P. v. Hove
Filed 4/26/13 P. v. Hove
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
SCOTT ANDREW HOVE, SR.,
Defendant
and Appellant.
E054346
(Super.Ct.No.
SWF029575)
OPINION
APPEAL from the Superior
Court of Riverside County. Albert J.
Wojcik, Judge. Affirmed and remanded for
resentencing.
Michael S. Romano for Defendant and Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Barry Carlton, Christine Levingston Bergman,
Melissa Mandel, and Warren Williams, Deputy Attorneys General, for Plaintiff
and Respondent.
This is an appeal by defendant and appellant Scott Andrew
Hove, Sr. (defendant), challenging his sentence of 29 years to life in state
prison, which the trial court imposed under the three strikes law after a jury
found defendant guilty of petty theft
with a prior theft conviction in violation of Penal Code section 666,
and a roll of wire, worth $20.94, from Home Depot. Defendant contends the trial court abused its
discretion by denying his request to strike two of his three first degree
burglary convictions, all prior serious and/or violent felony convictions
within the meaning of the three strikes law.
Defendant also claims that his sentence violates the state and federal
constitutional prohibitions against cruel and/or unusual punishment. Finally, defendant challenges the jury’s
guilty verdict on the ground that the presumption of prejudice arising from the
misconduct of a juror was not rebutted
in this case.
After the parties filed their respective briefs in this
appeal, the electorate amended the three strikes law by passing Proposition 36,
the Three Strikes Reform Act of 2012, effective November 7, 2012.
At our request, the parties submitted additional briefing regarding the
applicability of the amendments to this appeal.
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 and, therefore,
we will not address defendant’s two other challenges to his sentence or the
three strikes law. We do not agree with
defendant’s jury misconduct claim and, therefore, will affirm the jury’s
determination of guilt but will remand for resentencing.
FACTS
The facts are undisputed.
On November 15, 2009,
at 12:55 p.m., defendant went to a
Home Depot store in Lake Elsinore. He took a pair of work or construction gloves
off a rack, put them in the waistband of his pants and covered them with his
sweatshirt. Defendant then took a spool
of welding wire and also concealed that under his sweatshirt, in the waistband
of his pants. Defendant was stopped by
two asset protection specialists as he left the store. They recovered the gloves and the wire from
the waistband of defendant’s pants. The
combined value of the two items was $20.94.
Defendant signed a voluntary statement acknowledging that
he took the items from Home Depot without intending to pay for them. When questioned by a deputy sheriff prior to
his arrest, defendant said that he had come to Home Depot to get some items he
needed to finish a welding job. He had
not expected the items to cost as much they did. Defendant took the gloves first, removed the
tag, and hid them under his shirt. After
putting the wire under his shirt, defendant shopped around for a few minutes
and then left the store. Defendant
admitted to the Home Depot employees who stopped him that he should have paid
for the merchandise.
Defendant
testified at trial that he needed the gloves and wire to finish a welding
job. After he realized the items cost
more than $20, which is all the money he had with him, he decided to steal
them. Defendant denied removing the
price tag from the gloves, although the asset protection specialists claimed
they found the price tag on the floor in the merchandise aisle. Defendant also denied leaving the store with
the merchandise; he claimed that he never actually left the store because he
had second thoughts and was turning around when he was apprehended.
DISCUSSION
We first address defendant’s juror misconduct issue
because if meritorious it is dispositive.
1.
JUROR MISCONDUCT ISSUE
During trial, Juror No. 8 reported to the trial judge,
with both attorneys present, that during a recess, Juror No. 7 told Juror No. 8
that he had read an article about the case in the local newspaper. When Juror No. 8 said she did not want to
know anything about the article, Juror No. 7 blurted out that he knew that if
the jury found defendant guilty in this case, it would be defendant’s third
strike and defendant would go to jail for life.
Juror No. 8 told the judge that she had not told anyone else what Juror
No. 7 had said, and she did not think that the two other jurors who had been
sitting near them heard what Juror No. 7 said because they were involved in
their own conversation.
In
response to questioning by defense counsel, Juror No. 8 said she could be fair
and impartial, despite what Juror No. 7 had told her, and that she would base
her verdict in the case on the evidence presented at trial.
The
trial court then called Juror No. 7 into chambers, and with both counsel
present, asked whether Juror No. 7 had read an article in the newspaper about
this case and discussed it with another juror.
Juror No. 7 confirmed that he had read the article but had only
mentioned it to Juror No. 8, and he did not think anyone else had
overheard. Both attorneys stipulated to
excuse Juror No. 7 from further service, and the trial court excused the juror
in accordance with that stipulation.
After
all the jurors except Juror No. 7 returned to the courtroom, the trial court
reminded them not to read any newspaper articles about the trial, or any other
trials. The court then asked whether anyone
had read or seen an article about this case in the newspaper. No one responded. The court next asked whether anyone had read
the local paper within the last week or two.
The jurors responded collectively, “No.â€
The court also asked whether any of the jurors had heard anyone,
including another juror, talk about reading an article about this trial or any
other trials in Riverside County. In response to what we must assume was
silence on the part of the jurors, the court confirmed, “None? No?
No. Okay. We’re okay.
Nobody? Okay.â€
Defendant
contends the trial court’s inquiry was inadequate and did not preserve his
right to a fair trial because the judge did not individually question each
juror and, therefore, did not rebut the presumption of prejudice. We disagree.
“A
defendant accused of a crime has a constitutional right to a trial by unbiased,
impartial jurors. [Citations.]†(People
v. Nesler (1997) 16 Cal.4th 561, 578; see U.S. Const., 6th & 14th
Amends.; Cal. Const., art. I, § 16.)
