PEOPLE v. DEHOYOS

Appellant, Veronica Lorraine DeHoyos, Supplemental Brief

Cal.December 26, 2017

SUPREME neve8 yr, 5apes a“apy IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. VERONICA LORRAINE DEHOYOS Defendant and Appellant. Fourth District Court of Appeal, Case No. D065961 San Diego Superior Court, Case No. SCD 252670 The Honorable Peter C. Deddeh, Gale E. Kaneshiro, and Lisa C. Schall, Judges Case No. $228230 APPELLANT’S SUPPLEMENTAL BRIEF (CAL. RULES OF COURT, RULE8.520(d)) SUPREME COURT FILED DEC 26 2017 APPELLATE DEFENDERS,INC. Leslie Ann Rose Staff Attorney State Bar No. 106385 Howard C. Cohen Staff Attorney State Bar No. 53313 Jorge Navarrete Clerk Deputy 555 West Beech Street Suite 300 San Diego, CA 92101 Bus: 619-696-0282 Email: lar@adi-sandievo.com Email: hee @adi-sandiego.com Attorneys for Defendant and Appellant TABLE OF CONTENTS PAGE ARGUMENT...... 0.000000ceeene 2 I. Il. VALENCIA SUPPORTS APPELLANT’S ANALYSIS THAT THE VOTERS’ INTENT IN ENACTING THE WHOLE SCHEME OF PROPOSITION47 — A SWEEPING AMELIORATION OF PUNITIVE LAW - IS CONSISTENT WITH THE APPLICATION OF ESTRADA/KIRK PRINCIPLES. VALENCIA ALSO DEMONSTRATES WHY PEOPLE vy. CONLEY — A PROPOSITION WITH A WHOLLY DIFFERENT INTENT PASSED BY A DIFFERENT ELECTORATE - IS NOT DISPOSITIVE OF THIS CASE. «ow... eee eee.eee eee eee 2 PROPOSITION 47 SHOULD BE BROADLY AND LIBERALLY CONSTRUED, WHICH SHOULD INURE TO THE BENEFIT OF KIRK-DEFENDANTS............. 11 CONCLUSION 2.0...cccene eens 13 CERTIFICATION OF WORD COUNT ................ 0002000005 15 TABLE OF AUTHORITIES CASES In re Estrada (1965) 63 Cal.2d 740 ooceccccsecsesscsesecssssessesessevseeevens passim In re Kirk (1965) 63 Cal.2d 761 ooocccccccccccccceseccscsscsccsssssesscesssseseceeens passim People v. Conley (2016) 63 Cal.4th 646 oo.ccccccccssesecssssceeeeens 1,2, 6,7 People v. DeHoyos (2015) formerly 238 Cal.App.4th 363, 189 Cal.Rptr. FAS ieee ecccecccesecceesteaeeseecssessssecsesssssesasssessacssssuesscsecsesssesssssseaueeseastauesavacseesaes 4 People v. Floyd (2003) 31 Cal.4th 179 ..ccccccccecsccsssssssssecssceseeeceeceees 9,10 People v. Page (Nov. 30, 2017, No. 230793) __ Cal.5th _ [2017 WL 5895782] 2.0... ce cee eee 1, 2,6, 11, 12 People v. Romanowski (2017) 2 Cal.5th 903. 2.0.0.0... 0000. 1,2,11, 12 People v. Trippet (1997) 56 Cal.App.4th 1532 2.0.0.0... 00.0.0... 10 People v. Valencia (2017) 3 Cal.5th 347 2.0...ee eee, passim People v. Wright (2006) 40 Cal.4th 81 ......0.0.0.00 000. eee eee 10 Tapia v. Superior Court (1991) 53 Cal.3d 282 2.0.0.0... 0000 ..0..... 10 STATUTES Penal Code Section 1170.18 2.0.0.0... 0. cece eee 2, 4,5, 6, 11 Section 1170.18, subdivision (a).................. 3,5, 6, 10, 13 Section 1170.18, subdivision (b) .......... 000. cee eee ee 6 Section 1170.18, subdivision (c)................2000. 5, 6, 8, 10 Section 1170.18, subdivision (f) ..............0.......000, 6, 10 Section 1170.18, subdivision (g) ..................00.00% 6, 10 Section 1170.126 2.0... 0.0... ccceee neces 6, 8 Section 1170.126, subdivision (a)............0.. 000.0 cece eee 6 Section 1170.126, subdivision (b) ............. 000.000. e eae 6 il Section 1170.126, subdivision (Cc). 1.2... 0.0.0.0. cee eee eee 6,8 Vehicle Code Section 10851 2...keee eee eens 12 RULES California Rules of court Rule 8.520(d) 0.0...ttnent eas 1 PROPOSITIONS Proposition 36 2...eteeens passim Proposition 47 0.cette ene eens passim Proposition 115 2...cetteeens 10 Proposition 215 2...cctent ne nena 10 OTHER Couzens & Bigelow, Proposition 47 “The Safe Neighborhoods and Schools Act” (May 2017) 2.0... eecece eet n nee neas 4 Three Strikes Reform Act of 2012 .......0.0.00.00.0000....0......000. 3,7 Substance Abuse and CrimePrevention Act of 2000 ................. 