Opinion
H043574
06-21-2017
THE PEOPLE, Plaintiff and Respondent, v. DENNIS ALAN ROGGE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 209081)
Defendant Dennis Alan Rogge, who was serving a sentence consisting of an indeterminate life term plus a determinate term for 1999 convictions, which included two first degree burglary convictions (Pen. Code, §§ 459, 460, subd. (a)), filed a petition for resentencing as to two other convictions under Code section 1170.18, asserting that those two offenses would have been misdemeanors if they had been committed after voters approved Proposition 47. The trial court denied the petition on the ground that each of those 1999 burglary convictions constituted a "prior conviction" of the "super strike" offense described in section 667, subdivision (e)(2)(C)(iv)(VIII) (hereafter 667(e)(2)(C)(iv)(VIII)). Consequently, the court found that defendant was disqualified from relief by those burglary convictions pursuant to section 1170.18, subdivision (i) (hereafter 1170.18(i)). The court understood a "prior conviction" within the meaning of section 1170.18(i) to be a conviction suffered before the filing of the petition.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, appellant does not contend that his 1999 felony burglary convictions, for which he was serving a sentence when he filed his petition for resentencing, are not "prior convictions" within the meaning of section 1170.18(i). Accordingly, we do not reach that issue. We note, however, that several appellate cases have construed the phrase "one or more prior convictions" within the meaning of section 1170.18(i) to not require that the disqualifying "prior conviction[]" have been suffered before the conviction sought to be redesignated as a misdemeanor under section 1170.18, subdivisions (f) and (g). (See People v. Walker (2016) 5 Cal.App.5th 872, 876 [the phrase " '"prior conviction,' as used in section 1170.18[(i)], refers to a conviction suffered any time before the court's ruling on an application to have a felony conviction reclassified as a misdemeanor"], 879, review denied Feb. 15, 2017, S239121; People v. Montgomery (2016) 247 Cal.App.4th 1385, 1392 ["section 1170.18[(i)] precludes redesignation for anyone who has a conviction for the enumerated excluded crimes prior to the time of the application for such relief"], review denied Sept. 21, 2016, S235775; People v. Zamarripa (2016) 247 Cal.App.4th 1179, 1184 ["The plain language of [section 1170.18(i)] suggests a general disqualification regardless of when a defendant was convicted of the disqualifying offense"], review denied Sept. 21, 2016, S235810.) We do not opine on whether those cases were correctly decided.
At issue here is the proper construction of section 667(e)(2)(C)(iv)(VIII), which describes the following offense: "Any serious and/or violent felony offense punishable in California by life imprisonment or death." On appeal, defendant maintains that the imposition of a Three Strikes indeterminate life sentence on a residential burglary conviction, ordinarily punishable by imprisonment in the state prison for two, four, or six years (§ 461, subd. (a)), does not make it a "super strike" felony offense under section 667(e)(2)(C)(iv)(VIII).
We conclude that the determination whether a prior offense is a "serious and/or violent felony offense punishable in California by life imprisonment or death" (§ 667(e)(2)(C)(iv)(VIII)) for purposes of section 1170.18(i) is made without reference to the punishment imposed under the Three Strikes law. Therefore, defendant's 1999 third strike burglary convictions were not for "super strike" felony offenses that disqualified him from misdemeanor resentencing on other offenses.
At the time defendant committed the burglaries in 1997 and 1998, "burglary of an inhabited dwelling house" was a serious felony (Stats. 1993, ch. 611, § 18.5, p. 3547 [former § 1192.7, subd. (c)(18)]; see § 1192.7, subd. (c)(18) [now "any burglary of the first degree"].)
I
Procedural History
By information filed November 2, 1998, defendant was charged with five felony offenses. The information charged defendant with committing the following felonies on or about January 21, 1998: (1) first degree burglary (§§ 459, 460, subd. (a)) (count 1) and (2) petty theft with a prior (§ 666) of a coin container, a $2 bill, firearms, coin collections and jewelry (count 2). It also charged him with committing several felonies on or about January 19, 1997: (1) first degree burglary (§§ 459, 460, subd. (a)) (count 3), (2) petty theft with a prior (§ 666) of a key, coin collections, firearms, and a $20 gold coin (count 4), and (3) buying, receiving, concealing or withholding property known to have been stolen (a key) (§ 496) (count 5) (hereafter receiving stolen property). The information alleged 10 prior strike convictions within the meaning of section 667, subdivisions (b) through (i), and 1170.12. It further alleged three separate prior serious felonies (§§ 667, subd. (a) [hereafter 667(a)], 1192.7, subd. (c)).
There are handwritten, initialed interlineations of the allegedly stolen items listed in the information's counts 2 and 4, but the scanty appellate record does not reflect when or who made those alterations or their legal significance. Appellant was not convicted of count 4.
In November 1999, following a jury trial, defendant was convicted of counts 1, 2, 3, and 5. The trial court sentenced defendant to 50 years to life on the two first degree burglary convictions (counts 1 and 3) under the Three Strikes law and imposed three five-year enhancement terms under section 667(a). Punishment for the conviction of petty theft with a prior (count 2) was stayed under section 654. A concurrent sentence was imposed on the conviction of receiving stolen property (count 5).
