P. v. Zapata
Filed 9/20/13 P. v. Zapata CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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 THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
JESUS DAMIAN ZAPATA,
Defendant and
Appellant.
G047277
(Super. Ct.
No. 05WF0647)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, W. Michael Hayes, Judge. Affirmed in part and reversed in part with
directions.
Edward J. Haggarty,
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, Barry Carlton and Heather M. Clark, Deputy
Attorneys General, for Plaintiff and Respondent.
*
* *
A jury convicted
defendant Jesus Damian Zapata of felony false
impersonation (Pen. Code, § 529, subd. (a)(3) (formerly § 529, subd. 3,
hereafter former section 529(3); all further statutory references are to this
code unless otherwise indicated), but found him not guilty of
street terrorism. The trial court thereafter
found true allegations defendant had 11 prior serious or violent felony convictions
(§§ 667, subds. (d), (e)(2), 1170.12, subds. (b), (c)(2)(A)) and had served a
prior prison term (§ 667.5, subd. (b)). It
dismissed the allegations of two prior serious felonies (§ 667, subd. (a)(1))
and sentenced defendant to an indeterminate term of 25 years to life, plus a
one-year term under section 667.5, subdivision (b).
Defendant contends his
false impersonation conviction should be reversed because substantial evidence
does not support it; section 148.9 is a more specific statute that precludes
conviction under former section 529(3); the court erred in failing to instruct sua
sponte on the lesser included offense of attempted false impersonation and
refusing to reduce the offense to a misdemeanor; and that the prosecution of
this case, along with the case against him in Los Angeles County for attempted
murder, violated section 654. He further
argues he is entitled to automatic resentencing under the recently passed
Proposition 36 and principles set forth in In
re Estrada (1965) 63 Cal.2d 740 (Estrada). We agree with defendant’s last contention and
remand the matter for resentencing but in all other respects affirm the
judgment.
FACTS
In March 2005, defendant
was driving his vehicle when he was stopped by police officer Ramiro Vergara
for not wearing a seat belt and failing to signal before turning. A DMV check revealed the vehicle was
registered to Juan Zapata, defendant’s brother, and that the registration was
expired. Defendant identified himself as
Juan Zapata, with a birth date of December 18, 1984, and told Vergara the
vehicle belonged to his girlfriend. A
records check showed Juan Zapata did not have a driver’s license.
After backup arrived, Vergara
found a pipe in defendant’s pocket, plus bullets and a loaded gun in the
vehicle. Defendant was arrested and
taken to the police station, where he maintained his name was Juan Zapata.
Vergara completed a
prebooking form with the information defendant provided. He collected evidence from defendant’s hands
to test for gunshot residue (GSR) under the name of Juan Zapata and sent it to
the lab for testing under that name. A
DNA sample was also taken from defendant and booked under the name Juan
Zapata. Fingerprints later revealed
defendant was actually Jesus Zapata with a birth date in 1978. Upon being confronted with the information,
defendant pleaded the Fifth Amendment.
DISCUSSION
Sufficiency of the Evidence
Former section 529(3)
provides, in relevant part: “Every
person who falsely personates another in either his private or official
capacity, and in such assumed character
. . . [¶] . . . [¶] 3. Does any other act whereby, if done by the
person falsely personated, he might, in any event, become liable to any suit or
prosecution, or to pay any sum of money, or to incur any charge, forfeiture, or
penalty, or whereby any benefit might accrue to the party personating, or to
any other person[.]†The offense may be
“either a misdemeanor or a felony†(People
v. Casarez (2012) 203 Cal.App.4th 1173, 1179) and the terms “personate†and
“impersonate†are synonymous (id. at
p. 1179, fn. 3). Defendant argues his
conviction should be reversed because no substantial evidence exists that he
“committed the additional act necessary for a [former] section
529[(3)] . . . violation.†We disagree.
The extent of the
“additional act†has been the subject of considerable case law. The statute does not require the additional
act be intended by the impersonator to subject another person to liability or
to create a benefit to himself; it only requires that an additional act
benefit. (People v. Rathert (2000) 24 Cal.4th 200, 205-206 [“paragraph 3 is
framed in language reasonably susceptible of only one interpretation: that the Legislature sought to deter and to
punish all acts by an impersonator that might result in a liability or a
benefit, whether or not such a consequence was intended or even foreseen. No fewer than seven times does the word ‘any’
appear in the statute . . . . The impersonator’s act,
moreover, is criminal provided it might result
in any such consequence; no higher degree of probability is requiredâ€].)