9 Voter Information Guide, Gen. Elec. (Nov. 6, 2012), Text of Proposed LAWS20eeeeee eee ee eee eet enaes 3 ili IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Case No. $228230 V. VERONICA LORRAINE DEHOYOS Defendant and Appellant. Fourth District Court of Appeal, Case No. D065961 San Diego Superior Court, Case No. SCD 252670 The Honorable Peter C. Deddeh, Gale E. Kaneshiro, and Lisa C. Schall, Judges APPELLANT’S SUPPLEMENTAL BRIEF (CAL. RULES OF COURT, RULE8.520(d)) California Rules of Court, rule 8.520(d), permits filing of a supplemental brief to discuss new authorities not available in time to be includedin the party’s brief on the merits. This court decided People v. Valencia (2017) 3 Cal.5th 347 (Valencia) (discussing People v. Conley (2016) (Conley) 63 Cal.4th 646)) as well as People v. Page (Nov. 30, 2017, No. 230793) Cal.5th __ [2017 WL 5895782] (Page) and People v. Romanowski (2017) 2 Cal.Sth 903 (Romanowski), all after conclusion of briefing. Valencia, Romanowski, and Page are relevant to the analysis and support appellant’s position. ARGUMENT I. VALENCIA SUPPORTS APPELLANT’S ANALYSIS THAT THE VOTERS’ INTENT IN ENACTING THE WHOLE SCHEMEOFPROPOSITION47 -— A SWEEPING AMELIORATION OF PUNITIVE LAW - IS CONSISTENT WITH THE APPLICATION OF ESTRADA/KIRK PRINCIPLES. VALENCIA ALSO DEMONSTRATES WHY PEOPLE yv. CONLEY - A PROPOSITION WITH A WHOLLY DIFFERENT INTENTPASSEDBYA DIFFERENT ELECTORATE-IS NOT DISPOSITIVE OF THIS CASE. In Valencia, this court addressed Proposition 47, and in reachingits holding and conclusions, emphasized the differences between Proposition 47 defendants and Proposition 36 defendants, as well as addressed various rules and principles of statutory construction whenthe electorate enacts initiatives. Whenapplied to this case, the court’s conclusions favor defendant. This court recognized that Penal Code' section 1170.18 was enacted as part of Proposition 47 “whose primary focus was reducing the punishmentfor a specifically designated category of low-level felonies from felony to misdemeanor sentences,” or, stated otherwise, to “‘[r]equire misdemeanors ‘All further statutory references shall be to the Penal Code;all references to subdivisions shall be those in section 1170.18, unless otherwise noted. instead of felonies for nonserious, nonviolent crimeslike petty theft and drug possession, unless the defendanthas prior convictions for specified violent or serious crimes.’ (Citation.)” (Valencia, supra, 3 Cal.5th at p. 360.) In contrast, the express intent as stated in the Proposition 36 was, “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), Text of Proposed Laws, p. 105.) Thus, there were two separate electorates in two propositions (“the electorate that enacted Proposition 47 in 2014 was obviously different from the one that had endorsed Proposition 36 in 2012,” Valencia, supra, 3 Cal.5th at p. 376, fn. 15), who would have had two entirely different classes of defendants in mind. Or, as this court noted, the two propositions encompassed “two very different populations of offenders”; Proposition 47 focused upon low-level offenders, while Proposition 36 concernedrecidivist offenders who had twopriorviolent or serious felony convictions, serving termsof 25 years to life. (/d. at p. 376.) But Valencia is also instructive for its application of statutory construction. Here, the entire litigation centers on the meaning “currently serving.” (§ 1170.18(a).) The Court of Appeal below hadheld, “Given the legislative intent not to automatically apply Proposition 47 to persons currently serving sentencesforlisted offenses, DeHoyoshas notestablished Proposition 47 applies retroactively to her. Instead, to be considered for resentencing, she mustutilize the procedure specified in section 1170.18. (Citation.)” (People v. DeHoyos (2015) formerly 238 Cal.App.4th 363, 189 Cal.Rptr. 445, 448-449, emphasis added.) In In re Kirk (1965) 63 Cal.2d 761, 762-763 (Kirk), a companion case to and decided the same day as In re Estrada (1965) 63 Cal.2d 740 (Estrada), this court applied the Estrada holding to those defendants whose cases were on appeal and not yet final, finding those Kirk-defendants as being in “precisely” the same posture as Estrada-defendants, i.e., defendants whose judgments had not been rendered.” In essence, then, the conclusion of the Court of Appeal here, focusing solely upon “currently serving,” served to divorce Kirk-defendants from Estrada-defendants.’ *In Estrada, the amendmentof the statute occurred after the offense, but before the sentence and conviction (Estrada, p. 453); in Kirk, the amendmentofthe statute occurred after rendition of judgment, but before affirmance by the appellate court (Kirk, pp. 762-763). ‘Thus, this case does notaffect the stereotypical Estrada-defendants: “If the crime was committed prior to November5, 2014, but sentenced after that date, the new sentencing rules will apply to the case. This means that all persons charged with qualified crimes that have not been convicted or sentenced as of November5th will be entitled to misdemeanor treatment without the need to request any kind of a resentencing undersection 1170.18. The procedures authorized by section 1170.18 clearly apply only to persons either serving a sentence or who have completed a sentence — circumstances not applicable to persons who have not even been sentenced.” (Couzens & Bigelow, Proposition 47 “The Safe Neighborhoods and Schools Act” (May 2017),[continued next page] 4 But Valencia cautioned “our 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, 3 Cal.5th at p. 356, emphasis added.) Hence, the “currently serving” language of subdivision (a) cannot be read in a vacuum. Just as Valencia considered subdivision (c) “in the context of both section 1170.18 and other provisions ofProposition 47 as a whole”(ibid., emphasis added), so should the court do so here. Again, “‘an initiative’s ‘ “language mustalso be construed in 9909 3the context of the statute as a whole” and its ‘ “overall... scheme.” (Citations.)” (/d. at p. 358, emphasis added, and casescited, id. at pp. 358- 360.) Whenboththe entire scheme,i.e., Proposition 47, andthe statute,i.e., section 1170.18, are considered as a whole, certain fundamentals become evident. First, the great bulk of the ballot materials and the actual text available to the electorate dealt with the reduction of low-grade theft-related and drug wobblers and felonies to misdemeanorsand the cost-savings in both prosecutions and incarcerations for whatever time into the future. Second, [as of Dec. 12, 2017] p. 12.) unlike an incremental ameliorative changein a statute or two, Proposition 47 cut a wide swath across our punitive codes.* Third, evenin the contextof section 1170.18, the modifier “currently” does not standout as a phenomenon. In the context of section 1170.18, “currently” should be juxtaposed with “completed”in subdivision(f) so as to emphasize the difference in the regimesto gain a remedy,i.e., subdivisions(b) and (g). The greatest difference in the regimesis the requirementfor the court to make a determination of dangerousness where a defendantis still currently serving a sentence (subds. (b), (c)) (but as appellant contends only if the judgmentis final), whereas “dangerousness”has no relevancefor a defendant who has completed her/his sentence (subds. (f), (g)). Further, Valencia undercuts the argument that any resemblance of “currently serving” to any similar language in Proposition 36 (specifically section 1170.126) should bring this case within the analysis of People v. Conley, supra, 63 Cal.4th 646. While section 1170.126, subdivisions (a) and (c) are written in terms of “presently serving,” section 1170.126, subdivision (b) — the analog of section 1170.18(a) — omits “presently.” Assuming arguendo,that section 1170.126, subdivision (b) wasinterpreted to have meant “Expressly, various sections of the Penal and Health and Safety Code Codes, and by extension, the Vehicle Code (see Page, supra, 2017 WL 5895782 ). “presently serving” (cf. Conley, supra, 63 Cal.4th at pp. 653, 655), any similarity between “presently serving” and “currently serving” does notassist the discussion. Indeed, the Valencia court “reject{ed] application of the rule of statutory construction that when statutes are in pari materia similar phrases appearing in each should be given like meanings, because Proposition 47 and the Three Strikes Reform Act do not address the same subject. (Citation.) In addition, [the court] observe[d] that this doctrine might carry greater force concerningprovisions enacted by the sameinitiativeorinitiatives on the same ballot. But here, the electorate that enacted Proposition 47 in 2014 was obviously different from the one that had endorsed Proposition 36 in 2012.” (Valencia, supra, 3 Cal.4th at p. 376, fn. 15.) While this conclusion was reached in the context of an equal protection argument, still, the same underlying premise 1s the same: ““These are two very different populations of offenders. As the text of Proposition 47 indicates, that measure focused on offenders convicted of a set of low-level, nonserious, nonviolent felonies and reduced them to misdemeanors. In contrast, Proposition 36 concerned the resentencing of recidivist offenders who had two prior violent or serious felony convictions and a third nonserious, nonviolent felony conviction, and whoare serving terms of 25 yearsto life.” (/d. at p. 376.) The Valencia majority also addressed two standard rules of statutory interpretations applicable to initiatives, but gave reasons to reject their application to the issue then before the court. Each presumption,of course,is presumably applicable to Proposition 47 as each would be(unless rebutted) to all initiatives, but the reasons for the rejection of same in Valencia do not apply here. The first presumption is “that voters who approve an initiative are presumedto * “have voted intelligently upon an amendmentto their organic law, the whole text of which was supplied [to] each of them prior to the election and which they must be assumed to have duly considered... .”’ (Citations.)” (Valencia, supra, 3 Cal.Sth at p. 369.) In not applying this presumption, the majority cited past precedent in which voters simultaneously approved two overlapping ballot measures(id. at p. 370) — certainly not the circumstance here. The second reason given bythe Valencia majority wasthat the average voter would not have known the impactor importof the phrase in question and even the professional bodies, e.g., Attorney General or Legislative Analyst, did not identify the need to make referenceto the issue of whetherthe language in subdivision (c) — “this Code” — incorporated section 1170.126. (Id. at pp. 371-372.) But for the resolution of our issue — whether the principles of Kirk apply to Proposition 47 — the foregoing presumption cannotbeintelligently addressed withoutfirst acknowledging the second presumption:“the voters, in adopting an initiative, did so being ‘aware of existing lawsat the time the initiative was enacted.’ (Citations.)” (Valencia, supra, 3 Cal.Sth at p. 369.) In rejecting this presumption, Valencia drew on its precedent whereit had refused to presumethe electorate understood the legal meaning of term “wobbler.” (Valencia, supra, 3 Cal.5th at pp. 372-373.) But the question here would be whetherthe electorate is presumed to have been aware of existence of Estrada/Kirk. People v. Floyd (2003) 31 Cal.4th 179 supplies that answer. In Floyd, this court decidedthat the Substance Abuse and Crime Prevention Act of 2000 wasinapplicable to defendants sentencedpriorto the act’s effective date, but whosejudgments werenotyetfinal, concluding the act’s express saving clause ~ “[e]xcept as otherwise provided, the provisions of this act shall become effective July 1, 2001, andits provisions shall be applied prospectively” ~ indicated the act was not intended to apply retroactively. (/d. at p. 182.) This court further concluded, “defendant’s proffered interpretation gives no effect to the statementthat the act’s provisions shall be applied prospectively. . . . If wewere to agree with [defendant’s argument], however, the statementthat the act’s provisions‘shall be applied prospectively’ would be drained ofmeaning, since the voters could have accomplished the same result by omitting the clause entirely. That is, in the absence of the saving clause, we would have applied the Estrada rule and extended the benefits of[the Proposition] to all those whose convictions were not yet final as well as to those whose convictions postdated the act's effective date.” (Id. at p. 186, emphasis added.)’ This conclusionis only permissibleifan electorate is presumed to be aware of the existence of E'strada/Kirk. Floyd alsoillustrates that the drafters could have been more direct and less ambiguousas to whetherthe “currently serving” defendants included Kirk defendants. Forclarity, the drafters could have added languagesuchas, “ “currently serving’ ” includes any defendant whohas already been sentenced whetheror not an appeal has been taken,regardlessof finality’ — but they did not. In contrast,the distinction between “currently” and “completed”asto the two definitive regimes within section 1170.18, subdivisions (a)-(c) and (f)-(g), must be recognized. *See also People v. Wright (2006) 40 Cal.4th 81, 95, quoting People v. Trippet (1997) 56 Cal.App.4th 1532, 1545 [“This authority [Estrada and progeny] makesclear that Proposition 215 may be applied retroactively to provide,if its terms and the applicable facts permit, a defense to appellant”); Tapia v. Superior Court (1991) 53 Cal.3d 282, 300-301 {specific provisions of Proposition 115 favoring defendants applied retroactively based on Estrada]. 10 The meaning of isolated statutory language (“currently”) can be informed by and must be consistent with the provisions of the relevant statute as whole. (Valencia, supra, 3 Cal.5th at p. 356.) Had Proposition 47 been enacted without section 1170.18, then there would be little doubt butthat Kirk- defendants would gain the ameliorative benefit of the wide swath reduction of so many wobblers and felonies. Given the far-reaching benevolent amendment of criminal law affecting current and future prosecutions as well as the potential amelioration of judgments longsince final, including from decades in the distant past, it would not be reasonable to conclude that with this magnanimity the electorate would also have intendedto lessen the historical, half-century benefit afforded Kirk-defendants. II. PROPOSITION 47 SHOULD BE BROADLY AND LIBERALLY CONSTRUED, WHICH SHOULD INURE TO THE BENEFIT OF KIRK-DEFENDANTS. In both Romanowski, supra, 2 Cal.5th at page 909 and Page, supra, 2017 WL 5895782, page *6, this court addressed sections 15 and 18 of Proposition 47, which together providethat the proposition be both “broadly” and “liberally” construed, to, respectively, accomplish and 11 effectuate its purposes. The Romanowski court noted that downgrading punishmentfor access cards “no doubtserves Proposition 47’s purpose of ‘[r]equir[ing] misdemeanorsinstead of felonies for nonserious, nonviolent crimes.’ (Citation.)” (Romanowski, supra, 2 Cal.5th at p. 909.) Under the Page analysis, to the extent there was any ambiguity as to proposition’s inclusion of an auto theft charged under Vehicle Code section 10851, “these indicia of the voters’ intent support an inclusive interpretation” (Page, supra, 2017 WL 5895782, page *6) — and the reference to “these indicia” is followed bya citation to the Romanowski discussion whichincludesits (Romanowski’s) mention of the proposition’s mandate to a broad andliberal construction to effectuate its purposes. The “primary focus [of Proposition 47] was reducing the punishment for a specifically designated category of low-level felonies from felony to see misdemeanorsentences,”1.e., to “‘[r]equire misdemeanorsinstead of felonies for nonserious, nonviolent crimeslike petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes.’ (Citation.)” (Valencia, supra, 3 Cal.5th at p. 360.) To effectuate this primary purpose, the proposition should be broadly and Appellant broached broad andliberal construction in her original brief, but respondenthas neverreplied onthis point. 12 liberally construed, which should meanthe generally recognized inclusion of Kirk-defendants with Estrada-defendants. CONCLUSION In summary, Valencia acknowledgesthat as to Propositions 36 and 47, there were two separate electorates, having two entirely different populations of offenders in mind and, as such, did not address the same subject. Proposition 47 focused on low-level offenders, while Proposition 36 concentrated on recidivist offenders who had two prior violent or serious felony convictions. Here, the entire litigation centers on the meaning of “currently serving” of section 1170.18, subdivision (a) and cannot be read in a vacuum. Instead,the initiative’s language must be construed in the context of the statute as a whole andits overall scheme,i.e., its great reduction in punishment, whichis different than that in Proposition 36. And the proposition must be broadly andliberally construed to accomplish and effectuate its inclusive purposes. Based onthis intent and usual presumptions attendantto the interpretation ofinitiatives, the most reasonable conclusionis that the electorate intended for Kirk-defendants to LL Mi 13 benefit, as they have for half a century, along with E'strada-defendants. Dated: Respectfully Submitted, APPELLATE DEFENDERS,INC. ——~ ‘Sogul we Wh Gar LESLIE ANN ROSE Staff Attorney State Bar No. 106385 0. Coe HOWARDC. COHEN Staff Attorney State Bar No. 53313 Attorneys for Appellant Veronica DeHoyos 14 CERTIFICATION OF WORD COUNT I, Leslie Ann Rose, herebycertify that, according to the computer program usedto prepare this document, appellant’s supplemental brief on the merits contains 2,686 number of words. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed December 2 | , 2017 in San Diego,California. & ’ Leslie Rose Staff Attorney State Bar No. 106385 15 PROOFOF SERVICE BY MAIL (Cal. Rules of Court, rules 1.21, 8.50.) Case Name: People v. Veronica L. Dehoyos Court of Appeal No. D065961 Supreme Court No. 8228230 Superior Court No. SCD252670 I, Will Bookout, declare: I am employed in the County of San Diego, California. | am over 18 years of age and not a party to the within entitled cause; my business address is 555 West Beech Street, Suite 300, San Diego, California 92101-2939. 1 further declare that I am readily familiar with the business practice for collection and processing of correspondencefor mailing with the United States Postal Service; and that the correspondenceshall be deposited with the United States Postal Service this same day in the ordinary course of business. I caused to be served the following document(s): APPELLANT’S SUPPLEMENTAL 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 Superior Court San Diego County District Attorney (via e-service to (via e-service to 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) Attorney General (via e-service to SDAG.Docketing@doj.ca.gov) I then sealed each envelope and, 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 under penalty of perjury that the foregoing is true and correct, and this declaration was executed at San Diego, California, on December22, 2017, at 8:51 am. Will Bookout LO Cvrk (Typed Name) (Signature)