P. v. Gonzalez
Filed 2/27/13 P. v. Gonzalez CA6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
MIGUEL ANGEL GONZALEZ,
Defendant and
Appellant.
H037851
(Monterey
County
Super. Ct.
No. SS101065)
Defendant
Miguel Angel Gonzalez was convicted by jury of
convictions, and the trial court subsequently sentenced him to an indeterminate
term of 25 years to life pursuant to the Three Strikes law.
On appeal,
defendant contends that he received ineffective assistance of counsel because
his trial counsel failed to bring a posttrial Romero
title="">[2]
motion on his behalf based on his changed circumstances, including his
disassociation from his gang, and that the trial court abused its discretion
during the sentencing hearing by
failing to realize that it possessed the power to dismiss prior convictions
despite its earlier denial of his pretrial Romero
motion. Defendant additionally argues
that he is entitled to automatic resentencing under Proposition 36, the Three
Strikes Reform Act of 2012, a voter initiative that amended sections 667 and
1170.12 and added section 1170.126. We
affirm the judgment.
and Procedural Background
Defendant,
an inmate at Salinas Valley State Prison, approached a correctional officer in
the yard on January 29, 2010,
complaining of abdominal pain. Defendant
told the officer he needed to go see a doctor.
Defendant was taken to the prison’s treatment facility, where he told a
nurse that he placed something in his rectum a few days earlier. An x-ray was taken at the treatment facility,
which revealed what was described as a wrapped “dark object†containing metal. Defendant was transferred to Natividad
Medical Center
in Salinas, California.
There, he
informed medical personnel
that the object he had lodged earlier in his rectum had shifted, causing pain.
on defendant, and was able to remove the wrapped object. The item was approximately five inches in
length and a half an inch wide. At
trial, correctional officers testified that the object was plastic with a metal
tip sharpened at one end, which could be used as a stabbing weapon.
The
district attorney filed an amended information on July 21, 2010, alleging that defendant possessed a weapon
while incarcerated at Salinas Valley State Prison in violation of section 4502,
subdivision (a). The information further
alleged that defendant suffered from two prior strike convictions (§ 1170.12,
subd. (c)(2)). The first strike prior
alleged was for a 2008 conviction for second degree robbery with an enhancement
for personal use of a weapon (§§ 211, 12022, subd. (b)(1)) from Santa
Cruz County. During this offense, defendant and several
accomplices approached a former classmate of theirs and robbed him after a
brief conversation.
The second
strike prior alleged was for a 2008 conviction for assault with a deadly
weapon, with enhancements for personal infliction of great bodily injury and
committing the offense for the benefit of a criminal street gang (§§ 245, subd.
(a)(1), 12022.7, subd. (a), 186.22, subd. (b)(1)) also from Santa
Cruz County. During this offense, defendant and several
friends arrived uninvited to a party.
One of defendant’s friends was the cousin of the party’s hostess. The hostess later stated that though defendant
and his friends were uninvited, she allowed them to stay. Several hours later, one of defendant’s
friends yelled out that he had been stabbed, and a fight broke out.
party guests multiple times, allegedly hitting the victim in the head and upper
body with a pipe-like object. These two
alleged strike priors were committed within approximately four hours of each
other.
Prior to
the commencement of the jury trial, defendant’s trial counsel brought a
asking it to exercise its discretion under section 1385, subdivision (a) to
strike one or more of defendant’s prior felony convictions in the furtherance
of justice. In support of his request,
defendant’s trial counsel asserted that defendant’s current offense of
possession of a weapon in prison was nonviolent and unserious, that defendant
cooperated with law enforcement with regards to the current offense, and that
defendant’s personal circumstances and history weighed in favor of dismissing
the prior convictions. Defendant’s trial
counsel also included information about defendant’s character and family
background in the Romero request,
explaining that defendant was raised entirely by his mother whom he supported
financially by taking low-income jobs starting at the age of 14, which caused
him to drop out of high school. The
request further contained information that defendant attended church and
Alcoholics Anonymous programs while in county jail for four months. After a hearing, the trial court denied
defendant’s Romero request on August
18, 2010.
