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P. v. Garcia

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P. v. Garcia
By
09/08/17

Filed 8/23/17 P. v. Garcia CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

JOSEPH MARTINEZ GARCIA,

Defendant and Appellant.
H042014, H043552
(Santa Clara County
Super. Ct. No. 190165)
Defendant Joseph Martinez Garcia separately appeals from two post-judgment orders in Santa Clara County Superior Court case No. 190165 (case No. 190165): (1) the December 29, 2014 order denying defendant’s petition for resentencing pursuant to Penal Code section 1170.126 (case No. H042014) and (2) the April 28, 2016 order denying defendant’s petition for resentencing pursuant to section 1170.18 (case No. H043552). This court ordered the two appeals to be consolidated for the purposes of briefing, oral argument, and disposition.
In case No. H042014, defendant’s consolidated appellate briefs raise no issues concerning the December 29, 2014 order denying his petition for resentencing under section 1170.126. Therefore, we shall dismiss the appeal as abandoned.
In case No. H043552, defendant contends that the trial court erred in denying his petition for resentencing under section 1170.18 on the ground that his 1999 conviction of first degree burglary, for which he was serving an indeterminate life term under the Three Strikes law, constituted a disqualifying conviction under section 1170.18, subdivision (i) (1170.18(i)), which barred resentencing on a concurrent conviction for violating section 496 (receiving stolen property).
At issue is section 1170.18(i), which provides in pertinent part: “The provisions of this section shall not apply to persons who have one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 . . . .” Section 667, subdivision (e)(2)(C)(iv), lists the so-called “super strikes.” (See People v. Johnson (2015) 61 Cal.4th 674, 682 (Johnson).) Section 667, subdivision (e)(2)(C)(iv)(VIII) (667(e)(2)(C)(iv)(VIII)) describes the following super strike offense: “Any serious and/or violent felony offense punishable in California by life imprisonment or death.”
We conclude that the determination whether a prior offense is a “serious and/or violent felony offense punishable in California by life imprisonment or death” (§ 667(e)(2)(C)(iv)(VIII)) for purposes of section 1170.18(i) is made without reference to the punishment imposed under the Three Strikes law. Therefore, defendant’s first degree burglary conviction, for which he is apparently still serving a sentence, was not a disqualifying offense that barred him from resentencing on his concurrent conviction of violating section 496.
I
Procedural History
A. Case No. H042014
On February 25, 2013, defendant filed a petition requesting appointment of counsel and a finding of eligibility for resentencing pursuant to the then recently enacted section 1170.126, which was part of voter-approved Proposition 36 (the “Three Strikes Reform Act of 2012”) that became effective on November 7, 2012. (See Voter Information Guide, Gen. Elec. (Nov. 6, 2012), text of Prop. 36, §§ 6, 10, pp. 105, 109-110.) By order filed March 5, 2013, the trial court denied the petition on the ground that, under section 1170.126, subdivision (e)(1), defendant was ineligible for resentencing because he was serving a life sentence for a serious or violent felony.
On December 18, 2014, defendant filed a petition for recall of sentence and resentencing pursuant to section 1170.126. His petition indicated that a judgment of conviction of first degree burglary and receiving stolen property had been entered May 24, 1999 and that he had been in continuous custody since his arrest on March 13, 1996. Attached to the petition was a partial copy of this court’s unpublished opinion (People v. Garcia (Sept. 5, 2000, H020094) [nonpub. opn.]), affirming the judgment in case No. 190165.
Our opinion indicated that the trial court imposed an indeterminate life term of imprisonment with a minimum term of 25 years under the Three Strikes law on defendant’s first degree burglary conviction (§§ 459, 460, subd. (a)) (count 1). The court stayed a Three Strikes sentence on the conviction for violating section 496 (count 2) under section 654. It imposed a consecutive 20-year term (4 x 5 years) for four prior serious felony convictions (§ 667, subd. (a)). The court struck the prior prison term enhancements (§ 667.5, subd. (b)). The total term imposed by the trial court was 45 years to life.
