THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY WAYNE JOHNSON, Defendant and Appellant; THE PEOPLE, Plaintiff and Respondent, v. OSCAR MACHADO, Defendant and Appellant.
No. S219454; No. S219819
Supreme Court of California
July 2, 2015
Rehearing Denied August 12, 2015
61 Cal.4th 674
CANTIL-SAKAUYE, C. J.
Suzan E. Hier, under appointment by the Supreme Court, for Defendant and Appellant Timothy Wayne Johnson.
Larry Pizarro, under appointment by the Supreme Court, for Defendant and Appellant Oscar Machado.
Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson, Shawn McGahey Webb, Noah P. Hill, Jonathan J. Kline and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
CANTIL-SAKAUYE, C. J.—On November 6, 2012, the electorate passed Proposition 36, the Three Strikes Reform Act of 2012 (Proposition 36 or the Act). Proposition 36 reduced the punishment to be imposed with respect to some third strike offenses that are neither serious nor violent, and provided for discretionary resentencing in some cases in which third strike sentences were imposed with respect to felonies that are neither serious nor violent.
We granted review to resolve two issues related to the Act‘s resentencing provisions. First, in People v. Johnson (S219454), we address for purposes of resentencing a defendant whether the classification of an offense as a serious or violent felony is determined as of November 7, 2012, the effective date of Proposition 36, or the law in effect when the offense was committed. Second, in People v. Machado (S219819), we address whether an inmate who was convicted of both a serious or violent felony and a felony that is neither serious nor violent is eligible for resentencing with respect to the felony that is neither serious nor violent. For the reasons set forth below, we hold that when a court resentences a third strike defendant the classification of the current offense is based on the law as of the effective date of Proposition 36, and that the presence of a conviction of a serious or violent felony does not disqualify an inmate from resentencing with respect to a current offense that is neither serious nor violent.
I. FACTS
In 1998, a jury convicted Timothy Wayne Johnson of two counts of attempting to dissuade a witness. (
In 1998, a jury convicted Oscar Machado of one count of first degree burglary and one count of second degree burglary. (
As noted, in 2012, the electorate passed Proposition 36. The Act authorizes prisoners serving third strike sentences whose “current” offense (i.e., the
Following the enactment of Proposition 36, Johnson filed a petition for recall of his sentence. The trial court denied his petition on the ground that his current offenses are serious or violent felonies, rendering him ineligible for recall of his sentence. Although his current offenses were not classified as serious or violent felonies when he committed them in 1998, the crime of intimidating a victim or witness (
Machado filed a petition for recall of his sentence for second degree burglary. The trial court denied his petition on the ground that his conviction for first degree burglary, which is a serious felony, rendered him ineligible for resentencing with respect to his second degree burglary conviction, which is neither serious nor violent. The Court of Appeal reversed that judgment, and directed the trial court to reconsider his eligibility for resentencing with respect to his conviction for second degree burglary.
For the reasons set forth below, we hold that when a court resentences a third strike defendant the classification of an offense as serious or violent is based on the law as of November 7, 2012, the effective date of Proposition 36, and that the presence of a current offense that is serious or violent does not disqualify an inmate from resentencing with respect to a current offense that is neither serious nor violent. Therefore, we affirm the appellate court judgments in both of these cases.
II. DISCUSSION
A. The Act
Prior to its amendment by the Act, the Three Strikes law required that a defendant who had two or more prior convictions of violent or serious felonies receive a third strike sentence of a minimum of 25 years to life for any current felony conviction, even if the current offense was neither serious nor violent. (Former
The Act‘s exceptions to the new sentencing provisions relate to a defendant‘s current offense and prior offenses. If the current offense involves controlled substances and specified findings are made concerning the quantity of controlled substances involved, or if the current offense is among specified sex offenses, a defendant with two or more strikes must be sentenced to a term of at least 25 years to life.2 (
In addition to reducing the sentence to be imposed for some third strike felonies that are neither violent nor serious, the Act provides a procedure by which some prisoners already serving third strike sentences may seek resentencing in accordance with the new sentencing rules. (
In construing statutes adopted by the voters, we apply the same principles of interpretation we apply to statutes enacted by the Legislature. (People v. Park (2013) 56 Cal.4th 782, 796 [156 Cal.Rptr.3d 307, 299 P.3d 1263].) ” ‘The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law.’ ” (Horwich v. Superior Court (1999) 21 Cal.4th 272, 276 [87 Cal.Rptr.2d 222, 980 P.2d 927].) We begin with the language of the statute, to which we give its ordinary meaning and construe in the context of the statutory scheme. If the language is ambiguous, we look to other indicia of voter intent. (People v. Park, supra, at pp. 796–798; People v. Briceno (2004) 34 Cal.4th 451, 459 [20 Cal.Rptr.3d 418, 99 P.3d 1007].)