Trial
commenced on July 18, 2011. On July 20,
2011, defendant admitted that he suffered the two prior strikes alleged in the
information filed by the district attorney.
Trial proceedings concluded, and a jury found defendant guilty of
possessing a weapon in prison, a violation of section 4502, subdivision (a), on
July 20, 2011.
The trial
court held a sentencing hearing on
January 18, 2012. During the hearing,
defendant’s trial counsel made the following statement to the court: “[w]e wish that this Court would be able to
strike a strike and give [defendant] a sentence other than what’s prescribed by
law. But we understand that we did file
a Romero motion. It was denied. But unfortunately, this is a young man whose
life is being tossed away, we feel, needlessly.†Prior to imposing sentence, the trial court
stated on the record that “the Court has one sentence that can be imposed in
this matter, and [the Court] will impose that sentence.†The trial court then sentenced defendant to
an indeterminate term of 25 years to life.
Defendant filed a timely notice of appeal on February 16, 2012.
On appeal,
defendant argues that he received ineffective assistance of counsel because his
trial counsel failed to bring a posttrial “Romero
motion.†He further argues the trial
court abused its discretion during the sentencing since it failed to realize it
still possessed the power to strike his prior convictions under section 1385,
subdivision (a). Lastly, defendant
contends that he is entitled to automatic resentencing under the Three Strikes
Reform Act, as his conviction was not yet final at the time the amendments
became effective. For the reasons set
forth below, we affirm the judgment.
The
standard of review for a claim of ineffective assistance of counsel is well
settled. “To prevail on a claim of
ineffective assistance of counsel, a defendant ‘ “must establish not only
deficient performance, i.e., representation below an objective standard of
reasonableness, but also resultant prejudice.†’ [Citation.]
A court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance. (Strickland
v. Washington (1984) 466 U.S. 668, 689.)
Tactical errors are generally not deemed reversible, and counsel’s
decisionmaking must be evaluated in the context of the available facts. (Id.
at p. 690.) To the extent the record on
appeal fails to disclose why counsel acted or failed to act in the manner
challenged, we will affirm the judgment unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation. (
Cal.4th 264, 266.) Moreover, prejudice
must be affirmatively proved; the record must demonstrate ‘a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.’ (Strickland v. Washington, supra,
466 U.S. at p. 694.)†(
389.)
Defendant
argues that his trial counsel’s failure to make a second, posttrial “
assistance of counsel, as he argues that it is apparent from the record that
his trial counsel failed to bring a motion based on the erroneous belief that a
second motion could not be made.
Specifically, defendant points to the following statement made by his
trial counsel during the sentencing hearing as proof of his counsel’s lack of
knowledge: “We wish that this Court
would be able to strike a strike and give him a sentence other than what’s
prescribed by law. But we understand
that we did file a Romero
motion. It was denied. But unfortunately, this is a young man whose
life is being tossed away, we feel, needlessly.†Defendant contends that this statement
confirms that his trial counsel was unaware of his ability to make a second
rendered his legal representation below an objective standard of
reasonableness.
under section 1385, subdivision (a), a trial court may, either on its own
motion or by motion of the prosecuting attorney, dismiss a defendant’s priors
in the furtherance of justice. (
375 (Carmony).) The People’s contention that there is no such
thing as a “Romero motion†is
therefore accurate under section 1385, though defense counsel does have the
right to invite the court to dismiss priors pursuant to section 1385. (Carmony,
supra, at p. 375.)
Preliminary,
the People argue that defendant “forfeited any claim on appeal that the
sentencing court erred by failing to strike a strike,†relying on
unlike the defendants in Carmony and
the trial court’s failure to strike a strike pursuant to section 1385. Defendant instead argues that his trial
counsel rendered ineffective assistance of counsel for his failure to raise a
second “Romero motion,†and
accordingly defendant has not forfeited his claim on appeal for failing to
raise it below.
Second, the
People argue that defendant misconstrues the applicable law and procedure for
raising a claim of ineffective assistance of counsel. The People argue that defendant’s appeal fails
to acknowledge the principles that in the furtherance of judicial economy, if
the appellate record fails to include a direct explanation for the trial
counsel’s actions, appellate counsel should instead join a verified petition
for writ of habeas corpus. (
to the record before us, a habeas corpus proceeding may include an evidentiary
hearing.