By order filed December 29, 2014, the trial court denied the petition on the ground that the petition was untimely, having been filed beyond the statutory time limits without any showing of good cause. (See § 1170.126, subd. (b) [filing must be “within two years after the effective date of the act that added this section or at a later date upon a showing of good cause”].)
The order also stated that defendant was ineligible for resentencing because he had a current offense that was a serious felony within the meaning of section 1192.7, subdivision (c)(18).
On February 11, 2015, defendant filed a notice of appeal, appealing from the December 29, 2014 order denying his petition for resentencing pursuant to section 1170.126.
On July 2, 2015, the California Supreme Court held in Johnson, that “an inmate is eligible for resentencing with respect to a current offense that is neither serious nor violent despite the presence of another current offense that is serious or violent.” (Johnson, supra, 61 Cal.4th at p. 695.) It rejected the People’s assertion that section 1170.126, subdivision (e)(1), had to be construed “to render an inmate ineligible for resentencing if any current offense is serious or violent.” (Id. at p. 693.)
B. Case No. H043552
On September 25, 2015, defendant filed a petition for recall of a felony sentence pursuant to section 1170.18, seeking resentencing of his conviction of violating section 496, subdivision (a), as a misdemeanor in case No. 190165. Section 1170.18 was part of voter-approved Proposition 47 (“the Safe Neighborhoods and Schools Act”), which took effect on November 5, 2014. (Voter Information Guide, supra, text of Prop. 47, §§ 1, 14, pp. 70, 73-74; Cal. Const., art. II, § 10, subd. (a).) Defendant’s petition indicated that he was currently serving a prison sentence and his release date was May 6, 2038.
The People opposed the petition on the ground that his first degree burglary conviction (§§ 459, 460, subd. (a)) constituted a disqualifying “prior conviction” under section 1170.18(i), which renders persons statutorily ineligible for resentencing pursuant to section 1170.18 if they have a prior conviction specified in section 667, subdivision (e)(2)(C)(iv). In their opposition memorandum, the People argued that first degree burglary was a serious felony for which defendant was sentenced to 25 years to life and that, accordingly, defendant had been convicted of a serious felony offense “punishable in California by life imprisonment” under section 667(e)(2)(C)(iv)(VIII). They further asserted that “the most logical interpretation of the plain language [of section 1170.18(i)] is that all convictions at the time of the petition are ‘prior convictions’ for purpose of the statute.”
By written order filed April 28, 2016, the trial court denied defendant’s petition for recall of sentence and resentencing. The trial court determined that a prior conviction within the meaning of section 1170.18(i) was any “conviction rendered prior to the filing of a petition for resentencing or redesignation” under section 1170.18. The court further determined that “felony offenses punishable by life imprisonment as a result of the Three Strikes law” are disqualifying offenses under section 667(e)(2)(C)(iv)(VIII) for purposes of section 1170.18(i). The trial court concluded that defendant’s conviction of first degree burglary for which he had received an indeterminate life term under the Three Strikes law was a prior conviction disqualifying him from any relief under section 1170.18.
II
Discussion
A. The Meaning of Section 667(e)(2)(C)(iv)(VIII)
1. Contentions on Appeal
Defendant points out that a conviction of first degree burglary is ordinarily punishable by two, four, or six years (§ 461, subd. (a)) and that such conviction “does not inherently carry a life sentence.” He contends that, to qualify as a “serious and/or violent felony offense punishable in California by life imprisonment or death” (§ 667(e)(2)(C)(iv)(VIII)), the offense itself must be punishable by life imprisonment without regard to any “alternate sentencing scheme” applicable to recidivists. He asserts that the governing authority is People v. Turner (2005) 134 Cal.App.4th 1591 (Turner).