B. For purposes of resentencing, what date determines the character of the current offense?
For defendant Johnson, the question on review is: For purposes of recall of a sentence under section 1170.126, is the classification of the current offense as a serious or violent felony determined as of the date the current offense was committed or as of November 7, 2012, the date Proposition 36 became effective? Proposition 36 amended sections 667.1 and 1170.125 to provide that “for all offenses committed on or after November 7, 2012, all references
Turning first to the statutory language, section 1170.126 describes those who may file a petition for recall of sentence as any person serving a third strike sentence whose current conviction is for “a felony or felonies that are not defined as serious and/or violent felonies.” (
Johnson notes that verb tense is not always determinative (see People v. Jeffers (1987) 43 Cal.3d 984, 992 [239 Cal.Rptr. 886, 741 P.2d 1127]), and he relies instead on the proposition that the classification of prior offenses as serious or violent for purposes of Three Strikes sentencing is generally based on the classification as of the date the current offense was committed. He contends that the same rule should apply in resentencing. To address his contention, it is necessary to review the history of the statutory provisions that set the date as of which the character of prior crimes as serious or violent is determined for purposes of the Three Strikes law.
As enacted in 1994, the Three Strikes law provided that references in that law to the statutes classifying felonies as serious or violent would be to those statutes as they existed as of June 30, 1993. (Prop. 184, as approved by voters, Gen. Elec. (Nov. 8, 1994), § 2; former
In 2000, when Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, reclassified certain felonies as serious or violent, it addressed this issue by also adding sections 667.1 and 1170.125 to the Penal Code. These statutes provided that, with respect to offenses committed on or after the effective date of Proposition 21, references to existing statutes in the Three Strikes law were to the statutes as they existed on March 8, 2000, the effective date of Proposition 21. (Former
Subsequent amendments to sections 667.1 and 1170.125 also required, with respect to crimes committed on or after the effective date of the amendments, that the sentence be based on the law as of the effective date of the amendments. When the Legislature enacted the Sex Offender Punishment, Control, and Containment Act of 2006, it amended section 667.1 to provide that “for all offenses committed on or after the effective date of this act, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on the effective date of this act....” (Stats. 2006, ch. 337, § 29, p. 2634.) Similarly, when Proposition 36 reformed the Three Strikes law, it amended sections 667.1 and 1170.125 to provide that, for offenses committed on or after its effective date, references in the Three Strikes law to existing statutes were to the statutes as they existed on November 7, 2012, the effective date of Proposition 36.
As this history reflects, since the enactment of sections 667.1 and 1170.125, sentencing under the Three Strikes law has been based on the status of prior crimes as serious or violent felonies as of the date the current offense was committed. In addition, as Johnson notes, when section 1170.125 was amended by Proposition 36 to update the reference date to the effective date of the Act (Nov. 7, 2012), the amendment expressly referred to section
We begin with section 1170.125‘s reference to section 1170.126: “for all offenses committed on or after November 7, 2012 [(the effective date of Prop. 36)], all references to existing statutes in Sections 1170.12 and 1170.126 are to those sections as they existed on November 7, 2012.” (
Johnson contends that because section 1170.125 continues to require that the character of prior strikes be determined based on the date the current offense was committed and expressly refers to section 1170.126, the two sections should be read together to require a court considering a petition for resentencing under section 1170.126 to apply the law in effect at the time of the commission of the current offense. In particular, he contends that the description in section 1170.126, subdivision (a) of those persons to whom the resentencing provision is intended to apply—persons serving a third strike sentence “whose sentence under this act would not have been an indeterminate life sentence“—should be read to refer to those persons whose current sentence, when imposed, would not have been a third strike sentence under Proposition 36‘s provisions. He concludes that this interpretation “clarifies why section 1170.125 includes 1170.126 along with 1170.12. For both, the determination of whether a second strike sentence is applicable depends on the date of the commission of the offense being punished.”
