PEOPLE v. DEHOYOSAppellant, Veronica Lorraine DeHoyos, Letter BriefCal.February 16, 2017APPELLATE DEFENDERS,INC. 555 WEST BEECH STREET SUITE 300 SAN DIEGO, CA 92101-2939 (619) 696-0282 Automated Attendant: (619) 696-0284,ext. 32 www.adi-sandiego.com February 14, 2017 Jorge E. Navarrete, Supreme Court Clerk/Administrator Supreme Court of California 350 McAllister Street SUPREME COURT San Francisco, California 94102-4797 FILED FEB 16 2017Re: People v. Veronica Lorraine DeHoyos Supreme Court Case No. $228230 Jorge Navarrete Clerk Court of Appeal Case No. D065961 DeputDear Mr. Navarrete: eputy By order of January 25, 2016, this court requested the parties “to brief the significance, if any, of this court’s decision in People v. Conley (2016) 63 Cal.4th 646 [Conley], on the issues in this case.” In Conley this court held in the context of Proposition 36, that a defendant who hadsuffered a Third Strike conviction before the passage of the proposition, then had appealed, but whose appeal was pending — and, hence, the judgment wasnotyet final — wasnotentitled to the ameliorative benefits of the proposition under the principles of Jn re Estrada (1965) 63 Cal.2d 740 (Estrada). In considering Estradaprinciples, this court in Conley weighed a “set of interpretive considerations” and was persuaded “that the voters who passed [Proposition 36] did not intend to authorize automatic resentencing for third strike defendants serving nonfinal sentences imposed underthe formerversion ofthe Three Strikes law.” (Conley, supra,at p. 657.) In other words,it is the intent of the legislative body, whether the Legislature or the electorate, which the court mustdiscern to determine ifEstrada does apply to any particular legislation. Appellant acknowledgesthe similarity ofthe language in question in both Proposition 36 (Pen. Code,' 1170.126) and Proposition 47 (§ 1170.18, subd. (a)). But it does not necessarily follow that the same language must be given the same meaning if the “set of interpretive considerations” surrounding and imbedded within Proposition 47 are entirely 'All statutory references shall be to the Penal Code. 1 Page 2 different than those which this court considered in Proposition 36. ARGUMENT I. WHILE PROPOSITIONS36 AND 47 SHARE SOMESIMILAR LANGUAGE, THIS COURT SHOULD CONFINEITS INTERPRETATION OF THE LATTER TO THE CONTEXT OF THAT PROPOSITION AND THE VOTERS’INTENT IN ENACTING IT. THE COURT MUST ADOPT AN INTERPRETATION CONSISTENT WITH THE VOTERS’ INTENT IN ENACTING PROPOSITION 47 AND REFRAIN FROM FALLING BACK ON THE UNDERSTANDINGSOF SIMILAR TERMSIN OTHER CONTEXTS WHICH CONFLICT WITH THE VOTERS? INTENTIN ENACTING PROPOSITION47. Whenlegislation is enacted bytheinitiative process,indicia of the electorate’s intent is comparatively meager when contrasted to the legislative process utilized by the Legislature. Typically, with a Voter Information Guide there will be the actual language of the text of the proposed law, a very brief summary by the Attorney General, analysis by the legislative analyst, and the various arguments, pro and con, of proponents and opponents. Forthere to be any rational system to determineintent, a primary given, whether denotedasa legal fiction ornot, is the presumptionthatthe electorate read and considered the relevantportions of the Voter Information Guide. (Cf. People v. Buford (2016) 4 Cal.App.Sth 886, 916 (Buford) [voters are provided with voter information guides containing not only actual text of measure, but also a neutral explanation and analysis by the Legislative Analyst and argumentsin support of and opposition to the measure, because they are not asked or presumedto beable to discern all potential effects of proposed initiative].) Or, as this court recognized in Amador Valley Joint Union High School District v. State Board ofEqualization (1978) 22 Cal.3d 208, 245-246, “[T]he ballot summary and arguments andanalysis presentedto the electorate in connection with a particular measure may be helpful in determining the probable meaning ofuncertain language. [Citations].” In Amador,this court observed “that we ordinarily should assume that the voters who approveda constitutional amendment‘. . . have voted intelligently upon an amendmentto their organic law, the whole text of which was supplied each of them priorto the election and which they must be assumed to have duly considered.’ ” (/d. at pp. 243-244.) In Amador, what wasin question wasa constitutional amendment, but this court’s same conclusion should holdtrue in statutory amendment. Ofparamount importance to the question propoundedbythis court’s orderis to compare and contrast the presentation to the electorate of the two propositions. 2 Page 3 The very first sentence of Proposition 36,i.e., Section 1, Findings and Declaration, is, with emphasis added, ““The People enact the Three Strikes Reform Act of 2012 to restore the original intent of California’s Three Strikes Law —. . . .” