P. v. Brinson
Filed 11/8/13 P. v. Brinson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
HIRAM BRINSON,
Defendant
and Appellant.
E054511
(Super.Ct.No.
RIF150426)
OPINION
APPEAL
from the Superior Court
of
County. Harry A. Staley
(retired judge of the Kern Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) and Richard Todd Fields, Judges.
Affirmed.
Elisa
A. Brandes, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Charles
C. Ragland, Warren J. Williams and Marissa Ann Bejarano, Deputy Attorneys General,
for Plaintiff and Respondent.
A jury found defendant and appellant
Hiram Brinson guilty of (1) attempting to elude a pursuing peace officer (Veh.
Code, § 2800.2, subd. (a)); (2) driving under the influence of alcohol (Veh.
Code, § 23152, subd. (a)); (3) obstructing a peace officer (Pen. Code, § 148,
subd. (a)(1)); and (4) driving without a valid driver’s license (Veh. Code, §
12500, subd. (a)).
The
trial court found true the allegations that defendant (1) suffered two prior
strike convictions (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd.
(c)(1)),
he served prison terms (§ 667.5, subd. (b)).
The trial court sentenced defendant to prison for a determinate term of
two years and an indeterminate term of 25 years to life.
Defendant
raises three issues on appeal. First,
defendant asserts his 2004 convictions cannot be used as strikes and a prison
prior in this case because his pleas in the prior case were involuntary. Second, defendant contends equal protection
requires retroactive application of section 4019. Third, defendant asserts he is entitled to be
automatically resentenced under the “Three Strikes Reform Act of 2012†(Prop.
36, as approved by voters, Gen. Elec. (Nov.
6, 2012)) (the “Reform Actâ€).
We affirm the judgment.
FACTUAL AND
PROCEDURAL HISTORY
Defendant’s crimes in the instant
case were committed in May 2009. The
First Amended Information alleged defendant suffered two prison priors (§ 667.5,
subd. (b)) and two prior strike convictions (§§ 667, subds. (c) & (e)(1), 1170.12,
subd. (c)(1)). The first prison prior
involved a conviction for child abuse or endangerment in 1996. The second prison prior and both strike
convictions concerned convictions for first degree burglary (§ 459) in 2004.
In
2004, defendant completed a plea form, indicating that he would plead guilty to
12 different charges plus enhancements on the condition that he receive a
prison term of seven years and accrue credits at a rate of 50 percent. At the plea hearing, defendant pled guilty to
(1) five counts of first degree burglary (Pen. Code, § 459), (2) one count
of inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)),
(3) two counts of taking a vehicle without the owner’s consent (Veh. Code,
§ 10851, subd. (a)), (4) one count of trespassing and building fires (Pen.
Code, § 602, subd. (i)), and (5) two counts of receiving stolen property (Pen.
Code, § 496, subd. (a)).
name="_ftnref2" title="">[2] Defendant also admitted suffering a prior
conviction for which he served a prison term.
(Pen. Code, § 667.5, subd. (b).)
At
the 2004 hearing, defendant’s trial attorney said, “I’d also like to make the
record clear, it’s in writing, but also that this is to be seven years to be served
at half time, and that’s the reason for the great detail in the various
charges. And the low term counts on all
the 459s.†The court asked the
prosecutor if she wanted to place anything on the record. The prosecutor responded, “Just that this is a
plea to the Court.†When the trial court
pronounced defendant’s sentence it said the term would be a “total [of] seven
years.â€
In
October 2006 defendant wrote a letter to the trial court about his credit
accrual. In the letter, defendant
explained that he was given 963 days of credit for the 22 months he spent in
the county jail. Defendant explained he
had been given a release date of September
14, 2006, upon arriving at prison, but that date was later changed
to March 7, 2007. Defendant asserted he had been free from
discipline and was not earning credits at the agreed upon 50 percent rate.
On
March 22, 2007, a trial
court clerk responded to defendant’s letter.
The letter informed defendant that a properly noticed motion would be
required to modify defendant’s sentence.
The court clerk suggested defendant contact the attorney who handled
defendant’s case, the Riverside County Public Defender’s Office, or the
Riverside County Lawyer Referral Service.
