P. v. Zarate
Filed 11/5/13 P. v. Zarate 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
TOMMY PETE ZARATE,
Defendant
and Appellant.
E054970
(Super.Ct.No.
INF10002307)
OPINION
APPEAL from the Superior
Court of
County. Mark E.
Johnson, Judge. Affirmed with directions.
Stephen M. Lathrop, 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, and Steve Oetting, Michael Pulos and Meredith S. White,
Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Tommy Pete Zarate appeals
from his conviction of being a felon in possession
of a firearm (Pen. Code,
name="_ftnref1" title="">[1] former § 12021, subd. (a)(1); count 1),
carrying a concealed weapon (former § 12025, subd. (b)(1); count 2), and
being a felon in possession of ammunition
(former § 12316, subd. (b)(1); count 3), along with true findings on
enhancement allegations of two prior strike convictions (§§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)).
Defendant contends the trial court
erred in (1) refusing to allow him to call a witness to testify about
statements against interest made by a third party that supported the defense of
third party culpability; (2) denying his motion to suppress the evidence of the
firearm found in his vehicle because he had a reasonable expectation of privacy
in the contents of the searched vehicle, and the scope of the search exceeded
the parameters of a legitimate probation search; (3) failing to traverse the
search warrant and suppress evidence of the ammunition found in his motel room
because the search warrant affidavit was based on the illegally obtained
evidence found in his car, or, in the alternative, he was denied effective
assistance of counsel; and (4) denying the motion for a new trial based on
newly discovered evidence that a third party had confessed to possessing the
firearm and ammunition. He further
contends his sentence of life imprisonment was cruel and unusual punishment.
sentence should be vacated and the case remanded for resentencing under recent
amendments to sections 667 and 1170.12. We agree that defendant’s sentence should be
vacated and the case remanded for resentencing.
We find no other error.
II. FACTS AND
PROCEDURAL BACKGROUND
On October 22, 2010, Officer Bryan
Traynham pulled defendant over because the car defendant was driving had a
broken brake light. Louie Aguilar was a
front seat passenger in the car. The
officer submitted defendant’s and Aguilar’s information to the dispatcher and
learned that Aguilar had a warrant for his arrest and was “on probation with
full search terms.â€
Officer Traynham told defendant and
Aguilar that he was going to search Aguilar and the areas of the car within his
immediate control. Defendant objected to
the search. The officer searched the
passenger seat, glove box, passenger side door, and center console. In the center console, he found a loaded .357
revolver and an envelope with the name “Tommy†on it.
Defendant and Aguilar were both
arrested and taken to the police station.
Defendant asked if he could talk to Aguilar so they could “get their
stories on the same page,†or get their stories straight, but Officer Traynham
did not allow it. Defendant was later
released while Aguilar remained in custody.
While defendant was out of custody,
he talked to Victor Diego, the manager of the motel where he lived. He told Diego the police had pulled him over
and found the gun in his car. He said he
was going to get another gun but could not do so legally because he had a
criminal record.
Based on the gun found in
defendant’s car, the police obtained a search warrant for the motel room where
he lived. On October 28, 2010, the
officers executed the search warrant. They
found a box of .357 ammunition and 17 rounds of .38 Special ammunition in the
room’s main dresser. They also found two
boxes of 12-gauge shotgun ammunition, several boxes of nine-millimeter
ammunition, one box of .22-caliber ammunition, and a .50-caliber bullet in a
bag on top of a television stand. They
found two documents bearing defendant’s name and one document bearing Aguilar’s
name in the room.
Defendant was arrested for possession of ammunition. After he was given Miranda
title="">[3]
he told the police that the ammunition found in his motel room belonged to him,
but he did not know it was illegal for him to have it. He said he was the only one who lived in the motel
room. The officer asked about the
bullets in the gun that had been found in his car, and defendant responded that
he did not want to answer because his “friend†was going to “take that charge.â€
Defendant testified in his own
behalf. He denied making admissions to
the police or making the statements to Diego.
He had registered himself and his three children as residents of the
motel room, and Aguilar lived there too.
He did not know that ammunition was in the dresser drawers, and the
ammunition did not belong to him. The
.50-caliber round found in the motel room was a souvenir dummy round he had
bought at a yard sale. He also did not
know that Aguilar had a gun in the car, and he had never seen the gun.