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) [Voter Guide 2012], Text of Proposed Laws, p. 105.) Similarly, that same section provided, again with emphasis added, “This act will: .. . (2) Restore 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.” (/bid.) By “restoring” a scheme,albeit somewhatbelatedly,to its “original intent,” by its very terms, Proposition 36 would not be a wholesale, widespread, never-before-seen sea change in California criminal jurisprudenceas has been Proposition 47. One may note that nowherein Conley, supra, is “restore” or “original intent” or “original understanding” found. In stark contrast to Proposition 36, Proposition 47 reduced a number of wobbler and felony offenses to misdemeanor offenses (assuming an offender does not have a “super-strike”history), allowed for resentencing for those under judgment (even if no appeal wastakenor if one had becomefinal), and, without precedent, allowed for those with qualifying offenses to seek to have their felonies designated misdemeanors (again assuming no “super-strike” history) no matter how far in the past the offenses had been committed. As noted in previous briefing but bears repeating in the contextof this supplementalbrief requested by the court, the first three bullet points of the Summary, “Prepared by the Attorney General”herself(Voter Information Guide, Gen.Elec. (Nov. 4, 2014) [Voter Guide 2014], Official Title & Summary,at p. 34), the very first words a voter would read, indicate a considerable reduction in sentences for new offenses so long as the defendanthas no “super-strike” or required sex registration offense: . Requires misdemeanorsentenceinsteadof felony for certain drug possession offenses. . Requires misdemeanorsentenceinstead offelony for the following crimes when amount involvedis $950orless: petty theft, receiving stolen property, and forging/writing bad checks. ° Allowsfelony sentencefor these offenses if person has previous conviction for crimes such as rape, murder, or child molestation oris registered sex offender. Only the fourth bullet refers to required resentencing unless the court finds unreasonable public safety risks. Similarly, when reviewing the Analysis by the Legislative Analyst, under “Proposal,”thereis first a short one paragraph introduction followed by ten detailed paragraphs describing the “Reduction of Existing Penalties” should Proposition 47 be 3 Page 4 enacted. (Guide 2014, supra, Analysis, at pp. 35-36.) Following these ten descriptive paragraphs is a one-paragraph discussion concerning resentencing from felonies to misdemeanors for previously convicted offenders — the petition process of section 1170.18, including a mention of the designation as misdemeanors for completed felony sentences. (/d. at p. 36.) Simply put, this vast retroactive scheme bespeaksan intent of the electorate far different that merely “restoring” an “originalintent,” an intent which should compelthe application of Estrada. With such a far-reaching, unprecedented retroactiveeffect, should Estrada, supra, apply to defendantssuch as appellantin the same mannerasthis court held in /n re Kirk (1963) 63 Cal.2d 761 (Kirk) [when priorto affirmance of conviction by reviewingcourt, ameliorative legislation was enacted, the problem is precisely the sameas the one involved in Estrada, andpetitioner entitled to benefits of amendatory statute, i.e., Kirk-defendants] or should be such defendants be linked with those whoseaffirmances have comeafter the date of enactment (or who never availed themselves of appeal)? One cannot answerthat question simply by looking at the similarity of the language. Such a simplistic approach has been rejected by several cases. One casein point is Buford, supra, 4 Cal.App.5Sth 886. While the underlying issuesin Buford were different, i.e., burdens of proof and presumptionsinherentin Proposition 36,still, to addressthose issues the Buford court emphasized the differences between the intent of the electorate in enacting the earlier and later propositions. “[Proposition 36] clearly placed public safety above the cost savings likely to accrue asa result of its enactment. Thus, uncodified section 7 of [Proposition 36] provides: ‘This act is an exercise ofthe public powerof the people of the State of Californiafor the protection ofthe health, safety, and welfare ofthe people ofthe State ofCalifornia, and shall be liberally construed to effectuate those purposes.” (Voter Information Guide, Gen. Elec. [(Nov.6, 2012)] text of Prop. 36, p. 110, someitalics omitted.)” (/d. at pp. 908-909) “..., ‘Although the Act “diluted”the three strikes law somewhat[citation], “[e]nhancing public safety was a key purposeof the Act”[citation].’ ” (/d. at p. 909.) The Buford court continued: “In contrast, Proposition 47... emphasized monetary savings. The ‘Findings and Declarations’ state: ‘The people ofthe State of California find and declare as follows: [{] The people enact the Safe Neighborhoods and Schools Act to ensure that prison spending is focused onviolent andserious offenses, to maximizealternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K~12 schools, victim services, and mental health and drug treatment. This act ensures that sentences for people convicted of dangerouscrimes like rape, murder, and child molestation are not changed.’ (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.) 4 Page 5 Uncodified section 15 of the measure provides: ‘This act shall be broadly construed to accomplish its purposes,’ while uncodified section 18 states: ‘This act shall be liberally construed to effectuate its purposes.’ (Voter Information Guide, Gen. Elec., supra, text of Prop. 47, p. 74.) Proposition 47 requires misdemeanorsentences for various drug possession and property offenses, unless the perpetrator has a prior conviction for a “super strike’ offense or for an offense requiring sex offender registration pursuantto section 290, subdivision(c). [Citations.]” (Buford, supra, 2016 WL 6302502 at p. *17.) From this the court concluded,“Nowherein the ballot materials for Proposition 47 were voters given any indication that initiative, which dealt with offenders whose current convictions would now be misdemeanorsrather than felonies, had any impact on Proposition 36... .” (Buford, supra, 4 Cal.App.Sth at p. 909.)) So, too, this court in Harris v. Superior Court (2016) 1 Cal.5th 984, 992, recognized the cost-saving purpose of Proposition 47: “One of Proposition 47’s primary purposesis to reduce the numberofnonviolentoffendersin state prisons, thereby saving moneyand focusing prison on offenders considered more serious underthe terms of the initiative. [Citations.]” Similarly, in People v. Walker (2016) 5 Cal.App.5th 872, 878 (Walker), while noting, with emphasis added, that the two propositions “share some similar language,” still, “the twoballotinitiatives reflect profound differencesin purpose and intent. The voters enacted Proposition 47 ‘to ensure that prison spendingis focused on violent and serious offenses, to maximize alternativesfor nonserious, nonviolent crime, and to invest the savings generatedfrom this act into prevention and supportprograms.’ (Voter Information Guide [(Nov. 4, 2014)] text of Prop. 47, § 2, p. 70.) [Proposition 47] achieves these goals by classifying specific nonserious, nonviolent crimes as misdemeanorsrather than felonies, while expressly disqualifying offenders with super strike convictions from benefitting from its provisions.” (/bid.) On the other hand, “Proposition 36... was aimed at ‘restor[ing] the originalintent ofCalifornia's Three Strikes law.’ (Voter Information Guide, Gen. Elec. (Nov. 6, 2012)text of Prop. 36, § 1, p. 105.)” (bid) While an expressed intent and purpose of Proposition 47 was to reduce the number of nonviolent offendersin state prisons, thereby saving money and focusing prison on offenders considered more serious underthe termsoftheinitiative, appellant notes that an implied intent and purpose must have also have beento ameliorate the erstwhile felony consequences under whichthose convicted of felonies of the affected statutes who had completedtheir sentencesstill travail. Since the individuals have completed their incarceration,parole, or probation, there is no longer any moneyto be saved by reducing their felonies to misdemeanors, and, hence, some purpose other than pure money-savings mustbe present. Also, the sooner individuals such as appellant may achieve their 5 Page 6 reduction, the sooner the money savings are realized — both in costs ofincarceration and judicial resources. Returning to Walker, supra, most relevantto the instant discussion, the court wrote, “Noting that “[t]here is a presumption that terms must be interpreted to be consistent with the statutory scheme of which theyare a part,” [People v. Spiller (2016) 2 Cal.App.5th 1014] kept its analysis within the context of Proposition 36 and consistent with the provisions of the Three Strikes scheme as a whole. (Spiller, supra, 2 Cal.App.5th at p. 1023, 207 Cal.Rptr.3d 151.) We must likewise confine our interpretation of “prior conviction”to the context of Proposition 47 andthe voters’ intent in enacting it. That means we must adopt the interpretation most consistent with the intentofthe voters, andrefrainfromfalling back on understandings ofthe termfrom other contexts which conflict with the voters’ intent in enacting this law.” (Walker, supra, 5 Cal.App.Sth at p. 879, emphasis added.) Theprinciple that an interpretation consistent with the electorate’s intent and refraining from the employmentof termsin other contexts is not a one-waystreet or a gauge subject to a double-standard,i.e., to be utilized in favor of a more severe interpretation of Proposition 36, but ignored in the discourse of Proposition 47. When applied in the context of Proposition 47, the conclusion shall follow that the electorate’s intent requires an adoption ofan interpretation consistent with appellant’s argument. The intent of the electorate was notonly to reduce the numberof nonviolent offendersin state prisons, thereby saving money and focusing prison on offenders considered more serious underthetermsofthe initiative. If that wereits only intent, the proposition would not have also included its wide, broad ameliorative scheme permitting erstwhile felons with convictions decadesoldto gain reduction. (§ 1170.18, subd.