Opinion
E066233
07-25-2017
THE PEOPLE, Plaintiff and Respondent, v. KENNETH LEE MCPHERSON, Defendant and Appellant.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CR41539) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Reversed with directions. William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Kenneth Lee McPherson contends the trial court erred in denying his Proposition 47 application for reduction of his felony petty theft conviction to a misdemeanor (application). The trial court denied defendant's application on the ground he had a prior violent felony conviction punishable by life imprisonment, which the trial court concluded was a "super strike" under Proposition 47 (Pen. Code, §§ 1170.18, 667, subd. (e)(2)(C)(iv)(VIII) ). Defendant argues his prior robbery conviction is not a super strike because a robbery conviction is not subject to a life sentence on its own. Even though defendant received a life sentence for robbery, the sentence was based on the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12). Defendant therefore asserts his prior robbery conviction does not bar him from relief under Proposition 47. We agree and reverse the order denying defendant's application for reduction of his felony petty theft conviction to a misdemeanor.
Unless otherwise noted, all statutory references are to the Penal Code.
All references to this statute will be cited as either section 667(e)(2)(C)(iv)(VIII) or VIII.
II
FACTUAL AND PROCEDURAL BACKGROUND
On June 8, 1991, defendant stole $5 worth of gas from a Union 76 gas station. When a deputy sheriff located defendant's vehicle shortly after the reported theft and pulled him over, defendant appeared to be intoxicated. Defendant was taken into custody and charged with petty theft with a prior 1987 burglary conviction (§ 666; count 1); driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 2); and driving with a blood alcohol content of at least .08 percent (Veh. Code, § 23152, subd. (b); count 3). The information further alleged defendant had two prior convictions for driving under the influence (DUI) and one prior prison conviction for the 1987 burglary conviction (§ 667.5, subd. (b)).
On January 10, 1992, defendant pled guilty to counts 1 and 3. Defendant also admitted one prior conviction. The trial court dismissed count 2 and the remaining priors, and sentenced defendant to a prison term of one year four months. Thereafter, defendant was sentenced to a 25-years-to-life term for a robbery conviction under the Three Strikes law.
After defendant served his one-year-four-month sentence for his convictions for petty theft with a prior (§ 666; count 1) and driving with over .08 blood alcohol content (Veh. Code, § 23152, subd. (b); count 3), the California electorate passed Proposition 47 in 2016, and defendant filed an application for reduction of his felony conviction for petty theft with a prior to a misdemeanor. The People filed a response stating that defendant was not entitled to relief because "defendant was sentenced to 25-life in RIF085277. [Section] 667[(e)(2)](C)(iv)(VIII) (list of super strikes) includes 'any serious and/or violent felony offense punishable in California by life imprisonment or death.' In RIF085277 defendant was convicted of a 211 PC & sentenced to life. The inclusion of 'serious and/or' shows the intent to include 3-strikes cases based on serious or violent convictions as super strikes (the only way a serious conviction that isn't also a violent charge is a life offense is b/c of 3 strike law)."
The trial court denied defendant's application for reduction on the ground "def[endant] is ineligible because he is serving 25-life." Defendant filed a notice of appeal of the order denying his application for reduction.
III
DEFENDANT'S PRIOR ROBBERY CONVICTION
IS NOT A SUPER STRIKE
Defendant contends the trial court erred in denying his application for reduction of his section 666 conviction (felony petty theft with a prior) to a misdemeanor based on defendant having a prior robbery conviction, which the trial court concluded qualified as a super strike under sections 1170.18, subdivision (i) and 667 (e)(2)(C)(iv)(VIII).
All references to this statute will be cited as section 1170.18(i).