In People v. Cole (1994) 23 Cal.App.4th 1672, the court held that the
defendant’s act of providing a false middle name and birth date to the
arresting officer did not qualify as additional acts under the statute. (Id.
at p. 1676.) By contrast, the defendant
in People v. Robertson (1990) 223
Cal.App.3d 1277 (Robertson), abrogated
on another ground in People v. Rathert,
supra, 24 Cal.4th at pp. 205-208, falsely
impersonated his brother upon being arrested for stealing a truck and continued
to do so at arraignment by signing his brother’s name on the booking and
release forms, resulting in his brother’s incarceration when the defendant
failed to appear at the scheduled hearing.
Robertson upheld the
defendant’s conviction, finding the additional acts beyond the initial
impersonation were sufficient to satisfy the statute. (Robertson,
at pp. 1282-1283.)
Similarly, in
205, the court held that by signing her sister’s name on a traffic citation,
the defendant “exposed her sister not only to liability for the citation but
also to potential criminal liability for failing to appear at the scheduled
hearing.†(Id. at p. 212.) More
recently, in People v. Stacy (2010)
183 Cal.App.4th 1229, the defendant, who used her cousin’s name when stopped by
the police, refused to take a second mandatory breathalyzer test or provide a
blood sample. The court
complete the mandatory testing put the impersonated individual “at risk of
liability for refusing to submit to and/or complete the chemical testing
requirements under Vehicle Code sections 23612 and 23577. Indeed, such charges were ultimately levied
against [the] defendant when her true identity was learned.†(Id. at pp. 1235-1236, fn. omitted; but
see People v. Guion (2013) 213
Cal.App.4th 1426, 1435 [providing driver’s license in name of impersonated
person did not qualify as “other act†under former section 529(3)];
certificate did not satisfy former section 529(3)’s requirement of another act].)
Here, the uncontroverted
evidence shows defendant not only fraudulently misidentified himself to Vergara,
but that he continued the fraud during the post-arrest process. He allowed GSR to be taken from his hands, then
be booked and sent to the crime lab for testing under his brother’s name. Like the act of signing the citation in
brother in significant legal jeopardy because, as the trial court found, he
could have been subjected to criminal prosecution for the crimes charged in
this case, i.e., possession of a concealed firearm in a vehicle, if defendant
had been released without his true identity having been established.
Defendant maintains he committed
no affirmative act and merely “acquiesce[d] in the booking process and the
collection of evidence instigated by law enforcement†and had he not done so,
he would “have committed ‘additional acts’ exposing his brother to potential
criminal liability†for resisting an officer in the performance of his duties (§
148) as shown by People v. Stacy. Former section 529(3), however, does not
require an “affirmative†act but only an act that might subject the person
falsely personated to “become liable to any . . . prosecution . . .
or to incur any charge, forfeiture, or penalty, or whereby any benefit might
accrue to the party personating . . . .†Defendant’s act of consenting to have GSR be
taken from him, be booked into evidence and submitted for testing in his
brother’s name while masquerading as his brother satisfies the requirement as
it subjected his brother to possible criminal liability.
As for defendant’s claim
that he was required to comply with the collection of evidence, it could be
argued the defendants in Robertson and
Chardon had to perform the additional
acts of signing a booking form and a release form, or a traffic citation. But that misses the point, which is that
these acts were performed while under the guise of another person who would be
responsible for their consequences.
Defendant was not required to impersonate his brother, and choosing to
do so while performing an act of legal significance placed his brother at
risk. This act was not merely part of
defendant’s initial impersonation of his brother, it was an additional act that
heightened his brother’s criminal liability by making him potentially responsible
not only for failing to wear a seat belt and signaling before turning, but also
for possessing a concealed firearm in a vehicle. Under these facts, defendant was not, as he
asserts, passively maintaining his false identity, he was providing further
evidence incriminating his
brother. What defendant describes as a
lack of affirmative representation was in fact a purposeful failure to correct
the fallacy he had intentionally created.
By permitting GSR taken
from him be booked into evidence under his brother’s name, defendant exposed
his brother to significant criminal
liability. Because this act
satisfied the statute and provided substantial evidence to support defendant’s conviction,
we need not discuss his additional claim that his act of allowing his DNA be
taken did not qualify as the required act because it would have “positively
identif[ied] him contrary to his assertion that he was Juan Zapata.â€
of Former Section 529(3) Conviction by Section 148.9
Defendant contends his
conviction is barred by section 148.9, which makes it a misdemeanor for anyone
to falsely represent or identify themselves as someone else to a police officer
“upon a lawful detention or arrest of the person, either to evade the process
of the court, or to evade the proper identification of the person by the
investigating officer†(§ 148.9, subd. (a)), because it is a more specific
statute than former section 529(3). We
are not persuaded.
