In re Corpus

172 Cal.Rptr.3d 534

IN RE Oscar MACHADO on Habeas Corpus.

B249557

Court of Appeal, Second District, Division 1, California.

Filed May 30, 2014

As Modified on Denial of Rehearing June 17, 2014

See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 421B.

APPEAL from a judgment of the Superior Court of Los Angeles County. William C. Ryan, Judge. Reversed with directions. (Los Angeles County Super. Ct. No. YA036692)

Larry Pizarro, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Shawn McGahey Webb, Supervising Deputy Attorney General, Noah P. Hill and Jonathan Kline, Deputy Attorneys General, for Plaintiff and Respondent.

MILLER J.^*

Defendant Oscar Machado appeals from an order denying his petition for Proposition 36 resentencing pursuant to Penal Code section 1170.126¹ with respect to one of the two 1998 commitment offenses for which he received consecutive third-strike terms of 25 years to life.

Although defendant recognizes he is ineligible for resentencing with respect to his first degree burglary conviction because it was a “serious” offense, he contends the trial court erred by concluding he was ineligible with respect to his second degree burglary conviction. We agree. Although section 1170.126 does not address eligibility for resentencing where a petitioner's commitment offenses include both a felony categorized as serious or violent and a felony that is not so categorized, a conclusion that nonserious/nonviolent offenses are eligible for resentencing (absent other disqualifying factors) is consistent with the language of the statute and would advance the voters' intent in enacting Proposition 36.

BACKGROUND

According to defendant's petition for resentencing, a jury convicted him in 1998 of one count of first degree burglary and one count of second degree burglary. Defendant waived a jury trial on two strike allegations, both robberies, and the court found these allegations true. The court sentenced defendant to consecutive third-strike terms of 25 years to life.

Defendant filed a petition for resentencing, listing his current and prior offenses, and requesting resentencing on both of his commitment offenses. The trial court denied the petition, stating defendant's first degree burglary conviction rendered him ineligible for resentencing.

DISCUSSION

A. Appealability

The Attorney General contends the trial court's order was not appealable. The appellate courts have reached conflicting conclusions on this issue, which is pending before the California Supreme Court in Teal v. Superior Court (2013) 217 Cal.App.4th 308, 158 Cal.Rptr.3d 446, review granted July 31, 2013, S211708, and In re Martinez (2014) 223 Cal.App.4th 610, 167 Cal.Rptr.3d 460, review granted May 14, 2014, S216922. This division concluded in People v. Hurtado (2013) 216 Cal.App.4th 941, 157 Cal.Rptr.3d 315, review granted July 31, 2013, S212017, an order denying a petition for resentencing was appealable. We decline to revisit this issue, and instead proceed to the merits because if the trial court's order were not appealable, it would be reviewable by a petition for a writ of habeas corpus. No purpose would be served by requiring defendant to refile this matter as a writ petition. Because the issue remains open, we treat the instant appeal as a petition for a writ of habeas corpus.

B. Eligibility for resentencing under the Three Strikes Reform Act of 2012

On appeal, defendant concedes he is not eligible for resentencing on his first degree burglary conviction, which is categorized as a “serious” felony. (§ 1192.7, subd. (c)(18).) The sole issue is whether he is nonetheless eligible for resentencing with respect to his other commitment offense, the second degree burglary, which is neither “serious” nor “violent.”

Proposition 36, also known as the Three Strikes Reform Act of 2012, was approved by the voters on November 6, 2012, and went into effect the next day. It amended sections 667 and 1170.12 so that an indeterminate term of 25 years to life in prison is applied only where the “third strike” offense is a serious or violent felony or the prosecution pleads and proves an enumerated triggering factor. (§§ 667, subd. (e)(2)(A), (C), 1170.12, subd. (c)(2)(C).)