Under section 1170.18, a section 666 felony conviction may qualify for reduction to a misdemeanor. (§ 1170.18, subds. (a), (b), (f), and (g).) However, under section 1170.18(i), a section 666 felony is not eligible for reduction to a misdemeanor if the defendant has a prior conviction for one of the so-called "super strikes" listed in section 667, subdivision (e)(2)(C)(iv). Section 1170.18(i) provides that relief under section 1170.18 (Proposition 47) "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." (Italics added.) Clause (iv) of section 667(e)(2)(C), lists in subclauses (I) through (VIII), eight categories of "super strike" offenses. Subclause VIII, which is at issue in the instant case, describes the following category of super strike: "Any serious and/or violent felony offense punishable in California by life imprisonment or death."
All references to this statute will be cited as section 667(e)(2)(C)(iv).
A "serious and/or violent felony" is defined in subdivision (d)(l) of section 667 as "[a]ny offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state." Robbery (§ 211) is listed in these statutes as a serious and violent crime. A "prior conviction," within the meaning of section 1170.18, includes any super strike conviction that occurs before the defendant's resentencing petition or application for reduction is filed. (People v. Walker (2016) 5 Cal.App.5th 872, 876, 877; People v. Montgomery (2016) 247 Cal.App.4th 1385, 1387, 1391.)
The issue here is whether the super strike described in VIII is limited to any serious or violent felony offense punishable by life imprisonment, where life imprisonment is stated as punishment within the felony statute itself, or whether VIII also includes any serious or violent felony offense, where punishment of life imprisonment is not stated in the felony statute but is imposed by an alternative punishment scheme, such as the Three Strikes law. In construing VIII, we begin by looking at the language of VIII, which states: "Any serious and/or violent felony offense punishable in California by life imprisonment or death." (§ 667(e)(2)(C)(iv)(VIII).) A. Rules of Statutory Interpretation
Statutory language "should be given its ordinary meaning, and '[i]f the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).' [Citation.]" (People v. Valencia, 2017 Cal. LEXIS 4893, at pp. *16-*17 (Valencia).) When construing a statute, the words "'must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.' [Citation.] 'Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation.' [Citation.]" (Valencia, at p. *17.)
Here, the language of VIII may appear clear in isolation but VIII is ambiguous when it is considered in the context of Proposition 47 as a whole, under the circumstances in the instant case. (People v. Hernandez (2017) 10 Cal.App.5th 192, 199 (Hernandez).) "[S]tatutory language, even if it appears to have a clear and plain meaning when considered in isolation, may nonetheless be rendered ambiguous when the language is read in light of the statute as a whole or in light of the overall legislative scheme." (Valencia, supra, 2017 Cal. LEXIS 4893, at pp. *21-*22.) Defendant urges this court to narrowly construe VIII as being limited to punishment of a life term stated in the felony statute itself. The People, on the other hand, argue VIII should be construed more broadly, as also encompassing felony convictions punishable by alternative punishment schemes, such as the Three Strikes law.
Punishment for robbery, provided in section 213, ranges from three years to nine years. Nevertheless, the trial court concluded defendant was disqualified under VIII from Proposition 47 relief, because defendant received a life sentence for robbery under the Three Strikes law. This court must determine whether the ambiguous language in VIII encompasses defendant's prior robbery conviction.
Our primary purpose in construing VIII is to ascertain and effectuate the intent of the voters who passed Proposition 47. (People v. Briceno (2004) 34 Cal.4th 451, 459; Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901.) Where statutory language is ambiguous, the language must be construed in the context of the statute and initiative as a whole, in accordance with its overall scheme. (Valencia, supra, 2017 Cal. LEXIS 4893, at p. *17.) "'The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.' [Citation.] 'Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation.' (Ibid.)" (Valencia, at p. *17, quoting Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.) B. Origin of VIII and Construction of VIII Within the Context of Proposition 47
Proposition 36
In construing VIII, we begin by looking at the origin and purpose of VIII, which was added to section 667 by Proposition 36, the Three Strikes Reform Act of 2012. The identical super strike provision, VIII, was also added by Proposition 36 to section 1170.12. (Robert L. v. Superior Court, supra, 30 Cal.4th at p. 901.) Before the Three Strikes law was amended by Proposition 36, "'the Three Strikes law required that a defendant who had two or more prior convictions of violent or serious felonies receive a third strike sentence of a minimum of 25 years to life for any current felony conviction, even if the current offense was neither serious nor violent. (Former §§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A).)' [Citation.] . . . Proposition 36 'amended the Three Strikes law with respect to defendants whose current conviction is for a felony that is neither serious nor violent. In that circumstance, unless an exception applies, the defendant is to receive a second strike sentence of twice the term otherwise provided for the current felony, pursuant to the provisions that apply when a defendant has one prior conviction for a serious or violent felony.' [Citation.] . . . Proposition 36 excluded from its reforms third strikes involving large quantities of controlled substances, specified sex offenses, and offenses committed when the defendant was armed or intended to cause great bodily harm. It also excluded defendants with prior convictions for super strikes." (Valencia, at pp. *8-*9; italics added; see (§§ 667(e)(2)(C)(iv) and 1170.12, subd. (c)(2)(C)(iv).)