On April 3, 2015, defendant filed a petition for resentencing under section 1170.18 of counts 2 (§ 666) and 5 (§ 496). The People opposed resentencing, asserting that defendant was statutorily ineligible for such relief because his first degree burglary convictions are punishable by life imprisonment (see §§ 667(e)(2)(C)(iv)(VIII), 1170.18(i)).
In the court below, defendant maintained that a "prior conviction" within the meaning of section 1170.18(i) referred to "a conviction that occurred before the offense that qualifies for resentencing under Proposition 47." (See ante, fn. 2.) Defendant argued that (1) his 1999 "third strike" convictions for first degree burglary did not constitute "prior convictions" in that they were current offenses and he was seeking resentencing on other current offenses that would have been misdemeanors had Proposition 47 been in effect at the time of those offenses and that (2) first degree burglary is not an offense punishable by imprisonment for life or death within the meaning of section 667(e)(2)(C)(iv)(VIII) because the offense itself does not trigger the indeterminate life term. He asserted that he met the criteria for resentencing of the convictions on counts 2 and 5 and that he had no disqualifying prior convictions precluding relief.
The trial court determined that, under section 1170.18(i), a prior conviction "includes any such conviction rendered prior to the filing of a petition for resentencing or designation under [section 1170.18]." It also determined that "felony offenses punishable by life imprisonment as a result of the Three Strikes law are among the disqualifying offenses specified in Penal Code § 667(e)(2)(C)(iv)(VII) [sic] and subdivision (i) of section 1170.18." The court concluded that defendant was disqualified from resentencing relief because the 1999 first degree burglary convictions (for which he was serving a sentence) were punishable by indeterminate life terms.
II
Discussion
A. Standard of Review
"We review de novo questions of statutory construction. [Citation.] In doing so, ' "our fundamental task is 'to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.' " ' [Citation.] We begin with the text, 'giv[ing] the words their usual and ordinary meaning [citation], while construing them in light of the statute as a whole and the statute's purpose [citation].' [Citation.] 'If no ambiguity appears in the statutory language, we presume that the Legislature meant what it said, and the plain meaning of the statute controls.' [Citation.]" (People v. Blackburn (2015) 61 Cal.4th 1113, 1123.)
" 'Ordinarily, the words of the statute provide the most reliable indication of legislative intent. [Citation.] When the statutory language is ambiguous, the court may examine the context in which the language appears, adopting the construction that best harmonizes the statute internally and with related statutes. [Citations.]' [Citation.] ' "When the language is susceptible of more than one reasonable interpretation . . . , we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part." ' [Citation.]" (People v. Jefferson (1999) 21 Cal.4th 86, 94.) "Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation. [Citation.] Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent. [Citations.]" (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.)
"When we interpret an initiative, we apply the same principles governing statutory construction." (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.) "If, however, the language is susceptible of more than one reasonable meaning, we may consider the ballot summaries and arguments to determine how the voters understood the ballot measure and what they intended in enacting it. (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1037.)" (In re Tobacco II Cases (2009) 46 Cal.4th 298, 315.) B. Legal Background
Section 1170.18 was added to the Penal Code by Proposition 47, known as "the Safe Neighborhoods and Schools Act." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 1, 14, pp. 70, 73-74.) Proposition 47 reduced certain crimes, previously felonies or so-called wobblers, to misdemeanors, except if committed by certain ineligible defendants. (See People v. Morales (2016) 63 Cal.4th 399, 404 (Morales).) At the time defendant's petition was filed, and at the time the trial court ruled on it, section 1170.18 permitted eligible persons, who were "currently serving a sentence for a conviction" of a felony that would have been a misdemeanor if Proposition 47 had "been in effect at the time of the offense," to "petition for a recall of sentence. . . to request resentencing in accordance with" the specified sections that were "amended or added by" the proposition. (Voter Information Guide, Gen. Elec., supra, text of Prop. 47, § 14, pp. 73-74; see Morales, supra, at p. 404.) "If the offense committed by an eligible defendant would have been a misdemeanor under the Act, resentencing is required unless 'the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.18, subd. (b).)" (People v. Gonzales (2017) 2 Cal.5th 858, 863.)
Section 1170.18(i) "carves out an exception [precluding relief] for persons who have at least one prior conviction for specified disqualifying offenses," (Harris v. Superior Court (2016) 1 Cal.5th 984, 991.) As pertinent here, section 1170.18(i) provides in part: "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 . . . ." Section 667, subdivision (e)(2)(C)(iv), lists the so-called "super strikes." (See People v. Johnson (2015) 61 Cal.4th 674, 682 (Johnson).) C. Analysis
The language of section 667(e)(2)(C)(iv) creates an ambiguity as to whether the punishment imposed for a prior conviction of a serious or violent felony offense may be considered in determining whether the offense meets the statutory description. A serious or violent felony offense committed by a third strike offender is punishable by an indeterminate term of life imprisonment (§ 667, subd. (e)(2)), but felony residential burglary is ordinarily punishable by a maximum term of six years (§ 461, subd. (a)).