Defendant’s sister and brother testified
that Aguilar stayed with defendant in the motel room and kept his belongings
there.
The jury found defendant guilty of
being a felon in possession of a firearm (former § 12021, subd. (a)(1); count
1), carrying a concealed weapon (former § 12025, subd. (b)(1); count 2),
and being a felon in possession of ammunition (former § 12316, subd.
(b)(1); count 3). The trial court found
true enhancement allegations of two prior strike convictions. (§§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d).)
The trial court sentenced defendant
to consecutive terms of 25 years to life for each of counts 1 and 3. The court stayed the term for count 2 under
section 654.
Additional evidence is set forth in
the discussion of the issues to which it pertains.
III. DISCUSSION
A. Exclusion of Evidence
Defendant contends the trial court
erred in refusing to allow him to call a witness to testify about statements
against interest made by a third party that supported the defense of third party
culpability.
1. Additional Background
invoked his Fifth Amendment privilege against self-incrimination and refused to
testify. The trial court found him
unavailable as a witness. The trial
court then conducted a hearing under Evidence Code section 402 to determine
whether defense witness Branden Mays would be permitted to testify about a
conversation with Aguilar about a month before the traffic stop; defendant
argued Aguilar’s statements to Mays were admissible as against his penal
interest under Evidence Code section 1230.
Mays testified out of the presence of the jury that he knew defendant
and had known Aguilar since junior high school.
A month or two before Halloween in 2010, Aguilar approached Mays at his
work, said he was trying to get rid of a firearm, and asked if Mays was
interested in purchasing a firearm or knew anyone else who was interested. Aguilar said the firearm was a revolver, but
he did not show Mays the firearm or further describe it. Mays was not interested.
The trial court found Mays’s
testimony credible, but ruled that Aguilar’s statements to him did not qualify
as a declaration against penal interest, and Mays’s testimony about Aguilar’s
statements was therefore inadmissible.
2. Analysis
criminal defendant may introduce evidence of third party culpability if such
evidence raises a reasonable doubt as to his guilt . . . .†(People
v. Abilez (2007) 41 Cal.4th 472, 517.)
However, “to be admissible, evidence of the culpability of a third party
offered by a defendant to demonstrate . . . a reasonable doubt . . .
must link the third person either directly or circumstantially to the actual
perpetration of the crime.†(
367.)
Here, defendant’s proffered evidence—statements Aguilar purportedly
made to Mays—was hearsay. Defendant
argues the evidence was admissible under the exception to the hearsay rule for
statements against the declarant’s interest.
(Evid. Code, § 1230.)
name="_ftnref4" title="">[4] “Whether a statement is one against penal
interest is a preliminary fact to be determined under [Evidence Code] section
405. [Citation.] The test imposed is an objective one—would
the statement subject its declarant to criminal liability such that a
reasonable person would not have made the statement without believing it
true.†(People v. Jackson (1991) 235 Cal.App.3d 1670, 1678, fn. omitted.)
The first element of admissibility
under Evidence Code section 1230 was established—the trial court found Aguilar
was unavailable as a witness. However, as
the trial court pointed out, there was no evidence that Aguilar actually
possessed a gun when he asked if Mays was interested in purchasing a gun. For a statement to be admissible under
Evidence Code section 1230, it must be “‘distinctly’
against the declarant’s penal interest,†not just possibly against his
interest. (People v. Jackson, supra,
235 Cal.App.3d at p. 1677, italics added.)
Moreover, even if Aguilar did
possess a firearm at the time of his conversation with Mays, there was no
evidence it was the same firearm found in defendant’s car one or two months
later. We conclude the trial court did
not abuse its discretion in excluding Mays’s testimony about his conversation
with Aguilar.
B. Denial of Motion to Suppress Evidence Found
in Defendant’s Vehicle
Defendant contends the trial court erred in denying his motion under
section 1538.5 to suppress the evidence of the firearm found in his vehicle
because he had a reasonable expectation of privacy in the contents of the
searched vehicle, and the scope of the search exceeded the parameters of a
legitimate probation search.
