P. v. Lewis
Filed 4/26/13 P. v. Lewis CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
MICHAEL LEWIS,
Defendant
and Appellant.
E055569
(Super.Ct.No.
FVI900076)
OPINION
APPEAL from the Superior
Court of
Bernardino County. Eric
M. Nakata, Judge. Affirmed as modified;
remanded for resentencing.
Jean Ballantine, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Steven T. Oetting, Tami Falkenstein Hennick, and Ifeolu E.
Hassan, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
This
is an appeal from the sentence imposed on remand for resentencing following our
opinion in People v. Lewis (Aug. 23, 2011, E051058) (nonpub.
opn.) (Lewis I).
During the pendency of this appeal,
the California Supreme Court issued its opinion in People v. Jones (2012) 54 Cal.4th 350 (Jones). Pursuant to that
opinion, we conclude that Penal Code section 654
count 1 and count 4, for possession of a firearm by a convicted felon and for
receiving stolen property, consisting solely of the same firearm.
Also during the pendency of this
appeal, the electorate amended the three strikes law by passing Proposition 36,
the Three Strikes Reform Act of 2012, effective November 7, 2012.
Defendant contends that the amendment to sections 667 and 1170.12, which
would reduce his sentence from 25 years to life to a far lesser determinate
term, applies to him under the doctrine of In
re Estrada (1965) 63 Cal.2d 740 (Estrada),
i.e., that an amendatory statute which reduces punishment applies in all cases
not yet final on appeal, unless there is a clear indication that the enacting
body did not so intend. As we discuss
below, we agree.
BACKGROUND
In
count 3, possession of ammunition by a convicted felon (§ 12316, subd. (b)(1)), and remanded for further proceedings
on count 3 and for resentencing on counts 1 and 4. In count 1, defendant was convicted of being
a convicted felon in possession of a firearm (former § 12021, subd. (a)); in count 4, defendant was convicted of
receiving or possessing stolen property (§ 496, subd. (a)). (
The trial court had sentenced defendant, under the three strikes law
(§§ 667, subd. (c)(6), 1170.12, subd. (a)(6)), to consecutive terms of
25 years to life on counts 1 and 4, believing that it had no discretion to
do otherwise. We held that the court did
have the discretion to impose either concurrent or consecutive terms. (Lewis
I, supra, E051058 [at pp.
22-23].)
Our remand order directed the
district attorney to determine, within 30 days after the opinion became final,
whether to retry defendant on that count.
The remand order further stated, “If the district attorney elects not to
retry defendant on count 3, the court shall dismiss count 3 and hold a new
sentencing hearing within 30 days following the district attorney’s election,
to determine whether to impose consecutive or concurrent sentences on counts 1
and 4.†(Lewis I, supra, E051058
[at p. 26].)
The district attorney elected not to
retry defendant, and the court dismissed count 3. At the resentencing hearing, the court again
imposed consecutive sentences of 25 years to life on counts 1 and 4.
Defendant filed a timely
DISCUSSION
1.
SECTION 654 BARS
IMPOSITION OF SENTENCE ON BOTH COUNT 1 AND COUNT 4
Section 654, subdivision (a),
provides in relevant part that “[a]n act or omission that is punishable in
different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in
no case shall the act or omission be punished under more than one
provision.†At its simplest, “section
654 proscribes double punishment for multiple violations of the Penal Code
based on the ‘same act or omission.’†(
822.)
In this case, the same firearm was
the subject of both count 1 and count 4—that is, defendant was convicted of
illegally possessing the firearm both because of his status as a convicted
felon and because he knew that the firearm was stolen. In Lewis
I, supra, E051058, we rejected
defendant’s claim that section 654 bars imposition of sentence on both count 1
and count 4. We based our opinion
primarily on In re Hayes (1969) 70
Cal.2d 604. (Lewis I, supra, [at pp.