The People contend
that contrary to defendant’s arguments, the record here does not contain a
direct explanation for the trial counsel’s actions. We agree, as defendant’s argument relies
solely on one ambiguous statement made by his trial counsel to the court during
the sentencing hearing. It is apparent
from the briefs and the record that the trial counsel was never asked about his
failure to bring a second Romero
request. Taken alone, the statement is
not definitive nor does it expressly demonstrate a lack of knowledge.
Further, we
need not speculate as to the trial counsel’s state of mind. “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.†(Strickland
v. Washington, supra, 466 U.S. at
p. 697.) Defendant’s claim of
ineffective assistance of counsel therefore fails since he was not prejudiced
by any perceived omissions made by his trial counsel. There is no indication that the trial court
was unaware of its discretion to strike prior strikes, and it was not an abuse
of discretion for it to decline to strike any of defendant’s prior convictions.
Strike Convictions Under Section 1385
Section
1385 grants a trial court the discretion to strike a prior strike on its own
motion, without request of defense counsel or motion by the prosecution. Given this authority, defendant’s claim of
ineffective assistance of counsel can only prevail if he demonstrates that the
trial court was unaware of its discretion to strike priors, or that the trial
court was aware of its discretion under section 1385 but abused its discretion
in declining to strike his prior convictions.
Accordingly, even if defendant’s trial counsel was unaware of his
ability to bring a renewed Romero request,
if the trial court was fully aware of its discretion to strike prior strikes,
and did not abuse its discretion by declining to do so, defendant would be
unable to demonstrate the prejudice required for a successful claim of
ineffective assistance. (
Initially,
defendant contends that the trial court abused its discretion for failing to
strike his prior strike convictions because it did not know it had the power to
do so. Defendant’s argument rests on
this statement made by the trial court during the sentencing hearing: “So I have reviewed all of the attachments to
the probation report. The attachments include
a letter from Mr. Gonzalez, from several of his family members, from his
girlfriend, from [defendant’s trial counsel], as well as a sentencing document
related to a statement in mitigation pursuant to Penal Code Section 1204. [¶]
And, as you know, Mr. Gonzale[z], the Court has one sentence that can be
imposed in this matter, and I will impose that sentence.†From this, defendant concludes that the trial
court lacked knowledge of its discretionary power to strike strikes pursuant to
section 1385.
We are
unconvinced. Section 1385 does not
impose a duty on the trial court to state in the record the reasons for
court to include a statement of reasons in the record if it chooses to exercise
its discretion in striking a prior strike.
presumed to have been aware of and followed the applicable law.†(People
v. Mosley (1997) 53 Cal.App.4th 489, 496.)
This general rule is applicable to the judicial determination of
sentences. (People v. Moran (1970) 1 Cal.3d 755, 762.) Defendant would have us read between the
lines to infer that the trial court did not understand it possessed the
discretion to strike his prior strikes pursuant to section 1385, when in fact
the record is silent on the issue.
Absent a clear showing that the trial court misunderstood its discretion
under section 1385, we may not presume that it failed to follow the applicable
law. Accordingly, our analysis must turn
to whether or not the trial court abused its discretion by declining to strike
defendant’s prior convictions.