1. Additional Background
Defendant moved before trial to suppress evidence seized from his
vehicle following the traffic stop and evidence later seized from his motel
room. Officer Traynham testified that he
conducted the traffic stop of defendant’s vehicle about 9:32 p.m. on
October 22, 2010, because a brake light was out. Defendant was driving, and Aguilar was
sitting in the front passenger seat.
Both defendant and Aguilar identified themselves, and the officer
conducted a records check of them. He
learned that Aguilar was on felony probation with “full search terms.†Officer Traynham testified he believed that
meant “immediate search of the person, anything he’s in control of, whether it
is his place of residency, vehicle, . . . anything he’s in
immediate control of.†The officer
informed defendant and Aguilar that he was going to search the area where
Aguilar was sitting, and defendant protested.
The officer asked defendant to get out of the vehicle, asked if he had
any illegal weapons, and searched defendant’s person after obtaining his
permission to do so. Meanwhile, the
officer learned that Aguilar had a felony warrant for his arrest; Aguilar was
taken into custody and placed in the patrol car.
Officer Traynham searched the front passenger area of defendant’s car
where Aguilar had been sitting, including the glove box and center
console. In the center console, he found
a Ruger revolver. The officer testified,
based on his training and experience, that he believed Aguilar might have put
something in the center console because it was a high crime area, Aguilar was
on probation and had a felony warrant for drugs, and Aguilar likely realized
the chance of his getting searched was high.
Officer Patrick Biggers testified that on October 28, 2010, he
had executed a search warrant on defendant’s motel room. He had obtained the warrant “to look for
further evidence of the handgun that Officer Traynham found in [defendant’s]
vehicle.†The officers found several
hundred rounds of ammunition of various calibers in the room; some of the
ammunition would fit the handgun found in defendant’s car. The ammunition was found in a dresser drawer
and on top of a television stand. The
officers found “one or two items of dominion†that indicated defendant lived
there, and they also found one letter belonging to Aguilar. Officer Biggers arrested defendant for
possession of the ammunition. Defendant
agreed to speak to the officer after receiving his Miranda admonitions. He told
the officer “he didn’t know that it was illegal for him to possess the
ammunition and that he didn’t believe that . . . he would be charged
with possession of the gun based on the ammunition, because his friend, Mr.
Aguilar, who was in the car, had agreed to take responsibility for the gun.â€
We review challenges to the admissibility of evidence obtained by a
police search and seizure under federal
constitutional standards. (
916.) “A warrantless search is
unreasonable under the Fourth Amendment unless it is conducted pursuant to one
of the few narrowly drawn exceptions to the constitutional requirement of a
warrant. [Citations.] California’s parole search clause is one of
those exceptions.†(Ibid.) In
permissible scope of a parole search that infringes on the privacy of a third party
driving a car with a parolee passenger,†including “the permissible scope of
the search of the car’s interior†and “the permissible scope of a search of
property located in the car.†(
on a passenger’s parole status may extend beyond the parolee’s person and the
seat he or she occupies. Such a search
is not without limits, however. The
scope of the search is confined to those areas of the passenger compartment
where the officer reasonably expects that the parolee could have stowed
personal belongings or discarded items when aware of police activity.
articulate specific facts indicating that the parolee has actually
placed property or contraband in a particular location in the passenger
compartment before searching that area. Such
facts are not required because the parole search clause explicitly authorizes a
search ‘without cause.’†(
however, that the facts did not involve “a search of closed compartments of the
car like the glove box, center console, or trunk,†and the court “express[ed]
no opinion on whether a search of such closed-off areas could be based solely
on a passenger’s parole status. The reasonableness
of such a search must necessarily take into account all the attendant
circumstances, including the driver’s legitimate expectation of privacy in
those closed compartments, the passenger’s proximity to them, and whether they
were locked or otherwise secured.†(
reason to limit a parole search to the area within the parolee’s reach
interest in detecting criminal activity by a parolee regardless of whether the
parolee has been safely removed from the car and secured.†(Id.
at pp. 927-928, fn. 19.)
Because Schmitz dealt with a
parole search rather than a probation search and because the court expressly
did not address the search of a closed compartment within a vehicle, the case
provides only general guidance rather than a direct resolution of the issue
before us. In People v. Baker (2008) 164 Cal.App.4th 1152, 1159, the court stated
the following principles: “When
executing a parole or probation search, the searching officer may look into
closed containers that he or she reasonably believes are in the complete or
joint control of the parolee or probationer.