Under the rule set forth
in In re Williamson (1954) 43 Cal.2d
651 (Williamson), “if a general
statute includes the same conduct as a special statute, the court infers that
the Legislature intended that conduct to be prosecuted exclusively under the
special statute. In effect, the special
statute is interpreted as creating an exception to the general statute for
conduct that otherwise could be prosecuted under either statute. [Citation.] . . . ‘The
doctrine that a specific statute precludes any prosecution under a general
statute is a rule designed to ascertain and carry out legislative intent. The fact that the Legislature has enacted a
specific statute covering much the same ground as a more general law is a powerful
indication that the Legislature intended the specific provision alone to apply.
Indeed, in most instances, an overlap of
provisions is determinative of the issue of legislative intent and “requires us
to give effect to the special provision alone in the face of the dual
applicability of the general provision . . . and the
special provision . . . .â€â€™â€
(People v. Murphy (2011) 52
Cal.4th 81, 86.)
“Absent some indication
of legislative intent to the contrary, the Williamson
rule applies when (1) ‘each element of the general statute corresponds to an
element on the face of the special statute’ or (2) when ‘it appears from the
statutory context that a violation of the special statute will necessarily or
commonly result in a violation of the general statute.’†(People
v. Murphy, supra, 52 Cal.4th at
p. 86.) Even if the general statute
contains an element not within the special statute, “‘[i]t is not correct to
assume that the [Williamson] rule is
inapplicable . . . . Rather, the courts must
consider the context in which the
statutes are placed. If it appears from
the entire context that a violation of the “special†statute will necessarily
or commonly result in a violation of the “general†statute, the
the elements of the general statute are not mirrored on the face of the special
statute.’†(Id. at p. 87.)
Defendant acknowledges
former section 529(3) contains elements not included in section 148.9. (See People
v. Guion, supra, 213 Cal.App.4th
at p. 1436 [“statutory elements of former section 529(3)—false personation and
the commission of an additional act that might expose the person who is falsely
impersonated to liability or benefit the defendant—do not include all of the
elements of section 148.9â€]; Robertson,
223 Cal.App.3d at p. 1281 [section 148.9 did not bar former section 529(3)
prosecution where section 529 had numerous elements not in section 148.9,
including “other act†element, while section 148.9 requires only “the act of
impersonation before a peace officer upon a lawful detention or arrest, for the
purpose of evading the process of the court or proper identificationâ€].) Yet he argues Robertson’s analysis as to the first test is not “convincing†and
urges us not to follow it. His failure
to provide any reasoned legal argument or citation of authorities forfeits the
issue. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Defendant’s primary
argument is he satisfied the second Williamson
test because “violation of section 148.9 will commonly result in a violation of [former] section 529[(3)].†Not so because former section 529(3) requires
the performance of an additional act not contained in section 148.9, i.e., an
act that might subject the person impersonated to liability. “[I]f the more general statute contains an
element that is not contained in the special statute and that element would not
commonly occur in the context of a violation of the special statute, we do not
assume that the Legislature intended to preclude prosecution under the general
statute. In such situations, because the
general statute contemplates more culpable conduct, it is reasonable to infer
that the Legislature intended to punish such conduct more severely.†(People
v. Murphy, 52 Cal.4th at p. 87.)
According to defendant, “[i]t
is a reasonably common occurrence for people who wrongly choose to give a false
name to a peace officer to engage in some other act that could potentially lead
to civil or criminal liability to the
person falsely impersonated.†That may
be true but it does not follow that such an act commonly occurs “in the context
of a violation of†section 148.9 (People
v. Murphy, supra, 52 Cal.4th at
p. 87), which is complete once a lawfully detained or arrested defendant
falsely represents or identifies himself to a peace officer to evade the
court’s process or proper identification.
The contexts of the two
statutes are also different. In
determining section 148.9 did not bar application of former section 529(3) under
the Williamson rule,
of the two statutes and determined the essence of former section 529(3) “is to
punish the type of fraud perpetrated by means of impersonation of another
person,†while that of section 148.9 “is to punish wrongful interference with
the administration of justice.†(
1282.)
Defendant maintains “the
nature of these offenses remains very similar.â€
He cites the observation in Lee v.
Superior Court (2000) 22 Cal.4th 41, that “statutes prohibiting
impersonation have two purposes. One is
to prevent harm to the person falsely represented; the second is to ensure the
integrity of judicial and governmental processes.†(Id.
at p. 45.) According to defendant, the
second purpose “clearly overlaps†with section 148.9’s “purpose†to “punish
wrongful interference with the administration of justice.†But Robertson
did not say that was section 148.9’s purpose; it merely said that was its
“essence.†(Robertson, 223 Cal.App.3d at p. 1282.) In actuality, “‘[t]he purpose of [section
148.9] is to require the defendant to give “sufficient information to allow law
enforcement to locate the person if he or she does not appear in court.â€â€™â€ (People
v. Christopher (2006) 137 Cal.App.4th 418, 429.) The purposes of the two statutes are thus
distinct.