(f).) Similarly, any eligible offense for which judgment had not been imposed would likewise be subject to amelioration. (Estrada, supra, 63 Cal.2d 740.) The offenses are presumptively misdemeanorsunlessthe prosecution pleads and proves a disqualifying factor such as a super-Strike (and in the caseofvalue limitation that such value was exceeded). Theseintents — massive reductionsin the criminal sanctions of both current prosecutionsand long-past convictions — extensive and wide-scale, are in stark contrastto restoring the original intent of our Three Strikes law. Page 7 Il. THE RATIONALESIN CONLEY, SUPRA, APPLICABLE TO THE RESENTENCING OF THREE STRIKERS UNDER SECTION 1170.126 ARE INAPPOSITE TO PROPOSITION 47 AND ITS WIDE- SCALE AMELIORATION OF CRIMINAL PUNISHMENT. Appellant is not unmindfulofthis court’s conclusion in Conley, supra, 63 Cal.4th at page 657, distinguishing the electorate’s intent in enacting Proposition 36 from “t]he Estrada rule [which] rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentencesthatare final and sentencesthat are not.” This court then set forth three rationales for why the electorate’s intent evinced a contrary indication excluding Proposition 36 from the Estrada realm. The second rationale, in essence, was that “the nature of the recall mechanism and the substantive limitations it contains call into question the central premise underlying the Estrada presumption: that when an amendmentlessens the punishmentfor a crime,it is reasonable to infer that the enacting legislative body has categorically determinedthat ‘imposition of a lesser punishment’ will in all cases ‘sufficiently serve the public interest.’ [Citation.]” (Conley, supra, 63 Cal.4th at p. 658.) This court then concluded, “Where,as here, the enacting bodycreates a special mechanism for application of the new lesser punishmentto persons who havepreviously been sentenced, and where the body expressly makesretroactive application of the lesser punishment contingent on a court’s evaluation of the defendant’s dangerousness, we can no longer say with confidence, as we did in Estrada, that the enacting body lacked any discernible reasonto limit application of the law with respect to cases pending on direct review.” But the contrary is true in the circumstances of Proposition 47; here’s why: The expressed purpose of Proposition 36 was“to restore the original intent of California’s Three Strikes Law,”andto that end, this court recognizedthat intent required resentencing to be “subject to judicial evaluation of the impact of resentencing on public safety, based on the prisoner’s criminalhistory, record of incarceration, and other factors.” (Conley, supra, 63 Cal.4th at p. 659.) And, of course, Proposition 36 would only be applicable to individuals who had two-plus serious/violent felony offenses, certainly not an enviable criminalhistory. In contrast, while some — certainly a small fraction of the tens or hundreds of 7 Page 8 thousands who have sought Proposition 47 relief may be individuals who have been Two or Three Strikers, by far, far, the vast majority are those who have no serious/violent felonies, let alone a so-called “super Strike.” In determining the electorate’s intent re the Estrada principle, this court should notlookat section 1170.18, subdivision (a) in myopic isolation from the entire proposition, but rather in mind with the complete changein the legal landscape wrought by composite whole. This court should not be blinded by the blizzard oflitigation occasioned by the differences of opinions on the meaningof section 1170.18. Truth be told, the real influence on California’s Judicial system was and continues to be de-felonization of a slew of offenses and the prosecution of same as misdemeanors. The contrast between the two propositionsis again highlighted by this court’s third rationale ~ “unlike in Estrada, the revised sentencing provisionsat issue in this case do more than merely reduce previously prescribed criminalpenalties. Theyalso establish a new set of disqualifying factors [such as being armed with firearm] that precludea third strike defendant from receiving a secondstrike sentence. (See Pen. Code, § 1170.12, subd.