The People argue that the reasoning of, and the judicial construction adopted in, People v. Jones (2009) 47 Cal.4th 566 (Jones) and People v. Williams (2014) 227 Cal.App.4th 733 (Williams) control construction of section 667(e)(2)(C)(iv)(VIII).
2. The Standard of Review and Principles of Statutory Construction
Construction of statutory language is a question of law to which we apply a de novo standard of review. (People v. Blackburn (2015) 61 Cal.4th 1113, 1123; In re Marriage of Davis (2015) 61 Cal.4th 846, 851.) “ ‘In construing statutes, “our fundamental task is ‘to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’ [Citations.] We begin by examining the statutory language because it generally is the most reliable indicator of legislative intent. [Citation.] We give the language its usual and ordinary meaning, and ‘[i]f there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs.’ [Citation.] If, however, the statutory language is ambiguous, ‘we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.’ [Citation.] Ultimately we choose the construction that comports most closely with the apparent intent of the lawmakers, with a view to promoting rather than defeating the general purpose of the statute. [Citations.]” ’ [Citation.]” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1369.)
“When we interpret an initiative, we apply the same principles governing statutory construction.” (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.) “If, however, the language is susceptible of more than one reasonable meaning, we may consider the ballot summaries and arguments to determine how the voters understood the ballot measure and what they intended in enacting it. (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1037.)” (In re Tobacco II Cases (2009) 46 Cal.4th 298, 315.)
2. Judicial Construction of Similar Phrases in Other Cases
In Turner, upon which defendant relies, the issue was whether a prosecution of first degree robbery (see §§ 211-212.5) was barred by the applicable statute of limitations because the information had been filed more than three years after the offense was committed. (See Turner, supra, 134 Cal.App.4th at pp. 1594-1596.) Section 801 then provided, as it still does, for a three-year statute of limitations for felonies except as provided by sections 799 and 800. (See Turner, supra, at p. 1595.) Section 800 then provided, as it still does, for a six-year statute of limitations for felonies punishable by imprisonment for eight years or more, except as provided in section 799. (Turner, supra, at p. 1595.) Former section 799 (now § 799, subd. (a)) generally provided that a prosecution for an offense “punishable . . . by imprisonment in the state prison for life” may be commenced at any time. (See Turner, supra, at p. 1595.) The trial court in Turner concluded that defendant’s robbery was punishable under the Three Strikes law “by ‘imprisonment in the state prison for life’ and therefore could be prosecuted ‘at any time.’ (§ 799.)” (Id. at p. 1596.)
As the appellate court in Turner observed, subdivision (a) of section 805 provided, as it still does: “An offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed. Any enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense.” (Turner, supra, 134 Cal.App.4th at p. 1595.) Turner further observed that, under section 213, subdivision (a)(1)(B), “[f]irst degree residential robbery by a defendant acting alone is punishable by a maximum prison term of six years.” (Turner, supra, at p. 1595.)
The appellate court in Turner held, based “primarily upon [its] interpretation of the plain language of section 799 and section 805,” that “for the purpose of determining the applicable statute of limitations, the maximum punishment is the punishment prescribed for the offense itself.” (Turner, supra, 134 Cal.App.4th at pp. 1596-1597.) It stated: “Both sections 799 and 805 refer only to prosecution for an ‘offense,’ and punishment prescribed by ‘statute for the offense,’ not to prosecution and punishment that applies to a particular offender, and which is based upon facts other than the commission of the offense for which he or she is being prosecuted. The Penal Code defines an ‘offense’ as ‘an act committed or omitted in violation of a law forbidding or commanding it.’ (§ 15, italics added.) In the context of selecting the applicable statute of limitations for a prosecution, the ‘act’ or ‘offense’ must refer to the current felony for which the defendant is to be, or is being, prosecuted, not the facts of prior convictions, because the prior convictions are based on records of prosecutions that have already been brought. The maximum punishment prescribed by ‘statute for the offense’ (§ 805, subd. (a), italics added) therefore logically refers to the maximum punishment for the current offense for which the defendant is being prosecuted, and to which he may assert the bar of the statute of limitations.” (Id. at p. 1597.)