In
reviewing the trial court’s decision not to strike defendant’s prior strikes,
we recognize that the Three Strikes law is intended to limit the discretion of
a trial court in sentencing certain habitual offenders. (Romero,
supra, 13 Cal.4th at p. 528.) Under the version of the Three Strikes law in
effect at the time of defendant’s sentencing, there is but one sentence to be
given, unless the trial court decides to exercise its discretion in striking a
defendant’s strike priors in the furtherance of justice. This discretion is limited, and is upheld to
a stringent standard. (
In order to strike a prior conviction, the trial court must make the
determination that the defendant is outside the spirit of the Three Strikes law
by weighing factors such as the nature and circumstances of the present
offense, the defendant’s prior serious or violent felony convictions, and the
defendant’s background, character, and prospects. (People
v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
In
reviewing a trial court’s decision declining to strike a prior conviction under
section 1385, it is “ ‘not enough to show that reasonable people might disagree
about whether to strike one or more’ prior conviction allegations.†(Carmony,
supra, 33 Cal.4th at p. 378.) If the record is silent on the issue, the
presumption is that the trial court applied the law correctly. (Ibid.) Furthermore, “[b]ecause the circumstances
must be ‘extraordinary . . . by which a career criminal can be deemed to fall
outside the spirit of the very scheme within which he squarely falls once he
commits a strike as part of a long and continuous criminal record, the
continuation of which the law was meant to attack’ [citation], the
circumstances where no reasonable people could disagree that the criminal falls
outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary
case--where the relevant factors described in Williams, supra, 17
Cal.4th 148, manifestly support the striking of a prior conviction and no
reasonable minds could differ--the failure to strike would constitute an abuse
of discretion.†(Ibid.)
Defendant
argues that significant facts had developed in the time since his defense
counsel made its first Romero request
that should have persuaded the trial court to strike his prior strike
conviction. First, defendant argues that
by the time of the sentencing hearing he was a gang dropout, and had
disassociated from the Norteños in July 2011.
Further, defendant argues that the fact that his two prior strike
offenses were committed within several hours of each other is
ameliorative. Defendant additionally
states that there were other mitigating factors relating to the assault crime,
that he possesses a strong support network that could assist him, and that the
trial court could have crafted a sentence that would keep him in prison past
the age where he is likely to recidivate without resorting to sentencing him as
a third strike offender under the Three Strikes law. However, despite the many reasons defendant
advances for the proposition that failing to strike one of his prior strikes
amounts to an abuse of discretion, we do not find that the circumstances of his
case are such that no reasonable person would disagree that he falls outside
the spirit of the Three Strikes law. (
Contrary to
defendant’s claims, the trial court reviewed all of these positive factors
prior to making its sentencing determination, including the fact that he
disassociated from a gang. This
information was discussed in the probation report and in its related
attachments, which the trial court acknowledged it considered on the record
during the sentencing hearing.
Further,
defendant fails to address the factors weighing against the trial court
striking his prior strikes. As the
probation officer noted in his probation report, defendant reportedly stated
that he never considered himself a Norteño gang member, but that he admitted
associating with gang members because he grew up with them. Defendant also further stated that he only
pled to the gang enhancement charges on his prior strikes because his
codefendants were gang members, and that he did not fully understand the
consequences of the charges at the time.
Defendant’s disassociation from the Norteño gang, though likely a
positive step towards his rehabilitation, does not erase the circumstances of
his past strike offenses, and is only one consideration. As the probation officer noted in his report,
defendant’s criminal history dates back to the age of 15, where he committed
offenses such as theft and other drug and gang-related crimes. Further, defendant was aware that he had two
strikes at the time he committed his third strike, and knew of the potential
consequences of an additional felony, as indicated by an interview defendant
participated in with a probation officer.
Additionally,
simply because defendant’s two strike priors were for offenses committed close
in time does not mean the trial court abused its discretion in declining to
strike one of the prior convictions.
Several appellate courts have contemplated the issue of whether or not a
trial court must strike a prior strike if it arises from the same criminal act
as another strike, with some finding that failing to do so constitutes abuse of
discretion.
title="">[8] However, these cases are inapplicable. Defendant’s prior strikes did not arise out
of the same offense, but rather arose out of two separate offenses that were
hours apart, at different locations, and with different victims.
Accordingly,
we do not find that the trial court abused its discretion in declining to strike
one of defendant’s prior strikes. As a
result, defendant does not demonstrate he was prejudiced from his trial
counsel’s failure to bring a second Romero
request before the trial court. We
therefore find defendant’s claim of ineffective assistance of trial counsel
fails.
