People v. Galvan

235 Cal.App.4th 1318

186 Cal.Rptr.3d 140

The PEOPLE, Plaintiff and Respondent

v.James GALVAN, Defendant and Appellant.

G049764

Court of Appeal, Fourth District, Division 3, California.

Filed April 16, 2015

Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RYLAARSDAM, J.

Defendant James Galvan appeals from the dismissal of his petition for resentencing under Penal Code section 1170.126 (all further undesignated statutory references are to this code). He argues the trial court erred in ruling he was ineligible for resentencing under section 1170.126 because the crime for which he was given the indeterminate life sentence—assault with a firearm—was not considered a serious or violent felony at the time of the final judgment on his conviction, and thus it cannot be treated as such for purposes of evaluating his present eligibility for resentencing. He also claims that the separate finding that he committed his crime while armed with a firearm cannot be relied upon as a basis for denying him resentencing because his sentence on that finding was stayed pursuant to section 654, and consequently his current sentence “was not imposed” for an offense appearing in section 667, subdivision (e)(2)(C)(iii) or section 1170.12, subdivision (c)(2)(C)(iii).

The Attorney General's initial response is to claim the dismissal is not an appealable order because it does not affect defendant's “ ‘substantial rights.’ ” Although this may have been an arguable assertion when the Attorney General's brief was filed, our Supreme Court has since rejected it and concluded such dismissals are appealable. ( Teal v. Superior Court (2014) 60 Cal.4th 595, 179 Cal.Rptr.3d 365, 336 P.3d 686.)

The issue of whether the classification of an inmate's prior conviction must be determined as of the time his judgment of conviction became final, rather than under the sentencing law in effect when section 1170.126 was enacted, is currently pending before the Supreme Court. (Braziel v. Superior Court, review granted July 30, 2014, S218503.) However, as the court has not yet issued an opinion resolving the issue, we address it here and reject defendant's contention. Section 1170.126, subdivision (e) sets forth the specific eligibility requirements for resentencing under the statute. Among other things, it states that an eligible inmate is one who is serving an indeterminate sentence for 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.” (§ 1170.126, subd. (e)(1), italics added.) This present tense reference to the statutes defining which felonies qualify as “serious” or “violent” makes clear that the pertinent classification for purposes of establishing eligibility for resentencing was based on current law in existence when section 1170.126 went into effect. And even assuming the alternative language relied upon by defendant, taken from subdivision (a) of section 1170.126, could be read as supporting a different interpretation of eligibility, we would disregard it under the well-settled rule that in the case of inconsistency between statutory provisions, the more specific provision controls over the more general one. Under a proper reading of section 1170.126, defendant is ineligible for resentencing because his conviction for assault with a firearm qualifies as a serious felony for purposes of that statute. Hence, the trial court properly dismissed his petition and we affirm its order.

FACTS

Defendant was convicted of assault with a firearm (§ 245, subd. (a)(2)), and related allegations that he used a firearm in the commission of the offense and inflicted great bodily injury were also found true. The court found that defendant had committed three prior felonies and sentenced him to an indeterminate term of 25 years to life, plus an additional five-year term pursuant to section 667, subdivision (a)(1), which applies to “any person convicted of a serious felony who previously has been convicted of a serious felony.” He was also sentenced to a one-year concurrent sentence for the use of a firearm in the commission of his offense.

In 1997, we affirmed that conviction on appeal, but struck the five-year sentence enhancement. (People v. Galvan and Alijo (Sept. 30, 1997, G019403) [nonpub. opn.].) We explained that at that time, defendant's “present offense ... is not a ‘serious felony.’ ” (Id. at p. 7.)

However, as defendant acknowledges, the law changed in 2000 when the voters passed Proposition 21, mandating that the crime of assault with a firearm be reclassified as a “serious” felony under section 1192.7, subdivision (c), without regard to a defendant's personal use of the weapon. (People v. Myers (2007) 148 Cal.App.4th 546, 554, 56 Cal.Rptr.3d 27.)

In 1999, the court, via a stipulated nunc pro tunc order, vacated defendant's concurrent one-year term for the use of a firearm and ordered that sentence stayed under section 654.

On September 23, 2013, defendant petitioned for recall of his indeterminate life sentence based on section 1170.126. In his petition, he noted that while the crime of assault with a firearm is now considered a serious felony under section 1192.7, this court had previously found that his conviction for that crime did not qualify as such in this case.

The prosecutor moved to dismiss defendant's petition, arguing defendant was legally ineligible for recall of his sentence under section 1170.126 for two reasons: (1) because the offense for which he is serving his indeterminate life sentence is classified as a serious felony (§ 1170.126, subd. (e)(1) ); and (2) because he was found to be “armed with a firearm” during the commission of that offense. (§§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)

Defendant opposed the motion to dismiss, claiming the determination of whether his offense qualified as “serious” for purposes of section 1170.126 must be made as of the time of his final judgment of conviction, rather than in accordance with how the crime is classified under current law. He relied on the doctrine of law of the case to argue that this court's earlier determination his conviction did not qualify as a “serious” offense was binding for purposes of his petition.

Defendant also argued that the past perfect subjunctive tense employed in subdivision (a) of section 1170.126, which states the remedy is “intended to apply to exclusively to persons ... whose sentence under this act would not have been an indeterminate life sentence” (italics added), reflects an intention to apply the remedy retroactively, in the context of whatever other laws were in effect at the time of a defendant's original sentencing, even if the former laws are inconsistent with the current statutes expressly incorporated into the provisions of section 1170.126.

The trial court dismissed the petition.

DISCUSSION

1. The Resentencing law

Section 1170.126 was enacted by voter initiative in 2012, as part of the Three Strikes Reform Act. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 6, pp. 109–110 (hereafter Voter Information Guide).) Among the stated purposes of the initiative, as explained to voters, was to “[r]estore the Three Strikes law to the public's original understanding by requiring life sentences only when a defendant's current conviction is for a violent or serious crime ” and to “[m]aintain that repeat offenders convicted of non-violent, non-serious crimes like shoplifting and simple drug possession will receive twice the normal sentence instead of a life sentence.” (Id. § 6, at p. 106, italics added.)

In accordance with those goals, section 1170.126 provides persons who were previously sentenced to indeterminate life terms under an earlier version of the “Three Strikes” law the opportunity to petition for resentencing to the term that would have been imposed for their crime under the version of the Three Strikes Reform Act passed by the voters in the form of Proposition 36. Thus, section 1170.126, subdivision (a) states that it is intended to apply only to those “persons presently serving an indeterminate term of imprisonment ... whose sentence under this act would not have been an indeterminate life sentence.” (Italics added.) Subdivision (b) of section 1170.126 states that “[a]ny person serving an indeterminate term of life imprisonment imposed pursuant to [the Three Strikes law] upon conviction ... of a felony or felonies that are not defined as serious and/or violent ... may file a petition for a recall of sentence.” (Italics added.)

Subdivision (e) of section 1170.126 further specifies which defendants are eligible for resentencing under the statute. The first requirement is that “[t]he inmate is serving an indeterminate term of life imprisonment imposed pursuant to [the Three Strikes law] 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. (§ 1170.126, subd. (e)(1), italics added.)

The second requirement is that “[t]he 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.” (§ 1170.126, subd. (e)(2).)

And the third requirement is that “[t]he inmate has no prior convictions for any of the offenses appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.” (§ 1170.126, subd. (e)(3).)

2. Law of the Case Doctrine

Defendant...