As noted, however, section 1170.125 expressly applies only to offenses committed after the effective date of Proposition 36. It therefore does not apply to offenses for which resentencing is sought, as all offenses for which resentencing may be sought occurred prior to the effective date of Proposition 36. In addition, although the history of sections 667.1 and 1170.125 reflects that sentencing courts have historically been required to consider the law in effect at the time the current offenses were committed, the substantive effect of these statutes has been to base sentencing on the most
To resolve the ambiguity in the statutory language, we look to the Act as a whole and to legislative intent. First, the parallel structure of the Act‘s amendments to the sentencing provisions and the Act‘s resentencing provisions reflects an intent that sentences imposed on individuals with the same criminal history be the same, regardless of whether they are being sentenced or resentenced. Both the sentencing scheme and the resentencing scheme provide for a second strike sentence if the current offense is not a serious or violent felony, and they set forth identical exceptions to the new sentencing rules. (
To the extent the sentencing and resentencing provisions differ, the difference supports the conclusion that resentencing is not authorized in cases in which the current offense is now considered serious or violent. A court imposing a sentence for a felony that is neither serious nor violent must sentence the defendant in accordance with the second strike provisions unless an exception applies (
Second, interpreting the Act in a way that ignores the current classification of the character of the petitioner‘s crimes is inconsistent with the intent expressed in the arguments in support of Proposition 36. Those arguments reflect an intent to “make the punishment fit the crime” and “make room in prison for dangerous felons.” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) argument in favor of Prop. 36, p. 52, capitalization omitted (Voter Information Guide).) Given that petitioner‘s current crimes are now considered serious and violent, the intent reflected in the ballot arguments to “keep violent felons off the streets” (ibid.) and “prevent[] dangerous criminals from being released early” (id., rebuttal to argument against Prop. 36, p. 53) would not be served by interpreting the Act to authorize a reduction in his sentence.
Johnson, however, reads the ballot materials to indicate that resentencing would be allowed if a person‘s current offense was not a serious or violent felony at the time it was committed. He cites the statement in the Attorney General‘s summary that Proposition 36 “[a]uthorizes re-sentencing for offenders currently serving life sentences if third strike conviction was not serious or violent . . . .” (Voter Information Guide, supra, official title and summary of Prop. 36, p. 48, italics added.) However, the ballot materials also included the Legislative Analyst‘s statement that “[t]he measure limits eligibility for resentencing to third strikers whose current offense is nonserious [and] non-violent . . . .” (Id., analysis of Prop. 36 by Legis. Analyst, p. 50, italics added.) Thus, the verb tense used in the Attorney General‘s summary does not alter our conclusion.
In summary, the use of the present tense in the provisions describing the nature of the current conviction reflects an intent that the nature of the current conviction as serious or violent is based on its characterization as of the date of resentencing. In addition, the parallel structure of the Act‘s sentencing and resentencing provisions appears to contemplate identical sentences in connection with identical criminal histories, unless the trial court concludes that resentencing would pose an unreasonable risk to public safety. Finally, interpreting the scheme to allow resentencing despite the current classification of the offense as serious or violent is not supported by the arguments set forth in the Voter Information Guide. For these reasons, we hold that for purposes of resentencing under section 1170.126, the classification of the current offense as serious or violent is based on the law as of November 7, 2012, the effective date of Proposition 36.
C. Is an inmate who is serving an indeterminate life sentence for a serious or violent felony eligible to petition for recall of an indeterminate sentence for a felony that is neither serious nor violent?
As noted above, one of Machado‘s two indeterminate sentences was imposed for first degree burglary, a serious felony, and one was imposed for second degree burglary, a felony that is not classified as serious or violent (
In support of their view that resentencing is allowed only if all of a prisoner‘s current offenses are neither serious nor violent, the People rely principally on subdivision (a) of section 1170.126, which states that the resentencing provisions “are intended to apply exclusively to persons presently serving an indeterminate term of imprisonment pursuant to [the third strike sentencing requirements], whose sentence under this act would not have been an indeterminate life sentence.” (
“Sentence” is not defined in either the Penal Code or in the Act. In the context of the Three Strikes law, we have referred to both the term imposed for a single crime and to the aggregate term imposed for multiple crimes as a “sentence.” (See People v. Williams (2004) 34 Cal.4th 397, 400–401 [19 Cal.Rptr.3d 619, 98 P.3d 876] [referring to three concurrent “sentences” plus enhancements for prior convictions as an “aggregate sentence,” which ran consecutively to a sentence in another case, resulting in “an overall net sentence“]; People v. Garcia (1999) 20 Cal.4th 490, 495 [85 Cal.Rptr.2d 280, 976 P.2d 831] (Garcia) [referring to the “sentence” with respect to a single crime and to the “total sentence“].) Thus, “sentence” is ambiguous.