Strikes Reform Act (Proposition 36)
In his
Proposition 36, the Three Strikes Reform Act, entitles him to automatic
resentencing because his conviction was not yet final at the time the Act came
into effect. For the reasons set forth
below, we find that the amendments to the Three Strikes law enacted by
Proposition 36 apply prospectively and do not entitle defendant to an automatic
resentencing. Prior to turning to
defendant’s claim on the merits, we first give an overview of Proposition 36
and the reforms made to our state’s Three Strikes law.
Strikes Law
California’s
electorate passed the Proposition 36 on November 6, 2012, which became
effective the next day. (Cal. Const.,
art. II, § 10, subd. (a).) Proposition
36 amended sections 667 and 1170.12. The
amendments to sections 1170.12 and 667 changed the statute so that now a person
with two or more prior serious strikes must be sentenced to an indeterminate
term of 25 years to life, except as provided in section 1170.12, subdivision
(c)(2)(C), and section 667, subdivision (e)(2)(C). (§ 1170.12, subd. (c)(2)(A).) Section 1170.12, subdivision (c)(2)(C) and
section 667, subdivision (e)(2)(C), together mandate that defendants who have
two or more strikes, but whose current felony is not a serious or violent
felony defined under section 667, subdivision (d) and section 1170.12,
subdivision (b), must be sentenced as a second strike offender pursuant to
section 667, subdivision (e)(1), or section 1170.12, subdivision (c)(1).
Those
defendants whose current strike is a serious or violent felony are sentenced as
third strike offenders. (§§ 667, subd.
(e)(2)(C), 1170.12, subd. (c)(2)(C).)
The amendments create four exceptions under sections 667, subdivision
(e)(2)(C) and 1170.12, subdivision (c)(2)(C).
If the prosecution pleads and proves any of these exceptions exist, the
defendant must also be sentenced as a third strike offender. The first three exceptions deal with
characteristics of a defendant’s current felony, such as if he was armed with a
firearm during the commission of the current felony. (§§ 667, subd. (e)(2)(C)(i)-(iii), 1170.12,
subd. (c)(2)(C)(i)-(iii).) The last
exception involves the nature and characteristics of a defendant’s strike
priors, such as if one of the defendant’s strike priors was a violent sex
offense or a homicide. (§§ 667, subd.
(e)(2)(C)(iv), 1170.12, subd. (c)(2)(C)(iv).)
Proposition
36 also added section 1170.126, which applies exclusively to those “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.†(§
1170.126, subd. (a).) Section 1170.126
sets forth a procedure through which certain prisoners can petition the court
for resentencing.
First, an
eligible prisoner must file a petition for recall of sentence with the trial
court within two years of the Three Strikes Reform Act’s effective date, “or at
a later date upon a showing of good cause.â€
(§ 1170.126, subd. (b).) The
trial court then must determine if the prisoner satisfies the eligibility
requirements under section 1170.126, subdivision (e). If so, the trial court shall resentence the
prisoner as a second strike offender unless it makes the determination that
resentencing him or her “would pose an unreasonable risk of danger to public
safety.†(Id. subd. (f).)
In
determining if resentencing would pose an unreasonable risk to public safety,
the court may consider the prisoner’s disciplinary record while incarcerated,
the prisoner’s criminal history, the prisoner’s prior prison commitments, the
remoteness of the crime, and any other relevant factors. (§ 1170.126, subd. (g).) Under no circumstances may resentencing
result in a longer sentence. (
specifies that “[n]othing in this section is intended to diminish or abrogate
any rights or remedies otherwise available to the [prisoner].â€
Statutory Construction
The
question of whether or not the amendments made to the Three Strikes law are
properly applied prospectively is a question of law that we will review de
novo. (People v. Failla (2006) 140 Cal.App.4th 1514, 1520.)
Our role in
interpreting a voter initiative, such as Proposition 36, is the same as our
role in interpreting statutory construction.
(Robert L. v. Superior Court (2003)
30 Cal.4th 894, 900-901.) To properly
construe a statute, we must “ ‘ “ascertain the Legislature’s intent so as to
effectuate the purpose of the law.†’ â€
(People v. Canty (2004) 32
Cal.4th 1266, 1276 (Canty).) Accordingly, in interpreting the statute we
must determine the intent of the voters in passing Proposition 36.
The rules
of statutory construction are well settled.