There is nothing in the record indicating defendant followed through
with this recommendation.
In
July 2010, as part of the instant case, defendant filed a motion to dismiss the
strike allegations against him because his 2004 guilty plea was involuntary and
illegal, in that he was falsely led to believe he would receive a sentence of
seven years with 50 percent credit accrual.
Defendant asserted his 2004 plea was “fraudulently induced.†In response, the prosecutor argued defendant
could not challenge the strike priors on the basis of a falsely induced plea. Rather, defendant could only collaterally
attack the prior conviction based upon a denial of counsel (
rights to a jury trial, silence, and confrontation (Boykin/Tahl rights
On
August 11, 2010, the trial court held a hearing on defendant’s motion. The trial court found that in 2004 defendant
was informed of his Boykin-Tahl rights,
he understood the rights, and he knowingly waived them. The trial court cited defendant’s plea form
and a transcript of defendant’s plea hearing as evidence that defendant had a
“clear understanding†of the rights he was waiving. The trial court concluded credit accrual
agreements were “not anything that’s required under Boykin Tahl.†Further, the
trial court concluded defendant did not have a plea agreement or plea bargain;
rather, he entered an open plea to the court.
The trial court denied defendant’s motion, reasoning that the motion was
based on improper advisement of his Boykin/Tahl
rights but the evidence reflected defendant was properly advised of his rights.
A. GUILTY PLEA
Defendant
contends his 2004 convictions cannot be used as prior convictions for
sentencing in the instant case because the pleas were unconstitutional in that
they were induced by a promise that was legally impossible to fulfill. We disagree.
A
trial court may not increase a defendant’s prison term based upon a prior
felony conviction that was obtained in violation of the defendant’s
constitutional rights. (
429.) A collateral attack on a prior
conviction, brought via a motion to strike, may only be based on certain
recognized theories: (1) denial of
counsel (Gideon error), or (2)
failure to secure a proper waiver of the defendant’s rights to a jury trial,
silence, and confrontation (Boykin/Tahl).
(Allen,
at pp. 433, 439-440.) Otherwise, the
validity of a prior conviction may be litigated via a separate proceeding, such
as habeas corpus. (Id. at p. 435; People v.
Villa (2009) 45 Cal.4th 1063, 1074.)
We
review rulings on motions to strike prior convictions for an abuse of
discretion. (People v. Williams (1998) 17 Cal.4th 148, 162.) We review the constitutionality of guilty
pleas under the de novo standard of review.
(See People v. Howard (1992) 1
Cal.4th 1132, 1175 [setting forth the test for determining the constitutional
validity of a plea].) Since we are
reviewing a hybrid of these two rulings, we will take the cautious approach and
apply the more stringent de novo standard of review.
Defendant’s
concerns about his 2004 guilty plea involve allegations that he was induced to
enter the plea by a false promise of a 50 percent credit accrual. Defendant’s concerns about the plea do not
relate to a denial of counsel or his rights of silence, confrontation, and a
jury. Since defendant’s motion does not
pertain to one of the recognized theories upon which a special motion to strike
may be based, we conclude the trial court did not err by denying defendant’s
motion. Defendant failed to show
Defendant
asserts the trial court erred because the test for whether a plea is
constitutionally valid requires consideration of the “totality of the
circumstances†involved with the plea, and the trial court did not consider the
allegedly false promise made to defendant when ruling on defendant’s motion; defendant
asserts the totality of the circumstances reflect his plea was involuntary. Defendant’s argument is not persuasive
because the “totality of the circumstances†analysis is relevant in a harmless
error review, which we are not performing in this matter.
In
Howard, our Supreme Court decided
whether “error involving Boykin/Tahl
admonitions [citations] is reversible per se, or regardless of prejudice.†(People
v. Howard, supra, 1 Cal.4th at
pp. 1174-1175.) The court decided such
an error should be reviewed by considering “the totality of the
circumstances.†(Id. at p. 1175.) So, for
example, if a defendant were not properly advised of his right to remain
silent, but his plea could be found to be knowing and voluntary under the
totality of the circumstances, then the prior conviction would not necessarily
need to be stricken. (
1829, 1831-1832.) Given that we are not
performing a harmless error analysis, we find defendant’s reliance on the
“totality of the circumstances†rule to be unpersuasive.
