . . .” But even ting “greatest perhaps disregard- incidents, (and the record shows that defendant was ing prison frequently when he was not between 1973 illegally) possession weapons custody and 1995. I
Based on the cannot find that the court abused its discretion foregoing, the defendant would an unreasonable risk of to the concluding pose danger if resentenced. Defendant has a record of continuous criminal public nearly behavior when outside of Much of his criminal involves prison. history use, both of which a risk of to the weapons drug pose danger public, that, when combined. There also is evidence to defend- especially contrary ant’s contention on defendant has a his appeal, history physically harming However, April using drugs. Defendant told Dr. Barron in 2014 that he was still not as the noted, example, trial court defendant made untrue statements to Dr. Barron. For he told influence) (driving Dr. Barron that one DUI under the was the crime he committed while drugs. under the influence of But the record indicates defendant committed numerous crimes DUIs, drugs, including robbery, while under the influence of the 1973 aimed residential three Therefore, being and two instances of under the influence of a controlled substance. defend being drug ant’s claim of free for four months is not credible. *55 the victims of the 1981 and 1983 murders. Defendant’s victims—namely, addiction, record shows his for which he no prison drug sought help during of his time remains a His majority lengthy prison, problem. disciplin- record shows he remains unable to follow the rules or avoid violent ary confrontations. I would affirm the order defendant’s
Accordingly, denying petition resentencing. 12, 2016,
On was modified to read as above. July opinion printed for review the Court was Appellant’s petition Supreme granted August 2016, S236179.
APPENDIX Proposition Public Debate on Avail- 47: Some Web Sources
able as of June 1. Facts—No on Prop <http://www.votenoprop47.org/No_On_Prop_ 47_Facts.html> 24, 2016); (as (archived of June see Facts—No on Prop 28, 2014) Sept. <https://web.archive.Org/web/20140928005627/http:// (as (sanie 24, 2016) of June votenoprop47.org/ No_On_Prop_47_Facts.html> page). Association,
2. California District CDAA Looks at Attorneys Proposition 29, 2014), available at (Aug. apparent copies <http://www.co.mendocino. 24, 2016), (as of June and ca.us/da/pdf/Proposition47_A_Cruel_ Fraud.pdf A47: Cruel Fraud <http://docplayer.net/1464582-Proposition-47- 24, 2016). (as a-cruel-fraud.html> of June 3. Zimmerman takes on retired Lansdowne over Prop. Chief Chief 7, 2014)
San Union-Tribune Diego (Sept. <http://www.sandiegouniontribune. com/news/2014/sep/07/prop-47-zimmerman-lansdowne-drugs-misdemeanor/> 24, 2016). (as of June
4. vote 3-2 to state measure that would reduce some Supervisors oppose 9, 2014) San Jose News felonies, Mercury (Sept. <http://www.mercurynews. com/news/ci_26503073/supervisors-vote-32-to-oppose-state-measure-that- 24, 2016). (as would-reduce-some-felonies> of June 12, 2014) 5. CSAC (Sept. <https://web.archive.org/web/20141014082622/ http://bulletin.counties.org/sec.aspx?id=CD3DlA93C6CD49AFBDB4FB 24, 2016) (as 89F1AB01EF> of June association “no” (county endorsing vote). date) (No
6. NADCP CA’s 47 I NADCP Opposes Prop <http://www. 24, 2016) (as (statement of June nadcp.org/prop47opposition> opposition by drug professionals’ organization). al., 7. et What can learn the reel states on crime Gingrich California from 16, 2014)
and L.A. Times punishment, (Sept. <http://www.latimes.com/ a-oe -20140917- opinion/op-ed/1 -0917-gingrich-prop—47-criminal-justice story. 24, 2016). (as html> of June al.,
8. Zimmerman et 47 is San Prop dangerous poorly drafted, 20, 2014) Union-Tribune Diego (Sept. <http://www.sandiegouniontribune. *57 com/news/2014/sep/20/prop-47-passage-would-have-dangerous-consequences/> 24, 2016). (as of June Lansdowne, 9. nonviolent is Locking up costly ineffective, offenders 20, 2014)