Historically, sentencing under the Three Strikes law has focused on the sentence to be imposed with respect to each count individually, as illustrated by our cases addressing the trial court‘s authority to dismiss prior strikes. (See Romero, supra, 13 Cal.4th 497 [Three Strikes law did not deprive trial courts of their authority under
Subsequently, in Garcia, supra, 20 Cal.4th 490, we held that a trial court may exercise its discretion to dismiss a prior conviction allegation with respect to fewer than all counts. We noted that when a court dismisses a prior conviction allegation for purposes of sentencing, the action does not negate the conviction. Therefore, “a court might strike a prior conviction allegation in one context, but use it in another.” (Id. at p. 496.) We could “discern no reason for applying [this principle] differently simply because two convictions are part of a single proceeding rather than two different proceedings. Such a distinction finds no support in logic, the language of section 1385, or any decision interpreting that section.” (Id. at p. 499.)
We found additional support for our holding in the standards we set forth in Williams, supra, 17 Cal.4th 148, in which “we instructed trial courts to consider among other things, ’ “individualized considerations” ’ [citation] ‘such as the nature and circumstances of the defendant‘s present felonies’ and his ‘prospects.’ [Citation.] In many cases, ‘the nature and circumstances’ of the various felonies described in different counts will differ considerably. A court might therefore be justified in striking prior conviction allegations with respect to a relatively minor current felony, while considering those prior convictions with respect to a serious or violent current felony.” (Garcia, supra, 20 Cal.4th at p. 499.) In response to the Attorney General‘s contention that there is no basis for treating similar crimes differently, we noted that “[e]ven if the current offenses are virtually identical, a defendant‘s ‘prospects’ [citation] will differ greatly from one count to another because a Three Strikes sentence on one count will itself radically alter those prospects.” (Id. at p. 500.) As an example, we noted that once the defendant in Garcia received a term of 30 years to life on one of his burglary convictions, “his ‘prospects’ for committing future burglaries diminished significantly.” (Ibid.) Not only is the defendant‘s sentence “a relevant consideration when deciding whether to strike a prior conviction allegation[,] it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences.” (Ibid.)
Against this background, the voters approved Proposition 36‘s revisions to the Three Strikes law. The Act amended the law to provide that if a defendant has two or more prior strikes, “and the current offense is not a serious or violent felony . . . , the defendant shall be sentenced pursuant to [the second
Proposition 36‘s focus on individual counts in its sentencing revisions is consistent with the historical approach to sentencing under the Three Strikes law. In addition, the Act‘s more lenient sentencing with respect to felonies that are neither serious nor violent, despite a conviction of a serious or violent felony, reflects recognition of the fact that when a defendant has received an indeterminate life term on one count, the defendant‘s prospects for committing additional crimes is diminished significantly. (See Garcia, supra, 20 Cal.4th at p. 500.) Finally, its focus on individual counts avoids the possibility that a defendant‘s sentence will depend on whether his or her counts are tried together or adjudicated in separate proceedings. As we observed in Garcia, there is “no reason for applying [different sentencing rules] simply because two convictions are part of a single proceeding rather than two different proceedings.” (Id. at p. 499.)
