THE PEOPLE, Plaintiff and Respondent, v. DAVID JOHN VALENCIA, Defendant and Appellant.
F067946
(Super. Ct. No. CRF30714)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 12/16/14
Eleanor Provost, Judge.
APPEAL from a judgment of the Superior Court of Tuolumne County. Eleanor Provost, Judge.
Stephanie L. Gunther for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
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The Three Strikes Reform Act of 2012 (hereafter Proposition 36 or the Act) created a postconviction release proceeding for third strike offenders serving indeterminate life sentences for crimes that are not serious or violent felonies. If such an inmate meets the criteria enumerated in
After the Act went into effect, DAVID JOHN VALENCIA (defendant), an inmate serving a term of 25 years to life following conviction of a felony that was not violent (as defined by
We conclude the trial court did not abuse its discretion by denying the petition. In the unpublished portion of our opinion, we reject defendant‘s claims the trial court used the wrong standard, failed to properly evaluate whether defendant posed an unreasonable risk to society, and had to appoint an expert to evaluate defendant regarding current dangerousness; and his claim the prosecution did not meet its burden of establishing dangerousness; his claim his sentence of 25 years to life constitutes cruel and unusual punishment; and his claim the errors violated his right to due process. In the published portion, we conclude recently enacted
On September 13, 2009, neighbors heard an argument between defendant and his wife, Carrie Kobel. They were yelling and screaming and Kobel was crying.2 Kobel was then seen coming down her driveway, with defendant following. Defendant pushed Kobel, causing her to fall to the ground, then punched her multiple times. When Kobel, who was screaming for help, asked witnesses to call the police, defendant told them to mind their own business and became aggressive and intimidating toward them. When the police arrived, Kobel related she and defendant had gotten into an argument when she went to move her truck into the driveway so friends coming over would have a place to park. Kobel‘s driver‘s license had been suspended due to a vehicle accident in which she had been under the influence of alcohol. Defendant objected to her driving because the couple had been drinking and he thought she was going to leave. Kobel told him she was only moving the truck, but when she went to do so, defendant hit her in the back of the head. Defendant denied there had been a fight; he said Kobel was intoxicated and attempting to leave, and he was only trying to stop her. Although he denied hitting Kobel, injuries to his knuckles were inconsistent with that claim. Kobel was treated for a laceration on her head that was closed with staples.
At trial, a woman who had been in a relationship with defendant in 2000 testified defendant had assaulted her by hitting her “full force” with his fist between her temple and ear. She suffered a ruptured eardrum from the incident.
On December 2, 2009, a jury convicted defendant of felony spousal abuse (
In his reply to the opposition, defendant noted his commitment offense was not for a serious or violent felony, so if he were sentenced now, the court would not have the option of sentencing him to 25 years to life; the prosecutor offered him a six-year sentence prior to trial; and the commitment offense involved him “wrestl[ing]” with his wife in an attempt to stop her from driving because she was intoxicated. Defendant argued the People had the burden of establishing he was an unreasonable risk to public safety, and his crimes from a decade earlier were insufficient. He noted he had not had any further convictions while incarcerated, and asserted his prison record did not demonstrate patterns of violent and predatory behavior.
The petition was heard August 9, 2013, before the judge who sentenced defendant to the third strike term.6 At the outset, the court found defendant eligible for resentencing, and placed the burden on the People with respect to whether resentencing
The defense called witnesses at the hearing. Defendant‘s mother testified she had not seen defendant during his most recent prison stay until the Sunday before the hearing, as she was partially disabled and unable to travel, although they communicated by letter and sporadically by telephone. Since defendant was no longer under the influence of alcohol, his mother noticed his attitude was changing. He had apologized for being such a disappointment. If defendant were released from prison, he would be able to live with his parents in Sonora.
Defendant testified he had been in prison this last time almost four years, and he had two prior prison terms.7 During his current term, he had no disciplinary actions. During his previous terms, he had one write-up for brewing alcohol. Defendant related that during his current prison term, he was in AA and had been taking a mail-order course on anger management and learning how to live a better life. Due to overcrowding, he was “in reception” for 28 months, where nothing was offered. Now, however, he attended AA meetings once a week. The mail-order course, which he only recently discovered, involved a curriculum where the school sent information, the student completed and returned it, and the school gave a score. Defendant had done the first six lessons. He did not know how many were left before he received his certificate. He started both AA and the mail-order course around April 2013.
Prior to trial, defendant was offered a six-year sentence. He turned it down because his wife said she bumped her head when she got in the truck. Defendant did not remember much about the day the incident happened, but knew he stopped her from drinking and driving. He did not make the right decisions, but was under the impression he had some type of reduced culpability.
If defendant were released from prison, he planned to enter a residential program such as the Salvation Army or Delancey Street, so he could learn to change his life. Both were one- or two-year programs. Defendant represented he was accepted into Delancey Street earlier, and had been accepted into the Salvation Army program since he had been in prison.