19-21].) We noted that a similar issue
was then under review in Jones,
Mar. 24, 2010, S179552. (
On June 21, 2012, after the parties
had filed their briefs in this case, the Supreme Court issued its opinion in
found with a loaded firearm concealed in the door panel of the car he was
driving. The firearm was not registered
to him. (Id. at p. 352.) The court
held that the defendant could be punished only once for the three crimes of
which he was convicted based on the single physical act of possessing a single
firearm: possession of a firearm by a
felon, carrying a readily accessible concealed and unregistered firearm, and
carrying an unregistered loaded firearm in public. (Id.
at pp. 352, 360.) The court
confirmed that “[s]ection 654 prohibits multiple punishment for a single
physical act that violates different provisions of law.†(Jones,
at p. 358.) It overruled
carrying of a single firearm on a single occasion may be punished only once
under section 654.†(
We directed the parties to submit
supplemental briefing as to the effect, if any, of Jones, supra, 54 Cal.4th
350, on this case. The parties agree
that Jones and section 654 preclude
imposition of sentence on both count 1 and count 4, and we concur. We will remand the cause for resentencing,
with directions to stay the sentence imposed on either count 1 or count 4.
2.
DEFENDANT MUST BE
SENTENCED UNDER SECTION 667(e)(2)(C)
Proposition 36
While
this appeal was pending, voters passed Proposition 36, the Three Strikes Reform
Act of 2012 (hereafter the Reform Act or the act). The Reform Act became effective on November
7, 2012. (§§ 667, subd. (e)(2)(C),
1170.12, subd. (c)(2)(C), 1170.126.)
supplemental briefing on the effect of the Reform Act.
Under the three strikes law as it
existed before the passage of the Reform Act, a defendant with two or more
strike priors who is convicted of any new felony would receive a sentence of 25
years to life. (Former § 667(e)(2)(A).) As amended, section 667 provides that a
defendant who has two or more strike priors is to be sentenced pursuant to
paragraph 1 of section 667(e)—i.e., as though the defendant had only one strike
prior—if the current offense is not a serious or violent felony as defined in
section
667.5(c) or section 1192.7(c), unless certain disqualifying factors are pleaded
and proven.
title="">[4] (§§ 667(d)(1), (e)(2)(C).)
The
Reform Act also provides a procedure which allows a person who is “presently
serving†an indeterminate life sentence imposed pursuant to the three strikes
law to petition to have his or her sentence recalled and to be sentenced as a
second-strike offender, if the current offense is not a serious or violent
felony and the person is not otherwise disqualified. The trial court may deny the petition even if
those criteria are met, if the court determines that resentencing would pose an
unreasonable risk of danger to public safety.
(§ 1170.126(a)-(g).) Accordingly,
under section 1170.126, resentencing is discretionary even if the defendant meets
the objective criteria (§ 1170.126(f), (g)), while sentencing under section
667(e)(2)(C) is mandatory, if the defendant meets the objective criteria.
The parties agree that neither
defendant’s current offenses—possession of a firearm by a convicted felon and
receiving stolen property—nor his two robbery-strike priors, disqualify him for
resentencing pursuant to section 667(e)(2)(C).
remand for resentencing, the trial court must sentence him pursuant to section
667(e)(2)(C). He contends that section
667(e)(2)(C) is an ameliorative sentencing statute which presumptively applies
to all criminal judgments which were
not yet final as of its effective date, and that there is nothing in the
language of the Reform Act which overcomes the presumption. The Attorney General contends that section
667(e)(2)(C) applies, prospectively only, to defendants who are first sentenced
on or after November 7, 2012. She
contends that it does not apply to defendant because he is “presently serving a
third-strike sentence†within the meaning of section 1170.126(a), and that his
only remedy is to petition for relief under that statute.
2. Section 667(e)(2)(C) Applies to Defendants
Whose Judgments Were Not Yet Final on the Effective Date of the Reform Act.
There is a general rule of statutory
construction, embodied in section 3 of the Penal Code, that “‘when there is
nothing to indicate a contrary intent in a statute it will be presumed that the
Legislature intended the statute to operate prospectively and not
retroactively.’ [Citation.]†(People
v. Floyd (2003) 31 Cal.4th 179, 184 (Floyd).) In Estrada,
exception to that presumption. In that
case, the court held that where a statute has been amended to lessen the
punishment for an offense and there is no clear indication of an intent to
apply the amendment prospectively only, it must be presumed that the
Legislature intended the mitigated punishment to apply to all judgments not yet
final as of the effective date of the amended statute. (Id. at
pp. 744-747.) The court held, ‘“A
legislative mitigation of the penalty for a particular crime represents a
legislative judgment that the lesser penalty or the different treatment is
sufficient to meet the legitimate ends of the criminal law.â€â€™ (Id. at
745.) From this, “[i]t is an inevitable
inference that the Legislature must have intended that the new statute imposing
the new lighter penalty now deemed to be sufficient should apply to every case
to which it constitutionally could apply,†including those which are not yet
final. (Ibid.)