In Turner, the appellate court further reasoned in light of the pre-Proposition 36 Three Strikes law: “The punishment of an indeterminate life term under the Three Strikes law, by contrast, is not a punishment specified by statute for an ‘offense,’ i.e., the current act for which the defendant is to be prosecuted. It is an alternative sentence imposed upon those who commit a current felony offense, and who are recidivist offenders. The allegations of prior serious felony convictions within the meaning of the Three Strikes law do not constitute an ‘offense’ for which the defendant is to be prosecuted. Instead these allegations refer only to facts relevant to a particular offender, which if proved establish not the commission of an offense, but his status as a recidivist. The indeterminate life term to which the offender may be subject, under the Three Strikes law, is not a punishment imposed for commission of the “offense,” i.e., the current felony offense for which the defendant is being prosecuted. It is an alternative punishment that is imposed based upon the fact of the defendant’s recidivism, and it is imposed upon conviction of ‘a felony’ without regard to the seriousness of the current felony offense, if the defendant has two or more ‘serious’ or violent felony convictions. (§ 1170.12, subds. (a), (b), (c)(2)(A); see also People v. Henson (1997) 57 Cal.App.4th 1380, 1386, 67 Cal.Rptr.2d 734.)” (Turner, supra, 134 Cal.App.4th at p. 1597.)
As mentioned by defendant, the judicial construction of similar language has also arisen in another context. In People v. Thomas (1999) 21 Cal.4th 1122 (Thomas), the California Supreme Court construed section 667.5, subdivision (c)(7), (667(c)(7)) for purposes of section 2933.1, a credit limitation provision. Section 667(c)(7) then stated, as it still does: “Any felony punishable by death or imprisonment in the state prison for life.” (Italics added.) The issue was “whether the ‘felony’ referred to in section 667.5(c)(7) must itself be punishable by life imprisonment, or whether the phrase is intended to include any felony the commission of which may result in a life sentence, even if the sentence is based in part on conduct other than the commission of the current felony.” (Thomas, supra, at p. 1127.)
In Thomas, the California Supreme Court held that “sections 2933.1 and 667.5(c)(7) limit a defendant’s presentence conduct credit to a maximum of 15 percent only when the defendant’s current conviction is itself punishable by life imprisonment, not when it is so punishable solely due to his status as a recidivist.” (Thomas, supra, 21 Cal.4th at p. 1130.) Based in part on the pre-Proposition 36 Three Strikes law, the court reasoned: “[S]ection 1192.7, subdivision (c)(7) (section 1192.7(c)(7)), includes as a ‘serious’ felony, ‘[a]ny felony punishable by death or imprisonment in the state prison for life.’ (Italics added.) As can be seen, this language parallels the language at issue in section 667.5(c)(7). If we were to interpret section 667.5(c)(7) to mean a third[-]strike defendant falls within its purview because of his life sentence, not because of the underlying offense, a similar interpretation would necessarily obtain for section 1192.7(c)(7). ‘Under the [T]hree [S]trikes law, a trial court must sentence a defendant with two or more qualifying prior felony convictions or strikes to an indeterminate term of life imprisonment.’ (People v. Dotson (1997) 16 Cal.4th 547, 552.) A third strike would by definition, therefore, always qualify as a serious or violent offense. [¶] The plain language of the [T]hree [S]trikes law and our cases interpreting it compel the opposite result.” (Id. at pp. 1128-1129.)