Defendant apologized for what he had done and stated he had learned his lesson. He professed a desire to change his life. He stated he was ready to change his life and be sober.
At the conclusion of the hearing, defense counsel argued that anyone with strike priors would have a history like defendant, so something more was needed to show he would pose an unreasonable risk of danger. Counsel argued the strikes were 17 and 18 years old, and the felony before the commitment offense was nine years earlier. Counsel pointed to defendant‘s lack of in-prison disciplinary record, and noted that if the current case occurred now, defendant‘s maximum sentence would be eight years. Counsel argued defendant wanted to change his life and was going to go into a program. Given all the circumstances, he asserted, the People had not met their burden of showing defendant was an unreasonable risk.
This ensued:
“THE COURT: ... My concern is not whether today he would be facing the same charges.... I spent probably the last month almost thinking about it ..., because ... this does kind of make me think about, did I make a mistake in that sentence?
“I was well aware of Romero8 when I sentenced him. I knew I could strike a strike. I have struck prior strikes as the DA‘s Office knows....
“I think that Prop. 36 was based on the idea that judges would be sentencing people to prison ... for like a billy club when you are a two striker. They were for thefts when you were a two striker. They were for drugs, possession and even transportation and maybe even possession with intent to sell. All of those would have been the kind of things I think that the public was looking at. It‘s hard for me to think that they intended somebody ... who I do believe is dangerous to be out again. I can‘t think of a better predictor of future conduct than past conduct.
“And as [the prosecutor] points out, what you do in prison really doesn‘t have a whole lot to do with what you do when you‘re outside there
and you have access to drugs and alcohol. In this case, primarily alcohol, I think. I picture the idea of his coming home and living on Stewart Street and there are bars within a block. [¶] ... [¶]
“THE DEFENDANT: I won‘t come back to Sonora. I‘ll go to Delancey Street. My wife‘s bipolar. I‘m done with domestic violence and I‘m done with drinking. I‘m ready to change my life. You guys got me scared straight.
“THE COURT: But we‘ve heard that before. [¶] ... [¶] ... You had a previous alcohol program; did you not? What did you do that time?
“THE DEFENDANT: Stole a bottle —
“THE COURT: But you did a program for alcohol?
“THE DEFENDANT: Yeah.
“THE COURT: How long of a program?
“THE DEFENDANT: I don‘t know. Like, I was in AA and stuff for a year and I stayed sober the whole time. It‘s when I stopped participating in recovery that —
“THE COURT: Then you did a fifty-two week domestic violence program, yet we still have this offense with very serious — I think any time you have sutures, that‘s a big deal. Most people can be hit ... without requiring sutures. This was serious.
“THE DEFENDANT: Yeah. But see —
“THE COURT: I cannot bring myself to do this. I think he is a danger to public safety. And as I said during the sentencing, he had nine grants of probation and was on probation when this happened. It was for something fairly minor.... [¶] ... [¶] ... But this was serious injuries to a victim and unprovoked. I just thought unprovoked. I could not and the jury could not buy the idea that you had to do something and that it was absolutely necessary for you to clobber on her to make her not drive. That was just pure nonsense and I thought so at the time and obviously the jury did too. [¶] ... [¶] ... I cannot grant this. I just feel that he is a danger. He is an unreasonable risk to public safety. And, in particular, to the women he‘s around. I just can‘t do this.
“So I‘m going to deny the petition.... [¶] ... [¶]
“THE DEFENDANT: I will be appealing this then. I have a right to an appeal .... [¶] ... [¶] ... I went to trial, so this new law will attach to it, so I would like for you to file a Notice of Appeal. [¶] ... [¶] ... Because I can show it‘s more likely than not that the Court would have accepted my plea, so it‘s not really genuine that you believe I‘m a risk to public safety, because you — the other three strikers with the same case would take deals. [¶] ... [¶] ... I‘m not a risk to public safety. This is not right.”
DISCUSSION
Defendant says the trial court erred by denying his petition because (1) the court used the wrong standard, (2) the court failed to properly evaluate whether defendant posed an unreasonable risk to society, (3) the prosecution failed to meet its burden of establishing dangerousness by a preponderance of the evidence, (4) the prosecution failed to meet its burden of establishing some evidence that defendant currently posed an unreasonable risk, and (5) the court should have sua sponte appointed an expert to evaluate defendant with respect to current dangerousness. Defendant further contends a sentence of 25 years to life constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, and that the various errors violated his due process rights. Finally, defendant contends the definition of “unreasonable risk of danger to public safety” contained in
I*
The trial court did not err by denying defendant‘s petition.