(c)(2)(C).) The sentencing provisions further require that these factors be ‘plead[ed] and prove[d]’ by the prosecution. (/bid.) [§] These provisions add an additional layer of complexity to defendant’s request for automatic resentencing underthe revised penalty scheme.” (Conley, supra, 63 Cal.4th at p. 659.) But notso, forall intents and purposes, in the Proposition 47 sphere. For Proposition 47,forall of the potential misdemeanors — those who were in the process of being prosecuted on November 5, 2014; those who were sentenced and who did not appeal or whose appeals werefinal and would petition under section 1170.18, subdivision (a); those whose convictions were long final and would apply for those felonies to be designated undersection 1170.18, subdivision (f); those like appellant whoare Kirk-defendants; and those who are currently being prosecuted — to beeligible for misdemeanortreatment must be free from so-called super-Strikesor sex registration offenses. Moreaccurately, the People have the burdento plead and provetheir ineligibility. In other words, this past criminal history, which renders presumptive misdemeanants ineligible, is equally applicable to those to whom Estrada, supra, unquestionably would otherwise apply as well as to current offenders,and there is nothingto distinguish the Kirk-defendants from them. There, thus, remains this court’s first rationale, “the voters adopted a different approach. Theytook the extraordinary step of extending the retroactive benefits of [Proposition 36] beyond the bounds contemplated by Estrada — including evenprisoners serving final sentences within the [proposition’s] ameliorative reach — but subject to a 8 Page 9 special procedural mechanism for the recall of sentencesalready imposed. In prescribing the scope and mannerofthe [proposition’s] retroactive application, the voters did not distinguish between final and nonfinal sentences, as Estrada would presume,butinstead drew the relevantline betweenprisoners ‘presently serving’ indeterminate life terms—whether final or not—and defendants yet to be sentenced.” (Conley, supra, 63 Cal.4th at pp. 658-659.) This rationale does not support a similar conclusion asto Proposition 47. First, the implication that the operative language of section 1170.126 refers to the “presently serving an indeterminate[life] term” (emphasis added) is inaccurate. Actually, in the language of operative subdivision, which refers to who may and howtofile the actual petition, there is there is no adverb “presently” modifying “serving”: Anyperson serving an indeterminate term oflife imprisonment imposed pursuantto [the Three Strikes law], whetherbytrial or plea, of a felony or felonies that are not defined as serious and/orviolent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, may file a petition for a recall of sentence, within two years after the effective date of the act that addedthis section orat a later date upon a showing of goodcause, before the trial court that entered the judgment of conviction in his or hercase, to request resentencing in accordancewith the provisions of subdivision (e) of Section 667, and subdivision (c) of Section 1170.12,as those statutes have been amendedbythe actthat addedthis section. (§ 1170.126, subd. (b.)? Can onesaythat the presenceof“presently” in subdivisions (a) and (c) but not in the paramount subdivision (b), can be and should be considered just a draftsman’s oversight, a scrivener’s error? Considering that subdivisions(a) and (c) exclude others from the application ofthe legislation while subdivision (b) actually defines the parameters of who mayand howtopetition, the omission of “presently” cannot be presumed to be accidental. “In contrast, section 1170.126, subdivision (a), which sets forth the intent to apply the ameliorative effect of the state, does limit the beneficial effect only to those “presently” serving an indeterminate sentence whose sentence would not otherwise have been an indeterminateact. Similarly, section 1170.126, subdivision (c), which precludes application ofthe act to second Strikers, refers to those “presently” serving a “secondstrike” sentence. 9 Page 10 Butthen, what of “currently” in Proposition 47, specifically section 1170.18, subdivision (a)? Appellant has previously addressed this question(e.g., Reply Brief, p. 46 et seq.), but it bears repeating here. In contrast to Proposition 36 in question in Conley, supra, where there were only sentenced Three Strikers and pre-sentenced Three Strikers whose offenses and sentencing were in question, in the Proposition 47 context there is a far broader smorgasbord. Relevant to the discussion here would be the dichotomy betweenthe language re “currently serving a sentence” (§ 1170.18, subd. (a)) and “completedhis or her sentence”(§ 1170.18, subd. (f)). The differences between the two regimesare not inconsequential. The primary difference