We first address defendant's contention that his 1999 burglary convictions punished by indeterminate life terms under the Three Strikes law were not serious felony offenses punishable by life imprisonment because the sentences were based on recidivism, not the particular offense. It is true that an indeterminate life term imposed under the Three Strikes law is not punishment based upon commission of the offense alone. (See People v. Turner (2005) 134 Cal.App.4th 1591, 1597.) But that information by itself does not clarify the ambiguity created by section 667(e)(2)(C)(iv)(VIII).
Defendant also argues that residential burglary is not comparable to other super strike offenses, such as rape, murder, or child molestation. But defendant fails to identify any concrete factors that would permit us to conduct such a comparison. For instance, murder, a super strike offense under section 667, subdivision (e)(2)(C)(iv)(IV), may be punished by death, imprisonment for life without the possibility of parole, or imprisonment in the state prison for a term of years to life depending upon the degree and circumstances of the crime (§ 190). In contrast, a nonforcible lewd and lascivious act upon a child under 14 years of age, which is a super strike under section 667, subdivision (e)(2)(C)(iv)(III), is punishable by imprisonment for three, six, or eight years. (§ 288, subd. (a).) For another example, solicitation to commit murder, which is listed in section 667, subdivision (e)(2)(C)(iv)(V), is punishable by imprisonment for three, six, or nine years (§ 653f, subd. (b)). The specified super strike offenses reflect a legislative judgment that those particular offenses are more reprehensible than other offenses, but they do not readily lend themselves to objective comparison. Attempted comparison of the super strike offenses is not helpful in construing section 667(e)(2)(C)(iv)(VIII).
Those super strike offenses are: "(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." (§ 667, subd. (e)(2)(C)(iv).)
Murder is a violent felony (§ 667.5, subd. (c)(1)) and a serious felony (§ 1192.7, subd. (c)(1)).
A "[l]ewd or lascivious act as defined in subdivision (a) or (b) of Section 288" is violent felony (§ 667.5, subd. (c)(6)), and a "lewd or lascivious act on a child under 14 years of age" is a serious felony (§ 1192.7, subd. (c)(6)).
No specific provision makes solicitation to commit murder in and of itself a violent or serious felony.
Defendant further argues that section 667(e)(2)(C)(iv)(VIII) must be construed consistently throughout section 1170.18 and refers us to its subdivision (c) of section 1170.18, which defines "unreasonable risk of danger to public safety" to mean "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 ." (Italics added.) Under section 1170.18, subdivision (b), courts have discretion to deny resentencing on the ground that it "would pose an unreasonable risk of danger to public safety."
Defendant asserts that section 1170.18, subdivision (c), "plainly limits that term to an unreasonable risk of commission of egregious violent crimes" by incorporating the "super strikes" listed in section 667, subdivision (e)(2)(C)(iv), and it "makes clear that a court may only deny resentencing to an eligible inmate if it finds an unreasonable risk that he will commit one of those egregious offenses." Defendant reasons that, if the section 667(e)(2)(C)(iv)(VIII) were construed to include any offense that is punishable by an indeterminate life term under the Three Strikes law, then the list of violent felony offenses relevant to the court's assessment of the "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" (§ 1170.18, subd. (c)) would be "expansive" instead of narrow.
Defendant's argument suggests a salient principle of statutory interpretation. "We do not . . . consider the statutory language 'in isolation.' [Citation.] Rather, we look to 'the entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . . [Citation.]' [Citation.] That is, we construe the words in question ' "in context, keeping in mind the nature and obvious purpose of the statute . . . ." [Citation.]' [Citation.] We must harmonize 'the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.' [Citations.]" (People v. Murphy (2001) 25 Cal.4th 136, 142.) "When a word or phrase is repeated in a statute, it is normally presumed to have the same meaning throughout. [Citations.]" (People v. McCart (1982) 32 Cal.3d 338, 344; see California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 643 ["a 'word or phrase, or its derivatives, accorded a particular meaning in one part or portion of a law, should be accorded the same meaning in other parts or portions of the law' "].)
We agree that sections (c) and (i) of section 1170.18 must be harmonized. But this general principle of statutory construction does not resolve the ambiguity at issue. In the abstract, it is conceivable that the voters intended that this "super strike" offense to have a more expansive meaning as to third strike offenders who file petitions for resentencing.
Defendant also invokes the concept of parallelism, maintaining that the trial court's construction of the phrase "[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death" (§ 667(e)(2)(C)(iv)(VIII)) was unreasonable because, if he were today convicted of the identical crimes (petty theft of property whose value did not exceed $400 and receiving a stolen property, to wit, a key), he would be guilty of misdemeanors even if he were concurrently convicted of residential burglary, provided he did not have any disqualifying prior conviction, such as a super strike offense listed in section 667, subdivision (e)(2)(C)(iv). (See §§ 490, 496, subd. (a), 666.) Defendant argues that nothing in Proposition 47 justifies treating a person seeking resentencing under section 1170.18 differently from a person currently being sentenced for identical charges committed after passage of Proposition 47. He asserts that the sentence should be the same in each instance.
