People v. Hubbard

176 Cal.Rptr.3d 511

The PEOPLE, Plaintiff and Respondent,

v.Sidney Scott HUBBARD, Defendant and Appellant.

C073340

Court of Appeal, Third District, California.

Filed August 19, 2014

Review Granted October 29, 2014

George Bond and Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Deputy Attorney General, for Plaintiff and Respondent.

BUTZ, Acting P.J.

This appeal involves discerning the intent of the electorate. In the November 2012 General Election, voters prospectively amended recidivist sentencing provisions for a defendant with two or more previous felony convictions. If a commitment conviction is not for a "serious" or violent felony (subject to a number of qualifications), the prescribed sentence now is double the term otherwise provided, instead of the formerly prescribed indeterminate term of life with varying minimums (generally 25 years). ( Pen.Code, § 667, subds.(e)(1), (e)(2)(A) & (C); cf. id., former subd. (e)(2), as amended by Stats.1994, ch. 12, § 1, p. 74.)¹ The voters simultaneously created a retrospective process for a qualified recidivist defendant who was "presently serving" a former indeterminate life term. (§ 1170.126, subd. (a).) A defendant can petition the original sentencing court for a recall of the sentence, and be resentenced to a determinate sentence of double the term that would otherwise apply to the commitment convictions (i.e., what a trial court would impose under the prospective amendments to the recidivist sentencing statutes) if this would otherwise not pose an unreasonable risk of danger to the public. (§ 1170.126, subds.(b), (f).)

Defendant Sidney Scott Hubbard filed a recall petition in December 2012.² He alleged that in September 1996, a jury had found him guilty of attempted robbery and reckless evasion of a police pursuit, and sustained multiple allegations of prior convictions for serious felonies. The trial court (Hull, J.) sentenced defendant to consecutive indeterminate terms of 25 years to life for the convictions, along with six years for the enhancements.³ Defendant requested that the trial court resentence him on his conviction for reckless evasion because it was not a serious or violent felony and did not otherwise come within an exception to section 1170.126. The sentencing judge being unavailable (§ 1170.126, subd. (j)), the present trial court (Earl, J.) denied the recall petition without a hearing, finding defendant did not qualify for relief because one of his two commitment convictions was a serious and violent felony.

On appeal, defendant challenges this interpretation of section 1170.126. We agree with the trial court's interpretation of the statute. As a result, this court will affirm the order, or in the alternative treat the appeal as a petition for a writ of habeas corpus and deny it.

The facts underlying defendant's convictions are not relevant to the issues on appeal and we shall omit them as a result. We also do not need to add any additional procedural facts from the present proceeding to those described in this introduction.

DISCUSSION

Eligibility Under Section 1170.126 Is Determined by the Judgment as a Whole and Not Per Offense

The language in section 1170.126 is not pellucid about the statute's application to a petitioning defendant who is presently sentenced to a hybrid indeterminate life sentence composed of indeterminate life terms for both qualifying and disqualifying offenses. It declares its intent to apply "exclusively to persons presently serving an indeterminate term of imprisonment ... whose sentence ... would not have been an indeterminate life sentence " under the 2012 amendments to section 667. (§ 1170.126, subd. (a), italics added.) It then authorizes "[a]ny person serving an indeterminate term of life imprisonment " under former section 667 "upon conviction ... of a felony or felonies that are not defined as serious and/or violent felonies" to file a recall petition for sentencing under the present provisions. (§ 1170.126, subd. (b), italics added.) The petition must include "all of the currently charged [sic ] felonies [ ] [that] resulted in the sentence" presently served, along with all the findings of prior serious or violent felony convictions. (Id. subd. (d), italics added.) The inmate is "eligible" for relief if "serving an indeterminate term of life imprisonment ... for a conviction of a felony or felonies that are not defined as serious and/or violent felonies" (id. subd. (e)(1), italics added) and the "current sentence was not imposed for any of the offenses " specified in other exceptions to the statute (id. subd. (e)(2), italics added [cross-referencing § 667, subds. (e)(2)(C)(i-iii) ].) Certain prior convictions also disqualify an inmate. (§ 1170.126, subd. (e)(3) [cross-referencing § 667, subd. (e)(2)(C)(iv) ].)⁴ Upon "receiving" the petition, the trial court determines whether the inmate is eligible for resentencing; upon a finding of eligibility, the trial court then "shall" resentence the inmate under the 2012 amendments to section 667 (i.e., a doubled prison term) unless it determines in its discretion that the resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).)