Subdivision (e)(2)(C)(iv) of section 667, added by Proposition 36, provides in relevant part: "If a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and the current offense is not a serious or violent felony as defined in subdivision (d), the defendant shall be sentenced pursuant to paragraph (1) of subdivision (e) [to twice the term] unless the prosecution pleads and proves any of the following: [¶] . . . [¶] The defendant suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of this section, for any of the following [super strike] felonies [described in subclauses (I) - (VIII)]." Section 1170.12 contains parallel language (§ 1170.12, subd. (c)(2)(C)(iv)).
Section 1170.126, a resentencing provision added by Proposition 36 (Voter Information Guide, Gen. Elec., supra, text of Prop. 36, § 6, pp. 109-110), disqualifies a defendant from resentencing under Proposition 36 if the defendant has a prior conviction qualifying as a super strike offense listed in subclauses (I) - (VIII) of section 667(e)(2)(C)(iv) or section 1170.12, subdivision (c)(2)(C)(iv). (§ 1170.126, subd. (e)(3).) Proposition 36 added to sections 667(e)(2)(C)(iv) and 1170.12, subd. (c)(2)(C)(iv), eight categories of "super strikes." Subclause VIII is one of the super strike categories listed in both of these statutes. The VIII super strike category includes "[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death." (§§ 667(e)(2)(C)(iv)(VIII); 1170.12, subd. (c)(2)(C)(iv)(VIII).)
The intent of Proposition 36 was, in part, to "[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" and to "[s]ave hundreds of millions of taxpayer dollars" by "no longer pay[ing] for housing or long-term health care for elderly, low-risk, non-violent inmates serving life sentences for minor crimes." (Voter Information Guide, Gen. Elec., supra, text of Prop. 36, § 1, p. 105; see People v. Johnson (2015) 61 Cal.4th 674, 691 (Johnson).)
The Legislative Analyst for Proposition 36 noted that, as to more lenient sentencing under Proposition 36 of nonviolent, nonserious felonies, Proposition 36 "provides for some exceptions to these shorter sentences. Specifically, the measure requires that if the offender has committed certain new or prior offenses, including some drug-, sex-, and gun-related felonies, he or she would still be subject to a life sentence under the three strikes law." (Voter Information Guide, Gen. Elec., supra, Legislative Analyst's analysis of Prop. 36, p. 49, italics added.) As to third strike offenders already serving an indeterminate life sentence under the Three Strikes law, Proposition 36 "limits eligibility for resentencing to third strikers whose current offense is nonserious, non-violent and who have not committed specified current and prior offenses." (Voter Information Guide, Gen. Elec., supra, Legislative Analyst's analysis of Prop. 36, p. 50; italics added.)