B. SECTION 4019
Defendant
contends the trial court erred in calculating his presentence conduct credits
because the recent amendment to section 4019 should be retroactively applied to
his case. Defendant relies on principles
of equal protection to support his argument.
We disagree.
In
the current version of section 4019, the Legislature expressly provided the
statute is to only be applied prospectively.
Specifically, the current version of the statute applies to defendants
who commit their offenses on or after October 1, 2011. (People
v. Rajanayagam (2012) 211 Cal.App.4th 42, 52 (Rajanayagam).) Consistent
with that plain expression, we interpret the most recent version of section
4019 as applying only to defendants who committed their offenses on or after
October 1, 2011. Defendant’s crimes in
the instant case were committed in May 2009.
Thus, the trial court correctly applied the prior version of section
4019 when calculating defendant’s credits.
In
regard to equal protection, Defendant contends
credits be calculated at the same rate as inmates who committed crimes on or
after October 1, 2011, because there can be no justification for awarding
inmates conduct credits at different rates based on the days they committed
their crimes. We disagree.
Where
a statute at issue distinguishes between classes of people but “neither touches
upon fundamental interests nor is based on gender, there is no equal protection
violation if the challenged classification bears a rational relationship to a
legitimate state purpose. [Citations.]†(Rajanayagam,
conduct credits or incentives to perform assigned work and comply with rules
and regulations. (Id. at pp. 54-55.) This is
not a fundamental interest, and therefore, the issue is whether the separate treatment
of the classes bears a rational relationship to a legitimate state
interest. (Id. at pp. 53-54.)
The
separate classifications at issue in section 4019 bear a rational relationship
to the state interest in cost savings. (
In other words, section 4019 is rationally related to the objective of
reducing prison spending, which was a primary purpose of the Realignment
Act. (Id. at p. 49.) Thus, we
conclude defendant’s equal protection rights were not violated.
C. THREE STRIKES REFORM ACT OF 2012
Defendant
asserts he is automatically entitled to be resentenced under the Reform Act
because his appeal was not final at the time the law became effective. We disagree.
We
find the interpretation of the Reform Act set forth in People v. Yearwood (2013) 213 Cal.App.4th 161 (Yearwood) reflects the plain meaning of the Reform Act’s
language. In Yearwood, the Fifth District Court of Appeal concluded the Reform Act
was intended to apply prospectively only and, therefore, people who were
sentenced prior to the effective date of the Reform Act, but whose cases were
pending appeal after the Reform Act became effective, could not automatically
be resentenced (id. at p. 168); rather,
they would have to petition the trial court for a reduced sentence (
In
In re Estrada (1965) 63 Cal.2d 740,
the court held that where a statute has been amended to lessen the punishment
for an offense and there is no clear indication of an intent to apply the
amendment prospectively only, it must be presumed that the Legislature intended
the mitigated punishment to apply to all judgments not yet final as of the
effective date of the amended statute. (
the appellate court concluded the Estrada
rule is inapplicable to the Reform Act because the Reform Act’s language is
unambiguous, in that “voters intended a petition for recall of sentence to be
the sole remedy available under the Act for prisoners who were serving an
indeterminate life sentence imposed under the former three strikes law on the
Act’s effective date without regard to the finality of the judgment.†(Yearwood,
The appellate
court further reasoned that applying the Estrada
rule to the Reform Act was problematic when considering the Act as a whole
because “[e]nhancing public safety was a key purpose of the Act,†and
“prospective-only application supports the Act’s public safety purpose by
reducing the likelihood that prisoners who are currently dangerous will be
released from prison due to the Act.†(
pp. 175-176.) The court explained that
retroactive application of the Reform Act would “create a loophole whereby
prisoners who were sentenced years before the Act’s effective date are now entitled
to [an] automatic sentencing reduction even if they are currently dangerous and
pose an unreasonable public safety risk.â€
(Id. at p. 176.)
