People v. Johnson

Filed 5/23/14

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B249651

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. YA038015)

v.

TIMOTHY WAYNE JOHNSON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C.

Ryan, Judge. Affirmed.

Suzan E. Hier, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson, Noah P. Hill

and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is

certified for publication with the exception of part 2 of the Discussion.

Defendant Timothy Wayne Johnson appeals from an order denying his petition for

recall of his sentence pursuant to Penal Code section 1170.126.1 The superior court

found Johnson was ineligible for resentencing because his current offense, attempting to

dissuade a witness, is a serious felony. Johnson urges that because dissuading a witness

was not defined as a serious felony when he committed his crimes in 1998, he is eligible

for resentencing regardless of the fact the offense was later added to section 1192.7’s

serious felony list. In the published portion of this opinion, we conclude that, for

purposes of section 1170.126’s resentencing procedure, the determination of whether a

defendant’s current crime qualifies as a serious or violent felony must be based on

whether the crime was so defined as of November 7, 2012, Proposition 36’s effective

date. Accordingly, Johnson’s contention that he is eligible for resentencing under section

1170.126 lacks merit. In the unpublished portion of the opinion, we hold that a trial

court’s order finding a defendant ineligible for resentencing under section 1170.126 is

appealable.

BACKGROUND

In 1998, a jury convicted Johnson of two counts of attempting to dissuade a

witness (§ 136.1, subd. (a)(2)). At the time Johnson committed the crimes, attempting to

dissuade a witness in violation of section 136.1 was not defined as a serious or violent

felony for purposes of the Three Strikes law. Because the jury also found Johnson had

suffered three prior convictions for “strike” offenses––robbery (§ 211), residential

burglary (§ 459), and assault with personal use of a firearm or infliction of great bodily

injury (§ 245, subd. (a)(2))––the trial court sentenced him to a term of 28 years to life

pursuant to the Three Strikes law. This court affirmed the judgment in a nonpublished

opinion (People v. Johnson (Sept. 15, 2000, B128901)).

1 All further undesignated statutory references are to the Penal Code.

2

Effective November 7, 2012, the electorate enacted Proposition 36, the Three

Strikes Reform Act of 2012 (the Act). (People v. Yearwood (2013) 213 Cal.App.4th 161,

167, 169-170; People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1285

(Kaulick).) Among other things, Proposition 36 added section 1170.126, which provides

that certain eligible inmates serving indeterminate life sentences under the Three Strikes

law may petition the trial courts for reductions in their sentences. (Yearwood, at p. 170.)

On May 10, 2013, Johnson filed a petition for recall of his sentence in the

Los Angeles County Superior Court pursuant to section 1170.126. Johnson

acknowledged that his current offense, witness intimidation, was at the time of the

petition listed as a serious felony, but argued this fact did not make him ineligible for

resentencing because the offense had not been listed as a serious or violent felony when

he committed the crimes in 1998. On June 12, 2013, the superior court denied Johnson’s

petition with prejudice, on the ground his current convictions for witness intimidation

were serious felonies under section 1192.7, subdivision (c)(37), rendering him ineligible

for resentencing. Johnson appeals the trial court’s order.

DISCUSSION

1. Proposition 36.

On November 6, 2012, California voters approved Proposition 36, the Act, which

amended sections 667 and 1170.12 effective November 7, 2012. (People v. White (2014)

223 Cal.App.4th 512, 517 (White); People v. Yearwood, supra, 213 Cal.App.4th at

pp. 167, 169.) Under the Three Strikes law as it existed prior to passage of

Proposition 36, a defendant convicted of two prior serious or violent felonies was subject

to a 25-years-to-life sentence upon his or her conviction of any additional felony. (White,

at p. 517; Yearwood, at pp. 167-168; Kaulick, supra, 215 Cal.App.4th at pp. 1285-1286.)

Under amended sections 667 and 1170.12, a defendant who has been convicted of two

prior strikes is subject to such a sentence only if the current, third felony is itself a serious

or violent felony, or certain enumerated exceptions apply. (White, at p. 517; Kaulick, at

p. 1286; Yearwood, at p. 167; §§ 1170.12, subd. (c)(2)(C), 667, subd. (e)(2)(C).)