Because a violation of
section 148.9 would not necessarily or commonly result in a violation of former
section 529(3), the Williamson rule
does not apply.
to Sua Sponte Instruct on Attempted False Impersonation
Defendant asserts the
court prejudicially erred in failing to instruct the jury sua sponte on the
lesser included offense of attempted false personation because Vergara suspected
defendant was not who he claimed to be and ran his fingerprints, which
established his true identity. The
contention lacks merit.
A trial court must
instruct on its own motion on any necessarily included or attempted offense
when there is evidence sufficient to support a conviction on such an offense as
opposed to the charged offense; in other words, when there is evidence from
which a reasonable jury could conclude that the lesser offense, but not the
greater, was committed. (
142, 177.) Attempted false personation
is not a lesser included offense of false personation because the attempted
crime requires specific intent (People v.
Bailey (2012) 54 Cal.4th 740, 752-753; People
v. Jones (1999) 75 Cal.App.4th 616, 627; People v. Strunk (1995) 31 Cal.App.4th 265, 271), whereas false
personation does not (People v. Rathert,
supra, 24 Cal.4th at pp. 205-208).
Moreover, the evidence
does not show defendant was guilty only of the lesser and not the greater
offense. We have concluded substantial
evidence supports defendant’s conviction for false personation because he
falsely identified himself to the officer and allowed GSR evidence to be taken,
booked, and processed under his brother’s name.
“‘An attempt to commit a crime consists of a specific intent to commit
the crime, and a direct but ineffectual act done towards its commission.’†(People
v. Jones, supra, 75 Cal.App.4th at
p. 627.) Here, neither act was
ineffective. The fact Vergara suspected
defendant had falsely identified himself does not show defendant committed an ineffectual
act and does not absolve him of the greater offense. Accordingly, the court did not have to instruct
supa sponte on attempted false personation.
Denial of Motion to Reduce Conviction to a Misdemeanor
The court denied defendant’s
motion to reduce his false personation conviction from a felony to a
misdemeanor under section 17, subdivision (b), stating it had “carefully
weighed the intent of [former section] 529(3)†to determine whether “this [was]
the type of conduct that should be [reduced to a misdemeanor under 17[, subd.] (b)[.]
[¶] And in my humble opinion, the answer
to that question is a sharp no. That if
he had gotten away with the false personation . . . he
would have subjected his brother to liability for the guns in the car, because
everybody would have thought it was his brother driving the car. Whether or not the brother knew the guns were
in the car or not, or, frankly, whether or not the brother put the guns in the
car, his conduct would have subjected him to that for the defendant being in
the car.â€
Defendant contends the
court erred in so ruling because (1) the jury’s not guilty verdict on the gun
possession charge suggested it did not believe he knew a gun was in the vehicle,
and (2) the evidence shows there was only one gun, not multiples ones as
indicated by the court’s comments. We
review the court’s denial of defendant’s motion for abuse of discretion. (People
v. Superior Court (Alvarez)
(1997) 14 Cal.4th 968, 977-978.) In
exercising its discretion, a court must consider, among other things, “‘the
nature and circumstances of the offense’†(id.
at p. 978), as well as general sentencing objectives such as “[p]rotecting
society†and “[p]unishing the defendant†(id.
at p. 978, fn. 5). “‘The burden is on
the party attacking the sentence to clearly show that the sentencing decision
was irrational or arbitrary. [Citation.]
In the absence of such a showing, the
trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence
will not be set aside on review.’†(
showing.
The record shows the
court considered both the nature and circumstances of defendant’s false
personation conviction, which defendant acknowledges was “serious[],†and the
general objectives of sentencing, including protecting defendant’s brother and
punishing defendant. In particular, it
found defendant’s brother could have been subjected to prosecution had
defendant succeeded in impersonating him.
Neither the circumstance that the jury found defendant not guilty of the
possession of a firearm charge, possibly reflecting its belief he was unaware a
gun was in the car, nor the court’s references “to guns in plural,†negate the
fact defendant’s false impersonation of his brother could have subjected his
brother to prosecution for that offense.
