Opinion

People v. Guzman

Court: California Court of Appeal
Filed: Apr 2, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 34.3%

The opinion

Filed 4/2/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G049135

v. (Super. Ct. No. 04SF0872)

MARCELO VIRGEN GUZMAN, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County,

Richard M. King, Judge. Affirmed.

Frank Opsino, Public Defender, Sharon Petrosino, Chief Deputy Public

Defender, Mark S. Brown, Assistant Public Defender, and Jacob DeGrave, Deputy Public

Defender, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A.

Engler, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General,

Barry Carlton, Charles C. Ragland and Warren J. Williams, Deputy Attorneys General,

for Plaintiff and Respondent.

* * *

INTRODUCTION

Defendant Marcelo Virgen Guzman appeals from the trial court’s denial of

his petition to recall his prison sentence under the Three Strikes Reform Act of 2012,

added by Proposition 36. The principal question in this case is whether the definition of

the phrase “‘unreasonable risk of danger to public safety,’” set forth in Penal Code

section 1170.18, subdivision (c), contained in the recently passed Safe Neighborhoods

and Schools Act, added by Proposition 47, applies to petitions brought under

Proposition 36. We hold the definition of “‘unreasonable risk of danger to public

safety’” contained in section 1170.18, subdivision (c) of Proposition 47 does not apply to

a petition under Proposition 36. Our holding is consistent with the Court of Appeal, First

Appellate District, Division Two’s opinion in People v. Davis (2015) 234 Cal.App.4th

1001, 1006 (Davis), in which the appellate court similarly held, “the Proposition 47

definition was not intended by the voters to displace the broader definition of the Three

Strikes Reform Act already in use.”

We also hold the trial court did not abuse its discretion by denying the

petition brought under Proposition 36. Based upon its review of the record and in the

exercise of its discretion, the court found Guzman’s release would present an

unreasonable risk of danger to public safety within the meaning of section 1170.126.

BACKGROUND

In 2006, a jury found Guzman guilty of one count each of felony receipt of

stolen property in violation of section 496, subdivision (a), and misdemeanor possession

The California Supreme Court has granted review of this and related issues in

People v. Valencia, review granted February 18, 2015, S223825, People v. Chaney,

review granted February 18, 2015, S223676, and People v. Aparicio, review granted

March 25, 2015, S224317.

All statutory references are to the Penal Code. References to sections of

Proposition 36 or Proposition 47 are to Penal Code sections enacted by the respective

proposition.

of burglary tools with intent to break and enter in violation of section 466. The evidence

at trial showed that in July 2004, deputies from the Orange County Sheriff’s Department

were dispatched to a residential neighborhood where they encountered Guzman walking

toward a parked blue Toyota 4Runner. The deputies conducted a patdown search of

Guzman and found items commonly used as burglary tools in his pockets, including a

flathead screwdriver, a long flashlight, two AA batteries, and work gloves. The deputies

also searched the Toyota 4Runner that Guzman had been driving, and found, inter alia,

27 pieces of jewelry that had been stolen two or three days earlier from a residence about

a mile away from their encounter with Guzman. The Toyota 4Runner also contained a

flashlight, several screwdrivers, a cell phone, a knife with a four- or five-inch blade, a

two-way radio charger, and a pair of binoculars.

In a bifurcated proceeding, the jury found true enhancement allegations that

Guzman had suffered five prior strike convictions within the meanings of sections 667,

subdivisions (d) and (e)(2)(A), and 1170.12, subdivisions (b) and (c)(2)(A), and had

served a prior prison term within the meaning of section 667.5, subdivision (b). The five

prior strike convictions were for residential burglaries. The trial court denied Guzman’s

motion to strike his prior strike convictions. The court sentenced Guzman to state prison

for a term of 25 years to life on the receipt of stolen property count and stayed execution

of sentence on the possession of burglary tools count.

Guzman appealed from the judgment of conviction. He argued the trial

court erred by denying his pretrial motion to suppress evidence and abused its discretion

by deciding not to strike Guzman’s prior strikes under section 1385. A panel of this court

affirmed the judgment of conviction in People v. Guzman (Oct. 31, 2006, G036692)

(nonpub. opn.).

In December 2012, Guzman filed a petition for recall of sentence under

section 1170.126 of Proposition 36 (the petition). In the petition, Guzman asserted he

was eligible for resentencing because he was convicted of offenses that were not

enumerated in section 667, subdivision (e)(2)(C)(i)-(iv). He requested that the trial court

resentence him to a prison term of 44 months and order his immediate release, given he

had already served 101 months in actual custody. The district attorney opposed the

petition on the ground Guzman posed an unreasonable risk of danger to public safety.

The trial judge who imposed Guzman’s prison sentence also conducted the

hearing on the petition. The court denied the petition on the ground Guzman posed an

unreasonable risk of danger to public safety.

Guzman filed an appeal from the order denying the petition.

DISCUSSION

Guzman contends the trial court abused its discretion by denying the

petition under Proposition 36 because the court found that Guzman posed an

unreasonable risk of danger to public safety under section 1170.126, subdivision (f). In

supplemental briefing invited by this court as to the applicability of Proposition 47 to this

appeal, Guzman contends the definition of the phrase “‘unreasonable risk of danger to

public safety,’” set forth in Proposition 47 at section 1170.18, subdivision (c), applies to

the petition. Guzman’s contentions on both points are without merit.