In Thomas, the Supreme Court further reasoned: “[I]f every third strike qualified as a serious felony, virtually every third strike defendant would receive not only a life sentence but also a five-year enhancement under section 667, subdivision (a) (section 667(a)). [Citation.] This section ‘imposes a five-year enhancement for each current conviction for a “serious” felony if the defendant previously has been convicted of a “serious” felony. If a third strike were automatically considered a “serious” felony by virtue of the fact it carries a life sentence, the five-year enhancement would be imposed in every third strike case involving a prior serious felony conviction regardless of what offense constituted the third strike.’ [Citation.] We have held otherwise. [Citation.]” (Thomas, supra, 21 Cal.4th at p. 1129.) The court concluded: “Given this limitation of section 667(a) five-year enhancements to recidivists whose current offenses are serious, it is equally appropriate to limit sections 2933.1 and 667.5(c)(7) to defendants whose current offenses, in and of themselves, and without reference to the punishment accorded under the [T]hree [S]trikes law, are violent. [Citation.]” (Ibid.)
In Jones, upon which the People rely, the Supreme Court construed similar language differently. The issue in that case was “whether defendant committed a ‘felony punishable by . . . imprisonment . . . for life’ (§ 12022.53, subd. (a)(17)), thus triggering application of the 20-year sentence enhancement under section 12022.53[, subdivision] (c).” (Jones, supra, 47 Cal.4th at p. 569.) The defendant in Jones was found guilty of shooting at an inhabited dwelling (§ 246), and he was found to have committed the crime for the benefit of a criminal street gang (§186.22, subd. (b)(4)) and, in his commission of the crime, to have personally and intentionally discharged a firearm. (§ 12022.53). (Jones, supra, 47 Cal.4th at p. 569.) Under section 186.22, subdivision (b)(4)), “a defendant who commits specified felonies ‘for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members,’ is punishable by life imprisonment.” (See Jones, supra, at pp. 568-569.) Section 12022.53 mandates imposition of an additional and consecutive 20-year sentence enhancement for a defendant who, in the commission of “[a]ny felony punishable by death or imprisonment in the state prison for life” (§ 12022.53, subd. (a)(17)), “personally and intentionally discharges a firearm” (§ 12022.53, subd. (c)). (See Jones, supra, at p. 569.)
The Supreme Court concluded that the defendant was “subject to that additional 20-year term . . . because he committed a particularly heinous crime (that is, a crime so serious that it is punishable by life imprisonment).” (Jones, supra, 47 Cal.4th at p. 575, italics added.) The court explained: “[A] violation of section 246 (shooting at an inhabited dwelling) by itself carries a maximum prison sentence of seven years. But when, as in this case, the crime is committed to benefit a criminal street gang, the provision that comes into play is section 186.22[, subdivision] (b)(4), which calls for a term of life imprisonment (with a minimum parole eligibility of 15 years).” (Ibid.)
Jones distinguished the situation in People v. Montes (2003) 31 Cal.4th 350 (Montes). (See Jones, supra, 47 Cal.4th at pp. 577-578.) In Montes, the Supreme Court considered the language of section 186.22, subdivision (b)(5), which provides: “Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.” (Italics added.) The Supreme Court found that the language of subdivision (b)(5) of section 186.22 was unclear since the phrase “a felony punishable by imprisonment in the state prison for life” could encompass only “those crimes where the underlying felony itself provides for a term of life imprisonment” or it could also include the situation where the punishment for “the underlying felony and enhancement together result in a life term.” (Montes, supra, at pp. 356-357, fn. omitted.) After examining legislative intent, the Supreme Court held that section 186.22, subdivision (b)(5), “applies only where the felony by its own terms provides for a life sentence.” (Montes, supra, at p. 352.)
Jones differentiated between a life sentence imposed under section 186.22, subdivision (b)(4), which is a penalty provision, and a life term imposed as a sentence enhancement. The Supreme Court stated: “The difference between the two is subtle but significant. ‘Unlike an enhancement, which provides for an additional term of imprisonment, [a penalty provision] sets forth an alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the conditions specified in the statute.’ [Citation.] Here, defendant committed the felony of shooting at an inhabited dwelling (§ 246), he personally and intentionally discharged a firearm in the commission of that felony (§ 12022.53[, subd.] (c)), and because the felony was committed to benefit a criminal street gang, it was punishable by life imprisonment (§ 186.22[, subd.] (b)(4)). Thus, imposition of the 20-year sentence enhancement of section 12022.53[, subd.] (c) was proper.” (Jones, supra, 47 Cal.4th at p. 578.)