3

Proposition 36 also added section 1170.126,2 which sets up a resentencing

procedure for prisoners presently serving indeterminate terms under the former version of

the Three Strikes law, who would not have been sentenced to such terms under

2 Section 1170.126 provides in pertinent part: “(a) The resentencing provisions

under this section and related statutes are intended to apply exclusively to persons

presently serving an indeterminate term of imprisonment pursuant to paragraph (2) of

subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12,

whose sentence under this act would not have been an indeterminate life sentence.

“(b) Any person serving an indeterminate term of life imprisonment imposed

pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of

subdivision (c) of Section 1170.12 upon conviction, whether by trial or plea, of a felony

or felonies that are not defined as serious and/or violent felonies by subdivision (c) of

Section 667.5 or subdivision (c) of Section 1192.7, may file a petition for a recall of

sentence, 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, before the trial court that entered the judgment

of conviction in his or her case, to request resentencing in accordance with the provisions

of subdivision (e) of Section 667, and subdivision (c) of Section 1170.12, as those

statutes have been amended by the act that added this section. [¶] . . . [¶]

“(e) An inmate is eligible for resentencing if:

“(1) The inmate is serving an indeterminate term of life imprisonment imposed

pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section

1170.12 for a conviction of a felony or felonies that are not defined as serious and/or

violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.

“(2) The inmate’s current sentence was not imposed for any of the offenses

appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of

subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of

paragraph (2) of subdivision (c) of Section 1170.12.

“(3) The inmate has no prior convictions for any of the offenses appearing in

clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or

clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.

“(f) Upon receiving a petition for recall of sentence under this section, the court

shall determine whether the petitioner satisfies the criteria in subdivision (e). If the

petitioner satisfies the criteria in subdivision (e), the petitioner shall be resentenced

pursuant to paragraph (1) of subdivision (e) of Section 667 and paragraph (1) of

subdivision (c) of Section 1170.12 unless the court, in its discretion, determines that

resentencing the petitioner would pose an unreasonable risk of danger to public safety.”

4

Proposition 36. (People v. Yearwood, supra, 213 Cal.App.4th at p. 170; White, supra,

223 Cal.App.4th at p. 517.) An eligible prisoner may file a petition to recall his or her

sentence in the trial court, and seek resentencing as a second strike offender.

(§ 1170.126, subds. (b), (e); Kaulick, supra, 215 Cal.App.4th at p. 1286; Yearwood, at

p. 170.) An inmate is eligible for such resentencing only if none of his or her current

offenses are serious or violent felonies, and no other enumerated disqualifying factors

apply. (§ 1170.126, subd. (e); Yearwood, at p. 170; White, at pp. 517, 522.)

Resentencing of eligible inmates may nonetheless be refused if the trial court, in its

discretion, determines that resentencing would pose an unreasonable risk of danger to

public safety. (§ 1170.126, subd. (f); White, at p. 517; Kaulick, at p. 1286; Yearwood, at

p. 170.) Thus, the section 1170.126 resentencing procedure involves three

determinations: first, the court must determine whether the prisoner is eligible for

resentencing; second, the court must determine whether resentencing would pose an

unreasonable risk of danger to public safety; and third, if the prisoner is eligible and

resentencing would not pose an unreasonable risk of danger, the court must actually

resentence the prisoner. (Kaulick, at p. 1299.)

2. Appealability.

The parties disagree about whether the trial court’s denial of Johnson’s petition is

appealable. Johnson asserts that the court’s ruling is appealable under section 1237,

subdivision (b), as an order made after judgment that affects his substantial rights. The

People, on the other hand, argue that because Johnson’s current offenses are serious

felonies, he had no statutory right to file a petition for recall in the first instance;

therefore, the superior court’s denial of his petition cannot have implicated his substantial

rights. The Courts of Appeal are split on this issue, and our Supreme Court is currently

considering it. (Teal v. Superior Court (2013) 217 Cal.App.4th 308, review granted

July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941, review granted

July 31, 2013, S212017; People v. Leggett (2013) 219 Cal.App.4th 846, review granted

Dec. 18, 2013, S214264; People v. Wortham (2013) 220 Cal.App.4th 1018, review

5

granted Jan. 15, 2014, S214844; In re Martinez (2014) 223 Cal.App.4th 610, review

granted May 14, 2014, S216922.)