[Citations.] This is true because
the need to supervise those who have consented to probationary or parolee
searches must be balanced against the reasonable privacy expectations of those
who reside with, ride with, or otherwise associate with parolees or
probationers. . . . While
those who associate with parolees or probationers must assume the risk that
when they share ownership or possession with a parolee or probationer their
privacy in these items might be violated, they do not abdicate all expectations
of privacy in all personal property. The
key question remains: whether there is
joint ownership, control, or possession over the searched item with the parolee
or probationer. [Citations.]â€
We conclude the officer properly searched the center console as part
of his valid probation search of Aguilar.
The center console was under the control of and easily accessible to
both defendant and Aguilar, defendant’s front seat passenger. Indeed, defendant’s primary defense, that the
handgun found in the console belonged to Aguilar, fundamentally depended on Aguilar’s
having joint control of the console. The
trial court did not err in admitting into evidence the gun found during that
search.
of Motion to Suppress Evidence Found in Defendant’s Motel Room
Defendant next contends the trial court erred in failing to traverse
the search warrant and suppress evidence of the ammunition found in his motel
room because the search warrant affidavit was based on the illegally obtained
evidence found in his car, or, in the alternative, he was denied effective assistance
of counsel because his counsel failed to move to suppress evidence of the
ammunition. Because we have concluded
that the evidence found in his car was legally obtained, we reject both
contentions.
of Motion for New Trial
Defendant contends the trial court erred in denying the motion for a new
trial based on newly discovered evidence that a third party had confessed to
possessing the firearm and ammunition.
1. Additional Background
Defendant moved for a new trial on the ground of newly discovered
evidence. In support of the motion,
defendant submitted the declaration of Jesus Cruz Valenzuela. The declaration stated that Valenzuela had
been in custody in the Indio jail and had been housed for three months with
Aguilar. Aguilar told Valenzuela details
of his and defendant’s arrest and the charges pending against defendant. Aguilar “specifically said to [Valenzuela]
that the firearm located by police in the center console of [defendant’s] car
belong[ed] to him, Mr. Aguilar. He said
further that when the police initiated the traffic stop, it was his intention
to run. He informed [defendant] that he
was going to run. [Defendant] told him
not to run. He then told [defendant]
that and said, ‘But I got this,’ indicating the gun. Mr. Aguilar then placed the gun . . .
in the center console before the police officer approached the vehicle.â€
Valenzuela further declared that Aguilar said that “the ammunition
from the motel room also belonged to him.â€
Aguilar expected defendant to bail him out, and when defendant failed to
do so after several weeks, Aguilar “became frustrated, and decided he had no
reason to own up to the gun and ammunition possession charges because
[defendant] was the only one charged.â€
Aguilar told Valenzuela that he had obtained the weapon in exchange for
a tattoo he had done for someone.
Valenzuela was represented by the same attorney as defendant and
performed yard work for the attorney after being released from custody in March
2011. On May 8, 2011, Valenzuela
asked the attorney about defendant’s case and learned that the jury had found
defendant guilty. Valenzuela “then told
[the attorney] about [his] jail contacts with Mr. Aguilar, and the
statements Mr. Aguilar made about his role in the incidents.â€
Following a hearing, the trial court denied the motion.
2. Standard of Review
This court reviews the trial court’s ruling on a motion for new trial
under the deferential abuse of discretion standard. (People
v. Howard (2010) 51 Cal.4th 15, 43.)
The trial court may grant a new trial “[w]hen new evidence is
discovered material to the defendant, and which he could not, with reasonable
diligence, have discovered and produced at the trial.†(§ 1181, cl. (8).) “In ruling on a motion for new trial based on
newly discovered evidence, the trial court considers the following factors: ‘“1. That
the evidence, and not merely its materiality, be newly discovered; 2. That
the evidence be not cumulative merely; 3.
That it be such as to render a different
result probable on a retrial of the cause; 4. That
the party could not with reasonable diligence have discovered and produced it
at the trial; and 5. That these facts be shown by the best evidence
of which the case admits.â€â€™ [Citations.]â€
(People v. Delgado (1993) 5
Cal.4th 312, 328.) The trial court may
consider the credibility of the evidence
was well as its materiality in determining whether introducing the evidence in
a new trial would make a different result reasonably probable. (People
v. Howard, supra, 51 Cal.4th at
p. 43.)