In support of the foregoing argument, defendant cites Johnson, supra, 61 Cal.4th 674, which construed section 1170.126, a different resentencing statute added in 2012 by Proposition 36, known as the "Three Strikes Reform Act of 2012." (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 6, pp. 105, 109-110.) He claims that the trial court's construction of section 667(e)(2)(C)(iv)(VIII), if accepted, would implicitly "overrule" Johnson.
The Supreme Court consolidated the cases of People v. Johnson (S21945) and People v. Machado (S219819) for decision. Appellant's citations to People v. Machado are understood as references to Johnson.
Respondent argues that this case is distinguishable from Johnson because of the "asymmetrical treatment of preenactment defendants and post enactment defendants" under Proposition 47, pointing out certain differences in their treatment. The flaw in the foregoing argument is that section 1170.126, similar to section 1170.18, has a provision authorizing a court to deny resentencing if the court, "in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).) Thus, there is also asymmetry between petitioners seeking resentencing under section 1170.126 and third strike offenders punished for nonviolent, nonserious felonies committed after Proposition 36.
Unlike a person who commits an offense that is a misdemeanor under Proposition 47, an eligible petitioner who seeks resentencing under section 1170.18 may be denied relief if the court concludes that resentencing would pose an unreasonable risk of danger to public safety (§ 1170.18, subd. (b)). A petitioner who obtains resentencing to a misdemeanor under section 1170.18 is subject to a one-year parole requirement (§ 1170.18, subd. (d)). Despite obtaining resentencing relief under section 1170.18, a successful petitioner is subject to continuing firearm restrictions (§ 1170.18, subd. (k)).
At issue in Johnson was the particular language of section 1170.126, subdivision (e)(1), which requires the petitioner to be "serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7." The People took the position that subdivision (e)(1) of section 1170.126 "render[s] an inmate ineligible for resentencing if any current offense is serious or violent." (Johnson, supra, 61 Cal.4th at p. 693.) The Supreme Court found section 1170.126 was "ambiguous as to whether a current offense that is serious or violent disqualifies an inmate from resentencing with respect to another count that is neither serious nor violent." (Johnson, supra, at p. 694.)
The Supreme Court held "that an inmate is eligible for resentencing [under section 1170.126] with respect to a current offense that is neither serious nor violent despite the presence of another current offense that is serious or violent." (Johnson, supra, 61 Cal.4th at p. 695.) It concluded that "the presence of a conviction of a serious or violent felony does not disqualify an inmate from resentencing with respect to a current offense that is neither serious nor violent." (Id. at p. 679.)
In reaching its holding, the Supreme Court found the generally parallel structure of Proposition 36's sentencing and resentencing provisions to be significant. (Johnson, supra, 61 Cal.4th at pp. 687, 691.) It also found that construing section 1170.126 as providing for "resentencing on a count-by-count basis" would promote the goals of Proposition 36. (Johnson, supra, at p. 691.) The court stated that, "if a serious or violent count disqualified an inmate from resentencing on counts that are not serious or violent, the goals of making the punishment fit the crime, making room in prison for dangerous felons, and saving taxpayer money would be frustrated." (Ibid.) Since trial courts retained discretion under section 1170.126 to deny resentencing if they found resentencing a petitioner would pose an unreasonable risk of danger to public safety (§ 1170.126, subd. (f)), the Supreme Court could "discern no reason that the measure would be crafted to categorically exclude inmates from its sentencing reforms solely because they committed serious or violent crimes prior to the passage of Proposition 36." (Johnson, supra, 61 Cal.4th at p. 691.)
Thus, Johnson is germane here insofar it was applying the cardinal rule of statutory construction requiring courts to "construe every statute with reference to the whole system of law of which it is a part, so that all may be harmonized and anomalies avoided. [Citations.]" (Coachella Valley Mosquito and Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1089.) Its analysis is a good example of using legislative history and purpose to help resolve statutory ambiguity.
But we are not in this case seeking to resolve an ambiguity similar to the one faced in Johnson. Section 1170.18, subdivision (a), makes it clear that a person who was serving a sentence for a conviction of a felony and who would have been guilty of a misdemeanor if Proposition 47 had "been in effect at the time of the offense may petition for a recall of sentence before the trial court . . . to request resentencing . . . ." Moreover, while section 1170.126 bars resentencing if a petitioner has any specified disqualifying prior conviction (§ 1170.126, subd. (e)(3)), that provision was not at issue in Johnson Neither did Johnson construe section 667(e)(2)(C)(iv)(VIII). "[I]t is axiomatic that cases are not authority for propositions not considered. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.) Our construction of sections 667(e)(2)(C)(iv)(VIII) and 1170.18(i) cannot possibly impermissibly "overrule" Johnson because Johnson did not consider those sections.
Section 1170.126, subdivision (e), also imposes another limitation on eligibility for resentencing: "An inmate is eligible for resentencing if: . . . [¶] (2) The inmate's current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12." (Italics added.) There is no counterpart of this subdivision in section 1170.18.