The right of appeal is statutory, and a judgment or order is not appealable unless

expressly made so by statute. (People v. Totari (2002) 28 Cal.4th 876, 881 (Totari);

People v. Mazurette (2001) 24 Cal.4th 789, 792.) Section 1170.126 does not specifically

address whether a trial court’s denial of a petition for recall of sentence under section

1170.126 is appealable. However, section 1237, subdivision (b) provides that a

defendant may appeal from “any order made after judgment, affecting the substantial

rights of the party.” Therefore, Johnson may appeal from the order if it affects his

substantial rights.

Totari provides guidance on the question. There, the California Supreme Court

concluded a trial court’s denial of a statutory section 1016.5 motion to vacate the

judgment was appealable. (Totari, supra, 28 Cal.4th at p. 879.) Section 1016.5 requires

that a trial court advise a defendant of potential immigration consequences before

accepting his or her plea of guilty or no contest, and provides for the remedy of a motion

to vacate should the court fail in this duty. The statute does not expressly authorize the

appeal of an adverse ruling on such a motion. (Totari, at pp. 879, 881-882.)

Accordingly, Totari looked to section 1237 to determine appealability. The court

observed that ordinarily, an order is not appealable where it would “ ‘merely bypass or

duplicate appeal from the judgment itself.’ [Citation.]” (Totari, at p. 882.) However,

that rule did not apply in Totari: “[T]he Legislature has established specific requirements

for a motion to vacate under section 1016.5. Once the Legislature has determined that a

noncitizen defendant has a substantial right to be given complete advisements and affords

defendant a means to obtain relief by way of a statutory postjudgment motion to vacate,

the ‘no second appeal’ rule loses its urgency and a denial order qualifies as an ‘order

made after judgment, affecting the substantial rights of the party’ (§ 1237, subd. (b)).”

(Totari, at pp. 886-887.)

6

Similarly, section 1170.126 gives eligible inmates a substantial right to have a trial

court reconsider their sentences, and establishes specific requirements for a petition for

recall and resentencing. The “no second appeal” rule has no application here; given the

retrospective nature of Johnson’s petition (see Kaulick, supra, 215 Cal.App.4th at

pp. 1292-1293), denial of the petition obviously could not have been raised on direct

appeal. Thus, the superior court’s denial of Johnson’s section 1170.126 petition to recall

is an “order made after judgment, affecting the substantial rights of the party” and is

appealable pursuant to section 1237, subdivision (b).

The People’s argument that the court’s ruling cannot have affected Johnson’s

substantial rights because he was not eligible to file a petition for recall in the first

instance puts the cart before the horse. (See Totari, supra, 28 Cal.4th at pp. 884-885.)

The crux of Johnson’s appeal is that the trial court erred in finding him ineligible. An

erroneous finding of noneligibility clearly would affect Johnson’s substantial rights.

Further, contrary to the People’s argument, not all eligibility determinations are

straightforward and beyond dispute, as the case in point illustrates. (See generally

Kaulick, supra, 215 Cal.App.4th at pp. 1298-1299, fns. 21 & 22; White, supra, 223

Cal.App.4th at p. 519.) Moreover, even if we were to conclude the trial court’s order was

nonappealable, in the interests of judicial economy and because the issue Johnson raises

is of general concern, we could treat Johnson’s appeal as a petition for writ of habeas

corpus. (See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4; cf. Drum v. Superior

Court (2006) 139 Cal.App.4th 845, 852-853.) In light of the foregoing, we review the

merits of Johnson’s appeal.

3. Because his current offense is a serious felony, Johnson is ineligible for the

section 1170.126 resentencing procedure.

We conclude the superior court correctly denied Johnson’s petition for recall of

sentence. Johnson is statutorily ineligible for resentencing because his current offense––

attempted witness intimidation in violation of section 136.1––was defined as a serious

felony on November 7, 2012, when Proposition 36 went into effect. (§ 1192.7,

subdivision (c)(37) and (39).) Johnson is therefore ineligible for resentencing under the

7

Act. (§ 1170.126, subds. (b), (e)(1); Braziel v. Superior Court (2014) 225 Cal.App.4th

933, 946 (Braziel).)