In order to be eligible for resentencing as a second strike offender under the Act, the inmate petitioner must satisfy the three criteria set out in subdivision (e) of
The plain language of subdivisions (f) and (g) of
“Because ‘all discretionary authority is contextual’ [citation], we cannot determine whether a trial court has acted irrationally or arbitrarily ... without considering the legal principles and policies that should have guided the court‘s actions.” (People v. Carmony, supra, 33 Cal.4th at p. 377.) “An abuse of discretion is shown when the trial court applies the wrong legal standard. [Citation.]” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.)
Under the clear language of
Division Three of the Second District Court of Appeal has stated that, where a court‘s discretion under
We agree with Kaulick that the applicable standard is preponderance of the evidence.10 This does not mean, however, that the trial court must apply that standard in making its ultimate determination whether to resentence a petitioner, or we must review that determination for substantial evidence.11 Nor does it mean evidence of dangerousness must preponderate over evidence of rehabilitation in order for resentencing to be denied. Instead, taking into account the language of subdivisions (f) and (g) of
Such an interpretation is consistent with California‘s noncapital sentencing scheme.13 Under the determinate sentencing law (DSL) as it existed prior to Cunningham v. California (2007) 549 U.S. 270 (Cunningham), “three terms of imprisonment [were] specified by statute for most offenses. The trial court‘s discretion in selecting among [those] options [was] limited by
In People v. Sandoval (2007) 41 Cal.4th 825, 850-851, the California Supreme Court stated that, in making its discretionary sentencing choices post-Cunningham, “the trial court need only ‘state [its] reasons’ [citation]; it is not required to identify aggravating and mitigating factors, apply a preponderance of the evidence standard, or specify the ‘ultimate facts’ that ‘justify[] the term selected.’ [Citations.] Rather, the court must ‘state in simple language the primary factor or factors that support the exercise of discretion.’ [Citation.]” (Italics added.)
We do not read the foregoing statement as suggesting the People bear no burden in a proceeding to determine whether a petitioner should be resentenced under the Act. Subdivision (g) of
Kaulick found the prosecution bears the burden of establishing “dangerousness” by a preponderance of the evidence against a claim the Apprendi line of cases requires proof beyond a reasonable doubt. (Kaulick, supra, 215 Cal.App.4th at pp. 1301-1302.) As a result, it had no real occasion to address the interplay between the burden of proof and the trial court‘s exercise of discretion as that issue is presented here, or to clarify whether the prosecution is required to establish “dangerousness” in the sense of facts upon which the trial court may base the ultimate determination resentencing a petitioner would pose an unreasonable risk of danger to public safety, or in the sense of establishing that determination itself. Nevertheless, we believe it supports our interpretation. Kaulick stated, in part: “The maximum sentence to which Kaulick, and those similarly situated to him, is subject was, and shall always be, the indeterminate life term to which he was originally sentenced. While [the Act] presents him with an opportunity to be resentenced to a lesser term, unless certain facts are established, he is nonetheless still subject to the third strike sentence based on the facts established at the time he was originally sentenced. As such, a court‘s discretionary decision to decline to modify the sentence in his favor can be based on any otherwise appropriate factor (i.e., dangerousness), and such factor need not be established by proof beyond a reasonable doubt to a jury.” (Id. at p. 1303, italics added.) The court further stated: “[I]t is the general rule in California
Finally, Kaulick rejected the suggestion a trial court could determine resentencing a petitioner would pose an unreasonable risk of danger to public safety, yet still have the discretion to resentence that petitioner to a second strike term. (Kaulick, supra, 215 Cal.App.4th at pp. 1293-1294, fn. 12.) The court explained: “The language of ... section 1170.126, subdivision (f), states that the petitioner shall be resentenced unless the court finds an unreasonable risk of danger. It does not state that if the court finds an unreasonable risk of danger, it can nonetheless resentence the petitioner. In any event, the ballot arguments in support of Proposition 36 emphasized that the Act would not benefit ‘“truly dangerous criminals.“’ [Citation.] It is impossible to believe that the voters intended to allow a court the discretion to resentence defendants whose resentencing that court had already found would present an unreasonable risk of danger.” (Ibid.)