We
agree with the Yearwood opinion, in
that the language of the Reform Act is unambiguous and reflects an intent on
the part of the electorate to have the law apply prospectively only, thus
making the Estrada rule inapplicable. We focus on the portion of Proposition 36,
which set forth: “[a]ny person serving an
indeterminate term . . . may file a petition for a recall of
sentence, within two years after the effective date of the act . . . .â€
v. Alanis (2008) 158 Cal.App.4th 1467, 1475-1476 [a defendant’s sentence
commences after being sentenced by the trial court when s/he is committed to
custody]; see also People v. Howard
(1997) 16 Cal.4th 1081, 1087-1088 [discussing the difference between
pre-commitment and post-commitment time periods].) Given the “any person†language, it does not
appear the electorate intended to create an exception for defendants who were
serving their sentences but whose cases were pending appeal. Thus, we conclude the Yearwood opinion is correct, in that the Reform Act would not
provide defendant with automatic resentencing.
As a result, we conclude defendant is not entitled to automatic
resentencing.
The
judgment is affirmed.
NOT TO
BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
I concur:
RAMIREZ
P. J.
HOLLENHORST, J., Concurring and Dissenting.
I
respectfully concur in part and dissent in part. I concur with the majority’s discussion of
the use of defendant’s 2004 convictions as strikes and application of Penal
Code
title="">[7] section 4019; however, I disagree with the
discussion of the Three Strikes Reform Act of 2012, Section 10 (Prop. 36, as
approved by voter Ballot Pamp., Gen. Elec. (Nov. 6, 2012)) (hereafter the
Reform Act or the act). The Reform Act
became effective on November 7, 2012.
(§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C), 1170.126.)
36
Under
the Three Strikes law as it existed before the passage of the Reform Act, a
defendant with two or more strike priors who is convicted of any new felony
would receive a sentence of 25 years to life.
(Former § 667, subd. (e)(2)(A).)
As amended, section 667 provides that a defendant who has two or more
strike priors is to be sentenced pursuant to paragraph 1 of section 667,
subdivision (e)—i.e., as though the defendant had only one strike prior—if the
current offense is not a serious or violent felony as defined in section 667.5,
subdivision (c) or section 1192.7, subdivision (c), unless certain
disqualifying factors are pleaded and proven.
The
Reform Act also provides a procedure that allows a person who is “presently
serving†an indeterminate life sentence imposed pursuant to the Three Strikes
law to petition to have his or her sentence recalled and to be sentenced as a
second strike offender, if the current offense is not a serious or violent
felony and the person is not otherwise disqualified. The trial court may deny the petition even if
those criteria are met, if the court determines that resentencing would pose an
unreasonable risk of danger to public safety.
(§ 1170.126, subds. (a)-(g).)
Accordingly, under section 1170.126, resentencing is discretionary even
if the defendant meets the objective criteria (§ 1170.126, subds. (f),
(g)), while sentencing under section 667, subdivision (e)(2)(C) is mandatory,
if the defendant meets the objective criteria.
Defendant
requests that the matter be remanded for resentencing. Relying on In re Estrada (1965) 63 Cal.2d 740 (Estrada), he contends section 667, subdivision (e)(2)(C) is an
ameliorative sentencing statute which presumptively applies to all
final as of its effective date, and that there is nothing in the language of
the Reform Act which overcomes the presumption.{Supp AOB 3, 5-8} The People oppose the request, arguing that
the act allows persons like defendant, who are presently serving an
indeterminate sentence but whose sentence under the act would not have been an
indeterminate sentence, to file a petition for recall in the trial court.{Supp
RB 1-2}
Defendants Whose Judgments Were Not Yet Final on the Effective Date of the
Reform Act.
There
is a general rule of statutory construction, embodied in section 3 of the Penal
Code, that “‘when there is nothing to indicate a contrary intent in a statute
it will be presumed that the Legislature intended the statute to operate
prospectively and not retroactively.’