Juror misconduct, such as reading a newspaper article or going to the
crime scene, gives rise to a presumption that the misconduct affected the
verdict and, therefore, was prejudicial.
That presumption must be rebutted.
(Nesler, at p. 578.) “Any presumption of prejudice is rebutted,
and the verdict will not be disturbed, if the entire record in the particular
case, including the nature of the misconduct or other event, and the
surrounding circumstances, indicates there is no reasonable probability of
prejudice, i.e., no substantial
likelihood that one or more jurors were actually biased against the
defendant. [Citations.]†(In re
Hamilton (1999) 20 Cal.4th 273, 296.)
In this
case, the presumption of prejudice was rebutted. The trial court immediately investigated as
soon as it learned that Juror No. 7 had read a newspaper article about the
case. The trial court then dismissed
Juror No. 7, who admitted bias, albeit in favor of defendant rather than
against him. The trial court then asked
whether any other juror had heard or read a newspaper article about the
case. With the exception of Juror No. 8,
who stated she could be impartial and base her verdict on the evidence
presented in court, the other jurors all denied hearing about or reading any
newspaper article about the case or any other Riverside
County case. Defendant contends the trial court should
have questioned the jurors individually in chambers. However, he does not suggest how that
questioning would have differed from the collective questioning the court
conducted in this case. Instead,
defendant speculates that the jurors might have been forthcoming if questioned
individually in chambers. Because the
trial court was not required to conduct an in chambers inquiry, defendant’s
speculation requires no discussion or response.
Based on
our review of the record, we conclude that the trial court’s inquiry was
adequate and rebutted the presumption of prejudice.
2.
SENTENCING ISSUES
After defendant raised the issue at oral argument, we
directed the parties to submit supplemental briefing on whether the voters’
approval on November 7, 2012,
of Proposition 36, the Three Strikes Reform Act of 2012, which amended sections
667 and 1170.12, applies to defendant.
We conclude it does, for reasons we now explain. That conclusion renders moot defendant’s two
other sentencing issues.
Application of Three Strikes
Reform Act
Proposition 36
As
noted previously, while this appeal was pending, the 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.)
name="_ftnref4" title="">[4]
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 by the act, 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.
The
Reform Act also provides a procedure that 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 do not dispute that neither defendant’s current offense—petty theft
with a prior theft conviction—nor his three burglary strike priors, disqualify
him for resentencing pursuant to section 667(e)(2)(C). Defendant contends that section 667(e)(2)(C)
is an ameliorative sentencing statute that presumptively applies to all
criminal judgments that were not 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, therefore, defendant’s
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.]†(
184 (Floyd).) In Estrada,
exception to that presumption. 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. (
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€™ (
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 (
discussed the rule and its continued vitality in People v. Brown (2012) 54 Cal.4th 314 (Brown).) In
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, a court
interpreting a statute that 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) 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 an amendment that reduces punishment 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. (
Estrada, supra, 63 Cal.2d at p.
747.)
Previous ballot
initiatives have employed 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,
any other possible interpretation of the proposition. (Id.
at pp. 185-187.) The absence of such
language in the Reform Act 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, nonviolent 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 nonviolent 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 nonviolent repeat offenders by doubling their state prison sentences. The proponents pointed out that dangerous
criminals were being released early because “jails are overcrowded with
nonviolent 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.â€
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.â€
(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. Doing so would enhance the
monetary savings projected by the proponents and would further serve the
purposes of reducing the number of nonviolent offenders in prison 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 that were not final as of the
statute’s effective date.
The
sole published appellate decision to date that addresses this issue is
Cal.App.4th 161.
title="">[6] In Yearwood,
as in this case, 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. However, Yearwood, like defendant, 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. 167-169.)
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 Yearwood court concluded that
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).) Therefore, the court held, section 1170.126
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,
As
we discussed above, and as Yearwood
correctly notes, 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. For example, in
section 4019 that increased the rate at which prisoners may earn custody credit
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 “
for good behavior.†(
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 nonviolent and less serious, and enhancing public safety by
ensuring that the truly dangerous repeat offenders serve indeterminate life
terms. Accordingly, there is a logical
basis for inferring that the electorate intended the Reform Act to apply to
nonfinal judgments.
Moreover,
we do not agree with Yearwood that
section 1170.126 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 that
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 is ambiguous and, therefore, does not meet that
requirement. We note, too, that
which similarly ambiguous language was deemed to be the equivalent of a saving
clause.
arguments in favor of the Reform Act that identify enhancing public safety as 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. Unlike 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 himself or herself to pose such a
risk during postsentencing incarceration.
(Yearwood, at pp. 175-176.)
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, sometimes even years,
before being convicted and sentenced for a third strike offense. Such a defendant may also display a propensity
for violence while incarcerated that 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 based on the defendant’s conduct
while in custody. For this reason as
well, we do not find Yearwood’s
analysis persuasive.
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) to apply
to qualifying defendants whose judgments were not yet final on the effective
date of the act. Consequently, we do not
need to address defendant’s other claims challenging his three strikes
sentence. Instead, we will vacate that
sentence and remand the matter to the trial court for resentencing under
section 667(e)(2)(C).
The
determination of guilt is affirmed, but the sentence is vacated and the matter
is remanded for resentencing under sections 667(e)(2)(C) and/or
1170.12(c)(2)(C).
NOT TO
BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We
concur:
HOLLENHORST
Acting P. J.
RICHLI
J.
name="_ftn1" title=""> [1] All statutory references are to the Penal
Code unless otherwise indicated.
name="_ftn2" title=""> [2] Because we are not addressing defendant’s
other challenges to his three strikes sentence, his request for judicial
notice, filed January 2, 2012,
of documents pertinent to those claims is moot.
Therefore, defendant’s request for judicial notice is denied.