Johnson attempts to circumvent this conclusion by arguing that when he

committed his offenses in 1998, witness intimidation was not listed as a serious or violent

felony. The offense was not so categorized until Proposition 21, the Gang Violence and

Juvenile Crime Prevention Act of 1998, effective March 8, 2000, added witness

intimidation in violation of section 136.1 to the list of serious felonies. (§ 1192.7,

subd. (c)(37); Manduley v. Superior Court (2002) 27 Cal.4th 537, 574, 577; People v.

Neely (2004) 124 Cal.App.4th 1258, 1261-1262, 1264.)3 He points out that section

1170.126 states it is intended “to apply exclusively to persons presently serving an

indeterminate term of imprisonment pursuant” to the Three Strikes law, “whose sentence

under this act would not have been an indeterminate life sentence.” (§ 1170.126, subd.

(a).) He contends he falls within this class of persons, because his current crime was not,

at the time he committed it, a serious felony. Therefore, he could not have been

sentenced as a “third striker” to an indeterminate life term under the law as amended by

Proposition 36. Contrary to Johnson’s argument, we do not read section 1170.126 to

require that, for purposes of the Proposition 36 resentencing procedure, the definitions of

serious and violent felonies must be considered as they were at the time the crime was

committed.

3 Proposition 21 also added violation of section 136.1, when gang-related, to the list

of violent felonies. (§ 667.5, subd. (c)(20); People v. Neely, supra, 124 Cal.App.4th at

p. 1263; Manduley v. Superior Court, supra, 27 Cal.4th at p. 577; People v. Briceno

(2004) 34 Cal.4th 451, 463 [“Making threats to victims or witnesses (§ 136.1) is a serious

felony (§ 1192.7, subd. (c)(37)) that becomes a violent felony when it is committed for

the benefit of a criminal street gang under the section 186.22(b)(1) gang enhancement”].)

It does not appear that the 1998 charges against Johnson included a gang enhancement,

and the parties do not address the question of whether the crimes qualified as “gang-

related” within the meaning of section 667.5, subdivision (c)(20). For the sake of

convenience, we assume without deciding that Johnson’s offenses constituted serious, but

not violent, felonies.

8

Indeed, our colleagues in Division Seven have recently rejected arguments similar

to those Johnson makes here. (Braziel, supra, 225 Cal.App.4th at p. 946.) In Braziel, the

defendant’s current offenses included making a criminal threat (§ 422). As in the instant

matter, that crime was not defined as a serious felony at the time Braziel was convicted,

but was added to the list of serious felonies in 2000 by Proposition 21. (Braziel, at

p. 939.) Consequently, the trial court denied Braziel’s petition for recall of his Three

Strikes sentence because the section 422 offense was a serious felony. (Id. at p. 937.)

Based on its analysis of the language of section 1170.126, considered in the context of

the overall statutory scheme, and evidence of the voters’ intent, the Braziel court

concluded that “in determining whether an inmate is eligible for recall of his sentence

under section 1170.126, the court must use the current, post-Proposition 36 definitions of

serious and/or violent felonies, not those definitions in effect at the time of commission

of the crimes.” (Braziel, at p. 946.) Therefore, Braziel’s conviction for making a

criminal threat under section 422 rendered him ineligible for recall of his sentence.

(Ibid.)

We agree with this conclusion. When interpreting a voter initiative, our primary

purpose is to ascertain and effectuate the voters’ intent. (People v. Park (2013) 56

Cal.4th 782, 796; People v. Briceno, supra, 34 Cal.4th at p. 459; Robert L. v. Superior

Court (2003) 30 Cal.4th 894, 901 (Robert L.); People v. Ringo (2005) 134 Cal.App.4th

870, 883.) We apply the same principles that govern statutory construction. Thus, we

look first to the language of the statute, giving the words their ordinary meaning. (Park,

at p. 796; Briceno, at p. 459; Robert L., at pp. 900-901.) The plain meaning of the

statutory language controls, unless it would lead to absurd results the electorate could not

have intended. (People v. Birkett (1999) 21 Cal.4th 226, 231.) The statutory language

must be construed in the context of the statute as a whole and the overall statutory

scheme. (Briceno, at p. 459; Robert L., at p. 901; Ringo, at p. 883.) When the statutory

language is ambiguous, we refer to other indicia of the voters’ intent, particularly the

analyses and arguments contained in the official ballot pamphlet. (Briceno, at p. 459;

Robert L., at p. 901; Ringo, at p. 883.)