The argument in the Voter Information Guide urging voters to pass Proposition 36 states: "MAKE THE PUNISHMENT FIT THE CRIME" (Voter Information Guide, Gen. Elec., supra, argument in favor of Prop. 36, p. 52; see id., rebuttal to argument against Prop. 36, p. 53) and "MAKE ROOM IN PRISON FOR DANGEROUS FELONS." (Voter Information Guide, Gen. Elec., supra, argument in favor of Prop. 36, p. 52.) The argument further states: "Any defendant who has ever been convicted of an extremely violent crime—such as rape, murder, or child molestation—will receive a 25 to life sentence, no matter how minor their third strike offense." (Ibid., italics added.) The rebuttal argument against Proposition 36 reassured voters that the proposition "requires that murderers, rapists, child molesters, and other dangerous criminals serve their full sentences." (Voter Information Guide, Gen. Elec., supra, rebuttal to argument against Prop. 36, p. 53.)
The Proposition 36 ballot materials do not suggest that a prior robbery conviction is one of the extremely violent or specified crimes that were intended to be precluded from more lenient sentencing or resentencing under Proposition 36. There is also no evidence that voters intended to categorically exclude third strike offenders from lenient sentencing or resentencing under Proposition 36 for a nonserious or nonviolent felony based merely on the defendant having a prior serious or violent felony conviction subject to third strike sentencing. Such a construction of VIII would undermine the purposes of the Proposition 36 reforms of "making the punishment fit the crime, making room in prison for dangerous felons, and saving taxpayer money would be frustrated." (Johnson, supra, 61 Cal.4th at p. 691.)
Taking into consideration the origin and purpose of VIII, we conclude that, for purposes of Proposition 36, VIII refers only to any serious and/or violent felony offense that is itself punishable by life imprisonment or death. If the felony statute does not provide for punishment by life imprisonment or death, VIII does not apply, even if life imprisonment is imposed for the felony conviction under the Three Strikes law. This construction applies equally to VIII in the context of Proposition 47, in which section 1170.18(i) incorporates the Proposition 36 list of super strike exclusions enumerated in section 667(e)(2)(C)(iv), including super strike VIII.
Proposition 47
Proposition 47's resentencing provisions appear to be modeled on Proposition 36. Proposition 47 added a resentencing statute, section 1170.18, which provides for resentencing under new, more lenient sentencing provisions, but makes persons who have a disqualifying conviction or super strike listed in section 667(e)(2)(C)(iv) ineligible for relief. The same list of super strikes is included in both Proposition 36 and 47 resentencing statutes. Subdivision (i) of section 1170.18 provides: "The provisions of this section 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." Under this statute, the trial court in the instant case found defendant ineligible for Proposition 47 relief.
Because Proposition 47 is structurally similar to Proposition 36, and appears to be modeled after Proposition 36, we give great weight to our interpretation of VIII as applied to Proposition 36, when construing VIII within the context of Proposition 47. "It is an established rule of statutory construction that similar statutes should be construed in light of one another [citations], and that when statutes are in pari materia, similar phrases appearing in each should be given like meanings. [Citations.]" (People v. Caudillo (1978) 21 Cal.3d 562, 585; American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1129.) Not only are the Proposition 36 and 47 resentencing statutes similar in structure, in addition, Proposition 47 incorporates in section 1170.18 the same list of super strikes added by Proposition 36. An anomaly in the law would occur if different meanings were ascribed to super strike VIII under Propositions 36 and 47. "It is a fundamental rule of statutory construction that statutes should be construed to avoid anomalies. [Citation.]" (State of South Dakota v. Brown (1978) 20 Cal.3d 765, 775.)
Furthermore, there is no evidence that the voters approving Proposition 47 intended that the super strike, VIII, would have a different meaning under Proposition 47 than the meaning applied in Proposition 36. In construing VIII, "'our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure.' [Citation.]" (People v. Briceno, supra, 34 Cal.4th at p. 459.) Proposition 47's stated intent was "to ensure that prison spending is focused on violent and serious offenses," and it explicitly stated that "[t]his act ensures that sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed." (Voter Information Guide, Gen. Elec., supra, text of Prop. 47, p. 70, § 2.) Proposition 47 directs that it "shall be broadly construed to accomplish its purposes." (Cal. Voter Information Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47 (Voter Information Guide), p. 74, § 15, at http://vigarchive.sos.ca.gov/2014/general/en/propositions/47/ [as of July ___, 2017].) One such purpose was "'to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative.' [Citations.] [Proposition 47] also expressly states an intent to '[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes.'" (People v. Gonzales (2017) 2 Cal.5th 858, 870, citing Harris v. Superior Court (2016) 1 Cal.5th 984, 992 and the Voter Information Guide, supra, text of Prop. 47, §§ 2-3, par. (2-3), p. 70; italics added.)