between the two regimesis that for the latter, the sentence having already been completed, there is nothing to be completed, and there is no “resentencing.” Theelectorate, in its wisdom, drew a bright-line: whetherthe applicant’s sentence had been completed yesterday or decadesago, the applicantfell under the subdivision (f) regime. One mayreasonably inferthat, although some applicants may have only recently just completed their sentences, for many more thousands upon thousandsofapplicants who mayhave been outof custody living ordinary law-abiding lives, with the exception of having a solitary felony record, it was not economically feasible, wise, or welcomed — especially in light of the amelioration of the current misdemeanors — to question their present “dangerousness.” Therefore, unless an applicanthada pasthistory of a so-called super-Strike, the applicant was entitled to reduction. Becauseofthis more relaxed standard ofgranting relief, another difference — which actually is a boonto the courts — is that no hearing is necessary to grant (or deny’) relief, unless the applicant requests one. (§ 1170.18, subd.(h).) Oneother difference betweenthe “current”/“completed” regimes mayexist as to the firearm exception in section 1170.18, subdivision (k), which provides, with emphasis added,“Any felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanorunder subdivision (g) shall be considered a misdemeanor for all purposes, except that such resentencingshall not permit that person to own, possess, or havein his or her custody or controlanyfirearm or prevent his or her conviction under [certain offenses commencing with Section 29800].” Thefirst clauseis unquestionablyapplicable to both petitioners for resentencing undersection 1170.18, *Presumably, the only reasonsto deny relief would be (a) if the offense sought to be reduced wasnot a qualifying offense or (b) the applicant had a disqualifying super-Strike history. 10 Page 11 subdivisions (a) and applicants for designation under subdivision (f), but the exception clause refers ONLYto resentencing and notto designation. Are we again to subscribe this to draftsman’s oversightor scrivener’s error in a different proposition at a different time with a different electorate’s intent? The bottom-line lesson to be drawnis that there is a decided distinction between those who have a “current” sentence and those who have “completed” sentence under the two regimes. Giventhe entire context of Proposition 47 as well as that the disputed language mustbeinterpreted in the context of that proposition rather similar terms in other contexts which conflict with the voters’ intent in enacting Proposition 47 (see ArgumentI, ante), the most reasonable interpretation is that the “currently serving a sentence’/“complete his or her sentence” languageis aimedat individuals whose judgments had becomefinal. While some minuscule percentage of appellants could possibly complete their sentences before an appeal becamefinal, section 1170.18, subdivision (f) is a legislative means, an unprecedented and previously unheard of mechanism, for former felons whose Judgments may beyears or decades old to reduce their felon status. Given this unprecedented amelioration, section 1170.18, subdivisions (a) and (f) should be read in conjunction, as a wayofdistinguishing the procedures and prerequisites for reduction for those individuals whose judgments are indeedfinal. Though the most reasonable construction of “currently”in section 1170.18, subdivision (a) is in contrast with a “completed” sentence as meant in subdivision (f), at the very minimum, whether“currently” could have the same meaning as “presently”as used in section 1170.126, subdivisions (a) and (c) — but apparently deliberately omitted from thecritical subdivision (b) — or whether it may have been used to distinguish section 1170.18, subdivision (a) from “completed”sentence in subdivision(f), at the very minimum,there would exist an ambiguity. In both her opening brief on the merits and in reply, appellant has addressed California law on ambiguouslegislation and the rule of lenity (BOM,pp. 44-51: Reply, pp. 40-41), law to which respondenthasnot fully responded. Given the functionofthis supplemental briefing, appellant shall not iterate same here, except to note simply the rule that “*... “ambiguity in a criminal statute should be resolved in favor of lenity, giving the defendantthe benefit of every reasonable doubt on questionsofinterpretation. But. . . ‘that rule applies “only if two reasonable interpretations ofthe statute standin relative equipoise.” [Citation.]’ [Citations.]” [Citations.]’ [Citation.]” (People v. Nuckles (2013) 1] Page 12 56 Cal.4th 601, 611.)