The Legislature has never abrogated
the Estrada rule. (See People
v. Nasalga (1996) 12 Cal.4th 784, 792, fn. 7 (Nasalga).) The rule and its
continued vitality were most recently discussed by the California Supreme Court
in People v. Brown (2012) 54 Cal.4th
314 (Brown).) In Brown,
the court reiterated that 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.†(Id.
at p. 324, italics added.)
Despite the Estrada presumption, however, a court interpreting a statute which
ameliorates punishment must nevertheless determine the intent of the
Legislature or of the electorate in enacting the statute. (Floyd, supra, 31 Cal.4th at p. 184.) To determine intent, courts look first to the
language of the provision, giving its words their ordinary meaning. If that language is clear in relation to the
problem at hand, there is no need to go further. (Ibid.) If the language is not clear, the tools of
statutory construction must be applied, including but not limited to the
other extrinsic indicators of intention.
(Nasalga, supra, 12 Cal.4th at p. 794.)
There
is no question that section 667(e)(2)(C) is an amendment which ameliorates
punishment under the three strikes law for those defendants who meet its
criteria. However, the Reform Act does
not contain any explicit provision for retroactive or prospective application,
and it does not explicitly state what remedy—i.e., section 667(e)(2)(C) or
section 1170.126—applies to a person in defendant’s position. Consequently, we must “look for any other
indications†to determine and give effect to the intent of the electorate. (Nasalga,
supra, 12 Cal.4th at p. 794.)
In enacting new laws, both the
Legislature and the electorate are “presumed to be aware of existing laws and
judicial construction thereof.†(
890, fn. 11.) Accordingly, we presume
that in enacting the Reform Act, the electorate was aware of the
ameliorating punishment applies to all judgments not yet final on appeal on the
effective date of the new statute. We
also presume that the electorate was aware that a saving clause may be employed
to make it explicit that the amendment is to apply prospectively only, and that
in the absence of a saving clause or another clear signal of intent to apply
the amendment prospectively, the statute is presumed to apply to all nonfinal
judgments. (Nasalga, supra, 12
Cal.4th at p. 793; Estrada,
explicit language making an ameliorative statute prospective. For example, the California Supreme Court
held that the previous Proposition 36, approved by voters on November 7, 2000,
applied prospectively only, despite its ameliorative effect, because it
expressly stated, “Except as otherwise provided, the provisions of this act
shall become effective July 1, 2001, and its provisions shall be applied
prospectively.†(Floyd, supra, 31 Cal.4th
at pp. 183-185.) The court in
this saving clause trumped any other possible interpretation of the
proposition. (Id. at pp. 185-187.) In the
Reform Act, in contrast, the absence of such language is persuasive evidence
that the electorate did intend to apply section 667(e)(2)(C) to nonfinal judgments.