Defendant also claims that the trial court's interpretation of section 667(e)(2)(C)(iv)(VIII) is inconsistent with the language of section 1192.7, subdivision (c)(7) (hereafter 1192.7(c)(7)), and that such an interpretation of section 1192.7(c)(7) would lead to absurd results. Section 1192.7(c)(7) includes as a "serious felony" "any felony punishable by death or imprisonment in the state prison for life." Insofar as we can discern, defendant is arguing (without citing any authority) that, like section 1192.7(c)(7), section 667(e)(2)(C)(iv)(VIII) does not take into consideration the punishment actually imposed in deciding whether a felony offense is punishable by life imprisonment. In support of that argument, he points out (without any citation of authority) that the five-year serious felony enhancement, which applies to "any person convicted of a serious felony who previously has been convicted of a serious felony" (§ 667(a)(1)), was not imposed under the former Three Strikes law whenever a defendant with a prior serious felony conviction was convicted of a new felony that was punished by an indeterminate life term. This argument is reminiscent of the Supreme Court's reasoning in People v. Thomas (1999) 21 Cal.4th 1122 (Thomas), which neither party cites.
This catchall category would include, for example, a violation of section 219 (train derailing or wrecking), which is punishable "with death or imprisonment in the state prison for life without possibility of parole in cases where any person suffers death as a proximate result thereof, or imprisonment in the state prison for life with the possibility of parole, in cases where no person suffers death as a proximate result thereof." (§ 219.)
Thomas was concerned with the meaning of section 667.5, subdivision (c)(7) (hereafter 667.5(c)(7)), describing as a violent felony "[a]ny felony punishable by death or imprisonment in the state prison for life," and section 2933.1, which establishes a 15 percent presentence credit limitation when a defendant is "convicted of a felony offense listed in subdivision (c) of [s]ection 667.5" (§ 2933.1, subds. (a), (c)). The language of section 667.5(c)(7) is identical to the language of section 1192.7(c)(7).
In Thomas, the California Supreme Court held that section 2933.1 and section 667.5(c)(7) together "limit a defendant's presentence conduct credit to a maximum of 15 percent only when the defendant's current conviction is itself punishable by life imprisonment, not when it is so punishable solely due to his status as a recidivist." (Thomas, supra, 21 Cal.4th at p. 1130.) In reaching its holding, the Supreme Court in Thomas observed the language of section 1192.7(c)(7) "parallels the language at issue in section 667.5(c)(7)." (Thomas, supra, at p. 1128) The court reasoned that "[i]f 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)." (Ibid.) Since under the then existing Three Strikes law a defendant who had two or more prior convictions of violent or serious felonies received an indeterminate life sentence with a minimum term of 25 years for a new felony conviction, the Supreme Court in Thomas observed that "[a] third strike would by definition . . . always qualify as a serious or violent offense." (Thomas, supra, at p. 1128; see Johnson, supra, 61 Cal.4th at pp. 680-681.) The court stated that "[t]he plain language of the three strikes law and our cases interpreting it compel the opposite result," explaining that in an earlier case the court had distinguished between a serious third strike felony and a nonserious third strike felony. (Thomas, supra, at p. 1129.)
The Supreme Court further reasoned in Thomas: "[I]f every third strike qualified as a serious felony, virtually every third strike defendant would receive not only a life sentence but also a five-year enhancement under section 667[(a)]. [Citation.] This section 'imposes a five-year enhancement for each current conviction for a "serious" felony if the defendant previously has been convicted of a "serious" felony. If a third strike were automatically considered a "serious" felony by virtue of the fact it carries a life sentence, the five-year enhancement would be imposed in every third strike case involving a prior serious felony conviction regardless of what offense constituted the third strike.' [Citation.] We have held otherwise. [Citations.]" (Thomas, supra, at p. 1129.) The court concluded: "Given this limitation of section 667(a) five-year enhancements to recidivists whose current offenses are serious, it is equally appropriate to limit sections 2933.1 and 667.5(c)(7) to defendants whose current offenses, in and of themselves, and without reference to the punishment accorded under the three strikes law, are violent. [Citation.]" (Ibid.)
Thomas is informative but not determinative of our construction of section 667(e)(2)(C)(iv)(VIII) because that provision does expressly incorporate section 667.5(c)(7) or section 1192.7(c)(7) or merely repeat their language. Any construction that simply equated section 667(e)(2)(C)(iv)(VIII) to the felony described in section 1192.7(c)(7) or 667.5(c)(7) would render the phrase "serious and/or violent" superfluous. (See § 667(e)(2)(C)(iv)(VIII) ["Any serious and/or violent felony offense punishable in California by life imprisonment or death"].) In the absence of any evidence of contrary legislative intent, "we must follow the fundamental rule of statutory construction that requires every part of a statute be presumed to have some effect and not be treated as meaningless unless absolutely necessary. 'Significance should be given, if possible, to every word of an act. [Citation.] Conversely, a construction that renders a word surplusage should be avoided. [Citations.]' [Citations.]" (People v. Arias (2008) 45 Cal.4th 169, 180.)