Defendant maintains the
denial of his motion was “arbitrary and capricious†given Vergara’s suspicions
regarding defendant’s identity. He
states he was unlikely “to . . . injure[] anyone or impede[]
law enforcement†because his attempt to impersonate his “much younger brother
was almost certain to fail . . . .†We decline defendant’s invitation to reweigh
the evidence and substitute our judgment for that of the trial court. Defendant failed to show the court’s decision
to deny his motion was irrational or arbitrary. Absent such a showing, we presume the court
acted to achieve legitimate sentencing objectives. (People
v. Alvarez, supra, 14 Cal.4th at
pp. 977-978.)
Impermissible Multiple Prosecution Under Section 654
During trial in this
action, defendant moved to dismiss the information on the ground it violated section
654 and Kellett v. Superior Court (1966)
63 Cal.2d 822 (Kellett). He noted that after he was arrested and
charged in this case, he was charged in Los Angeles County with attempted
murder with a firearm use enhancement for an incident occurring in January 2005. He was subsequently convicted of attempted
murder and second degree robbery in the Los Angeles
case. In his motion, defendant asserted
that during the Los Angeles trial, Vergara testified about the traffic stop and
the recovery of the gun in the present case and Edward Buse, a forensic
scientist with the Orange County crime lab, testified about the results of DNA
analysis performed on the gun, which was significant because defendant’s DNA
profile was apparently recovered from a wig and beanie cap worn by the shooter
in the Los Angeles case. Other than confirming
these two witnesses testified in the Los Angeles action, the record contains no
evidence as to what Vergara and Buse testified to. The court denied the motion, finding the
Orange County and Los Angeles County crimes were not connected in their act or
commission within the meaning of section 954 and that joinder was not required
although it was permissible.
Defendant contends this
was error because the gun found in the vehicle he “was driving, and for which
he was charged with possession as a felon, was the same one used in the attempted
murder†prosecution in Los Angeles County, plus Vergara and Buse testified at
both trials. We disagree.
Section 654, subdivision
(a) prohibits both multiple punishment and multiple prosecution. In Kellett,
supra, 63 Cal.2d 822, the Supreme
Court, construing section 654 in the context of the legislative policy of
section 954, explained multiple prosecution is prohibited to avoid “needless
harassment and the waste of public funds . . . .†(Kellett,
at p. 827.) Where “the prosecution is or
should be aware of more than one offense in which the same act or course of
conduct plays a significant part, all such offenses must be prosecuted in a
single proceeding unless joinder is prohibited or severance permitted for good
cause. Failure to unite all such
offenses will result in a bar to subsequent prosecution of any offense omitted
if the initial proceedings culminate in either acquittal or conviction and
sentence.†(Ibid., fn. omitted.)
Nevertheless, “the offenses must be transactionally related, and not
just joinable, before the Kellett
rule applies.†(People v. Valli (2010) 187 Cal.App.4th 786, 796 (
Whether the
on a case-by-case basis.†(
“Appellate courts have adopted two different tests to determine a course
of conduct for purposes of multiple prosecution.†(Ibid.)
“One line of cases finds
offenses are committed at separate times and locations.†(Ibid.) The other line of cases applies an “evidentiary
test†requiring consideration of “the totality of the facts and whether
separate proofs were required for the different offenses.†(Id.
at pp. 798, 799.) We review de novo the
legal question of whether section 654 applies. (Id.
at p. 794.)
Defendant’s multiple-prosecution
claim fails both tests. Because the robbery
and attempted murder in Los Angeles occurred at a different time and place
(January 2005 in Los Angeles) than the charges in the present case (March 2005
in Orange County) and were committed against different victims, his claim fails
the “‘different time/different place’†test. (Valli,
supra, 187 Cal.App.4th at p.
798.) Nor did defendant satisfy the
evidentiary test, given the absence of any transcript or other competent
evidence to establish what Vergara and Buse testified about in the Los Angeles
case.
Even if there was such
evidence, “[s]imply using facts from the first prosecution in the subsequent
prosecution†is not enough to pass the evidentiary test. (Valli,
supra, 187 Cal.App.4th at p. 799.) Instead, “[d]ifferent evidentiary pictures are
required . . . .†(
at night and the other of police pursuits in the following days.†(Ibid.)
The evidentiary picture in the case
before us is one prosecution for robbery and attempted murder at one time and
place with one victim and a second for false personation of a different victim,
gun possession by a felon, and street
terrorism at a different time and at a different place. Aside from Vergara and Buse, “[d]ifferent
witnesses would testify to the events,†as in Valli. (Ibid.) Nor did the evidence
needed to prove robbery and murder—that defendant was the robber and
shooter—supply proof defendant committed false personation, possession of a gun
by a felon, or street terrorism. (See
In re Grossi (1967) 248 Cal.App.2d 315, on which defendant relies,
does not persuade us otherwise. Grossi
used a revolver to rob a gas station attendant and was apprehended with the
revolver four hours later after he committed a traffic violation and attempted
to elude police. He was charged with
armed robbery and being a felon in possession of a firearm; the robbery charge
was dismissed for lack of prosecution; and he pled guilty to and was sentenced
for the other offense. After Grossi was
recharged with and convicted of armed robbery, he sought a writ of habeas
corpus. The Court of Appeal held the
second prosecution for robbery was barred because the record “fairly reek[ed]
of a single course of conduct, indivisible for purpose of section 654,†and “nothing
in the record to support [the People’s] hypothesis†that between the robbery
and the arrest Grossi had “start[ed] a new course of conduct.†(Id.
