People v. Johnson

226 Cal.App.4th 620

THE PEOPLE, Plaintiff and Respondent,

v.TIMOTHY WAYNE JOHNSON, Defendant and Appellant.

No. B249651.

Court of Appeals of California, Second District, Division Three.

May 23, 2014.

Suzan E. Hier , 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 , Assistant Attorney General, Victoria B. Wilson , Noah P. Hill and Carl N. Henry , Deputy Attorneys General, for Plaintiff and Respondent.

[CERTIFIED FOR PARTIAL PUBLICATION^*]

OPINION

ALDRICH, J. —

Defendant Timothy Wayne Johnson appeals from an order denying his petition for recall of his sentence pursuant to Penal Code section 1170.126.¹ The superior court found Johnson was ineligible for resentencing because his current offense, attempting to dissuade a witness, is a serious felony. Johnson urges that because dissuading a witness was not defined as a serious felony when he committed his crimes in 1998, he is eligible for resentencing regardless of the fact the offense was later added to section 1192.7's serious felony list. In the published portion of this opinion, we conclude that, for purposes of section 1170.126's resentencing procedure, the determination of whether a defendant's current crime qualifies as a serious or violent felony must be based on whether the crime was so defined as of November 7, 2012, Proposition 36's effective date. Accordingly, Johnson's contention that he is eligible for resentencing under section 1170.126 lacks merit. In the unpublished portion of the opinion, we hold that a trial court's order finding a defendant ineligible for resentencing under section 1170.126 is appealable.

BACKGROUND

In 1998, a jury convicted Johnson of two counts of attempting to dissuade a witness (§ 136.1, subd. (a)(2)). At the time Johnson committed the crimes, attempting to dissuade a witness in violation of section 136.1 was not defined as a serious or violent felony for purposes of the "Three Strikes" law.

Because the jury also found Johnson had suffered three prior convictions for "strike" offenses — robbery (§ 211), residential burglary (§ 459), and assault with personal use of a firearm or infliction of great bodily injury (§ 245, subd. (a)(2)) — the trial court sentenced him to a term of 28 years to life pursuant to the Three Strikes law. This court affirmed the judgment in a nonpublished opinion (People v. Johnson (Sept. 15, 2000, B128901)).

Effective November 7, 2012, the electorate enacted Proposition 36, the Three Strikes Reform Act of 2012 (the Act). (People v. Yearwood (2013) 213 Cal.App.4th 161, 167, 169-170 [151 Cal.Rptr.3d 901]; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1285 [155 Cal.Rptr.3d 856] (Kaulick).) Among other things, Proposition 36 added section 1170.126, which provides that certain eligible inmates serving indeterminate life sentences under the Three Strikes law may petition the trial courts for reductions in their sentences. (Yearwood, at p. 170.)

On May 10, 2013, Johnson filed a petition for recall of his sentence in the Los Angeles County Superior Court pursuant to section 1170.126. Johnson acknowledged that his current offense, witness intimidation, was at the time of the petition listed as a serious felony, but argued this fact did not make him ineligible for resentencing because the offense was not listed as a serious or violent felony when he committed the crimes in 1998. On June 12, 2013, the superior court denied Johnson's petition with prejudice, on the ground his current convictions for witness intimidation were serious felonies under section 1192.7, subdivision (c)(37), rendering him ineligible for resentencing. Johnson appeals the trial court's order.

DISCUSSION

1. Proposition 36.

(1) On November 6, 2012, California voters approved Proposition 36, the Act, which amended sections 667 and 1170.12 effective November 7, 2012. (People v. White (2014) 223 Cal.App.4th 512, 517 [167 Cal.Rptr.3d 328] (White); People v. Yearwood, supra, 213 Cal.App.4th at pp. 167, 169.) Under the Three Strikes law as it existed prior to passage of Proposition 36, a defendant convicted of two prior serious or violent felonies was subject to a 25-year-to-life sentence upon his or her conviction of any additional felony. (White, at p. 517; Yearwood, at pp. 167-168; Kaulick, supra, 215 Cal.App.4th at pp. 1285-1286.) Under amended sections 667 and 1170.12, a defendant who has been convicted of two prior strikes is subject to such a sentence only if the current, third felony is itself a serious or violent felony, or if certain enumerated exceptions apply. (White, at p. 517; Kaulick, at p. 1286; Yearwood, at p. 167; §§ 1170.12, subd. (c)(2)(C), 667, subd. (e)(2)(C).)