Respondent insists that the 1999 convictions of residential burglary are disqualifying offenses under section 667(e)(2)(C)(iv)(VIII) because a residential burglary is a serious felony (§ 1192.7, subd. (c)(18)) and those burglary convictions were punished by indeterminate life terms under the Three Strikes law, which is a penalty provision. In support of this position, respondent cites People v. Jones (2009) 47 Cal.4th 566 (Jones) and asserts that it is the controlling authority here.
The defendant in Jones was found guilty of shooting at an inhabited dwelling (§ 246) for the benefit of a criminal street gang (§186.22, subd. (b)) and personally using a firearm in his commission of the crime (§ 12022.5). (Jones, supra, 47 Cal.4th at p. 569.) The issue in Jones was "whether defendant committed a 'felony punishable by . . . imprisonment . . . for life' (§ 12022.53, subd. (a)(17)), thus triggering application of the 20-year sentence enhancement under section 12022.53(c)." (Id. at p. 569.) The Supreme Court concluded that the defendant was "subject to that additional 20-year term not because he committed a gang-related offense but because he committed a particularly heinous crime (that is, a crime so serious that it is punishable by life imprisonment)." (Id. at p. 575, italics added.) The court explained: "[A] violation of section 246 (shooting at an inhabited dwelling) by itself carries a maximum prison sentence of seven years. But when, as in this case, the crime is committed to benefit a criminal street gang, the provision that comes into play is section 186.22(b)(4), which calls for a term of life imprisonment (with a minimum parole eligibility of 15 years)." (Id. at p. 575.)
Jones distinguished the situation in People v. Montes (2003) 31 Cal.4th 350 (Montes). (Jones, supra, 47 Cal.4th at pp. 577-578.) In Montes, the trial court had sentenced the defendant to "the midterm of seven years for attempted murder (§§ 664, 187), plus a consecutive term of 10 years for the criminal street gang enhancement (§ 186.22, subd. (b)(1)(C)), plus a consecutive term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d))." (Montes, supra, at p. 353, fn. omitted.) The appellate court's conclusion, which the Supreme Court later rejected, was that the trial court should have imposed the 15-year minimum parole eligibility requirement under section 186.22, subdivision (b)(5), which applies when a defendant is convicted of "a felony punishable by imprisonment in the state prison for life," and not the 10-year gang enhancement term. (Montes, supra, at p. 353.) The Supreme Court held that section 186.22, subdivision (b)(5), "applies only where the felony by its own terms provides for a life sentence" (Montes, supra, at p. 352).
Section 186.22, subdivision (b)(5), states: "Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served."
The Supreme Court in Jones explained: "Unlike the life sentence of the defendant in Montes, supra, 31 Cal.4th 350, which was imposed as a sentence enhancement (a punishment added to the base term), here defendant's life sentence was imposed under section 186.22(b)(4), which sets forth the penalty for the underlying felony under specified conditions. The difference between the two is subtle but significant. 'Unlike an enhancement, which provides for an additional term of imprisonment, [a penalty provision] sets forth an alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the conditions specified in the statute.' (People v. Jefferson, supra, 21 Cal.4th at p. 101, italics added and omitted.)" (Jones, supra, 47 Cal.4th at p. 578.) In Jones, the court found the distinction between a sentence enhancement (§ 12022.53) and a penalty provision (§ 186.22, subd. (b)(4)) was of critical importance. (Jones, supra, at p. 577, fn. 5.)
In People v. Williams (2014) 227 Cal.App.4th 733, 736 (Williams), which respondent also cites, the issue was whether a 25-year to life sentence imposed under the Three Strikes law was a life sentence within the meaning of section 186.22, subdivision (b)(5), which mandates a minimum parole term of 15 years for any felony committed for the benefit of a gang that is "punishable by imprisonment in the state prison for life." On appeal, the defendant contended that the trial court should not have imposed "a consecutive 10-year term for the gang enhancement on each count," and it instead should have imposed "the 15-year minimum parole eligibility requirement found in section 186.22, subdivision (b)(5)." (Williams, supra, at p. 736.) The appellate court agreed, reasoning that "because defendant's life sentences are the result of a penalty provision (the Three Strikes law), they are life sentences within the meaning of section 186.22, subdivision (b)(5)." (Id. at pp. 736-737.)
We do not find Jones or Williams binding here or even persuasive with regard to the construction of section 667(e)(2)(C)(iv)(VIII), which was not at issue in those cases. Neither case purports to establish a universal meaning for, or construction of, the phrase "punishable in California by life imprisonment," regardless of legislative intent. We are not bound to follow them (see People v. Johnson (2012) 53 Cal.4th 519, 528 ["a lower court does not violate Auto Equity . . . merely by deciding questions of first impression"]), although we consider their reasoning. In the end, we do not find the dichotomy between penalty and enhancement provisions determinative here.