at pp. 321-322.) Unlike
“‘arise out of the same act, incident, or course of conduct’†for purposes of
the section 654 bar to multiple prosecutions. (People
v. Turner (1985) 171 Cal.App.3d 116, 129.)
Automatic Nondiscretionary Resentencing Under Proposition 36
Defendant seeks
automatic resentencing under Proposition 36, the Three Strikes Reform Act of
2012 (the Act), a voter initiative that amended sections 667 and 1170.12 and
added section 1170.126. The sole
published appellate decision addressing this issue is People v. Yearwood (2013) 213 Cal.App.4th 161 (Yearwood), review denied May 1, 2013, S209069, review having been
recently granted in two other previously published cases: People
v. Conley (2013) 215 Cal.App.4th 1482 [156 Cal.Rptr.3d 508], review granted
August 14, 2013, S211275 and People v.
Lewis (2013) 216 Cal.App.4th 468 [156 Cal.Rptr.3d 747], review granted
August 14, 2013, S211494.
Whether the Act applies
retroactively is a question of law that we review de novo. (People
v. Failla (2006) 140 Cal.App.4th 1514, 1520.) “‘In interpreting a voter
initiative . . . , we apply the same principles that govern
statutory construction. [Citation.] Thus, [1] “we turn first to the language of
the statute, giving the words their ordinary meaning.†[Citation.]
[2] The statutory language must also be construed in the context of the
statute as a whole and the overall statutory scheme [in light of the
electorate’s intent]. [Citation.] [3] When the language is ambiguous, “we refer
to other indicia of the voters’ intent, particularly the analyses and arguments
contained in the official ballot pamphlet.â€
[Citation]’ [Citation.] [¶] In other words, our ‘task is simply to
interpret and apply the initiative’s language so as to effectuate the
electorate’s intent.’†(
Cal.4th 894, 900-901.)
Under the Act, a three
strikes sentence may only be imposed where the current offense is a serious or
violent felony, or where the prosecution pleads and proves a listed exception. (See §§ 667, subd. (e)(2)(C); 1170.12, subd.
(c)(2)(C); Yearwood,
retroactive application of the Act would deprive the prosecution of the ability
to fulfill the requirement to “‘plead[] and prove[]’†one of these exceptions,
she does not identify any particular exception that would apply to defendant’s
case. Nor has our independent review
revealed any relevant exception.
Defendant’s current offense of false impersonation is not a controlled
substance or felony sex offense and there is no evidence he used or armed
himself with a firearm or “intended to cause great bodily injury toâ€
someone. (§§ 667, subd.
(e)(2)(C)(i)-(iii), 1170.12, subd. (c)(2)(C)(i)-(iii).) Defendant’s prior convictions as alleged by the
prosecution in the amended information also did not satisfy any of the
exceptions as they did not involve “[a] ‘sexually violent offense,’†a sexual
or lewd and lascivious act involving a child under the age of 14, homicide,
“[s]olicitation to commit murder,†“[a]ssault with a machine gun on a peace
officer or firefighter,†“[p]ossession of a weapon of mass destruction,†or a
felony punishable by life imprisonment or death. (§§ 667, subd. (e)(2)(C)(iv)(I)-(VIII),
1170.12, subd. (c)(2)(C)(iv)(I)-(VIII).)
Thus, because none of the exceptions applied, and defendant’s current
offense was neither serious nor violent, he would not have been sentenced to 25
years to life had he been sentenced after the Act’s effective date of November
7, 2012.
The Act also added
section 1170.126, which creates a procedure for “persons presently serving an
indeterminate term of imprisonment†(id.,
subd. (a)) under the “Three Strikes†law to petition to recall their sentence
and be sentenced as a second strike offender if the requirements are met. (Yearwood,
supra, 213 Cal.App.4th at p.
170.) The trial court has discretion to deny
the petition even if the objective criteria is met (§ 1170.126, subd. (f)), but
sentencing under sections 667, subdivision (e)(2)(C) and 1170.12, subdivision
(c)(2)(C) is mandatory once a defendant has met the requirements. (Yearwood,
at pp. 170-171, 176.)