[Citation.]†(
184 (Floyd).) In Estrada,
Supreme Court created a limited exception to that presumption. In that case, the court held that where a
statute has been amended to lessen the punishment for an offense and there is
no clear indication of an intent to apply the amendment prospectively only, it
must be presumed that the Legislature intended the mitigated punishment to
apply to all judgments not yet final as of the effective date of the amended
statute. (Id. at pp. 744-747.) The
court held: ‘“A legislative mitigation
of the penalty for a particular crime represents a legislative judgment that
the lesser penalty or the different treatment is sufficient to meet the
legitimate ends of the criminal law.â€â€™ (
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,†including those which are not yet final. (Ibid.)
The
Legislature has never abrogated the Estrada
rule. (See People v. Nasalga (1996) 12 Cal.4th 784, 792, fn. 7 (
recently discussed by the California Supreme Court in People v. Brown (2012) 54 Cal.4th 314 (Brown).) In
not as weakening or modifying the default rule of prospective operation
codified in section 3, but rather as informing the rule’s application in a
specific context by articulating the reasonable
presumption that a legislative act mitigating the punishment for a particular
criminal offense is intended to apply to all nonfinal judgments.†(Brown,
supra, at p. 324, italics added.)
Despite
the Estrada presumption, however, a
court interpreting a statute that ameliorates punishment must nevertheless
determine the intent of the Legislature or of the electorate in enacting the
statute. (Floyd, supra, 31 Cal.4th at p. 184.) To determine intent, courts look first to the
language of the provision, giving its words their ordinary meaning. If that language is clear in relation to the
problem at hand, there is no need to go further. (Ibid.) If the language is not clear, the tools of
statutory construction must be applied, including but not limited to the
other extrinsic indicators of intention.
(Nasalga, supra, 12 Cal.4th at p. 794.)
There
is no question that section 667, subdivision (e)(2)(C) is an amendment which
ameliorates punishment under the Three Strikes law for those defendants who
meet its criteria. However, the Reform
Act does not contain any explicit provision for retroactive or prospective
application, and it does not explicitly state what remedy—i.e., section 667,
subdivision (e)(2)(C) or section 1170.126—applies to a person in defendant’s
position. Consequently, we must “look
for any other indications†to determine and give effect to the intent of the
electorate. (Nasalga, supra, 12
Cal.4th at p. 794.)
In
enacting new laws, both the Legislature and the electorate are “presumed to be
aware of existing laws and judicial construction thereof.†(In re
Lance W. (1985) 37 Cal.3d 873, 890, fn. 11.) Accordingly, I presume that in enacting the
Reform Act, the electorate was aware of the Estrada
presumption that a law ameliorating punishment applies to all judgments not
yet final on appeal on the effective date of the new statute. I also presume the electorate was aware that
a saving clause may be employed to make it explicit that the amendment is to
apply prospectively only, and that in the absence of a saving clause or another
clear signal of intent to apply the amendment prospectively, the statute is
presumed to apply to all nonfinal judgments.
(Nasalga, supra, 12 Cal.4th at p. 793;
Estrada, supra, 63 Cal.2d at p.
747.) Previous ballot initiatives have
employed explicit language making an ameliorative statute prospective. For example, the California Supreme Court
held that the previous Proposition 36, approved by voters on November 7,
2000, applied prospectively only, despite its ameliorative effect, because it
expressly stated, “‘Except as otherwise provided, the provisions of this act
shall become effective July 1, 2001, and its provisions shall be applied
prospectively.’ [Citations.]†(Floyd,
any other possible interpretation of the proposition. (Id.
at pp. 185-187.) In the Reform Act, in
contrast, the absence of such language is persuasive evidence that the
electorate did intend to apply section 667, subdivision (e)(2)(C) to nonfinal
judgments.