Section 1170.126 does not expressly refer to a hybrid indeterminate life sentence such as defendant's. We look to the plain language of the statute to determine its proper application. We should give primacy to subdivision (a) of the statute because it is a declaration of purpose.⁵ It states that the statute is intended to apply exclusively to persons serving a sentence of an indeterminate life term that would not have been an indeterminate life term under the 2012 prospective amendments. The only way the current sentence would not have been an indeterminate life term under the prospective provisions is if no commitment conviction was disqualifying, and thus eligibility must be assessed on the commitment judgment as a whole and not per offense.⁶

As the intrinsic language of the statute does not result in any ambiguity about the purpose of the statute in the context of hybrid sentences, we do not need to resort to any extrinsic indicia of the intent of the electorate. ( County of Sacramento v. Superior Court (2012) 209 Cal.App.4th 776, 782, 147 Cal.Rptr.3d 196 ; see People v. Meyer (2010) 186 Cal.App.4th 1279, 1283, 112 Cal.Rptr.3d 889 [interpretation of statutes]; see also People v. McRoberts (2009) 178 Cal.App.4th 1249, 1255, 101 Cal.Rptr.3d 115 [court applies same interpretive rules to initiatives].) However, as is often the practice in the Supreme Court (see, e.g., Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 279, 46 Cal.Rptr.3d 638, 139 P.3d 30 [justifying resort to extrinsic indicia of intent to "buttress" interpretation of statute's plain language] ), we note that these extrinsic interpretive aids confirm our analysis of the statute's language.

As noted in Yearwood, supra, 213 Cal.App.4th 161, 151 Cal.Rptr.3d 901, the proponents of the initiative amending section 667 and enacting section 1170.126 made six arguments in its favor in the official voting materials, captioned as making punishment "fit" the crime; saving over $100 million every year; making room in prison for truly dangerous felons; having law enforcement support; having taxpayer support; and being tough and smart on crime. Boiled down, the ballot arguments focused on saving money while protecting public safety, because otherwise prison overcrowding would result in the indiscriminate release of dangerous criminals. " ‘People convicted of shoplifting a pair of socks, [or] stealing bread or baby formula don't deserve life sentences' "; the initiative " ‘will keep dangerous criminals off the streets' " because its expert drafters " ‘carefully crafted [it] so that truly dangerous criminals will [not] receive [any] benefits whatsoever from the reform.’ " ( Yearwood, at p. 171, 151 Cal.Rptr.3d 901, italics added.)

Given these expressed concerns, it would not be in accordance with imputed voter intent to interpret section 1170.126 as allowing it to apply to the component commitment convictions of a hybrid indeterminate life sentence that are not serious or violent felonies. It is true that it would save money and perhaps be more fitting to the crime of reckless evasion if defendant were to serve only a consecutive determinate doubled base term. But the intent of the voters discussed above does not give equal weight both to the public fisc and the protection of the public, such that there is any call for giving effect to the " ‘rule of lenity.’ " ( People v. McCoy (2012) 208 Cal.App.4th 1333, 1339, fn. 6, 146 Cal.Rptr.3d 469.) Rather, the voters were concerned with saving money only if public safety were ensured at the same time. ( People v. White (2014) 223 Cal.App.4th 512, 522, 167 Cal.Rptr.3d 328 [noting electorate "approved a mandate" that amendments be "liberally construed" to protect safety of people of California]; Yearwood, supra, 213 Cal.App.4th at p. 175, 151 Cal.Rptr.3d 901 [enhancing public safety is key purpose of amendments].) Therefore, if a "truly dangerous" felon—i.e., one who has committed a present serious or violent felony—is not to get any benefit under section 1170.126, then a situation in which this felon committed even more felonies in addition to a disqualifying serious or violent felony is not one entitling such felon to any amelioration of the resulting sentence. We also do not agree, as has been suggested, that the "danger to public safety" determination is the vehicle through which to deny relief to defendants with hybrid sentences. The eligibility analysis is focused on screening out offenses that are deemed to be a danger to society, and the public safety analysis serves to screen out offenders whose characteristics otherwise represent a danger. In sum, we conclude...