Observing that the sentencing and resentencing provisions of Proposition 36 and Proposition 47 all exclude persons who have a prior conviction of a super strike felony from the benefit of the propositions' ameliorative sentencing changes (see Health & Saf. Code, §§ 11350, subd. (a), 11377, subd. (a); former Health and Saf. Code, § 11357, subd. (a); §§ 459.5, subd. (a), 473, subd. (b), 476a, subd. (b), 490.2, subd. (a), 496, subd. (a), 666, subds. (a), (b), 667, subd. (e)(2)(C)(iv), 1170.12, subd. (c)(2)(C)(iv), 1170.18(i), 1170.126, subd. (e)(3)), we turn our focus to the legislative intent and purpose underlying those laws. "[O]ur 'task is simply to interpret and apply the initiative's language so as to effectuate the electorate's intent.' [Citation.]" (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901.)
Subdivision (e)(2)(C)(iv) of section 667, as amended by Proposition 36, provides as pertinent here: "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]." Section 1170.12 contains parallel language (§ 1170.12, subd. (c)(2)(C)(iv)). Section 1170.126, the resentencing provision added by Proposition 36 (Voter Information Guide, Gen. Elec., supra, text of Prop. 36, § 6, pp. 109-110), disqualifies an inmate from resentencing under the proposition's ameliorative provisions if the inmate has a prior conviction for any of the super strike offenses listed in section 667(e)(2)(C)(iv) (or in section 1170.12, subdivision (c)(2)(C)(iv) [same]). (§ 1170.126, subd. (e)(3).)
Proposition 36 was intended to "restore the original intent of California's Three Strikes law—imposing life sentences for dangerous criminals like rapists, murderers, and child molesters" and stated that it would "[r]equire that murderers, rapists, and child molesters serve their full sentences" and "receive life sentences, even if they are convicted of a new minor third strike crime." (Voter Information Guide, Gen. Elec., supra, text of Prop. 36, § 1, p. 105.) The legislative intent was to, among other things, "[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 for housing or long-term health care for elderly, low-risk, non-violent inmates serving life sentences for minor crimes." (Ibid.)
The Legislative Analyst's analysis of Proposition 36 noted the exceptions to more lenient sentencing of nonviolent, nonserious felonies committed by third strike offenders, the analysis stated: "The measure, however, 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.) With regard to the potential resentencing of third strike offenders already serving an indeterminate life sentence, the Legislative Analyst's analysis stated: "This measure allows certain third strikers to apply to be resentenced by the courts. The measure limits eligibility for resentencing to third strikers whose current offense is nonserious, non-violent and who have not committed specified current and prior offenses, such as certain drug-, sex-, and gun-related felonies. Courts conducting these resentencing hearings would first determine whether the offender's criminal offense history makes them eligible for resentencing." (Id., p. 50.)
The argument in support of Proposition 36 urged voters pass it to "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 to "MAKE ROOM IN PRISON FOR DANGEROUS FELONS." (Voter Information Guide, Gen. Elec., supra, argument in favor of Prop. 36, p. 52.) It stated: "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 to the 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.)
There is no suggestion in the ballot materials for Proposition 36 that a prior residential burglary conviction was one of the extremely violent or specified crimes, like murder, rape, or child molestation, barring more lenient sentencing or resentencing under the proposition's ameliorative provisions. Neither is there any evidence that voters intended to categorically exclude third strike offenders from such lenient sentencing or resentencing for a nonserious or nonviolent felony based merely on third strike sentencing for any prior serious or violent felony conviction. Such a construction of section 667(e)(2)(C)(iv)(VIII) would undermine the purposes of the Proposition 36 reforms. The statutory "goals 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.)
As a concrete example, take a person who had two serious felony convictions, who was subsequently convicted of a third serious felony of attempted criminal threats (§§ 422, 664, 1192.7, subds. (c)(38) & (c)(39)) and sentenced to an indeterminate life term under the Three Strikes and then commits a nonviolent and nonserious felony while in prison, such as possession of drug paraphernalia (§ 4573.6). If section 667(e)(2)(C)(iv)(VIII), were construed as respondent suggests, the person would be disqualified from the more lenient punishment applicable to nonviolent, nonserious felonies under the reform of the Three Strikes law because he had previously been convicted of a serious felony (attempted criminal threats) that resulted in a third strike sentence of life imprisonment, and the applicable sentence for the nonviolent and nonserious felony (possession of drug paraphernalia) would be an additional sentence of 25 years to life (§ 667, subd. (e)(2)(A) & (B)). That outcome would defeat the purposes of Proposition 36.
Criminal threats is a wobbler offense (§ 422, subd. (a)), and the offense is ordinarily punishable as felony by a term of 16 months, or two or three years (§§ 422, 1170, subd. (h)(1)). Felony attempted criminal threats is ordinarily punishable by one-half of the proscribed term (§ 664, subds. (a).) Under the Three Strikes law as reformed by Proposition 36, an eligible offender who has two or more prior serious or violent felony convictions and whose new offense is a nonviolent, nonserious felony would be sentenced to twice the usual term for the new offense. (§§ 667, subds. (e)(1), (e)(2)(C); 1170.12, subd. (c)(1), (c)(2)(C).)
Accordingly, we conclude that, for purposes of Proposition 36, section 667(e)(2)(C)(iv)(VIII) refers to "[a]ny serious and/or violent felony offense" that, without reference to the punishment imposed under the Three Strikes law, is itself "punishable in California by life imprisonment or death." This construction should likewise apply in the context of section 1170.18(i).