Assuming for purposes of argument that the evidence was newly
discovered and could not with reasonable diligence have been discovered earlier
and produced at trial, the trial court nonetheless found that Valenzuela’s
declaration was not credible, and moreover, it was inconsistent with stronger
evidence that supported the verdict.
Specifically, the trial court found that Valenzuela’s declaration was
inconsistent with Diego’s trial testimony that defendant admitted the gun was
his, with police testimony that defendant admitted the ammunition was his, and
with defendant’s history of firearms that undermined any suggestion that
defendant would have had no idea there was a significant amount of ammunition
in the small motel room. Thus, the trial
court found it not reasonably probable that a new trial would yield a different
result.
We conclude the trial court did not abuse its discretion in denying
the motion for new trial.
of Recent Amendments to Three Strikes Laws
Defendant contends his sentence should be vacated and the case
remanded for resentencing under the recently enacted Proposition 36, the Three
Strikes Reform Act of 2012 (the Reform Act).
Relying on In re Estrada
(1965) 63 Cal.2d 740 (Estrada),
defendant contends he is entitled to resentencing because his convictions are
not yet final and the Reform Act provides for reduced punishment. The People oppose the request, arguing that
the Reform 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.
Proposition 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.
(§§ 667, subds. (d)(1), (e)(2)(C).)
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.
Had
defendant been sentenced under the new version of the law, he would have
received a sentence of double the determinate term for his conviction of
possessing cocaine for sale. (§ 667,
subds. (e)(1) & (e)(2)(C).) Defendant contends section 667, subdivision
(e)(2)(C) is an ameliorative sentencing statute which presumptively applies to
all criminal judgments which were not yet final as of its effective date, and
that there is nothing in the language of the Reform Act which overcomes the
presumption.
Section 667, subdivision (e)(2)(C) Applies to 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, we 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. We 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. (
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 streets†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,
[as of September 9, 2013].) Applying
section 667, subdivision (e)(2)(C) 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—we 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 we 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,
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 criminal law, section
4019 addresses “future
providing increased incentives for good behavior.†(Brown,
supra, at p. 325.) Awarding 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.
(Brown, supra, at p. 325 & fn. 15.)
The same is not true of the Reform Act, however. As we 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,
we 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 our opinion, the statutory language that
requirement because it is ambiguous. We
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. We 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, we do not find
3. Conclusion
We
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, we vacate defendant’s sentence and
remand the matter to the trial court for resentencing.
and Unusual Punishment
Defendant contends his sentence of life imprisonment was cruel and
unusual punishment. Because we vacate
defendant’s sentence and remand for resentencing, defendant’s constitutional
challenge to his punishment is moot.
IV. DISPOSITION
The determination of guilt is affirmed, but the sentence is vacated
and the matter is remanded for resentencing under section 667, subdivision (e)(2)(C)
and/or section 1170.12, subdivision (c)(2)(C).
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
HOLLENHORST
Acting P. J.
I concur:
MCKINSTER
J.
MILLER, J., Concurring and
Dissenting.
I
respectfully dissent on the issue of defendant’s sentence being vacated
pursuant to the Three Strikes Reform Act of 2012 (the “Reform Actâ€). In all other aspects, I concur with the
majority’s opinion. 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 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 (
to petition the trial court for a reduced sentence (id. at p. 179).
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,
I
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. I 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€
the electorate intended for all people who were already committed to custody to
proceed solely via the petition process, not through appellate requests for
vacated sentences and automatic resentencing.
(See People 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
1087-1088 [discussing the difference between pre-commitment and post-commitment
time periods].)
Thus, I conclude
the Yearwood opinion is correct, in
that the plain language of the Reform Act makes it a prospective-only
statute. Therefore, the Reform Act does
not provide defendant with automatic resentencing—he would need to petition the
trial court for a reduced sentence.
MILLER
J.
name="_ftn1" title=""> [1] All further statutory
references are to the Penal Code except as otherwise indicated.
name="_ftn2" title=""> [2] Defendant initially
asserted that the judgment should be modified to award him presentence custody
credits; however, he has withdrawn that contention.