9

Here, the plain language of section 1170.126 makes clear that Johnson’s argument

lacks merit. When referring to serious or violent felony convictions, section 1170.126

uses the present tense. Subdivision (b) states that any person serving a third strike term

for “a felony or felonies that are not defined as serious and/or violent felonies by

subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, may file a petition

for a recall of sentence . . . .” (§ 1170.126, subd. (b), italics added.) Similarly,

subdivision (e)(1) provides: “An inmate is eligible for resentencing if: [¶] (1) The

inmate is serving an indeterminate term of life imprisonment imposed pursuant to

paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section 1170.12 for

a conviction of a felony or felonies that are not defined as serious and/or violent felonies

by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.” (§ 1170.126,

subd. (e)(1), italics added.) The use of the present tense indicates that only persons

whose current, commitment offense was not defined as serious or violent on Proposition

36’s effective date may file a petition for recall. (Braziel, supra, 225 Cal.App.4th at

pp. 940-941 [section 1170.126’s use of the present tense in subdivision (e)(1), and use of

the past tense coupled with the present participle in subdivision (e)(2), support the

conclusion that the current definitions of offenses are determinative].) Stated conversely,

if an inmate’s current crime was defined as a serious or violent felony on November 7,

2012, he or she is ineligible for section 1170.126’s resentencing provisions. “ ‘[The

legislative] use of a verb tense is significant in construing statutes.’ [Citations.]” (People

v. Loeun (1997) 17 Cal.4th 1, 11; In re Valerie A. (2007) 152 Cal.App.4th 987, 1008.)

Had the electorate intended for a defendant’s resentencing eligibility to hinge on whether

his or her current crime was categorized as a serious or violent felony when committed, it

could have said so. Section 1170.126 could have been, but was not, drafted to state that a

prisoner is ineligible for recall of sentence if his or her current felony was defined as

serious or violent when committed.

10

Johnson urges that sections 1170.126 and 1170.125, read together, “require that

the determination of whether a commitment offense is a serious felony be based upon the

statutory definition of serious or violent felony at the time of the commission of the

commitment offense.” He argues that “from its inception,” section 1170.125 “has

required that new designations of serious and violent felonies are to be applied going

forward, to offenses committed ‘after’ the effective date of the amendments to the lists of

serious or violent felonies.” From this, he infers that an offense cannot be considered a

serious felony unless it was so denominated at the time it was committed. To address this

contention, we briefly trace the history of section 1170.125.

When the Three Strikes law was enacted in 1994, section 667, subdivision (h)

provided: “All references to existing statutes in subdivisions (c) to (g), inclusive, are to

statutes as they existed on June 30, 1993.” (Stats. 1994, ch. 12, § 1, p. 75; see Manduley

v. Superior Court, supra, 27 Cal.4th at p. 574; People v. Ringo, supra, 134 Cal.App.4th at

pp. 883-884.)

As noted, effective March 8, 2000, voters enacted Proposition 21. (People v.

Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 824 (Andrades); People v.

James (2001) 91 Cal.App.4th 1147, 1149.) Proposition 21 added several offenses to the

list of serious and violent felonies, including Johnson’s current crime, dissuading a

witness. (People v. Neely, supra, 124 Cal.App.4th at p. 1264; Manduley v. Superior

Court, supra, 27 Cal.4th at p. 577; see generally 3 Witkin & Epstein, Cal. Criminal Law

(4th ed. 2012) Punishment, § 421, pp. 650-651.) At the same time, Proposition 21 added

sections 667.1 and 1170.125. (James, at p. 1149.) As added by Proposition 21, section