We concur with Kaulick‘s rejection of the argument. Nevertheless, it seems to us that if the prosecution had the burden of proving the ultimate issue in a resentencing proceeding, a trial court necessarily would be divested of its discretion to resentence in any case in which that burden of proof was met. Yet the language of
To summarize, a trial court need not determine, by a preponderance of the evidence, that resentencing a petitioner would pose an unreasonable risk of danger to public safety before it can properly deny a petition for resentencing under the Act. Nor is the court‘s ultimate determination subject to substantial evidence review. Rather, its
Applying these principles to the present case, and examining the record as a whole, rather than cherry-picked fragments, it is readily apparent the trial court did not err by denying defendant‘s petition. We generally presume a trial court has properly followed established law. Although this presumption does not apply where the law was unclear or uncertain when the lower court acted (People v. Diaz (1992) 3 Cal.4th 495, 567), Kaulick was decided several months before the sentencing court ruled on defendant‘s petition. Moreover, the parties’ pleadings and arguments, and the court‘s own comments (either at the hearing itself or on one of the occasions when the matter
Contrary to defendant‘s claim, the manner in which the court mentioned its prior Romero ruling does not suggest it mistook its broad authority to resentence defendant under
Defendant says the prosecution failed to meet its burden of establishing dangerousness by a preponderance of the evidence. He apparently bases this on the fact he presented witnesses while the People did not. The prosecutor adduced evidence through his cross-examination of defendant and defendant‘s mother, however, and was entitled to rely on information (such as defendant‘s criminal history, the circumstances of the commitment offense, and defendant‘s presently belated and previously unsuccessful
Apparently analogizing a resentencing proceeding under the Act to a parole proceeding for an inmate serving a life term (see
Defendant cites
However, “[t]he decision on the need for the appointment of an expert lies within the discretion of the trial court and the trial court‘s decision will not be set aside absent an abuse of that discretion. [Citations.]” (People v. Gaglione (1994) 26 Cal.App.4th 1291, 1304, disapproved on other grounds in People v. Martinez (1995) 11 Cal.4th 434, 452 & People v. Levesque (1995) 35 Cal.App.4th 530, 539; accord, People v. Vatelli (1971) 15 Cal.App.3d 54, 61; see In re Eric A. (1999) 73 Cal.App.4th 1390, 1394, fn. 4.) Whatever the similarities between the decisions whether to resentence under the Act and to grant parole to an inmate serving a life term, appointment of an expert did not fall outside the bounds of reason in this case. The question before the court was whether resentencing defendant would pose an unreasonable risk of danger to public safety. Given the information already before the court, the court could make the required determination itself, without the input of an expert. As has been stated in the context of a claim the word “unreasonable” is impermissibly vague, “Surely a superior court judge is capable of exercising discretion, justly applying the public safety exception, and determining whether a lesser sentence would pose an unreasonable risk of harm to the public safety. [Citation.]” (People v. Flores, supra, 227 Cal.App.4th at p. 1075.)19
Defendant next contends his sentence of 25 years to life constitutes cruel and unusual punishment as prohibited by the Eighth Amendment to the United States Constitution. We question whether this issue is properly before us, since the trial court did not impose sentence, but merely left intact a sentence we already concluded was constitutional. (People v. Valencia, supra, F059244.)
In any event, for the reasons we cited in People v. Ingram (1995) 40 Cal.App.4th 1397, 1412-1416, disapproved on another ground in People v. Dotson (1997) 16 Cal.4th 547, 560, footnote 8, defendant‘s history of habitual criminal behavior renders his claim meritless. It is not the current charge that qualifies defendant for this term, but rather his history as a repeat offender. “[H]abitual offender statutes have long withstood the constitutional claim of cruel or unusual punishment. [Citations.]” (Ingram, at p. 1413.) Defendant has proven he holds little regard for the law and is immune to resultant punishments for his conduct. In this instance, “it becomes the duty of government to seek some other method to curb his criminal propensities that he might not continue to further inflict himself upon law-abiding members of society. This, we think, may be done even to the extent of depriving him permanently of his liberty.…” (In re Rosencrantz (1928) 205 Cal. 534, 539.)
Defendant appears to base his claim on the premise that because now an offender in his position would be sentenced to no more than eight years for violating
“The sentence imposed for a violation of … section 273.5 for any other defendant in any jurisdiction in California is not the same as [defendant‘s] sentence. [Defendant] was sentenced to an indeterminate sentence while any other defendant would be sentenced to no more than eight years.”
Defendant‘s premise is faulty. Any third strike offender convicted of violating
Last, defendant contends the various errors committed by the trial court in the
We have rejected all defendant‘s claims of error and cruel and unusual punishment. To the extent defendant may be arguing
II
Section 1170.18, subdivision (c), enacted pursuant to Proposition 47, does not modify section 1170.126, subdivision (f).
On November 4, 2014, voters enacted Proposition 47, “the Safe Neighborhoods and Schools Act” (hereafter Proposition 47). It went into effect the next day. (
Hidden in the lengthy, fairly abstruse text of the proposed law, as presented in the official ballot pamphlet — and nowhere called to voters’ attention — is the provision at issue in the present appeal.
“(I) A ‘sexually violent offense’ as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions Code .“(II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by
Section 288a , sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined bySection 286 , or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined bySection 289 .“(III) A lewd or lascivious act involving a child under 14 years of age, in violation of
Section 288 .“(IV) Any homicide offense, including any attempted homicide offense, defined in
Sections 187 to191.5 , inclusive.“(V) Solicitation to commit murder as defined in
Section 653f .“(VI) Assault with a machine gun on a peace officer or firefighter, as defined in
paragraph (3) of subdivision (d) of Section 245 .