According to the Proposition 47 Legislative Analyst, Proposition 47 "reduces certain nonserious and nonviolent property and drug offenses from wobblers or felonies to misdemeanors. The measure limits these reduced penalties to offenders who have not committed certain severe crimes listed in the measure—including murder and certain sex and gun crimes." (Voter Information Guide, Gen. Elec., supra, Legislative Analyst's analysis of Prop. 47, p. 35, italics added.) The Legislative Analyst emphasized that "no offender who has committed a specified severe crime could be resentenced or have their conviction changed" and 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." (Id. at p. 36, italics added.)
As with Proposition 36, the ballot arguments in favor of Proposition 47 stated that Proposition 47 "[s]tops wasting prison space on petty crimes" and "[s]tops wasting money on warehousing people in prisons for nonviolent petty crimes, saving hundreds of millions of taxpayer funds." (Voter Information Guide, Gen. Elec., supra, argument in favor of Prop. 47, p. 38.) The ballot arguments informed voters that Proposition 47 nevertheless authorizes felony convictions "for registered sex offenders and anyone with a prior conviction for rape, murder or child molestation." (Ibid.; see id., rebuttal to argument against Prop. 47, p. 39.) The rebuttal to the argument against Proposition 47 reassured voters Proposition 47 "includes strict protections to protect public safety and make sure rapists, murderers, molesters and the most dangerous criminals cannot benefit." (Voter Information Guide, Gen. Elec., supra, rebuttal to argument against Prop. 47, p. 40.)
Defendant's prior robbery conviction is not one of the severe crimes specified in Proposition 47 or in section 667(e)(2)(C)(iv), and nothing in Proposition 47 or its legislative history suggests that a prior robbery conviction (or other serious or violent felony) categorically disqualifies a person from resentencing merely because the prior conviction is punished by life in prison under the Three Strikes law. Such a construction of VIII would be inconsistent with Proposition 47's objectives of reducing punishment for less serious crimes, not wasting prison space on petty crimes, and saving taxpayer money.
By incorporating VIII in both subdivisions (c) and (i) of section 1170.18, we presume that it was intended that in both instances the meaning of VIII would be the same. Subdivision (c) indicates that for purposes of Proposition 47, it was not intended that VIII be construed to include serious or violent felony convictions punishable by life imprisonment based on the Three Strikes law, where the felony statute itself does not provide a life sentence. Construing VIII to encompass prior serious or violent felonies punishable by life imprisonment based solely on the Three Strikes law would produce an inherently absurd result as applied to subdivision (c) of section 1170.18. Subdivision (c) of section 1170.18 provides: "As used throughout this Code, 'unreasonable risk of danger to public safety' means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 [super strike]." (§ 1170.18, subd. (c); italics added.) Subdivision (c) of section 1170.18 would produce an absurd result if super strike VIII were construed as encompassing violent felonies punishable by life under the Three Strikes law, because such a construction of VIII would require the trial court to anticipate whether an offender would be at risk of, not only committing a qualifying violent or serious felony, but also of determining whether the defendant is at risk of becoming a Three Strike offender, which would lead to a life imprisonment sentence.
Construing VIII as encompassing violent felonies punishable by a Three Strikes life sentence would also have the absurd effect of including as super strikes all violent felony strikes under section 667.5, because all such felonies would be potentially punishable by life imprisonment in the event the offender had Three Strikes. (Hernandez, supra, 10 Cal.App.5th at p. 202 (Hernandez).