In Williams, upon which the People also rely, the issue was whether a 25 year to life sentence imposed under the Three Strikes law was a life sentence within the meaning of section 186.22, subdivision (b)(5), which as indicated requires a minimum parole term of 15 years for any felony committed for the benefit of a gang that is “punishable by imprisonment in the state prison for life.” On appeal, defendant Williams contended that the trial court should not have imposed “a consecutive 10-year term for the gang enhancement on each count,” and it instead should have imposed “the 15-year minimum parole eligibility requirement found in section 186.22, subdivision (b)(5).” (Williams, supra, 227 Cal.App.4th at p. 736.) Based upon Jones, the appellate court in Williams held that, “because [the] defendant’s life sentences are the result of a penalty provision (the Three Strikes law), they are life sentences within the meaning of section 186.22, subdivision (b)(5).” (Williams, supra, at pp. 736-737.)
The foregoing cases demonstrate that there is no universal meaning for, or construction of, the phrase “offense punishable in California by life imprisonment or death” or substantially similar language. But the rationales of Turner and Thomas lend support to the conclusion that the phrase “offense punishable by life imprisonment” as used in section 667(e)(2)(C)(iv)(VIII) means an offense that itself has an associated punishment of life imprisonment or death. That provision refers to punishment applicable to an “offense” and not to a particular offender who is a recidivist. Serious or violent felony offenses that are themselves “punishable in California by life imprisonment or death” will be the most grave or violent crimes.
The People have not persuaded us that the distinction between a penalty provision and an enhancement, which was found to be critical in Jones and Williams in construing the criminal street gang statute (§ 186.22), is helpful here. First, “it is axiomatic that cases are not authority for propositions not considered. [Citations.]” (People v. Alvarez (2002) 27 Cal.4th 1161, 1176; see People v. Hernandez (2017) 10 Cal.App.5th 192, 203 (Hernandez.) Second, the penalty-enhancement dichotomy does not tell us the legislative intent underlying the language “punishable in California by life imprisonment” as used in section 667(e)(2)(C)(iv)(VIII)), which is ambiguous because it is susceptible of more than one reasonable interpretation. (See People v. Dieck (2009) 46 Cal.4th 934, 940.)
While we find the reasoning of Turner and Thomas helpful, we recognize that those cases interpreted different code sections. In Turner, a relevant statutory provision explicitly stated that “[a]n offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed.” (§ 805, subd. (a), italics added.) The language at issue in Thomas (§ 667.5(c)(7)), did not contain the phrase “[a]ny serious and/or violent felony offense,” which must be considered in construing section 667(e)(2)(C)(iv)(VIII). A serious or violent felony may be punished by life imprisonment if committed by a third strike offender.
Ultimately, our resolution of the ambiguous language at issue in this case is guided by the underlying legislative intent. “When an initiative measure’s language is ambiguous, we refer to other indicia of the voters’ intent, particularly the analyses and arguments contained in the official ballot pamphlet. [Citations.]” (People v. Birkett (1999) 21 Cal.4th 226, 243.)
3. Legislative Intent
Defendant asserts that the ballot materials for Proposition 47 do not reflect any legislative intent to preclude resentencing of a nonviolent, nonserious offense as a misdemeanor merely because a defendant received a life sentence under the Three Strikes law for a prior conviction. Defendant maintains that restricting section 667(e)(2)(C)(iv)(VIII) to those offenses that “specifically provide for a life sentence” is “consonant with the voters’ intent [in enacting Proposition 47] to provide no benefit for those who commit the most dangerous crimes.”