This construction, moreover, is
fully consistent with the expressed purposes of the Reform Act. In Floyd,
the court found further support in the ballot arguments in support of the
proposition, which stated that “[i]f Proposition 36 passes, non-violent drug
offenders convicted for the first or
second time after 7/1/2000, will
get mandatory, court-supervised treatment instead of jail.†(Ballot Pamp., Gen. Elec. (Nov. 7, 2000)
argument in favor of Prop. 36, p. 26, cited in Floyd, supra, 31 Cal.4th
at pp. 187-188, italics added.) The
ballot arguments in support of the Reform Act stated that its purpose was to
ensure that “[p]recious financial and law enforcement resources†were not
diverted to impose life sentences for some non-violent offenses, while assuring
that violent repeat offenders are effectively punished and not released
early. The proponents stated that the
act would “help stop clogging overcrowded prisons with non-violent offenders,
so we have room to keep violent felons off the streets†and “help[] ensure that
prisons can keep dangerous criminals behind bars for life.†An additional purpose was to save taxpayers
“$100 million every year†by ending wasteful spending on housing and health
care costs for “non-violent Three Strikes inmates.†Moreover, the act would ensure adequate
punishment of non-violent repeat offenders by doubling their state prison
sentences. The proponents pointed out
that dangerous criminals were being released early because “jails are
overcrowded with non-violent offenders who pose no risk to the public.†And, the proponents stated that by passing
Proposition 36, “California will retain the toughest recidivist Three Strikes
law in the country but will be fairer by emphasizing proportionality in
sentencing and will provide for more evenhanded application of this important
law.†The proponents pointed out that
“[p]eople convicted of shoplifting a pair of socks, stealing bread or baby
formula [sic] don’t deserve life
sentences.†(Voter Information Guide,
Gen. Elec. (Nov. 6, 2012) argument in favor of Prop. 36 and rebuttal to
argument against Prop. 36,
Applying section 667(e)(2)(C) to nonfinal judgments is wholly
consistent with these objectives, in that doing so would enhance the monetary
savings projected by the proponents and would further serve the purposes of
reducing the number of non-violent offenders in prison populations and of
reserving the harshest punishment for recidivists with current convictions for
serious or violent felonies, while still assuring public safety by imposing
doubled prison terms on less serious repeat offenders.
For both of these reasons—the
absence of any expressed intent to apply the act prospectively only and the
stated intent underlying the proposition—we conclude that section 667(e)(2)(C)
applies to judgments which were not final as of its effective date.
The sole published appellate
decision to date which addresses this issue is People v. Yearwood (2013) 213 Cal.App.4th 161.
as in this case, the defendant would have been entitled to second-strike
sentencing under the Reform Act if he had been sentenced initially after the
effective date of the Reform Act. He had
already been sentenced and his appeal was pending on the date the act became
effective. The court held that even
though the judgment was not yet final, Yearwood’s only remedy was to petition
for recall of his sentence and for resentencing pursuant to section
1170.126. (Id. at pp. 167, 168, 169.)
The court held, as we have, that the
Reform Act does not contain a saving clause or refer to retroactive or
prospective application or refer explicitly to persons in Yearwood’s
position. Nevertheless, the court held,
section 1170.126 unambiguously applies to prisoners whose judgments were not
final on the Reform Act’s effective date, because those prisoners were
“presently serving†an indeterminate life term under the three strikes
law. (See § 1170.126(a).) The court held that section 1170.126
therefore effectively operates as the functional equivalent of a saving clause
and, if section 667(e)(2)(C) is read not in isolation but in the context of the
entire statutory scheme, it is clear that the mandatory sentencing provision of
section 667(e)(2)(C) is intended to operate prospectively only. (Yearwood,
Yearwood
is correct that even in the absence of an express saving clause there may
be other reasons to determine that the enacting body intended the statute to apply
prospectively only. Brown, supra, 54 Cal.4th
314, provides an example. In that case,
the court held that an amendment to section 4019 which increased the rate at
which prisoners may earn credits for good behavior applied prospectively only,
despite the absence of express language to that effect, because the purpose of
section 4019 is to provide an incentive for good behavior during
incarceration. Accordingly, rather than
reflecting a determination that a reduced penalty for past criminal conduct satisfies the legitimate ends of criminal
law, section 4019 addresses “future
providing increased incentives for good behavior.†(Brown,
at p. 325.) Awarding the credit
retroactively, for time spent in custody before the effective date of the
amendment, would not further that purpose.
Consequently, the court held, there is no logical basis for inferring
that the Legislature intended the amended statute to apply retroactively, and
the Estrada rule does not apply. (Id.
at p. 325 & fn. 15.) The same is not
true of the Reform Act, however. As we
discussed above, retroactive application of section 667(e)(2)(C) is consistent
with the proponents’ stated objectives of reducing prison overcrowding,
reducing the resources expended on third-strike offenders whose current and
prior offenses are non-violent and less serious, and enhancing public safety by
ensuring that the truly dangerous repeat offenders serve indeterminate life
terms less. (More about this
below.) Accordingly, there is a logical
basis for inferring that the electorate intended the amendment to apply to
nonfinal judgments.