“(VII) Possession of a weapon of mass destruction, as defined in
paragraph (1) of subdivision (a) of Section 11418 .“(VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.”
The question is whether
“‘In interpreting a voter initiative …, we apply the same principles that govern statutory construction. [Citation.]’ [Citation.] ‘“The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.]”’ [Citation.]” (People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1014.) Thus, in the case of a provision adopted by the voters, “their intent governs. [Citations.]” (People v. Jones (1993) 5 Cal.4th 1142, 1146.)
To determine intent, “‘we look first to the words themselves. [Citations.]‘” (People v. Superior Court (Cervantes), supra, 225 Cal.App.4th at p. 1014.) We give the statute‘s words “‘a plain and commonsense meaning. [Citation.] We do not, however, consider the statutory language “in isolation.” [Citation.] Rather, we look to “the entire substance of the statute … in order to determine the scope and purpose of the provision …. [Citation.]” [Citation.] That is, we construe the words in question “‘in context, keeping in mind the nature and obvious purpose of the statute ….’ [Citation.]” [Citation.] We must harmonize “the various parts of a statutory enactment … by considering the particular clause or section in the context of the statutory framework as a whole.” [Citations.]’ [Citation.]” (People v. Acosta (2002) 29 Cal.4th 105, 112.) We “accord[] significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided.… [S]tatutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.]” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.)
“‘“When statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it.” [Citation.]’ [Citation.]” (People v. Hendrix (1997) 16 Cal.4th 508, 512.) On its face, “[a]s used throughout this Code,” as employed in
This does not mean, however, that the definition contained in
Thus, “‘we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]’ [Citation.] We also ‘“refer to other indicia of the voters’ intent, particularly the analyses and arguments contained in the official ballot pamphlet.” [Citation.]’ [Citation.]” (People v. Osuna, supra, 225 Cal.App.4th at p. 1034.) We consider “the consequences that will flow from a particular interpretation” (Dyna-Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at p. 1387), as well as “the wider historical circumstances” of the statute‘s or statutes’ enactment (ibid.). “‘Using
Proposition 47 and the Act address related, but not identical, subjects. As we explain, reading them together, and considering
As is evidenced by its title, the Act was aimed solely at revising the three strikes law. That law, as originally enacted by the Legislature, was described by us as follows:
“Under the three strikes law, defendants are punished not just for their current offense but for their recidivism. Recidivism in the commission of multiple felonies poses a danger to society justifying the imposition of longer sentences for subsequent offenses. [Citation.] The primary goals of recidivist statutes are: ‘… to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person‘s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.’ [Citation.]
“By enacting the three strikes law, the Legislature acknowledged the will of Californians that the goals of retribution, deterrence, and incapacitation be given precedence in determining the appropriate punishment for crimes. Further, those goals were best achieved by ensuring ‘longer prison sentences and greater punishment’ for second and third ‘strikers.’” (People v. Cooper (1996) 43 Cal.App.4th 815, 823-824.)23
A few months before the November 6, 2012, election, the California Supreme Court observed: “One aspect of the [three strikes] law that has proven controversial is that the lengthy punishment prescribed by the law may be imposed not only when … a defendant [who has previously been convicted of one or more serious or violent felonies] is convicted of another serious or violent felony but also when he or she is convicted of any offense that is categorized under California law as a felony. This is so even when the current, so-called triggering, offense is nonviolent and may be widely perceived as relatively minor. [Citations.]” (In re Coley (2012) 55 Cal.4th 524, 528-529.)
Clearly, by approving the Act, voters resolved this controversy in favor of strike offenders. Thus, one of the “Findings and Declarations” of the Act stated the Act would “[r]estore the Three Strikes law to the public‘s original understanding by requiring life sentences only when a defendant‘s current conviction is for a violent or serious crime.” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of proposed law, § 1, p. 105.) Nowhere, however, do the ballot materials for the Act suggest voters intended essentially to open the prison doors to existing third strike offenders in all but the most egregious cases, as would be the result if the definition of “‘unreasonable risk of danger to public
The Act clearly placed public safety above the cost savings likely to accrue as a result of its enactment. Thus, uncodified section 7 of the Act provides: “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. (Nov. 6, 2012), supra, text of proposed law, p. 110, original italics omitted, italics added.) As we explained in People v. Osuna, supra, 225 Cal.App.4th at page 1036, “Although the Act ‘diluted’ the three strikes law somewhat [citation], ‘[e]nhancing public safety was a key purpose of the Act’ [citation].”