The People contend that section 667(e)(2)(C)(iv)(VIII) should be construed as including serious or violent felonies punished by life sentences under the Three Strikes law. The People assert that “it is reasonable to infer that voters included within their definition of ‘the most dangerous criminals’ individuals who have repeatedly committed serious or violent felonies.” They point out that proponents of Proposition 47 argued that the proposition “includes strict protections to protect public safety and make sure rapists, murderers, molesters and the most dangerous criminals cannot benefit.” (Voter Information Guide, supra, rebuttal to argument against Prop. 47, p. 39.) Noting that proponents of Proposition 47 argued that it “focuses law enforcement resources on violent and serious crime by changing low-level nonviolent crimes . . . from felonies to misdemeanors” (Id., argument in favor of Prop. 47, p. 38), the People maintain that “[i]t is unreasonable to think that the voters of California, in attempting to ‘focus law enforcement resources on violent and serious crime,’ would not include felonious recidivists prosecuted under the Three Strikes law within that focus.”
Our examination of the legislative intent underlying Proposition 47 leads us to adopt defendant’s construction. It is evident from its legislative history that the intent underlying the proposition was to categorically exclude from its ameliorative changes persons who have prior convictions of specified crimes regarded as especially dangerous or severe.
Proposition 47 itself explicitly stated that “this act ensures that sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed.” (Voter Information Guide, supra, text of Prop. 47, § 2, p. 70, italics added.) The proposition expressly declared that its legislative intent included the intent to “[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes” (Id., § 3, subd. (3), p. 70), the intent to [a]uthorize consideration of resentencing for anyone who is currently serving a sentence for any of the offenses listed herein that are now misdemeanors” (Id., subd. (4), p. 70), the intent to [r]equire a thorough review of criminal history and risk assessment of any individuals before resentencing to ensure that they do not pose a risk to public safety” (Id., subd. (5), p. 70), the intent to “[e]nsure that people convicted of murder, rape, and child molestation will not benefit from this act” (Id., subd. (1), p. 70), and the intent to “save significant state corrections dollars” (Id., subd. (6), p. 70).
The Legislative Analyst’s analysis of Proposition 47 states: “This measure reduces certain nonserious and nonviolent property and drug offenses from wobblers or felonies to misdemeanors. The measure limits these reduced penalties to offenders who have not committed certain severe crimes listed in the measure—including murder and certain sex and gun crimes.” (Voter Information Guide, supra, analysis of Prop. 47 by Legis. Analyst, p. 35, italics added.) The analysis further explains: “This measure allows offenders currently serving felony sentences for the above crimes to apply to have their felony sentences reduced to misdemeanor sentences. In addition, certain offenders who have already completed a sentence for a felony that the measure changes could apply to the court to have their felony conviction changed to a misdemeanor. However, no offender who has committed a specified severe crime could be resentenced or have their conviction changed.” (Id., p. 36, italics added.) The analysis also stated that, under the proposition, “a court is not required to resentence an offender currently serving a felony sentence if the court finds it likely that the offender will commit a specified severe crime.” (Ibid., italics added.)
The proponents of Proposition 47 explained that the proposition stopped the waste of “money on warehousing people in prisons for nonviolent petty crimes” (Voter Information Guide, Gen. Elec., supra, argument in favor of Prop. 47, p. 38) and stopped the waste of “prison space on petty crimes.” (Id., rebuttal to argument against Prop. 47, p. 39.) But the proponents reassured voters that the proposition still “[a]uthorizes felonies for registered sex offenders and anyone with a prior conviction for rape, murder or child molestation. (Id., argument in favor of Prop. 47, p. 38; see id., rebuttal to argument against Prop. 47, p. 39.)