San Union-Tribune Diego (Sept. <http://www.sandiegounion tribune.com/news/2014/sep/20/yes-on-prop-47-to-stop-the-cycles-of-crime/> 24, 2016). (as of June 22, 2014)
10. Chronicle recommends: Yeson SFGate Proposition (Sept. <https://web.archive .org/web/2014102613210 l/http://www. sígate .com/opinion/ editorials/article/Chronicle-recommends-Yes-on-Proposition-47-5768086. 24, 2016). (as of June php> 11. News editorial: 47 will break Mercury Prop. help cycle California
crime, 25, 2014) San Jose News Mercury (Sept. <http://www.mercurynews. com/opinion/ci_26604547/mercury-news-editorial-prop-47-will-help- 24, 2016). (as of June california?source=pkg> 12. Endorsement: too too soon other Proposition goes far, major after 28, 2014) criminal The Sacramento Bee justice system changes, (Sept. <http://www.sacbee.com/opinion/election-endorsements/article2612296.html> 24, 2016). (as of June Gascon,
13. 47 would reduce crime and save Viewpoints: Prop. money, 3, 2014) (Oct. The Sacramento Bee <http://www.sacbee.com/opinion/op-ed/ 24, 2016). (as article2617783.html> of June al., loose,
14. et 47 would turn criminals Scully Viewpoints: Prop. 3, 2014) (Oct. Sacramento Bee <http://www.sacbee.com/opinion/op-ed/ 24, 2016). (as article2617791.html> of June al., crime,
15. Ravitch et 47 won’t The Press Democrat Prop. help fight (Oct. 2014) <http://www.pressdemocrat.com/opinion/2924134-181/prop-47- 24, 2016). (as of June wont-help-fight?ref=related> 6, 2014) (Oct. 16. Yeson L.A. Times Proposition <http://www.latimes. com/opinion/endorsements/la-ed-end-proposition-47-20141007-story.html> 24, 2016). (as of June (ar-
17. CALIFORNIANS AGAINST PROP. 47 I No on 8, 2014) chived Oct. <http://web.archive.Org/web/20141008185016/http:// 24, 2016). (as of June californiansagainst47.com/> *58 Skelton, 18. 47’s should not the Prop. sentencing go Legislature, reform ballot, 8, 2014) (Oct. L.A. Times <http://www.latimes.com/local/politics/la- 24, 2016). (as of June me-cap-prop47-20141009-column.html> 19. Editorial: Yes on The Prop. sentencing reform, Orange County 9, 2014) (Oct. Register <http://www.ocregister.com/articles/prop-637855- 24, 2016). (as crimes-measure.html> of June Galik, 20. Scale back nonviolent The penalties offenses, Orange County for 9, 2014) (Oct. nonviolent-
Register <http://www.ocregister.com/articles/ 24, 2016). (as 637864-california-crimes.html> of June 47 would cut in 5 criminals in L.A. 21.Prop. penalties California, for 11, 2014) (Oct. Times <http://www.latimes.com/local/politics/la-me-ff-pol- 24, 2016). (as of June proposition47-20141012-story.html> 22.Some criminals would sentences under lighter Proposi- California face 12, 2014) (Oct. tion The Sacramento Bee <http://www.sacbee.com/news/ 20, 2016). (as of June politics-government/election/article2693849.html> intentions, 23. 47: Good terrible San Union- Prop. public policy, Diego 15, 2014) (Oct. Tribune <http://www.sandiegouniontribune.com/news/2014/ 24, 2016). (as of June oct/15/prop-47-felony-prisoner-release-crimes/> Davis, 24. 47’s centred issue: Is needed minor Prop. punishment drug crimes?, 18, 2014) (Oct. San Union-Tribune Diego <http://www.san diegouniontribune.com/news/2014/oct/18/election-proposition-47-drug- 24, 2016). (as of June possession-punishment/?#article-copy> Hutchens, crime, 25. 47 won’t reduce increase The Prop. safety, Orange 20, 2014) (Oct. County Register <http://www.ocregister.com/articles/prop- 24, 2016). (as of June 638911-drug-gun.html> Sianez, 26. 47 won’t make O.C. Prop. safer, Orange County Register 22, 2014) (Oct. <http://www.ocregister.com/articles/county-639263-orange- 24, 2016). (as of June prop.html> crime,
27. Munks and 47 will result in increased less Wagstaffe, Prop 23, 2014) (Oct. San Jose News safety neighborhoods, Mercury *59 <http://www.mercurynews.com/news/ci_26780581/greg-munks-and-steve- st suit-in-increased-crime-less wag affe:-prop-47-will-re -safety-in— 24, 2016). (as of June neighborhoods> Police, 24, 2014) (Oct.