In contrast, Proposition 47 — while titled “the Safe Neighborhoods and Schools Act” — emphasized monetary savings. The “Findings and Declarations” state: “The people of the State of California find and declare as follows: [¶] The people enact the Safe Neighborhoods and Schools Act to ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K-12 schools, victim services, and mental health and drug treatment. This act ensures that sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of proposed law, § 2, p. 70.) Uncodified section 15 of the measure provides: “This act
Nowhere in the ballot materials for Proposition 47 were voters given any indication that initiative, which dealt with offenders whose current convictions would now be misdemeanors rather than felonies, had any impact on the Act, which dealt with offenders whose current convictions would still be felonies, albeit not third strikes. For instance, the Official Title and Summary stated, in pertinent part, that Proposition 47 would “[r]equire[] resentencing for persons serving felony sentences for these offenses[, i.e., offenses that require misdemeanor sentences under the measure] unless court finds unreasonable public safety risk.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, official title and summary, p. 34.) In explaining what Proposition 47 would do, the Legislative Analyst stated: “This measure reduces penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes. This measure also allows certain offenders who have been previously convicted of such crimes to apply for reduced sentences.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, analysis of Prop. 47 by Legis. Analyst, p. 35, italics added.) With respect to the resentencing provision, the Legislative Analyst explained:
“This measure allows offenders currently serving felony sentences for the above crimes[, i.e., grand theft, shoplifting, receiving stolen property, writing bad checks, check forgery, and drug possession] to apply to have their felony sentences reduced to misdemeanor sentences. In addition, certain offenders who have already completed a sentence for a felony that the measure changes could apply to the court to have their felony conviction changed to a misdemeanor. However, no offender who has committed a specified severe crime could be resentenced or have their conviction changed. In addition, the measure states that a court is not required to resentence an offender currently serving a felony sentence if the court finds it likely that the offender will commit a specified severe crime. Offenders who are resentenced would be required to be on state parole for one year, unless the judge chooses to remove that requirement.” (Id. at p. 36, italics added.)
Similarly, the arguments in favor of and against Proposition 47 spoke in terms solely of Proposition 47, and never mentioned the Act. The Argument in Favor of Proposition 47 spoke in terms of prioritizing serious and violent crime so as to stop wasting prison space “on petty crimes,” stop “wasting money on warehousing people in prisons for nonviolent petty crimes,” and stop California‘s overcrowded prisons from “incarcerating too many people convicted of low-level, nonviolent offenses.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, argument in favor of Prop. 47, p. 38.) The Rebuttal to Argument Against Proposition 47 reiterated these themes, and never suggested Proposition 47 would have any effect on resentencing under the Act. (See Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, rebuttal to argument against Prop. 47, p. 39.) Although the Rebuttal to Argument in Favor of Proposition 47 asserted 10,000 inmates would be eligible for early release under the measure, and that many of them had prior convictions “for serious crimes, such as assault, robbery and home burglary” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), supra, rebuttal to argument in favor of Prop. 47, p. 38), there is no suggestion the early release provisions would extend to inmates whose current offenses remained felonies under the Act. The same is true of the discussion of resentencing contained in the Argument Against
In light of the foregoing, we cannot reasonably conclude voters intended the definition of “‘unreasonable risk of danger to public safety’” contained in
We are cognizant one of the Act‘s authors has taken the position Proposition 47‘s definition of “unreasonable risk of danger” applies to resentencing proceedings under the Act. (St. John & Gerber, Prop. 47 Jolts Landscape of California Justice System (Nov. 5, 2014) Los Angeles Times <http://www.latimes.com/local/politics/la-me-ff-pol proposition47-20141106-story.html> [as of Dec. 16, 2014].) Looking at the information conveyed to voters, however, this clearly was not their intent and so an author‘s desire is of no import. (Cf. People v. Garcia (2002) 28 Cal.4th 1166, 1175-1176, fn. 5; People v. Bradley (2012) 208 Cal.App.4th 64, 83; Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 30.)
We are also mindful “it has long been settled that ‘[t]he enacting body is deemed to be aware of existing laws and judicial constructions in effect at the time legislation is enacted’ [citation], ‘and to have enacted or amended a statute in light thereof’ [citation]. ‘This principle applies to legislation enacted by initiative. [Citation.]’ [Citation.]” (People v. Superior Court (Cervantes), supra, 225 Cal.App.4th at p. 1015; accord, In re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11.) Thus, we presume voters were aware “unreasonable risk of danger to public safety,” as used in
We are asked to infer an intent to extend
The Act was intended to reform the three strikes law while keeping intact that scheme‘s core commitment to public safety. Allowing trial courts broad discretion to determine whether resentencing an eligible petitioner under the Act “would pose an unreasonable risk of danger to public safety” (
Accordingly, Proposition 47 has no effect on defendant‘s petition for resentencing under the Act. Defendant is not entitled to a remand so the trial court can redetermine defendant‘s entitlement to resentencing under the Act utilizing the definition of
DISPOSITION
The judgment is affirmed.
DETJEN, J.
I CONCUR:
LEVY, Acting P.J.
