Opinion
H043562
09-22-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE RODRIGUEZ GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C9803123)
Defendant Jose Rodriguez Garcia appeals from an order denying his petition for resentencing pursuant to Proposition 47 (Pen. Code, § 1170.18, subd. (a)). Defendant contends that he had no prior convictions for "super strike" sexual offenses when he sustained his conviction for possession of cocaine and thus he was eligible to have this conviction reduced to a misdemeanor. The order is affirmed.
All further statutory references are to the Penal Code unless stated otherwise.
I. Statement of the Case
On March 5, 1999, defendant was convicted of forcible rape, forcible sodomy, two counts of penetration by a foreign object, felony sexual battery, and possession of cocaine. (§§ 261, subd. (a)(2); 288a, subd. (c); 289, subd. (a); 243.4, subd. (b); Health & Saf. Code, § 11350, subd. (a).) The trial court sentenced defendant to an indeterminate term of 25 years to life for the forcible rape count and a consecutive two-year term for the possession of cocaine count. The terms on the remaining counts were run concurrently to the indeterminate term.
This court has granted defendants request to take judicial notice of the record on appeal in case No. H042468 and this courts opinion in case No. H020041. (Evid. Code, § 452, subd. (d).)
In April 2015, defendant filed a pro per petition to have his cocaine possession conviction reduced to a misdemeanor pursuant to Proposition 47. In September 2015, defendant, who was then represented by counsel, filed a memorandum of points and authorities regarding his eligibility for resentencing. He argued that his "super strike" sexual offenses did not disqualify him from resentencing because they were not incurred prior to the drug offense. The prosecutor filed opposition and argued that defendant was ineligible because he committed disqualifying convictions that occurred prior to filing his resentencing petition. Following a hearing, the trial court denied the petition.
II. Discussion
In November 2014, voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (the Act). (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), eff. Nov. 5, 2014.) Proposition 47 reclassified certain nonviolent crimes, including the drug possession offense in the present case, from felonies or wobblers to misdemeanors unless they were committed by statutorily ineligible individuals. (People v. Morales (2016) 63 Cal.4th 399, 404.)
Proposition 47 also included provisions for resentencing. A defendant who is currently serving his or her sentence for a felony conviction, and who would have been guilty of a misdemeanor if the Act had been in effect at the time of the offense, may file a petition to have his or her sentence recalled. (§ 1170.18, subd. (a).) If the defendant satisfies the criteria in section 1170.18, subdivision (a), the trial court must recall the defendants felony sentence and resentence the defendant to a misdemeanor unless the court, in its discretion, determines that resentencing the defendant would pose an unreasonable risk of danger to public safety. (§ 1170.18, subd. (b).) Alternatively, when a defendant has completed a felony sentence for an offense which is eligible for reduction to a misdemeanor under Proposition 47, he or she must file an application to have the felony reduced to a misdemeanor pursuant to section 1170.18, subdivision (f). (People v. Shabazz (2015) 237 Cal.App.4th 303, 310.) If the application satisfies the criteria in section 1170.18, subdivision (f), the trial court must reduce the felony to a misdemeanor. (People v. Shabazz, at pp. 310-311.) However, section 1170.18 "shall not apply to persons who have one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290." (§ 1170.18, subd. (i).)
Our references to section 1170.18 are to the version which took effect in November 2014.
Section 1170.18, subdivision (a) provides in relevant part: "A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (this act) had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act." Section 1170.18, subdivision (b) provides that a court that receives such a petition shall resentence the petitioner "unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety."
It is undisputed that defendants convictions include "super strike" convictions, that is, the most serious and violent crimes listed in section 667, subdivision (e)(2)(C)(iv). At issue is whether those were "prior convictions" within the meaning of section 1170.18, subdivision (i) because they occurred at the same time as his cocaine possession conviction for which he seeks resentencing. Defendant argues that the trial court erred in concluding that the term "prior conviction" means "prior to the filing of the resentencing petition."
Section 667, subdivision (e)(2)(C)(iv) lists "super strike" offenses: "(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 by Section 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 by Section 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 to 191.5, 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."
"[O]ur interpretation of a ballot initiative is governed by the same rules that apply in construing a statute enacted by the Legislature. [Citations.] We therefore first look to the language of the statute, affording the words their ordinary and usual meaning and viewing them in their statutory context. [Citations.]" (People v. Park (2013) 56 Cal.4th 782, 796.) " The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme [in light of the electorates intent]. [Citation.] When the language is ambiguous, "we refer to other indicia of the voters intent, particularly the analyses and arguments contained in the official ballot pamphlet." [Citation.] [Citation.]" (People v. Briceno (2004) 34 Cal.4th 451, 459.) This court reviews a question of statutory interpretation de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71.)
The appellate courts in People v. Zamarripa (2016) 247 Cal.App.4th 1179, 1184 (Zamarripa), People v. Montgomery (2016) 247 Cal.App.4th 1385, 1391-1392 (Montgomery), and People v. Walker (2016) 5 Cal.App.5th 872, 876, 879 (Walker), have interpreted the phrase "one or more prior convictions" as used in section 1170.18, subdivision (i) to mean any conviction which occurred prior to the filing of the application for reclassification. We agree with these courts statutory interpretation.