28. Our Readers sheriffs no to Say: say Prop <http://www.redlandsdailyfacts.com/opinion/20141024/our-readers-say- 24, 2016). (as of June police-sheriffs-say-no-to-prop-47> 29. San Bernardino Police Association County says: Chiefs Sheriff’s 24, 2014) (Oct. No on News: Prop Highland Community Opinion <http://www.highlandnews.net/opinion/san-bernardino-county-police-chiefs- and-sheriff-s-association-says/article_ld3fb9f8-5bc3-lle4-8c0f-47ac 24, 2016). (as 194ced49.html> of June chiefs,
30. sheriff’s no on County police say 47—Opinion— 27, 2014) (Oct. CA VVdailypress.com—Victorville, <http://www.vvdaily 24, 2016). (as of June press.com/article/20141027/OPINION/141029812> al., crisis, 31. et 47 can mental health Steinberg Prop. help prison fix 27, 2014) (Oct. Sacramento Bee <http://www.sacbee.com/opinion/op- 24, 2016). (as of June ed/soapbox/article3406705.html> Couzens, 28, 2014) (Oct. 32. 47: a from the bench Prop. perspective <http://www.davisenterprise.com/forum/opinion-columns/prop-47-a- 20, 2016); (as of Jun. see perspective-from-the-bench/> <http:// (as of June www.davisenterprise.com/print/?edition=2014-10-28&ptitle=A6> 24, 2016) edition). (facsimile of print Greenwald,
33. on Davis Analysis: Perspectives Proposition People’s 29, 2014) (Oct. Vanguard <http://www.davisvanguard.org/2014/10/analysis- 24, 2016). (as of June perspectives-on-proposition-47/> Greene, 34. What does 47 have to do with date California's 29, 2014) (Oct. L.A. Times rape?, <http://www.latimes.com/opinion/opinion- (as of June la/la-ol-prop-47-roofies-date-rape-20141028-story.html> 2014). Aron, al.,
35. et 47 is cm investment in not San Jose Prop people, prisons, 29, 2014) (Oct. News Mercury <http://www.mercurynews.com/opinion/ci_ 26822918/rabbi-melanie-aron-beth-gonzales-and-rai-iayadev?source=pkg> (as 24, 2016). of June *60 36. council in ballot Prop biggest hiccup city choosing positions, 29, 2014) (Oct.
San Jose News Mercury <http://www.mercurynews.coni/ news/ci_26825697/prop-47-biggest-hiccup-city-council-choosing-ballot? 24, 2016). (as of June source=pkg> Jr., 37. Paul and should back The Hughes Republicans Prop. Orange - 29, 2014) (Oct. com/articles/crime
County Register <http://www.ocregister. 24, 2016). (as of June 640063-california-prison.html> Barnes, balance, 38. The Prop. right Orange County Register finds 1, 2014) (Nov. <http://www.ocregister.com/articles/california-640497-people- 24, 2016). (as of June prop.html> Durant, 39. Law united: No on Boyd Orange enforcement 1, 2014) (Nov.
County Register <http://www.ocregister.com/ articles/prop- 24, 2016). (as 640496-association-california.html> of June