“Our first task is to examine the language of the statute enacted as an
initiative, giving the words their usual, ordinary meaning. [Citations.]
If the language is clear and unambiguous, we follow the plain meaning of
the measure. [Citations.] ‘[T]he “plain meaning†rule does not prohibit
a court from determining whether the literal meaning of a measure comports with
its purpose or whether such a construction of one provision is consistent with
other provisions of the statute.’ †(
the statute as a whole and the overall statutory scheme, and we give
‘significance to every word, phrase, sentence, and part of an act in pursuance
of the legislative purpose.
[Citation.]’ [Citations.] The intent of the law prevails over the
letter of the law, and ‘ “the letter will, if possible, be so read as to
conform to the spirit of the act.†’ †(
case of an initiative measure, “ ‘has provided an express definition of a term,
that definition ordinarily is binding on the courts.’ †(Id.
at p. 1277.)
Defendant
argues that he should be entitled to automatic resentencing under the
amendments made to the Three Strikes law by Proposition 36 since his current
offense is not a violent or serious felony, because none of the exceptions that
require sentencing a defendant as a third strike offender under sections 667,
subdivision (e)(2)(C) and 1170.12, subdivision (c)(2)(C), apply to his case,
and because his judgment of conviction was not yet final pending the resolution
of this appeal when Proposition 36 passed on November 6, 2012, and went into
effect on November 7, 2012. (
[holding that judgment of conviction not yet final so long as remedy may be
provided on direct appeal].)
Defendant
relies on the California Supreme Court’s decision in In re Estrada (1965) 63 Cal.2d 740 (Estrada). In
Legislature amends a statute to mitigate the punishment for a specific crime,
it must be assumed that the Legislature intended that the statute be
retroactively applied to all
defendants whose judgments of conviction were not final at the time of the
statute’s operative date if there is no other evidence to the contrary. (Id.
at pp. 742-748; People v. Brown (2012)
54 Cal.4th 314, 323 (Brown).) We find, like our colleagues at the Fifth
Appellate District did in People v.
Yearwood (2013) __ Cal.App.4th __ [2013 Cal.App. LEXIS 58, *23], that the
application of the amendments effectuated by Proposition 36.
The rule
derived from Estrada is not without
limits. Section 3 specifies that “[n]o
part of [the Penal Code] is retroactive, unless expressly so declared.†Thus, while Estrada certainly operates to determine if a statute should be
retroactively or prospectively applied, section 3 is also still applicable such
that “in the absence of an express retroactivity provision, a statute will not
be applied retroactively unless it is very clear from extrinsic sources that
the Legislature . . . must have intended a retroactive application.†(Evangelatos
v. Superior Court (1988) 44 Cal.3d 1188, 1209.) Put in other words, the Estrada holding applies in situations where “the amendatory statute
mitigates punishment and there is no savings clause.†(Estrada,
supra, 63 Cal.2d at p. 748.) As our Supreme Court in Brown surmised, “Estrada
is today properly understood, not as weakening or modifying the default rule of
prospective operation codified in section 3, but rather as informing the rule’s
application in a specific context by articulating the reasonable presumption
that a legislative act mitigating the punishment for a particular criminal
offense is intended to apply to all nonfinal judgments.†(Brown,
supra, 54 Cal.4th at p. 324.)
In
of the limitations to the applicability of the Estrada rule. The court held
that the holding in Estrada did not
extend to retroactively apply an increased conduct credit calculation under
section 4019 to those defendants whose judgments were not final on the
statute’s effective date. (
In Brown, the defendant argued
that the Estrada holding should be
extended to apply to “any statute that reduces punishment in any manner, and
that to increase credits is to reduce punishment.†However, the Supreme Court rejected this
argument, finding that Estrada is
“specifically directed to a statute that represents ‘ “a legislative mitigation
of the penalty for a particular crimeâ€
’ (Estrada,
[63 Cal.2d] at p. 745, italics added) because such a law supports the inference
that the Legislature would prefer to impose the new, shorter penalty rather
than to ‘ “satisfy a desire for vengeance.†’ â€
(Id. at p. 325.) The court concluded that this logic did not
extend to a law that rewards a prisoner’s good conduct while incarcerated. (Ibid.)