Like section 1170.126, section 1170.18 is a resentencing statute added by a voter proposition that provides an opportunity for resentencing under new, more lenient sentencing provisions enacted by the proposition, but makes persons who have any disqualifying conviction ineligible for relief. Thus, it would appear that section 1170.18 was modeled on the earlier section 1170.126.
"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, disapproved on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 229, 237, fn. 6 and People v. Escobar (1992) 3 Cal.4th 740, 749-751.) "A statute that is modeled on another, and that shares the same legislative purpose is in pari materia with the other, and should be interpreted consistently to effectuate [legislative] intent. [Citation.]" (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1129.) "[C]ode sections in pari materia must be harmonized with each other to the extent possible; a section should be construed in light of the whole system of law of which it is a part. [Citations.]" (Pacific Southwest Realty Co. v. County of Los Angeles (1991) 1 Cal.4th 155, 169.)
An anomaly in the law would be created if different meanings were ascribed to section 667(e)(2)(C)(iv)(VIII), depending upon the context in which it is applied. "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.) Of course, " 'our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure.' [Citation.]" (People v. Briceno (2004) 34 Cal.4th 451, 459.) We have found no evidence, however, that the voters approving Proposition 47 intended to impress a different meaning upon the language of section 667(e)(2)(C)(iv)(VIII) than did the voters approving Proposition 36.
Proposition 47 declared that the proposition was being enacted "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, § 2, p. 70, italics added.) It expressly indicated that its legislative intent included the 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" (id., § 3, subd. (3), p. 70), the intent to "[a]uthorize consideration of resentencing for anyone who is currently serving a sentence for any of the offenses listed herein that are now misdemeanors" (id., subd. (4), p. 70), the intent to "[r]equire a thorough review of criminal history and risk assessment of any individuals before resentencing to ensure that they do not pose a risk to public safety" (id., subd. (5), p. 70), the intent to "[e]nsure that people convicted of murder, rape, and child molestation will not benefit from this act" (id., subd. (1), p. 70), and the intent to "save significant state corrections dollars" (id., subd. (6), p. 70). These intents and purposes are similar to those underlying Proposition 36.
The Legislative Analyst's analysis of Proposition 47 states: "This measure 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 analysis made clear that "no offender who has committed a specified severe crime could be resentenced or have their conviction changed" and that "the measure states that a court is not required to resentence an offender currently serving a felony sentence if the court finds it likely that the offender will commit a specified severe crime." (Id., p. 36, italics added.)
The ballot arguments in favor of Proposition 47 were similar to those in favor of Proposition 36. The ballot arguments in support of Proposition 47 indicated that it "[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.) Those arguments informed voters that it nevertheless "[a]uthorizes felonies 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 that the proposition "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. 39.)
Residential burglary itself is not one of the severe crimes specified in section 667, subdivision (e)(2)(C)(iv). Neither Proposition 47 nor its legislative history contains any suggestion that a prior conviction of a residential burglary (or other serious or violent felony) categorically disqualified a person from resentencing if that prior conviction was punished by an indeterminate life term under the Three Strikes law. Such a construction of section 667(e)(2)(C)(iv)(VIII) would disserve Proposition 47's goals of reducing the punishment for less serious crimes, not wasting prison space on petty crimes, and saving taxpayer money.
Accordingly, we conclude that the determination whether an offense is a "serious and/or violent felony offense punishable in California by life imprisonment or death" within the meaning of section 667(e)(2)(C)(iv)(VIII) for purposes of section 1170.18(i) is made without regard to the punishment imposed under the Three Strikes law. To be clear, we are not saying that Jones, supra, 47 Cal.4th 566 is irrelevant under section 1170.18(i). In different circumstances than those appearing here, the holding in Jones may come into play.
For example, robbery is both a violent felony (§ 667.5, subd.(c)(9)) and a serious felony (§ 1192.7, subd. (c)(19)). Robbery perpetrated in an inhabited dwelling house is robbery of the first degree (§ 212.5, subd. (a)), which is ordinarily punishable "by imprisonment in the state prison for three, six, or nine years." (§ 213, subd. (a)(1)(A).) But if a home invasion robbery ordinarily punishable under section 213, subdivision (a)(1)(A) is "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members," the robbery is punishable by "an indeterminate term of life imprisonment with a minimum term" of commitment. (§ 186.22, subd. (b)(4).) --------
Based on our construction, defendant's 1999 first degree burglary convictions do not constitute convictions of serious felony offenses "punishable in California by life imprisonment" (§ 667(e)(2)(C)(iv)(VIII)). Consequently, he is not categorically disqualified from petitioning for resentencing under section 1170.18(i). Our conclusion is consistent with the result of a recent opinion of this court. (People v. Hernandez (2017) 10 Cal.App.5th 192.)
DISPOSITION
The order denying defendant's petition for resentencing pursuant to section 1170.18 is reversed. The matter is remanded for further proceedings consistent with this opinion.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.