Neither Proposition 47 nor its legislative history contains any suggestion that a prior conviction of a first degree burglary (or other serious or violent felony) categorically disqualified a person from resentencing if that prior conviction was punished by an indeterminate life term under the Three Strikes law. First degree or residential burglary itself is not one of the crimes described in section 667, subdivision (e)(2)(C)(iv). The construction of section 667(e)(2)(C)(iv)(VIII) advocated by the People would disserve Proposition 47’s goals of reducing the punishment for less serious crimes (such as receiving stolen property), saving taxpayer money, and not wasting prison space on petty crimes.
Moreover, a trial court still retains the authority to deny a petition for recall of a felony sentence and resentencing if “the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).) We construe the language of section 667(e)(2)(C)(iv)(VIII) for purposes of section 1170.18(i) in light of that discretion and Proposition 47’s evident legislative intent to categorically exclude from its sentencing reforms only persons who have been convicted of specified severe crimes. We conclude that section 667(e)(2)(C)(iv)(VIII) requires a determination whether an offense is a “serious and/or violent felony offense punishable in California by life imprisonment or death” based on the crime itself, without regard to the punishment imposed under the Three Strikes law. The severity of the offense described in section 667(e)(2)(C)(iv)(VIII) is signified by the prescribed punishment of life imprisonment or death for the crime itself.
We note that defendant has invoked the rule of lenity, which “applies only when two reasonable interpretations of a penal statute stand in relative equipoise” (People ex rel. Green v. Grewal (2015) 61 Cal.4th 544, 565) and requires courts to construe the provision most favorably to the defendant (People v. Athar (2005) 36 Cal.4th 396, 404). But we have no need to apply the rule here. Based on our construction, defendant’s first degree burglary conviction for which he is still serving a sentence does not constitute a conviction of a serious felony offense “punishable in California by life imprisonment” (§ 667(e)(2)(C)(iv)(VIII)). Consequently, he is not categorically disqualified from petitioning for resentencing under section 1170.18(i). Our conclusion is consistent with the conclusion in Hernandez, supra, 10 Cal.App.5th 192, a recent opinion of this court.
B. Meaning of “Prior Conviction” for Purposes of Section 1170.18(i)
Defendant alternatively argues that the conviction of first degree burglary is not a “prior conviction” within the meaning of section 1170.18(i) because it was suffered in the same proceeding in which he was convicted of violating section 496. He maintains that a “prior conviction” is a conviction “incurred prior to [the] commission of the offense for which he is seeking [resentencing] relief.”
Since we have concluded that the conviction of first degree burglary did not qualify as a super strike offense within the meaning of section 667(e)(2)(C)(iv)(VIII), it is unnecessary to address his alternative argument that his burglary conviction was not a “prior conviction” within the meaning of section 1170.18(i).
DISPOSITION
In case No. H042014, the appeal is dismissed as abandoned.
In case No. H043552, the order denying defendant’s petition for resentencing pursuant to section 1170.18 is reversed.




_________________________________
ELIA, ACTING P.J.

WE CONCUR:



_______________________________
BAMATTRE-MANOUKIAN, J.



_______________________________
MIHARA, J.












People v. Garcia
H042014, H043552




Description Defendant Joseph Martinez Garcia separately appeals from two post-judgment orders in Santa Clara County Superior Court case No. 190165 (case No. 190165): (1) the December 29, 2014 order denying defendant’s petition for resentencing pursuant to Penal Code section 1170.126 (case No. H042014) and (2) the April 28, 2016 order denying defendant’s petition for resentencing pursuant to section 1170.18 (case No. H043552). This court ordered the two appeals to be consolidated for the purposes of briefing, oral argument, and disposition.
In case No. H042014, defendant’s consolidated appellate briefs raise no issues concerning the December 29, 2014 order denying his petition for resentencing under section 1170.126. Therefore, we shall dismiss the appeal as abandoned.
In case No. H043552, defendant contends that the trial court erred in denying his petition for resentencing under section 1170.18 on the ground that his 1999 conviction of first degree burglary, for which he was serving a
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