667.1 provided: “ ‘Notwithstanding subdivision (h) of Section 667, for all

offenses committed on or after the effective date of this act, all references to existing

statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they

existed on the effective date of this act, including amendments made to those statutes by

this act.’ ” (James, at p. 1149.) Section 1170.125 provided: “ ‘Notwithstanding Section

2 of Proposition 184, as adopted at the November 8, 1994 General Election, for all

offenses committed on or after the effective date of this act, all references to existing

11

statutes in Section 1170.12 are to those statutes as they existed on the effective date of

this act, including amendments made to those statutes by this act.’ ” (James, at p. 1149;

Couzens & Bigelow, California Three Strikes Sentencing (Rutter Group 2013) § 3:1,

p. 3-3.) Thus, Proposition 21 changed the “cutoff “ or “lock-in” date in the Three Strikes

law to March 8, 2000, allowing certain offenses that were not previously classified as

strikes to become so. (Manduley v. Superior Court, supra, at p. 574; People v. Bowden

(2002) 102 Cal.App.4th 387, 390-391.)

Thereafter, courts consistently determined whether a prior offense qualifies as a

serious or violent felony by reference to the current definitions, not the definitions in

place when the prior offense was committed. (Braziel, supra, 225 Cal.App.4th at p. 944.)

People v. James, for example, held that “if a defendant’s current offense was committed

on or after the effective date of Proposition 21 [March 8, 2000], a determination whether

the defendant’s prior conviction was for a serious felony within the meaning of the

[T]hree [S]trikes law must be based on the definition of serious felonies in Penal Code

section 1192.7, subdivision (c) in effect on March 8, 2000.” (People v. James, supra, 91

Cal.App.4th at p. 1150; People v. Bowden, supra, 102 Cal.App.4th at p. 391; Andrades,

supra, 113 Cal.App.4th at pp. 821, 830; Couzens & Bigelow, supra, § 3:3, p. 3-7 [“A

prior conviction may be deemed a strike even though the crime was not defined as a

serious or violent felony at the time it was incurred, as long as it would so qualify as of

the applicable interpretation date”].) This application of Proposition 21’s modification of

the cut-off date did not constitute an ex post facto law. (Bowden, at p. 391.)

In 2006, sections 667.1 and 1170.125 were amended again to change the “cut-off”

date from March 8, 2000 to September 20, 2006. (Stats. 2006, ch. 337, §§ 29, p. 2634 &

36, pp. 2642-2643; 3 Witkin & Epstein, Cal. Criminal Law, supra, § 421, p. 651;

Couzens & Bigelow, supra, § 3:1, at p. 3-3.)

Proposition 36 again amended section 1170.125, changing the cut-off date to

November 7, 2012. Section 1170.125 now reads: “Notwithstanding Section 2 of

Proposition 184, as adopted at the November 8, 1994, General Election, for all offenses

committed on or after November 7, 2012, all references to existing statutes in Sections

12

1170.12 and 1170.126 are to those sections as they existed on November 7, 2012.” The

initiative also amended sections 667.1 and 667, subdivision (h) to reflect the new,

November 7, 2012 date. (Couzens & Bigelow, The Amendment of the Three Strikes

Sentencing Law (Nov. 2013) p. 24 [<http://www.courts.ca.gov/documents/Three-Strikes-

Amendment-Couzens-Bigelow.pdf>] [as of May 23, 2014].)4

The “amendment of sections 667.1 and 1170.125 potentially affect[s] the

application of Proposition 36 to persons sentenced in an original proceeding under

sections 667(b)-(i) and 1170.12, and persons requesting resentencing under section

1170.126.” (Couzens & Bigelow, supra, The Amendment of the Three Strikes

Sentencing Law, at p. 24.) As to persons being sentenced in an original proceeding,

“[f]or crimes committed prior to November 7, 2012, . . . the applicable law will be

determined by the date of the offense. Such an interpretation date is necessary to avoid

any ex post facto concerns created by the periodic amendment to sections 667.5 and

1192.7 to add more crimes to the list of serious and violent felonies.” (Couzens &

Bigelow, supra, at pp. 24-25.) Thus, if Johnson was being sentenced for his current

crime in an original proceeding, whether his current crime is a strike––a serious or

violent felony––would be governed by the law in effect as of the date of the offense.