Defendant contends he is
not required to petition for a recall of his sentence under newly enacted
section 1170.126 but is instead entitled to mandatory resentencing under
section 667, subdivision (e)(2)(C) given that neither his current offense nor
his strike priors were disqualifying convictions listed in section 667,
subdivision (e)(2)(C) or section 1170.12, subdivision (c)(2)(C). He relies on Estrada, which held if the Legislature amends a statute to mitigate
the punishment for a particular crime, it must be assumed it intended 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. (
This holding applies whenever “the amendatory statute mitigates
punishment and there is no saving clause . . . .†(Id.
at p. 748.)
The Attorney General
responds that “amended sections 667 and 1170.12 apply only prospectively to
persons sentenced on or after November 7, 2012[, as s]tatutory amendments are
not ‘retroactive, unless expressly so declared.’†(Citing § 3; People v. Brown (2012) 54 Cal.4th 314, 319.) She asserts that because “[t]he only
provision of the Act that provides retroactive relief is section
1170.126[,] . . . it is there—and only there—that
[defendant] must turn.â€
The Attorney General
relies on Yearwood. There, as here, the defendant would have been
entitled to second strike sentencing under the Reform Act if he had first been
sentenced in the trial court after the effective date of the Reform Act. But Yearwood, like defendant, had already been
sentenced and his appeal was pending on the date the act became effective. In deciding whether the Act applied
retroactively, Yearwood noted that
“[r]eviewing courts have departed from the Estrada
standard ‘only when new legislation has included an express saving clause or
its equivalent or when some other consideration clearly dictated a contrary
result.’ [Citations.] Yet, the Legislature is not ‘always bound to
use the same method, or to enact an explicit saving
clause . . . .’†(
According to
saving clause or refer to retroactivity.
It does not contain a provision explicitly referring to
persons . . . who were convicted of a felony and sentenced
to an indeterminate life term as a third strike offender prior to the Act’s
effective date but whose judgments are not final because direct appellate
review is pending.†(
Nevertheless, it concluded “[t]he Estrada
rule does not apply to the Act because section 1170.126 operates as the
functional equivalent of a saving clause.
Section 1170.126 is not ambiguous.
The voters intended a petition for recall of sentence to be the sole remedy
available under the Act for prisoners who were serving an indeterminate life
sentence imposed under the former three strikes law on the Act’s effective date
without regard to the finality of the judgment.†(Ibid.)
While we do not disagree
with Yearwood that sections 667 and
1170.12 “must be examined within the context of the entire Act†(
1170.126 is unambiguous.
subdivision (b), which provides that “[a]ny person serving an indeterminate
term of life imprisonment†imposed for a third strike conviction “may file a
petition for a recall of sentence.†(§
1170.126, subd. (b).) But in order for
the Estrada rule not to be
implicated, the Legislature must “clearly
signal[] its intent to make the amendment prospective, by the inclusion of
either an express saving clause or its equivalent.†(People
v. Nasalga (1996) 12 Cal.4th 784, 793, fn. omitted, italics added.)
Yearwood acknowledged the Act does not contain an express saving
clause. (Yearwood, supra, 213
Cal.App.4th at p. 172.) And although
constitutes the “equivalent†of an express saving clause, it held that absent
such 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.’†(
Cal.4th at p. 793.) Section 1170.126,
subdivision (b)’s phrase “person serving an indeterminate term of life
imprisonment†fails to satisfy this standard because it cannot be determined
whether it pertains to prisoners serving judgments not yet final or only to
those serving sentences that are final.
Yearwood cited two cases in which the ballot initiative or statute
under consideration utilized express language to make an ameliorative statute
prospective. The first of these,
approved by voters on November 7, 2000, applied prospectively only despite its
ameliorative effect because it contained the following express saving
clause: “‘Except as otherwise provided,
the provisions of this act shall become effective July 1, 2001, and its
provisions shall be applied prospectively.’â€
(Floyd, at p. 182.) Floyd concluded
the plain language of this saving clause “reveals an intent to avoid the
at p. 185.) The second case,
664, addressed a statutory amendment containing a similar express saving clause
that the changes apply “‘prospectively to any person sentenced on or after
October 1, 2011.’†(Id. at p. 668, citing § 1170, subd. (h).) Given this explicit language, the court held
“even assuming the Act mitigates punishment, the rule of Estrada does
not apply.†(Id. at p. 672, fn. omitted.)
The fact the Act here contains no similar language provides persuasive
evidence the electorate intended section 667, subdivision (e)(2)(C) to apply to
nonfinal judgments.