In Zamarripa, the court reasoned: "We find the prior conviction ineligibility for relief means a disqualifying conviction that occurred any time before the filing of the application for Proposition 47 relief. It would make no sense, and would disserve the stated purposes of Proposition 47, for us to construe the phrase prior conviction as limited only to those convictions that preceded the crime the defendant seeks to reclassify as a misdemeanor. Nothing in section 1170.18, subdivision (i) limits its application to time periods prior to the commission of the offense for which reclassification is sought. The plain language of the statute suggests a general disqualification regardless of when a defendant was convicted of the disqualifying offense. Furthermore, such an interpretation is the most consistent with the intent of the enactors not to benefit persons convicted of a super strike or required to register as a sex offender." (Zamarripa, supra, 247 Cal.App.4th at p. 1184.)
In Montgomery, the court found that the term " prior conviction " was ambiguous and consulted ballot materials, including review by the Legislative Analyst, to determine voter intent. (Montgomery, supra, 247 Cal.App.4th at pp. 1389-1391.) The court focused on the Legislative Analysts comment that " no offender who has committed a specified severe crime could be resentenced or have their conviction changed. " (Id. at pp. 1390-1391, quoting Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47, by Legis. Analyst, p. 36, italics omitted.) The court then observed that the proponents of Proposition 47, "in response to the specter of a tsunami of dangerous felons unleashed on the public conjured up by the opposition, stated, Dont be fooled by the oppositions deceptive scare tactics: [¶] Proposition 47 does not require automatic release of anyone. There is no automatic release. [The proposition] includes strict protections to protect public safety and make sure rapists, murderers, molesters, and the most dangerous criminals cannot benefit. " (Id. at p. 1391, quoting rebuttal to argument against Prop. 47, p. 39.) The court also considered the "summary of the propositions purpose and intent preceding the text of the changes to the existing codes . . ." which stated: " In enacting this act, it is the purpose and intent of the people of the State of California to: [¶] (1) Ensure that people convicted of murder, rape, and child molestation will not benefit from this act. [Citation.] The Findings and Declarations portion of the proposed law assured voters that sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed. " (Id. at p. 1391, quoting text of Prop. 47, § 2, p. 70, reprinted at Historical and Statutory Notes, 32A pt. 3, Wests Ann. Gov. Code (2016 supp.) foll. §7599, p. 163.)
Based on these materials, the Montgomery court concluded that "prior conviction" "means a conviction that occurred at any time before filing the redesignation application. Both the Legislative Analyst and the propositions proponents promised the electorate that violent criminals would not get a break under the new law. It seems their intent was to assure that dangerous criminals could not be released, and we cannot see that it would have made a difference to the voters when that dangerousness became apparent." (Mongomery, supra, 247 Cal.App..4th at p. 1391.)
After examining ballot materials and the Legislative Analysts comments, the court in Walker reached the same conclusion as did the court in Montgomery, supra, 247 Cal.App.4th at pages 1391-1392. --------
Defendant urges this court not to follow Montgomery and Zamarripa. Defendant contends that the interpretation of section 1170.18, subdivision (i) by the courts in Montgomery and Zamarripa ignores the point that all the quoted language "could equally well have been directed to the safety valve provisions of subdivision[] (b) . . . of section 1170.18, which allows a court to veto resentencing if it concludes that resentencing the petitioning inmate would pose an unreasonable risk of danger to public safety . . . . " We disagree. The trial court has discretion to deny the petition pursuant to section 1170.18, subdivision (b). However, the language relied upon in Montgomery and Zamarripa to ascertain voter intent does not refer to the possibility that a court could grant a resentencing petition for a defendant convicted of a "super strike" offense. Instead, this language states that no defendant who has been convicted of a "super strike" offense will be eligible for resentencing or to have their conviction changed pursuant to Proposition 47.
Defendant next argues that courts in Montgomery and Zamarripa "relegates the word prior to verbal surplusage, contrary to the settled rule of construction." However, "[r]ules such as those directing courts to avoid interpreting legislative enactments as surplusage are mere guides and will not be used to defeat legislative [or voter] intent. [Citations.]" (People v. Cruz (1996) 13 Cal.4th 764, 782.) As previously stated, the Montgomery and Zamarripa concluded that the voters intent was to ensure that a defendant convicted of a "super strike" would not benefit under Proposition 47.
Defendant also argues that the reasoning in People v. Spiller (2016) 2 Cal.App.5th 1014 (Spiller) applies to the interpretation of "prior conviction." In Spiller, the court held that a defendant is eligible for relief under Proposition 36 (the "Three Strikes Reform Act of 2012," § 1170.126, subd. (e)) if the disqualifying "super strike" conviction occurred after his commission of the nonserious crime for which he sought resentencing. (Spiller, at pp. 1021-1026.) The Walker court explained why Spiller does not apply in the present case: "Although Propositions 36 and 47 share some similar language, the two ballot initiatives reflect profound differences in purpose and intent. . . . [¶] . . . [¶] . . . Spiller kept its analysis within the context of Proposition 36 and consistent with the provisions of the Three Strikes scheme as a whole. [Citation.] We must likewise confine our interpretation of prior conviction to the context of Proposition 47 and the voters intent in enacting it. That means we must adopt the interpretation most consistent with the intent of the voters, and refrain from falling back on understandings of the term from other contexts which conflict with the voters intent in enacting this law." (Walker, supra, 5 Cal.App.5th at pp. 878-879.) We agree with the reasoning in Walker and reject defendants argument.
III. Disposition
The order is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.