(Id. at p. 25.)

The same is not true, however, when a defendant who has already been sentenced

petitions for recall and seeks resentencing under section 1170.126. Unlike when

considering whether a defendant’s current offense is serious or violent in an original

sentencing proceeding, ineligibility for resentencing under the Act does not raise ex post

facto concerns. Indeed, Johnson does not advance an ex post facto argument. The ex

4 Section 667.1 now states: “Notwithstanding subdivision (h) of Section 667, for all

offenses committed on or after November 7, 2012, all references to existing statutes in

subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on

November 7, 2012.” Section 667, subdivision (h) now provides that all references to

existing statutes in section 667, subdivisions (c) to (g), inclusive, “are to statutes as they

existed on November 7, 2012.”

13

post facto clauses of the state and federal Constitutions prohibit statutes that retroactively

increase the punishment for a crime. (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9;

People v. McKee (2010) 47 Cal.4th 1172, 1193; People v. Schoop (2012) 212

Cal.App.4th 457, 475; People v. Palacios (1997) 56 Cal.App.4th 252, 256-257.) Johnson

has already been sentenced for his crime. The resentencing procedure does not increase

his sentence; it simply gives eligible inmates the opportunity to seek resentencing.

(Braziel, supra, 225 Cal.App.4th at p. 944; cf. People v. Osuna (Apr. 24, 2014, F067498)

__ Cal.App.4th __ [2014 D.A.R. 5128, 5134-5135; 2014 Cal.App. Lexis 363] [“A finding

an inmate is not eligible for resentencing under section 1170.126 does not increase or

aggravate that individual’s sentence; rather, it leaves him or her subject to the sentence

originally imposed”].) Even for eligible inmates, a reduction in sentence is not

guaranteed, as resentencing may be denied if the court, in its discretion, finds

resentencing will pose an unreasonable public safety risk. (§ 1170.126, subd. (f); White,

supra, 223 Cal.App.4th at p. 517.)

Therefore, section 1170.125 does not require that, for purposes of the

Proposition 36 resentencing procedure, serious and violent felonies must be defined as

they were at the time the defendant committed the crime. As Retired Judge Couzens and

Presiding Justice Bigelow explain: “The intent of the amendment to section 1170.125

with . . . respect to the eligibility for resentencing is not entirely clear. . . . [S]ection

1170.125 is amended to provide that ‘for all offenses committed on or after November 7,

2012, all references to existing statutes in Sections 1170.12 and 1170.126 are to those

sections as they existed on November 7, 2012.’ On its face, the amendment with respect

to section 1170.126 makes no sense––section 1170.126 only applies to crimes committed

prior to November 7, 2012[.] . . . [¶] Likely the intent of the amendment to section

1170.125, when viewed against the opening paragraph to section 1170.126(a), is to limit

the ability to request resentencing to those persons who would be eligible for a lower

sentence had the crime been committed on or after November 7, 2012. One of the

prerequisites to obtaining a resentencing is that the offense which resulted in the life

sentence is not itself a serious or violent felony. Sections 667.5(c) and 1192.7(c) defining

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violent and serious felonies, for the most part, have remained substantially the same since

the enactment of the Three Strikes law in 1994. From time to time, however, the lists

have been augmented to include new offenses. For example, Proposition 21, enacted

March 7, 2000, added section 422, making criminal threats, to the list of serious felonies

in section 1192.7(c)(38). It is of no benefit to a defendant sentenced to a 25-[to-]life term

for a violation of section 422 prior to 2000 that the crime was not then listed as a serious

felony. Based on the objective intent of the amendment to section 1170.125 and the

opening paragraph of section 1170.126(a), eligibility for resentencing must be based on

the interpretation of statutes as they exist on or after November 7, 2012. In the case of a

person convicted of a violation of section 422 prior to March 7, 2000, he or she would

not be eligible for resentencing because section 1192.7(c)(38), as it read on November 7,

2012, lists section 422 as a serious felony.” (Couzens & Bigelow, The Amendment of

the Three Strikes Sentencing Law, supra, at pp. 25-26, third italics added.) We agree

with this analysis.

