THE PEOPLE, Plaintiff and Respondent, v. LANCE LAMONT JERNIGAN, Defendant and Appellant.
No. B253467
Second Dist., Div. Five
July 10, 2014
227 Cal. App. 4th 1198
[CERTIFIED FOR PARTIAL PUBLICATION*]
COUNSEL
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Chung Mar and Jessica C. Owen, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, J.—
I. INTRODUCTION
Defendant, Lance Lamont Jernigan, is subject to two concurrent 25-year-to-life sentences. Defendant seeks to have his indeterminate sentences recalled and be resentenced to a determinate term pursuant to
II. BACKGROUND
Defendant was convicted in 1997 of grand theft of an automobile (
On October 15, 2013, defendant sought resentencing pursuant to
III. DISCUSSION
A. Appealability*
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B. Section 1170.126
Proposition 36, the Three Strikes Reform Act of 2012, was approved by the voters in the November 6, 2012 General Election.
In ruling on a
At issue here is whether defendant has sustained a disqualifying prior conviction. (
The Attorney General argues defendant falls within the provisions of
However, the Attorney General argues that there is an ambiguity created by the absence of an attempt provision in
Seizing on this ambiguity, the Attorney General refers to arguments in favor of Proposition 36 in the Voter Information Guide prepared for the November 6, 2012 General Election. That argument states, ”Requires: Life sentences for dangerous criminals who commit serious and violent crimes.” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) rebuttal to argument against Prop. 36, p. 53.) In People v. Yearwood, supra, 213 Cal.App.4th at page 171, the Court of Appeal quoted other arguments in support of Proposition 36: “. . . ‘Prop. 36 will help stop clogging overcrowded prisons with non-violent offenders, so we have room to keep violent felons off the streets’ and ‘Prop. 36 will keep dangerous criminals off the streets.’ (Voter Information Guide, Gen. Elec., supra, argument in favor of Prop. 36, p. 52.) The Act‘s proponents stated that ‘Criminal justice experts and law enforcement leaders carefully crafted Prop. 36 so that truly dangerous criminals will receive no benefits whatsoever from the reform.’ (Ibid.)” At another point, the court in Yearwood explained: “Enhancing public safety was a key purpose of the Act. The Act‘s proponents argued that the initiative would ensure dangerous criminals remain in prison. One of the arguments in the ballot pamphlet in opposition to the Act referenced the postconviction release process created by section 1170.126. It asserted that ‘[a] hidden provision . . . will allow thousands of dangerous criminals to get their prison sentence reduced and then released from prison early.’ (Voter Information Guide, Gen. Elec., supra, rebuttal to argument in favor of Prop. 36, p. 52, capitalization omitted.) In rebuttal, proponents denounced this argument as a ‘scare tactic.’ (Voter Information Guide, Gen. Elec., supra, rebuttal to argument against Prop. 36, p. 53.) Proponents insisted that the Act ‘requires that murderers, rapists, child molesters, and other dangerous criminals serve their full sentences,’ and it ‘prevents dangerous criminals from being released early.’ (Ibid., italics omitted.)” (People v. Yearwood, supra, 213 Cal.App.4th at pp. 175-176.)
Given this ambiguity, the Attorney General argues we should construe
The voters mandated that Proposition 36 be liberally construed to effectuate its purposes, “This act is an exercise of the public power of the people of the State of California for the protection of the health, safety, and welfare of the people of the State of California, and shall be liberally construed to effectuate those purposes.” (Voter Information Guide, Gen. Elec., supra, text of Prop. 36, § 7, p. 110, italics omitted; see People v. White (2014) 223 Cal.App.4th 512, 522 [167 Cal.Rptr.3d 328].) It is established, nonetheless, that in interpreting a voter initiative, we apply well-settled rules of statutory construction. (People v. Canty (2004) 32 Cal.4th 1266, 1276 [14 Cal.Rptr.3d 1, 90 P.3d 1168]; Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901 [135 Cal.Rptr.2d 30, 69 P.3d 951].) Our Supreme Court recently reiterated those rules in People v. Gutierrez (2014) 58 Cal.4th 1354, 1369 [171 Cal.Rptr.3d 421, 324 P.3d 245]: “‘In construing statutes, “our fundamental task is ‘to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’ [Citations.] We begin by examining the statutory language because it generally is the most reliable indicator of legislative intent. [Citation.] We give the language its usual and ordinary meaning, and ‘[i]f there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs.’ [Citation.] If, however, the statutory language is ambiguous, ‘we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.’ [Citation.] Ultimately we choose the construction that comports most closely with the apparent intent of the lawmakers, with a view to promoting rather than defeating the general purpose of the statute. [Citations.]“’ (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 321 [74 Cal.Rptr.3d 891, 180 P.3d 935].)” (Accord, People v. Licas (2007) 41 Cal.4th 362, 367 [60 Cal.Rptr.3d 31, 159 P.3d 507].)
By its plain terms,
Nor is there any ambiguity which would permit us to insert attempted forcible oral copulation as an enumerated offense into the language in
We cannot rewrite the statutory language to reach the result the Attorney General desires. (See Vasquez v. State of California (2008) 45 Cal.4th 243, 253 [85 Cal.Rptr.3d 466, 195 P.3d 1049]; People v. Leal (2004) 33 Cal.4th 999, 1008 [16 Cal.Rptr.3d 869, 94 P.3d 1071]; People v. Garcia (1999) 21 Cal.4th 1, 10-11, 14–15 [87 Cal.Rptr.2d 114, 980 P.2d 829].) If the voters wanted to disqualify from resentencing an inmate with any prior serious or violent felony conviction, Proposition 36 would have so provided. Instead, as discussed above,
One final note is in order concerning defendant‘s prior attempted forcible oral copulation conviction. In evaluating whether a prior conviction involves a serious felony, courts look to the nature, basis or substance of the crime of which the accused had been previously convicted. (People v. McGee (2006) 38 Cal.4th 682, 691 [42 Cal.Rptr.3d 899, 133 P.3d 1054]; People v. Reed (1996) 13 Cal.4th 217, 223 [52 Cal.Rptr.2d 106, 914 P.2d 184].) Courts evaluate the entire record of the prior proceedings to determine whether the offense satisfies all of the elements of a
IV. DISPOSITION
The order is reversed. Upon remittitur issuance, the trial court is to determine whether resentencing defendant would pose an unreasonable risk of danger to the public. If so, the petition must be denied.
Mosk, J., and Mink, J.,* concurred.