Moreover, we do not agree with
unambiguously applies to defendants who were serving nonfinal third-strike
sentences on the effective date of the Reform Act. In light of the Estrada presumption and the absence of a saving clause in section
667(e)(2)(C), the provision that section 1170.126(a) applies “exclusively to
persons presently serving†a third-strike sentence is ambiguous—does it refer only to prisoners serving sentences
which are final, or does it include those whose judgments are not final? It is certainly not so clear as to qualify as
the functional equivalent of a saving clause.
In Nasalga,
Supreme Court held that the rule of Estrada
is “not implicated where the Legislature clearly
signals its intent†to make an amendment prospective, “by the inclusion of
either an express saving clause or its equivalent.†(Nasalga,
at p. 793, italics added.) The court did
not describe what constitutes an “equivalent†to an express saving clause. However, the court stated that in the absence
of an express saving clause, the “‘quest for legislative intent’†requires that
“‘the Legislature demonstrate its intention with sufficient clarity that a
reviewing court can discern and effectuate it.’
[Citation.]†(
In our opinion, the statutory language that Yearwood relies on does not meet that requirement because it is
ambiguous. We note, too, that
which similarly ambiguous language was deemed to be the equivalent of a saving
clause.
Yearwood
finds support for its position in the ballot arguments in favor of the Reform
Act. It points out that enhancing public
safety was a key purpose of the act. (
The court states that giving section 667(e)(2)(C) prospective-only
application furthers that purpose by reducing the likelihood that prisoners who
are currently dangerous will be released from prison under the Reform Act. In contrast with section 1170.126, section
667(e)(2)(C) does not provide the court with discretion to impose a
third-strike sentence if it finds that the defendant poses an “unreasonable risk
of danger to public safety.†(§
1170.126(f).) Yearwood points out that several years may elapse between
sentencing and finality, and a defendant who might objectively qualify for
second-strike sentencing under section 667(e)(2)(C) may have shown him- or
herself to pose such a risk by misconduct
during post-sentencing incarceration. (
This is arguably a valid
concern. However, it is not reflected in
the ballot arguments in support of the Reform Act. We cannot say that a concern not expressed in
a ballot argument is a clear indication of voter intent, no matter how valid
the concern may be. Moreover, a defendant
may also be incarcerated for many months before being convicted and sentenced
for a third-strike offense. Such a
defendant may also display a propensity for violence or other conduct while
incarcerated which indicates that he or she poses a risk to public safety. Nevertheless, any qualifying defendant
convicted and sentenced after the effective date of the Reform Act is entitled
to sentencing under section 667(e)(2)(C), and the trial court has no discretion
to impose a third-strike sentence even
if the court has concerns about the defendant’s future dangerousness for any
reason, including the defendant’s conduct while in custody. For this reason as well, we do not find
3. Conclusion
We conclude that in passing the
Three Strikes Reform Act of 2012, the electorate intended the mandatory sentencing
provision of sections 667(e)(2)(C) and 117012(c)(2)(C) to apply to qualifying
defendants whose judgments were not yet final on the effective date of the
act. Accordingly, we do not need to
address defendant’s other arguments as to why the act should apply to him.
DISPOSITION
The cause is remanded. The superior court is directed to hold a
resentencing hearing within 30 days after finality of this opinion. The superior court is directed to impose sentence
pursuant to Penal Code sections 667(e)(2)(C) and 1170.12(c)(2)(C) and to stay
imposition of sentence on either count 1 or count 4 pursuant to Penal Code
section 654. The superior court is
directed to issue an amended abstract of judgment reflecting the sentence as
modified and to provide a copy of the amended abstract to the parties and to
the Department of Corrections and Rehabilitation within 30 days after
resentencing.
The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
CODRINGTON
J.
Code unless another code is specified.
must be modified to stay the sentence imposed on count 1 or count 4 obviates
the need to address the contention raised in defendant’s opening brief, i.e.,
that despite our holding in Lewis I,
the trial court continued to believe that it had no discretion to impose
concurrent rather than consecutive terms on counts 1 and 4. It similarly renders defendant’s petition for
writ of habeas corpus (In re Lewis,
E056109) moot. We will address the
petition by separate order.