The Three
Strikes Reform Act similarly deviates from the reasoning set forth in
applies to the legislative mitigation of penalties for a specific crime, and we
do not find that the Estrada rule
logically applies to a sentencing scheme like the Three Strikes law. Second, even if we were to conclude that the
section 1170.126, which sets forth the sentence recall procedure for certain
inmates currently serving an indeterminate sentence, acts as the equivalent of
a saving clause, rendering Estrada inapplicable. (See People
v. Nasalga (1996) 12 Cal.4th 784, 793 [holding Estrada rule inapplicable to statutes with an express saving clause
or its equivalent].)
A saving
clause need not always be explicit, nor is the Legislature “bound to use the
same method†in enacting a saving clause.
(In re Pedro T. (1994) 8
Cal.4th 1041, 1048.) Courts cannot
“dictate to legislative drafters the forms in which laws must be written to
express the legislative intent. Rather,
what is required is that the
Legislature demonstrate its intention with sufficient clarity that a reviewing
court can discern and effectuate it.†(
this requirement.
The plain
language of section 1170.126 sets forth a procedure through which prisoners
that are serving an indeterminate life sentence, such as defendant here, may
petition the trial court for a recall of their sentence. The statute does not specify that the
procedures are reserved only for those serving indeterminate sentences for
which the sentence is final. Therefore,
for all intents and purposes, section 1170.126 functions as the equivalent of a
saving clause as it essentially applies the amendments prospectively by
providing a mechanism for recall of sentences for those inmates sentenced prior
to the effective date of the act.
A
prospective application of amended sections 667 and 1170.12 also properly
comports with the purpose behind the voter initiative. Even if we were to agree that the language of
section 1170.126 is ambiguous, we must then reference “ ‘ “to other indicia of
the voters’ intent, particularly the analyses and arguments contained in the
official ballot pamphlet.†’ †(
of passing Proposition 36 was the element of public safety, such that repeat
violent criminals will still get life imprisonment terms for serious or violent
third strikes. In its rebuttal to the
argument against Proposition 36, proponents of the amendments reiterated that
“Prop. 36 prevents dangerous criminals from being released early.†(Voter Information Guide, Gen. Elec. (Nov. 6,
2012) Rebuttal to Argument Against Proposition 36, p. 53.)
Entitling
prisoners, such as defendant here, to circumvent the recall provision set forth
under section 1170.126, does not advance public safety. If defendant were sentenced today, he would
qualify to be sentenced as a second strike offender under amended sections 667
and 1170.12. However, the prosecution
would be able to present evidence to disqualify defendant from this more
lenient sentencing scheme and to instead sentence him as a third strike
offender if any of the exceptions provided for in sections 667, subdivision
(e)(2)(C) and 1170.12, subdivision (c)(2)(C) are proven. In addition, if defendant went through the
sentencing recall petition procedure outlined in section 1170.126, he would
still remain eligible for resentencing pending the trial court’s determination
of his risk to public safety if released.
Automatically sentencing defendant to a reduced second strike sentence
creates a scenario where a prisoner’s safety risk is not afforded proper
judicial review.
Lastly, we
find that defendant’s argument that section 1170.126, subdivision (k) does not
foreclose his right to automatic resentencing is without merit. Section 1170.126, subdivision (k) states that
“[n]othing in this section is intended to diminish or abrogate any rights or
remedies otherwise available to the defendant.â€
Section 1170.126, subdivision (k) simply ensures that prisoners, such as
defendants, may still pursue other legal actions such as petitioning the courts
for a writ of habeas corpus, in addition to pursuing a sentence recall. We do not find that section 1170.126,
subdivision (k) has any bearing on defendant’s alleged rights to an automatic
resentencing.
We
therefore find that defendant is not entitled to automatic resentencing under
amended sections 667 and 1170.12.
The judgment is affirmed.
Premo,
Acting P.J.
WE CONCUR:
Mihara,
J.
Márquez,
J.
Further unspecified statutory references are to the Penal Code.