Even if we were alternatively to construe VIII not so broadly, by including only those violent felony convictions actually resulting in a Three Strikes life sentence, this would result in a nonsensical result under subdivision (c) of section 1170.18. This is because, at the time of the trial court's determination of whether the offender poses an unreasonable risk of committing a new violent felony super strike, such as a VIII super strike, the defendant would not have committed the super strike and therefore would not yet have any sentence imposed on the anticipated violent felony offense. Subdivision (c) of section 1170.18 focuses on the risk the defendant will commit a violent felony, not on an offender's anticipated sentence or recidivism. It is highly unlikely it was intended that VIII, as applied to subdivision (c), would include violent felonies punishable by the Three Strikes law. To conclude otherwise would require anticipating whether a defendant would be at risk of committing a violent felony subject to a Three Strikes life term.
Within the context of section 1170.18, subdivision (c), construing VIII broadly to include as super strikes violent felonies subject to a Three Strikes life sentence, where the felony statute itself does not impose life imprisonment, would produce an absurd result as to subdivision (c) of section 1170.18. (People v. Moore (2004) 118 Cal.App.4th 74, 78 [ambiguity in statute will not be construed in criminal defendant's favor where to do so would create absurd result].) Such an interpretation should be rejected as applied to subdivision (c) of section 1170.18, and likewise rejected as to subdivision (i). "[O]ur courts have recognized that the meaning of isolated statutory language can be informed by and indeed must be consistent with the provisions of the relevant statute as whole." (Valencia, supra, 2017 Cal. LEXIS 4893 at p. *14.) VIII should be construed consistently throughout Proposition 47. "'The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.' [Citation.] 'Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation.'" (Valencia, at p. *17, quoting Dyna-Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at p. 1387.)
In considering section 1170.18 as a whole and harmonizing the meaning of VIII, incorporated in both subdivisions (c) and (i) of section 1170.18, we conclude VIII is limited to serious and/or violent felonies punishable by life in prison under the felony statute itself. We reject the People's proposed interpretation of VIII, which would produce an absurd result and expand the scope of VIII beyond that which Proposition 47 voters intended when they enacted Propositions 36 and 47. C. Discussion of Case Law Construing VIII or Similar Language
Hernandez, supra, 10 Cal.App.5th 192, cited by defendant during oral argument on appeal, is the only published court decision to date that construes VIII. Hernandez is consistent with our interpretation of VIII. In Hernandez, the defendant petitioned for resentencing under Proposition 47. The trial court denied the petition on the ground the defendant had a robbery conviction punishable by life imprisonment under the Three Strikes law. The Hernandez court reversed the order denying the defendant's resentencing petition, holding the defendant was not disqualified from resentencing under section 1170.18(i), because the defendant's robbery conviction was not a super strike under VIII. (Hernandez, at pp. 195, 204.)
The court in Hernandez reasoned that, even though the defendant was sentenced to life in prison for the robbery conviction, section VIII did not apply because, "[b]y using the term 'offense punishable . . . by life imprisonment,' section 667, subdivision (e)(2)(C)(iv)(VIII) focuses on the offense and its associated statutory punishment, not the type of offender or the effect of other prior convictions on the offender's sentence. Since the 'offense' of robbery has an associated statutory punishment of 'imprisonment in the state prison for two, three, or five years' (§ 213, subd. (a)(2)), it is not an 'offense punishable in California by life imprisonment or death' (§ 667, subd. (e)(2)(C)(iv)(VIII))." (Hernandez, supra, 10 Cal.App.5th at p. 199.)
Our interpretation of VIII is also consistent with several California Supreme Court's decisions construing language similar to that of VIII. In People v. Thomas (1999) 21 Cal.4th 1122 (Thomas), which addressed calculating conduct credits, the court stated that the issue was "whether the 'felony' referred to in section 667.5(c)(7) must itself be punishable by life imprisonment, or whether the phrase is intended to include any felony the commission of which may result in a life sentence, even if the sentence is based in part on conduct other than the commission of the current felony. For the following reasons, we conclude the former interpretation is correct." (Id. at p. 1127.)