Yearwood also observed “[c]ourts have departed from the
rule . . . where the legislation did not include an express
saving clause. Most recently, in
held that the Estrada rule did not
require retroactive application of ‘a statute increasing the rate at which
prisoners may earn credit for good behavior . . . . [Citation.]
It reasoned that this statute ‘does not represent a judgment about the
needs of the criminal law with respect to a particular criminal offense, and
thus does not support an analogous inference of retroactive
intent. . . . Instead of addressing punishment for
past criminal conduct, the statute addresses future conduct in a custodial setting by providing increased
incentives for good behavior.’†(
awarding the credit retroactively, for time spent in custody before the
effective date of the amendment, would not further that purpose,
inferring that the Legislature intended the amended statute to apply
retroactively. (Brown, at p. 325 & fn. 15.)
Here, in contrast,
retroactive application of section 667, subdivision (e)(2)(C) is consistent
with the proponents arguments in favor of the Act. As set forth by Yearwood, the argument included in the Voter Information Guide
were: “(1) ‘make the punishment fit the
crime’; (2) ‘save California over $100 million every year’; (3) ‘make room in
prison for dangerous felons’; (4) ‘law enforcement support’; (5) ‘taxpayer
support’; and (6) ‘tough and smart on crime.’â€
(Yearwood,
the “Voter Information Guide, Gen. Elec. (Nov. 6, 2012) argument in favor of
Prop. 36, p. 52, capitalization omittedâ€].)
Applying the Act retroactively would “‘make the punishment fit the crime’â€
and be “‘tough and smart on crime’†(ibid)
by precluding third strike sentences for offenders whose current and prior
offenses are nonviolent and less serious, which in turn would “‘make room in
prison for dangerous felons’†and support law enforcement, as well as save
California and taxpayers money by reducing prison overcrowding (
It would also enhance public safety by ensuring that the truly dangerous
repeat offenders serve indeterminate life terms, while still imposing doubled
prison terms on less serious recidivists.
A logical basis thus exists from which to infer the electorate intended
the Act to apply to nonfinal judgments.
Yearwood asserts the opposite view, noting the ballot arguments
showed “[e]nhancing public safety was a key purpose of the Act.†(Yearwood,
supra, 213 Cal.App.4th at p.
175.) According to Yearwood, “[g]iving . . . section[] 667[,
subdivision (c)(2)(C)] . . . prospective-only application
supports [that] . . . purpose by reducing the likelihood
that prisoners who are currently dangerous will be released from prison due to
the Act. . . . [S]ection[] 667[, subdivision
(c)(2)(C)] do[es] not provide the trial court with any discretion to impose a
third strike sentence based on a finding of current dangerousness. In contrast, section 1170.126 entrusts the
trial court with discretion that may be exercised to protect the
public. . . . [¶] If . . . section[]
667[, subdivision (c)(2)(C) is] given retroactive application, prisoners in
[Yearwood’s] procedural posture would be entitled to automatic resentencing as
second strike offenders without any judicial review to ensure they do not
currently pose an unreasonable risk of danger to public safety. The time period between sentencing and
finality of the judgment can span years.
Prisoners can substantially increase in dangerousness during this
interval. An increase in dangerousness
will not always be reflected in new criminal convictions. Also, prisoners could have been dangerous
when the life sentences were imposed and remained unreasonable safety
risks.†(Id. at p. 176.)
Yearwood’s concerns about retroactively applying section 667,
subdivision (c)(2)(C) may be valid but they are not reflected in the ballot
arguments in favor or the Act and no authority has been cited that unexpressed concerns,
even if valid, clearly indicates voter intent.
Additionally, these same apprehensions apply to a qualifying defendant
sentenced after the Act’s effective date, but as Yearwood notes, the trial court has no discretion to impose a third
strike sentence even if it believes a defendant is or will be dangerous in the
future, based on defendant’s conduct in custody or elsewhere.
Given the
expressed intent or its clear “equivalent†that the Act apply prospectively
only, and the stated intent underlying the Act, we conclude sections 667,
subdivision (e)(2)(C) and 1170.12, subdivision (c)(2)(C) apply retroactively to
judgments not yet final on the Act’s effective date.
DISPOSITION
The cause is remanded
and the trial court is directed to hold a resentencing hearing within 30 days
after this opinion becomes final, to impose a sentence in accordance with
sections 667, subdivision (e)(2)(C) and 1170.12, subdivision (c)(2)(C), and to forward
an amended abstract of judgment reflecting the modified sentence to the parties
and the Department of Corrections and
Rehabilitation within 30 days after resentencing. In all other respects, the judgment is
affirmed.
RYLAARSDAM,
ACTING P. J.
WE CONCUR:
BEDSWORTH, J.
ARONSON, J.