This
construction, moreover, is fully consistent with the expressed purposes of the
Reform Act. In Floyd, supra, 31 Cal.4th
at pages 187 through 188, the court found further support in the ballot
arguments in support of the proposition, which stated that “‘[i]f Proposition
36 passes, nonviolent drug offenders convicted
for the first or second time after 7/1/2000,
will get mandatory, court-supervised treatment instead of jail.’ (Ballot Pamp., Gen. Elec. (Nov. 7, 2000)
argument in favor of Prop. 36, p. 26 . . . .†(Italics added.) The ballot arguments in support of the Reform
Act stated that its purpose was to ensure that “[p]recious financial and law
enforcement resources†were not diverted to impose life sentences for some nonviolent
offenses, while assuring that violent repeat offenders are effectively punished
and not released early. The proponents
stated that the act would “help stop clogging overcrowded prisons with
non-violent offenders, so we have room to keep violent felons off the streetsâ€
and “help[] ensure that prisons can keep dangerous criminals behind bars for
life.†An additional purpose was to save
taxpayers “$100 million every year†by ending wasteful spending on housing and
health care costs for “non-violent Three Strikes inmates.†Moreover, the act would ensure adequate
punishment of nonviolent repeat offenders by doubling their state prison
sentences. The proponents pointed out
that dangerous criminals were being released early because “jails are
overcrowded with nonviolent offenders who pose no risk to the public.†And, the proponents stated that by passing
Proposition 36, “California will retain the toughest recidivist Three Strikes
law in the country but will be fairer by emphasizing proportionality in
sentencing and will provide for more evenhanded application of this important
law.†The proponents pointed out that
“[p]eople convicted of shoplifting a pair of socks, stealing bread or baby
formula don’t deserve life sentences.â€
(Voter Information Guide, Gen. Elec. (Nov. 6, 2012) argument in
favor of Prop. 36 and rebuttal to argument against Prop. 36,
to nonfinal judgments is wholly consistent with these objectives, in that doing
so would enhance the monetary savings projected by the proponents and would
further serve the purposes of reducing the number of nonviolent offenders in
prison populations and of reserving the harshest punishment for recidivists
with current convictions for serious or violent felonies, while still assuring
public safety by imposing doubled prison terms on less serious repeat
offenders.
For
both of these reasons—the absence of any expressed intent to apply the act
prospectively only and the stated intent underlying the proposition—I conclude
that section 667, subdivision (e)(2)(C) applies to judgments which were not
final as of its effective date.
The
first published appellate decision that addresses this issue is
Cal.App.4th 161 (Yearwood). In Yearwood,
as in this case, the defendant would have been entitled to second strike
sentencing under the Reform Act if he had been sentenced initially after the
effective date of the Reform Act. He had
already been sentenced and his appeal was pending on the date the act became
effective. The court held that even though
the judgment was not yet final, Yearwood’s only remedy was to petition for
recall of his sentence and for resentencing pursuant to section 1170.126. (Yearwood,
supra, at pp. 167, 168, 169.)
The
court concluded, as I have, that the Reform Act does not contain a saving
clause or refer to retroactive or prospective application or refer explicitly
to persons in Yearwood’s position.
Nevertheless, the court held, section 1170.126 unambiguously applies to
prisoners whose judgments were not final on the Reform Act’s effective date,
because those prisoners were “presently serving†an indeterminate life term
under the Three Strikes law. (See
§ 1170.126, subd. (a).) The court
further held that section 1170.126 therefore effectively operates as the
functional equivalent of a saving clause and, if section 667, subdivision (e)(2)(C)
is read not in isolation but in the context of the entire statutory scheme, it
is clear that the mandatory sentencing provision of section 667, subdivision (e)(2)(C)
is intended to operate prospectively only.
(Yearwood, supra, 213 Cal.App.4th at p. 175.)
absence of an express saving clause there may be other reasons to determine
that the enacting body intended the statute to apply prospectively only. Brown,
example. In that case, the court held
that an amendment to section 4019, which increased the rate at which prisoners
may earn credits for good behavior, applied prospectively only, despite the
absence of express language to that effect, because the purpose of section 4019
is to provide an incentive for good behavior during incarceration. Accordingly, rather than reflecting a
determination that a reduced penalty for past
criminal conduct satisfies the legitimate ends of
for good behavior.†(
the credit retroactively, for time spent in custody before the effective date
of the amendment, would not further that purpose. Consequently, the court held, there is no
logical basis for inferring that the Legislature intended the amended statute
to apply retroactively, and the Estrada rule
does not apply. (Id. at p. 325 & fn. 15.)