The Thomas court explained that section 1192.7, subdivision (c)(7), uses identical language to define a "serious felony" as used in 667.5(c)(7) and, "[a]s can be seen, this language [in section 1192.7(c)(7)] parallels the language at issue in section 667.5(c)(7). If we were to interpret section 667.5(c)(7) to mean a third strike defendant falls within its purview because of his life sentence, not because of the underlying offense, a similar interpretation would necessarily obtain for section 1192.7(c)(7). 'Under the three strikes law, a trial court must sentence a defendant with two or more qualifying prior felony convictions or strikes to an indeterminate term of life imprisonment.' [Citation.] A third strike would by definition, therefore, always qualify as a serious or violent offense." (Thomas, supra, 21 Cal.4th at p. 1128.) Thomas therefore concluded that section 667.5(c)(7) only applied when a defendant is convicted of an offense that itself carries a punishment of life imprisonment, and not life imprisonment based solely on the defendant's status as a recidivist. (Thomas, at p. 1129.)
In People v. Montes (2003) 31 Cal.4th 350, our high court construed section 186.22, subdivision (b)(5), which has language similar to that of VIII. Section 186.22(b)(5) provides that a defendant who commits "a felony punishable by imprisonment in the state prison for life" for the benefit of a criminal street gang "shall not be paroled until a minimum of 15 calendar years have been served." The issue in Montes was whether section 186.22(b)(5) applies if the defendant commits a felony which, together with the section 12022.53, subdivision (d) enhancement (use of a firearm in the commission of a felony), results in a life term. The Montes court concluded that section 186.22(b)(5) applies only where the felony by its own terms provides for a life sentence. (Montes, at p. 352.)
All references to this statute will be cited as section 186.22(b)(5). --------
In People v. Jones (2009) 47 Cal.4th 566, the California Supreme Court construed section 12022.53, subdivision (a)(17), an enhancement provision that applies to "[a]ny felony punishable by death or imprisonment in the state prison for life." (§ 12022.53(a)(17).) The issue was whether the defendant committed a felony punishable by life imprisonment under section 12022.53, subdivision (a)(17), thereby subjecting him to an additional 20-year prison term under section 12022.53(c). (Jones, at pp. 569, 571-572.) Jones concluded section 186.22(b)(5) and section 12022.53(a)(17) should be construed similarly, with both provisions being construed narrowly, to apply only where the felony by its own terms provides for a life sentence. So construed, "it does not include a life sentence imposed under an alternate penalty provision." (Jones, at p. 577.)
While the California Supreme Court did not construe VIII in Thomas, Montes, and Jones, the Supreme Court construed similar language narrowly, limiting the phrase, "felony punishable by life imprisonment" or similar language, to felonies where the felony by its own statutory terms provides for a life sentence. The Supreme Court rejected applying such language to felonies sentenced to a life term under the Three Strikes law. Based on the California Supreme Court's interpretation of language similar to VIII and taking into consideration VIII's origin, purpose, and meaning within the context of Proposition 47 as a whole, we conclude the determination of whether a defendant is ineligible for Proposition 47 relief under super strike VIII, shall be made by looking solely to the punishment imposed by the prior felony statute itself, without considering alternative punishment imposed under the Three Strikes law. In construing VIII in this way, defendant's prior robbery conviction does not qualify as a super strike under VIII. Therefore defendant is not categorically disqualified under VIII from seeking Proposition 47 relief under section 1170.18(i).
IV
DISPOSITION
The order denying defendant's application for reduction of his felony petty theft conviction (§ 666; count 1) to a misdemeanor under section 1170.18 is reversed. Defendant's prior robbery conviction is not a super strike under VIII and therefore does not preclude defendant from Proposition 47 relief. The matter is remanded for further proceedings as appropriate under Proposition 47, consistent with this decision.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. McKINSTER
J.