Moreover, even if sections 1170.125 and 1170.126 are considered ambiguous, an

examination of the ballot pamphlet arguments made in support of Proposition 36 is

illuminating. Those arguments “were primarily focused on increasing public safety and

saving money.” (People v. Yearwood, supra, 213 Cal.App.4th at p. 171.) “Enhancing

public safety was a key purpose of the Act.” (Id. at p. 175.) The ballot pamphlet

argument in favor of Proposition 36 stated: “Today, dangerous criminals are being

released early from prison because jails are overcrowded with nonviolent offenders who

pose no risk to the public. Prop. 36 prevents dangerous criminals from being released

early. People convicted of shoplifting a pair of socks, stealing bread or baby formula

don’t deserve life sentences.” (Ballot Pamphlet, Voter Information Guide, Gen. Elec.

(Nov. 6, 2012), rebuttal to argument against Prop. 36, p. 53 (Pamphlet); see also

Yearwood, at p. 171.) The arguments in favor of Proposition 36 repeatedly stressed that

“dangerous criminals” and persons who had committed serious or violent crimes would

remain in prison: “Criminal justice experts and law enforcement leaders carefully crafted

Prop. 36 so that truly dangerous criminals will receive no benefits whatsoever from the

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reform. Repeat criminals will get life in prison for serious or violent third strike crimes.”

(Pamphlet, supra, argument in favor of Prop. 36, p. 52.) “Prop. 36 will assure that

violent repeat offenders are punished and not released early.” (Ibid.) “The Three Strikes

law will continue to punish dangerous career criminals who commit serious violent

crimes––keeping them off the streets for 25 years to life.” (Ibid.) “Prop. 36 will keep

dangerous criminals off the streets.” (Ibid.) “Prop. 36 will help stop clogging

overcrowded prisons with non-violent offenders, so we have room to keep violent felons

off the streets.” (Ibid.) The arguments in favor of Proposition 36 also stressed the fiscal

benefits of the Act: “Prop. 36 will save taxpayers’ money.” (Ibid.) “Taxpayers could

save over $100 million per year” that would otherwise be used to house and care for

“non-violent Three Strikes inmates.” (Ibid.; see Yearwood, at p. 171.)

Thus, in enacting Proposition 36 the electorate sought to reduce prison

overcrowding and save money, while at the same time protecting public safety by

ensuring that persons deemed to pose a safety risk remained incarcerated and did not

benefit from the Act. Proposition 36 struck this balance by carefully crafting a set of

eligibility requirements for inmates seeking sentence reductions. Chief among those

requirements is the noneligibility of persons whose current crime is a serious or violent

felony. In other words, the electorate made the judgment that persons whose current

offense was defined as a serious or violent felony on November 7, 2012, are deemed to

pose too great a risk to public safety to benefit from the resentencing procedure.

Johnson’s crime, witness intimidation, has been defined as a serious felony for

purposes of the Three Strikes law since the enactment of Proposition 21, in 2000.

Proposition 21, like Proposition 36, was enacted to increase public safety. (People v.

James, supra, 91 Cal.App.4th at p. 1151.) By adding witness intimidation to the list of

“strike” crimes, the electorate expressed its judgment that commission of the crime

demonstrates a defendant’s dangerousness and warrants punishment pursuant to the

Three Strikes law. Given that the electorate has concluded witness intimidation is a

serious felony, and that persons whose current crimes are serious felonies are too

dangerous to be eligible for early release, we do not think it would effectuate the

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electorate’s intent to find Johnson is eligible for resentencing simply because his current

crime was not on the serious felony list years ago. In light of the ballot arguments made

in favor of Proposition 36, it is clear the electorate did not intend that an inmate whose

current crime was defined as serious over 10 years before Proposition 36 was enacted

could gain early release. The electorate would have had no reason to suspect that a

defendant who committed the offense of witness intimidation before March 8, 2000,

should be considered any less dangerous than a defendant who committed the same

offense after that date. “ ‘[W]e may not properly interpret the measure in a way that the

electorate did not contemplate: the voters should get what they enacted, not more and not

less.’ [Citation.]” (People v. Park, supra, 56 Cal.4th at p. 796.)

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DISPOSITION

The order is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

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