I concur in the judgment and the majority opinion with the exception of part II. I agree defendant may not take advantage of Proposition 47‘s1 newly enacted definition of “unreasonable risk of danger to public safety,” as provided in
I. After November 4, 2014, the definition of “unreasonable risk of danger” in Section 1170.18(c) applies throughout the Penal Code
This section and subdivision were enacted on November 4, 2014, when California voters passed Proposition 47, long past the time of defendant‘s resentencing hearing. Unless the legislation was designed or intended to apply retroactively, the definition in
“‘When construing a statute, we must “ascertain the intent of the Legislature so as to effectuate the purpose of the law.”’ [Citations.] ‘[W]e begin with the words of a statute and give these words their ordinary meaning.’ [Citation.] ‘If the statutory language is clear and unambiguous, then we need go no further.’ [Citation.] If, however, the language supports more than one reasonable construction, we may consider ‘a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.’ [Citation.] Using these extrinsic aids, we ‘select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ [Citation.]” (People v. Sinohui (2002) 28 Cal.4th 205, 211-212.)
Where the statutory language is so clear and unambiguous, there is no need for statutory construction or to resort to legislative materials or other outside sources. (Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366, 1371.) Absent ambiguity, it is presumed the voters intend the meaning apparent on the face of an initiative measure, and the courts may not add to the statute or rewrite it to conform to a presumed intent not apparent in its language. (People v. ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 301.)
In determining whether the words enacted here are unambiguous, we do not write on a blank slate. For example, in Marshall v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th 1241, 1255, the court stated there “is nothing ambiguous about the phrase ‘as used in this code.’” It held the definition of “Emergency, as used in this code” applied to the entire
In a similar vein, the court in People v. Leal (2004) 33 Cal.4th 999, 1007-1008, applied the plain meaning rule as follows:
“The statutory language of the provision defining ‘duress’ in each of the rape statutes is clear and unambiguous. The definition of ‘duress’ in both the rape and spousal rape statutes begins with the phrase, ‘As used in this section, “duress” means ….’ (
§§ 261, subd. (b) ,262, subd. (c) .) This clear language belies any legislative intent to apply the definitions of ‘duress’ in the rape and spousal rape statutes to any other sexual offenses.“Starting from the premise that in 1990 the Legislature incorporated into the rape statute a definition of ‘duress’ that already was in use for other sexual offenses, defendant argues that the Legislature must have intended its 1993 amendment of the definition of ‘duress’ in the rape statute, and the incorporation of this new definition into the spousal rape statute, to apply as well to other sexual offenses that use the term ‘duress.’ Defendant observes: ‘The legislative history does not suggest any rationale for why the Legislature would want its 1993 amendment of the definition of “duress” to apply only to rape so that it would have one meaning when the rape statutes use the phrase “force, violence, duress, menace, or fear of immediate and unlawful bodily injury” but another, much more expansive meaning when the identical phrase is used in the statutes defining sodomy, lewd acts on a child, oral copulation and foreign object rape.’
“But the Legislature was not required to set forth its reasons for providing a different definition of ‘duress’ for rape and spousal rape than has been used in other sexual offenses; it is clear that it did so. ‘When “‘statutory language is … clear and unambiguous there is no need for construction, and courts should not indulge in it.’” [Citations.] The plain meaning of words in a statute may be disregarded only when that meaning is “‘repugnant to the general purview of the act,’ or for some other compelling reason ….” [Citations.]’ [Citation.] As we said in an analogous situation: ‘It is our task to construe, not to amend, the statute. “In the construction of a statute … the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or omit what has been inserted ….” [Citation.] We may not, under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the terms used.’ [Citation.]”
The majority pays lip service to the plain meaning rule and then ignores it. While acknowledging the language used is unambiguous, it nonetheless engages in statutory construction to determine whether the electorate really intended to say what it actually enacted. The end result is a rewriting of the statute so that it comports with the majority‘s
II. Section 1170.18(c) has no application to defendant‘s resentencing under the Act
I do concur in the result because there is nothing in Proposition 47 to indicate the definition enacted under
I begin my analysis with
“[T]o determine whether defendant‘s Sixth Amendment rights as defined in Cunningham v. California (2007) 549 U.S. 270 … were violated by the imposition of an upper term sentence and, if so, the remedy to which [he or] she is entitled. In Cunningham, the United States Supreme Court disagreed with this court‘s decision in People v. Black (2005) 35 Cal.4th 1238 … and held that California‘s determinate sentencing law … violates a defendant‘s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than to the jury, the authority to find the facts that render a defendant eligible for an upper term sentence. We conclude that defendant‘s Sixth Amendment right to a jury trial was violated and, although harmless error analysis applies to such violations, the error in the present case was not harmless beyond a reasonable doubt and the case must be remanded for resentencing. For the reasons explained below, we also conclude that upon remand, the trial court may exercise its discretion to impose any of the three terms available for defendant‘s offense.” (People v. Sandoval, supra, 41 Cal.4th at pp. 831-832.)