The same is not true of the Reform Act, however. As I discussed above, retroactive application
of section 667, subdivision (e)(2)(C) is consistent with the proponents’ stated
objectives of reducing prison overcrowding, reducing the resources expended on
third strike offenders whose current and prior offenses are nonviolent and less
serious, and enhancing public safety by ensuring that the truly dangerous
repeat offenders serve indeterminate life terms. Accordingly, there is a logical basis for
inferring that the electorate intended the amendment to apply to nonfinal
judgments.
Moreover,
I do not agree with Yearwood that
section 1170.126 unambiguously applies to defendants who were serving nonfinal
third strike sentences on the effective date of the Reform Act. In light of the Estrada presumption and the absence of a saving clause in section
667, subdivision (e)(2)(C), the provision that section 1170.126, subdivision (a)
applies “exclusively to persons presently serving†a third strike sentence
prisoners serving sentences that are final, or does it include those whose
judgments are not final? It is certainly
not so clear as to qualify as the functional equivalent of a saving
clause. In Nasalga, supra, 12
Cal.4th 784, the California Supreme Court held that the rule of
Legislature clearly signals its
intent†to make an amendment prospective, “by the inclusion of either an
express saving clause or its equivalent.â€
(Nasalga, supra, at p. 793, italics added.)
The court did not describe what constitutes an “equivalent†to an
express saving clause. However, the
court stated that in the absence of an express saving clause, the “‘quest for
legislative intent’†requires that “‘the Legislature demonstrate its intention
with sufficient clarity that a reviewing court can discern and effectuate
it.’ [Citation.]†(Ibid.) In my opinion, the statutory language that
requirement because it is ambiguous. I
note, too, that Yearwood does not
cite a single case in which similarly ambiguous language was deemed to be the
equivalent of a saving clause.
in the ballot arguments in favor of the Reform Act. It points out that enhancing public safety
was a key purpose of the act. (
The court states that giving section 667, subdivision (e)(2)(C)
prospective-only application furthers that purpose by reducing the likelihood
that prisoners who are currently dangerous will be released from prison under
the Reform Act. In contrast with section
1170.126, section 667, subdivision (e)(2)(C) does not provide the court with
discretion to impose a third strike sentence if it finds that the defendant
poses an “unreasonable risk of danger to public safety.†(§ 1170.126, subd. (f).) Yearwood
points out that several years may elapse between sentencing and finality,
and a defendant who might objectively qualify for second strike sentencing
under section 667, subdivision (e)(2)(C) may have shown himself or herself to
pose such a risk by misconduct during postsentencing incarceration. (Yearwood,
supra, at pp. 175-176.)
This
is arguably a valid concern. However, it
is not reflected in the ballot arguments in support of the Reform Act. I cannot say that a concern not expressed in
a ballot argument is a clear indication of voter intent, no matter how valid
the concern may be. Moreover, a
defendant may also be incarcerated for many months before being convicted and
sentenced for a third strike offense.
Such a defendant may also display a propensity for violence or other
conduct while incarcerated, which indicates that he or she poses a risk to
public safety. Nevertheless, any
qualifying defendant convicted and sentenced after the effective date of the
Reform Act is entitled to sentencing under section 667, subdivision (e)(2)(C),
and the trial court has no discretion to impose a third strike sentence even if
the court has concerns about the defendant’s future dangerousness for any
reason, including the defendant’s conduct while in custody. For this reason as well, I do not find
Conclusion
I
respectfully part company with the majority’s conclusion that defendant is not
entitled to a reduction in his sentence or resentencing because he retains the
ability, under section 1170.126, to petition the trial court to recall his
indeterminate sentence and to possibly resentence him to a determinate
term. I conclude that in passing the
Three Strikes Reform Act of 2012, the electorate intended the mandatory
sentencing provision of sections 667, subdivision (e)(2)(C) and 1170.12,
subdivision (c)(2)(C) to apply to qualifying defendants whose judgments were
not yet final on the effective date of the act.
Hence, I would vacate defendant’s sentence and remand the matter to the
trial court for resentencing.
HOLLENHORST
J.
All subsequent statutory references will be to the Penal Code unless
otherwise indicated.
Only 11 crimes are listed because the trial court did not ask for a
guilty plea on Count 9. The court
skipped from Count 8 to Count 10.