Proposition 36 also created section 1170.126, which provides a procedure for resentencing “persons presently serving an indeterminate term of imprisonment” under the Three Strikes law “whose sentence under this act would not have been an indeterminate life sentence.” (§ 1170.126, subd. (a).) Such a person may file a petition to recall his or her sentence and be resentenced as a second-strike offender. (§ 1170.126, subd. (b).)

Essentially, an inmate is eligible for such resentencing if his or her commitment offense is not a serious or violent felony and none of the factors that would trigger a third-strike sentence under the Three Strikes law as reformed by Proposition 36 apply. (§ 1170.126, subd. (e).) Resentencing of qualified inmates may nonetheless be refused if the trial court, “in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) Subdivision (g) of section 1170.126 sets forth several factors that a trial court may consider in exercising that discretion.

Section 1170.126 does not address what a trial court should do in the more complex circumstances of a petitioner with multiple third-strike sentences, some of which would fall within the statute's resentencing eligibility provisions if considered independently and others that do not. Accordingly, we must interpret the statute.

C. Statutory interpretation principles

In construing a statute enacted by voter initiative, we apply the same rules of statutory construction that apply to legislative enactments to attempt to determine the intent of the electorate. (People v. Park (2013) 56 Cal.4th 782, 796, 156 Cal.Rptr.3d 307, 299 P.3d 1263.) In determining that intent, we first examine the words of the statute, viewing them in their statutory context and giving them their ordinary and usual meaning, because the language of a statute is usually the most reliable indicator of legislative intent. (People v. Albillar (2010) 51 Cal.4th 47, 55, 119 Cal.Rptr.3d 415, 244 P.3d 1062 (Albillar ); People v. Wright (2006) 40 Cal.4th 81, 92, 51 Cal.Rptr.3d 80, 146 P.3d 531.) We interpret a statute “ ‘ “ ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.’ ” ' ” (State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1043, 12 Cal.Rptr.3d 343, 88 P.3d 71.) “Once the electorate's intent has been ascertained, the provisions must be construed to conform to that intent. [Citation.] ‘[W]e may not properly interpret the measure in a way that the electorate did not contemplate: the voters should get what they enacted, not more and not less.’ ” (Park, at p. 796, 156 Cal.Rptr.3d 307, 299 P.3d 1263.)

Where the language of a statute is unambiguous, the plain meaning controls and we have no occasion to resort to principles of statutory construction or extrinsic sources. (Albillar, supra, 51 Cal.4th at p. 55, 119 Cal.Rptr.3d 415, 244 P.3d 1062.) Where the language is ambiguous, we examine other indicators of the voters' intent, particularly the analyses and arguments in the official ballot pamphlet. (People v. Briceno (2004) 34 Cal.4th 451, 459, 20 Cal.Rptr.3d 418, 99 P.3d 1007.)

D. Interpretation in light of the language of section 1170.126 and the ballot pamphlet

Defendant relies almost exclusively on the language of section 1170.126 to support his interpretation, while the Attorney General relies solely upon ballot pamphlet materials. We necessarily consider both.

1. Interpreting the statutory language

The pertinent portions of section 1170.126 are the following:

“(a) The resentencing provisions under this section and related statutes are intendedto apply exclusively to persons presently serving an indeterminate term of imprisonment pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, whose sentence under this act would not have been an indeterminate life sentence.

“(b) Any person serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12 upon conviction, whether by trial or plea, 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, may file a petition for a recall of sentence ... to request resentencing in accordance with the provisions of subdivision (e) of Section 667, and subdivision (c) of Section 1170.12, as those statutes have been amended by the act that added this section. [¶] ... [¶]

“(d) The petition for a recall of sentence described in subdivision (b) shall specify all of the currently charged felonies, which resulted in the sentence under paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, or both, and shall also specify all of the prior convictions alleged and proved under subdivision (d) of Section 667 and subdivision (b) of Section 1170.12.

“(e) An inmate is eligible for resentencing if:

“(1) The inmate is 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.

“(2) The inmate's current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii),...