* It would be anomalousto conclude that the intent of the electorate wasnotto give Estrada-Kirk treatment to defendants such as appellant. Had Proposition 47 been enacted without section 1170.18 at all, would there be any doubt? None — there would be a straight-forward application of Estrada-Kirk. Had Proposition 47 been enacted, but with section 1170.18 limited to subdivisions(f) et seq. sans language re resentencing, again would there be any dispute as to the application of Estrada-Kirk? Doubtful. Only the linkage of subdivision (a) to subdivision (f) causes any question, but the most reasonable conclusion would be that these two categories of post-conviction relief were intendedfor the tworelated groups offelons with final judgment. Andall other defendants whose judgments were notfinal fell under the well known Estrada-Kirk rule. SUMMARY In concise summary — e Interpretation of section 1170.18, subdivision (a) must be confined to the circumstance of Proposition 47 and the voters’ intent in enactingif; e In contrast to restoring the original intent of The Three Strikes Law which wasthe intentof the electorate in enacting Proposition 36, the electorate’s intent in enacting Proposition 47 was far-reaching amelioration, with the greatest emphasis on a new regime of new misdemeanorsin lieu of former wobblers/felonies; e Therationales underlying Conley, supra, are, thus, not presentin the Proposition 47 context, namely, Proposition 36 resentencing scheme was intended to restore the electorate’s original intent in sentencing Three Strikers whereasthe electorate’s intent in enacting Proposition 47 was a classic (and wide-scale) reduction in sentencing; and while Proposition 36 added a newset of disqualifying factors which have to be pleaded and proved by the prosecution, under Proposition 47, a// potential misdemeanants, current or past, are subject to the same disqualifying factors, i.e., super-Strike or sex offenseregistration; e Onekey and unprecedented componentofProposition 47is section “Appellantalso took painsto set forth the questionable introduction of “egregious” into California’s lexicon via Witkin editorializing. (BOM, p. 46 et seq.) 12 Page 13 1170.18, subdivision (f) by which former felons may apply for misdemeanantstatus for judgments long agofinal,i-e., after having “complete[d] his or her sentence”; The most reasonable interpretation of “currently serving a sentence”is to distinguish petitioners under subdivision (a) from applicants who have “completed”their sentence and seek designation as a misdemeanor under subdivision (f) amongst those who comprise theclass of litigants whose judgmentsarefinal, rendering defendants such as appellant whose judgmentsare notfinal to fall under the Estrada-Kirk rule; If any lingering ambiguity doubt remains, the preceding interpretation remains equipoised with any competinginterpretation, and the rule of lenity in favor of the defendant prevails. 13 Page 14 CONCLUSION The holding of Conley, supra, is inapplicable to Proposition 47. The Estrada-Kirk rule does apply to appellant. This court should reverse the Court of Appeal. Respectfully Submitted, Dated: 2- [4 | >} Appellate Defenders, Inc. Leslie Ann Rose, Staff Attorney State Bar No. 106385 Howard C. Cohen, Staff Attorney State Bar No. 53313 Attorneys for Petitioner Veronica Lorraine DeHoyos 14 PROOF OF SERVICE BY MAIL (Cal. Rules of Court, rules 1.21, 8.50.) Case Name:People v. Veronica L. Dehoyos Supreme Court No. $228230 Court of Appeal No. D065961 Superior Court No. SCD252670 I, Will Bookout, declare: I am employed in the County of San Diego, California. I am over 18 years of age and nota partyto the within entitled cause; my business address is 555 West Beech Street, Suite 300, San Diego, California 92101-2939, I further declare that I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service; and that the correspondence shall be deposited with the United States Postal Service this same day in the ordinary course of business. I causedto be served the following document(s): LETTER BRIEF by placing a true copy of each documentin a separate envelope addressed to each addressee, respectively as follows: California Supreme Court William C. Sharp Earl Warren Building Alternate Public Defender 350 McAllister Street Room 1295 —- 450 B Street Suite 1200 San Francisco, CA 94102-4738 San Diego, CA 92101 San Diego County District San Diego County Superior Court Attorney Appeals.Central@SDCourt.ca.gov DA.Appellate@sdcda.org Veronica L. Dehoyos Court of Appeal 53620 Avenida Velasco Fourth District Division One La Quinta, CA 92253 (via TrueFiling) I then sealed each envelopeand, with the postage thereon fully prepaid,I placed each for deposit in the United States Postal Service,this same day, at my business address shown above, following ordinary business practices. I declare underpenalty of perjury that the foregoing is true and correct, and this declaration was executed at San Diego, California, on February 14, 2017, at 3:39 pm. Will Bookout Wer DverebrilT (Typed Name) (Signature)