(2) Proposition 36 also added section 1170.126,² which sets up a resentencing procedure for prisoners presently serving indeterminate terms under the former version of the Three Strikes law, who would not have been sentenced to such terms under Proposition 36. (People v. Yearwood, supra, 213 Cal.App.4th at p. 170; White, supra, 223 Cal.App.4th at p. 517.) An eligible prisoner may file a petition to recall his or her sentence in the trial court, and seek resentencing as a second strike offender. (§ 1170.126, subds. (b), (e); Kaulick, supra, 215 Cal.App.4th at p. 1286; Yearwood, at p. 170.) An inmate is eligible for such resentencing only if none of his or her current offenses are serious or violent felonies, and no other enumerated disqualifying factors apply. (§ 1170.126, subd. (e); Yearwood, at p. 170; White, at pp. 517, 522.)

Resentencing of eligible inmates may nonetheless be refused if the trial court, in its discretion, determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f); White, at p. 517; Kaulick, at p. 1286; Yearwood, at p. 170.) Thus, the section 1170.126 resentencing procedure involves three determinations: first, the court must determine whether the prisoner is eligible for resentencing; second, the court must determine whether resentencing would pose an unreasonable risk of danger to public safety; and third, if the prisoner is eligible and resentencing would not pose an unreasonable risk of danger, the court must actually resentence the prisoner. (Kaulick, at p. 1299.)

2. Appealability.^*

3. Because his current offense is a serious felony, Johnson is ineligible for the section 1170.126 resentencing procedure.

(3) We conclude the superior court correctly denied Johnson's petition for recall of sentence. Johnson is statutorily ineligible for resentencing because his current offense — attempted witness intimidation in violation of section 136.1 — was defined as a serious felony on November 7, 2012, when Proposition 36 went into effect. (§ 1192.7, subd. (c)(37) & (39).) Johnson is therefore ineligible for resentencing under the Act. (§ 1170.126, subds. (b), (e)(1); Braziel v. Superior Court (2014) 225 Cal.App.4th 933, 946 [170 Cal.Rptr.3d 529] (Braziel).)

Johnson attempts to circumvent this conclusion by arguing that when he committed his offenses in 1998, witness intimidation was not listed as a serious or violent felony. The offense was not so categorized until Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, effective March 8, 2000, added witness intimidation in violation of section 136.1 to the list of serious felonies. (§ 1192.7, subd. (c)(37); Manduley v. Superior Court (2002) 27 Cal.4th 537, 574, 577 [117 Cal.Rptr.2d 168, 41 P.3d 3]; People v. Neely (2004) 124 Cal.App.4th 1258, 1261-1262 [1264, 22 Cal.Rptr.3d 274].)³ He points out that section 1170.126 states it is intended "to apply exclusively to persons presently serving an indeterminate term of imprisonment pursuant" to the Three Strikes law, "whose sentence under this act would not have been an indeterminate life sentence." (§ 1170.126, subd. (a).) He contends he falls within this class of persons because his current crime was not, at the time he committed it, a serious felony. Therefore, he could not have been sentenced as a "third striker" to an indeterminate life term under the law as amended by Proposition 36. Contrary to Johnson's argument, we do not read section 1170.126 to require that, for purposes of the Proposition 36 resentencing procedure, the definitions of serious and violent felonies must be considered as they were at the time the crime was committed.

(4) Indeed, our colleagues in Division Seven have recently rejected arguments similar to those Johnson makes here. (Braziel, supra, 225 Cal.App.4th at p. 946.) In Braziel, the defendant's current offenses included making a criminal threat (§ 422). As in the instant matter, that crime was not defined as a serious felony at the time Braziel was convicted, but was added to the list of serious felonies in 2000 by Proposition 21. (Braziel, at p. 939.) Consequently, the trial court denied Braziel's petition for recall of his Three Strikes sentence because the section 422 offense was a serious felony. (225 Cal.App.4th at p. 937.) Based on its analysis of the language of section 1170.126, considered in the context of the overall statutory scheme, and evidence of the voters' intent, the Braziel court concluded that "in determining whether an inmate is eligible for recall of his sentence under section 1170.126, the court must use the current, post-Proposition 36 definitions of serious and/or violent felonies, not those definitions in effect at the time of commission of the crimes." (Braziel, at p. 946.) Therefore, Braziel's conviction for making a criminal threat under section 422 rendered him ineligible for recall of his sentence. (225 Cal.App.4th at p. 946.)

(5) We agree with this conclusion. When interpreting a voter initiative, our primary purpose is to ascertain and effectuate the voters' intent. (People v. Park (2013) 56 Cal.4th 782, 796 [156 Cal.Rptr.3d 307, 299 P.3d 1263]; People v. Briceno, supra, 34...