In the interim between People v. Black, supra, 35 Cal.4th 1238 and People v. Sandoval, supra, 41 Cal.4th 825, the Legislature amended the determinate sentencing law to cure its constitutional defect as found in Cunningham v. California, supra, 549 U.S. 270. Although the Legislature failed to provide for retroactive application, the Sandoval court decided it was responsible for fashioning “a constitutional procedure for resentencing in cases in which Cunningham requires a reversal of an upper term sentence.” (People v. Sandoval, supra, at p. 846.) The court explained:
“If we assume that the new legislation does not apply directly to cases pending on appeal that are remanded for resentencing, our task in deciding the appropriate sentencing procedure to be applied by a trial court on remand is somewhat analogous to what we faced in In re Hawthorne [(2005)] 35 Cal.4th 40. There, the Legislature enacted a statute intended to
implement the United States Supreme Court‘s decision in Atkins v. Virginia (2002) 536 U.S. 304, which held that the federal Constitution prohibits execution of the mentally retarded. (See In re Hawthorne, supra, 35 Cal.4th at p. 44.) The legislation, however, did not provide for cases in which the death penalty already had been imposed. (Id. at p. 45.) In such a situation, ‘[t]he task thus falls to this court to formulate appropriate procedures for resolving postconviction claims.’ (Ibid.) “In Hawthorne, we adopted procedures for postconviction claims that tracked the statute ‘as closely as logic and practicality permit,’ in order ‘to maintain consistency with our own [state‘s] legislation … and to avoid due process and equal protection implications.’ (In re Hawthorne, supra, 35 Cal.4th at p. 47.) Likewise, in the present case, we direct that sentencing proceedings to be held in cases that are remanded because the sentence imposed was determined to be erroneous under Cunningham, supra, 549 U.S. 270, are to be conducted in a manner consistent with the amendments to the [determinate sentencing law] adopted by the Legislature.” (People v. Sandoval, supra, 41 Cal.4th at p. 846)
In this case, there is no constitutional violation in the manner the trial court conducted its sentencing determination. Thus, there is no occasion to remand this case, and we instead affirm the trial court‘s determination. Defendant has identified no due process or equal protection concerns that might invalidate Proposition 47 or the Act if he is denied retroactive application.2 I perceive none.
Although defendant has not relied upon In re Estrada (1965) 63 Cal.2d 740 to argue retroactive application, the People have cited it as distinguishable from this case. I discuss the Estrada case out of an abundance of caution.
In Estrada, the court stated:
“When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now
deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.” (In re Estrada, supra, 63 Cal.2d at p. 745.)
One may argue that under the Estrada case, unless there is a “savings clause” providing for prospective application, a statute lessening punishment is presumed to apply to all cases not yet reduced to a final judgment on the statute‘s effective date. (In re Estrada, supra, 63 Cal.2d at pp. 744-745, 747-748.) However, the Estrada case has been revisited by our Supreme Court on several occasions. In People v. Brown, supra, 54 Cal.4th at page 324 the court stated: ”Estrada is today properly understood, not as weakening or modifying the default rule of prospective operation codified in [Penal Code]
Similarly here, Estrada does not control because applying the definition of “unreasonable risk to public safety” in Proposition 47 to petitions for resentencing under the Act does not reduce punishment for a particular crime. Instead, the downward modification of a sentence authorized by the Act is dependent not just on the current
Because
PEÑA, J.
Notes
We solicited supplemental briefing concerning Proposition 47. Among the questions we asked counsel to answer were whether defendant met the criteria for resentencing under
It appears that a number of inmates will be eligible to seek resentencing under both the Act and Proposition 47. Such an inmate need not wait to file a petition under Proposition 47 until the trial court‘s ruling on the inmate‘s petition under the Act is final. A trial court is not divested of jurisdiction over a Proposition 47 petition by the fact a petition under the Act is pending, whether in a trial court or a Court of Appeal, with respect to the same inmate. (Cf. People v. Mayfield (1993) 5 Cal.4th 220, 222-227; People v. Johnson (1992) 3 Cal.4th 1183, 1256-1257; People v. Alanis (2008) 158 Cal.App.4th 1467, 1472-1473.) While the general rule is that “an appeal from an order in a criminal case removes the subject matter of that order from the jurisdiction of the trial court [citations]” (Anderson v. Superior Court (1967) 66 Cal.2d 863, 865), the subject matter of a ruling on a petition under the Act is legally independent from a petition under Proposition 47 (see People v. Superior Court (Gregory) (2005) 129 Cal.App.4th 324, 332).
In light of the differences between the two proceedings — for instance, an inmate resentenced under Proposition 47 is generally subject to one year of parole (