A count-by-count approach to sentencing is also consistent with representations made to voters in support of the initiative. By focusing on each count, the amendments “make the punishment fit the crime.” (Voter Information Guide, supra, argument in favor of Prop. 36, p. 52, capitalization omitted.) This approach also provides that “[r]epeat criminals will get life in prison for serious or violent third strike crimes,” and “[r]epeat offenders of non-violent crimes will get more than double the ordinary sentence.” (Ibid.) Because a person convicted of a serious or violent felony will receive a minimum sentence of 25 years to life for that offense (
A contrary approach in the context of resentencing would constitute a significant difference between the two schemes, but there is no mention of such a distinction in the election materials. Also, except for the resentencing statute‘s provision granting the trial court authority to deny resentencing if reducing the sentence would pose a danger to the public, the resentencing statute‘s exceptions to the new sentencing rules are the same factors that exclude a defendant from being sentenced pursuant to Proposition 36‘s more lenient provisions. (
Rather than viewing the resentencing provisions in light of the historical approach to sentencing and in the context of the entire Three Strikes law, the People seek support for their position in other ambiguous language in section 1170.126. First, they cite subdivision (d), which states that the petition “shall specify all of the currently charged felonies, which resulted in the sentence under [the third strike sentencing provisions], and shall also specify all of the prior convictions alleged and proved . . . .” (
With respect to the purpose of subdivision (d) of section 1170.126, the People assert that the list of current felonies allows the trial court to determine whether there are any serious or violent felonies, the presence of which will disqualify an inmate from resentencing. In our view, a more reasonable explanation for the information required to be set forth in the petition is found by considering what has been proved and what remains to be proved. In prosecutions for felonies committed after Proposition 36 was enacted, the prosecutor will prove charged felonies, prior strikes, and, if the defendant has at least two prior strikes, any of the exceptions to second strike sentencing that may apply with respect to felonies that are neither serious nor violent. (
The People also rely on the references to “felony or felonies” in subdivision (b) of section 1170.126, which describes who may request resentencing— “[a]ny person serving an indeterminate term of life imprisonment imposed pursuant to [the Three Strikes sentencing requirements] upon conviction . . .
The People also assert that the three parts of subdivision (e) of section 1170.126 can be harmonized only by interpreting subdivision (e)(1) to render an inmate ineligible for resentencing if any current offense is serious or violent. Subdivision (e)(1) sets forth the requirement that the “felony or felonies” be neither serious nor violent; subdivision (e)(2) incorporates from the revised sentencing provisions of sections 667 and 1170.12 the list of current offenses and various circumstances (quantities of drugs, use of or arming with a firearm, and intent to inflict great bodily injury) that are exceptions to the new sentencing rules; and section 1170.126, subdivision (e)(3) incorporates from sections 667 and 1170.12 the list of super strikes that disqualify a defendant from being sentenced in accordance with the new sentencing rules. (See ante, fns. 2, 3.) The People assert that the presence of any of the exceptions set forth in section 1170.126, subdivision (e)(2) and (3) disqualifies an inmate from resentencing on all counts, so the presence of any serious or violent felony should likewise disqualify an inmate from resentencing on all counts.
Clearly, if an inmate‘s prior convictions include any of the super strikes that are incorporated into section 1170.126, subdivision (e)(3), he or she will be disqualified from the resentencing provisions, because a prior offense is present as to each current offense. But the People fail to establish that if any of an inmate‘s current offenses is among the exceptions incorporated into section 1170.126, subdivision (e)(2), the inmate is ineligible for resentencing as to all current offenses. Subdivision (e)(2) sets forth as a condition for resentencing that “[t]he inmate‘s current sentence was not imposed for any of the offenses” set forth in the new sentencing provisions’ list of current offenses that disqualify a defendant from the revised sentencing rules. (
In support of their position, the People also cite an anomaly that results if resentencing is allowed on a count-by-count basis. If one of an inmate‘s current offenses is among the super strikes—those offenses that would disqualify the inmate from resentencing if it were a prior conviction— resentencing will be allowed with respect to counts that are neither serious nor violent despite the fact that resentencing would not be allowed if that super strike offense were a prior offense instead of a current offense. This anomaly, however, is present in the initial sentencing provisions as well (
In sum, section 1170.126 is ambiguous as to whether a current offense that is serious or violent disqualifies an inmate from resentencing with respect to another count that is neither serious nor violent. Considering section 1170.126 in the context of the history of sentencing under the Three
III. CONCLUSION
In People v. Johnson (S219454), we hold that for purposes of resentencing under section 1170.126, the characterization of the current offense as serious or violent is based on the law as of the effective date of Proposition 36, November 7, 2012. In People v. Machado (S219819), we hold that an inmate is eligible for resentencing with respect to a current offense that is neither serious nor violent despite the presence of another current offense that is serious or violent. Therefore, we affirm the judgment of the Court of Appeal in each case.
Werdegar, J., Chin, J., Corrigan, J., Liu, J., Cuéllar, J., and Kruger, J., concurred.
The petition of appellant Timothy Wayne Johnson for a rehearing was denied August 12, 2015.
Notes
The specified current sex offenses are unlawful sexual intercourse with a minor under 16 years of age by a person 21 years of age or older (