STANDARDS FOR INTERPRETATION OF VOTER INITIATIVES

“‘In interpreting a voter initiative . . . we apply the same principles that

govern statutory construction. [Citation.] Thus, “we turn first to the language of the

statute, giving the words their ordinary meaning.” [Citation.] The statutory language

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

scheme [in light of the electorate’s intent]. [Citation.] When the language is ambiguous,

“we refer to other indicia of the voters’ intent, particularly the analyses and arguments

contained in the official ballot pamphlet.” [Citation.]’ [Citation.] In other words, ‘our

primary purpose is to ascertain and effectuate the intent of the voters who passed the

initiative measure.’” (People v. Briceno (2004) 34 Cal.4th 451, 459.)

II.

PROPOSITION 47 DOES NOT APPLY TO PETITIONS BROUGHT

UNDER PROPOSITION 36.

On November 6, 2012, California voters approved Proposition 36. (People

v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1285.) “Under the three

strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) as it existed prior to

Proposition 36, a defendant convicted of two prior serious or violent felonies would be

subject to a sentence of 25 years to life upon conviction of a third felony. Under

[Proposition 36], however, a defendant convicted of two prior serious or violent felonies

is subject to the 25-year-to-life sentence only if the third felony is itself a serious or

violent felony. If the third felony is not a serious or violent felony, the defendant will

receive a sentence as though the defendant had only one prior serious or violent felony

conviction, and is therefore a second strike, rather than a third strike, offender.

[Proposition 36] also provides a means whereby prisoners currently serving sentences of

25 years to life for a third felony conviction which was not a serious or violent felony

may seek court review of their indeterminate sentences and, under certain circumstances,

obtain resentencing as if they had only one prior serious or violent felony conviction.

According to the specific language of [Proposition 36], however, a current inmate is not

entitled to resentencing if it would pose an unreasonable risk of danger to public safety.”

(Id. at. pp. 1285-1286, fn. omitted.)

Section 1170.126, subdivision (f) (of Proposition 36) provides: “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.” (Italics added.)

Proposition 36 does not define the phrase “an unreasonable risk of danger

to public safety.” By its terms, Proposition 36 provides the trial court with “discretion”

to determine whether the test is satisfied. While this appeal has been pending, in

November 2014, California voters approved Proposition 47, which included a new

resentencing provision under which a person serving a prison term for one or more

statutorily specified crimes may petition the court for a recall of sentence and a reduction

of certain felony convictions to misdemeanors unless such a reduction would “result in an

unreasonable risk of danger to public safety” (§ 1170.18, subd. (b)(3)). Section 1170.18,

subdivision (c) provides that “‘unreasonable risk of danger to public safety’ means an

unreasonable risk that the petitioner will commit a new violent felony within the meaning

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

Guzman argues Proposition 47’s definition of “unreasonable risk of danger

to public safety” applies to petitions filed under Proposition 36. Based on our review of

Proposition 36 and Proposition 47, read together, in light of the standards of

interpretation of voter initiatives set forth by the California Supreme Court discussed

ante, we conclude Proposition 47’s definition does not apply to the petition.

Proposition 47 was passed by California voters on November 4, 2014, effective

November 5, 2014. (See Cal. Const., art. II, § 10, subd. (a) [“An initiative statute or

referendum approved by a majority of votes thereon takes effect the day after the election

unless the measure provides otherwise.”].)

The violent felony offenses identified in section 667, subdivision (e)(2)(C)(iv)

include sexually violent offenses as defined in section 6600 of the Welfare and

Institutions Code; certain sexual offenses against children including oral copulation,

sodomy, sexual penetration, and lewd or lascivious conduct; homicide offenses;

solicitation to commit murder; assault with a machine gun on a peace officer or

firefighter; possession of a weapon of mass destruction; and “[a]ny serious and/or violent

felony offense punishable in California by life imprisonment or death” (§ 667,

subd. (e)(2)(C)(iv)(VIII)).

Under Proposition 47, an “‘unreasonable risk of danger to public safety’” in

section 1170.18, subdivision (c) is an unreasonable risk that the petitioner will commit a

statutorily specified new violent felony. Subdivision (a) of section 1170.18 sets forth the

eligibility requirements for filing a petition under Proposition 47. The only petition

referred to in section 1170.18 is one filed under section 1170.18, subdivision (a); there is

no reference to any other kind of petition, much less a petition filed under Proposition 36.

Thus, the plain words of section 1170.18 show the definition of “‘unreasonable risk of

danger to public safety,’” as set forth in section 1170.18, subdivision (c), applies only to

petitions filed under section 1170.18, subdivision (a).

Such an interpretation is supported by reading Proposition 36 and

Proposition 47, each as a whole and in context. Each proposition creates a resentencing

scheme, but each scheme addresses very different concerns impacting distinct categories

of crimes, perpetrators, and victims. Proposition 36 focuses on providing an opportunity

for the resentencing of certain convicted felons who are serving indeterminate prison

terms under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12; see People v.

Carmony (2004) 33 Cal.4th 367, 371). Thus, those felons have necessarily committed

serious and/or violent crimes, but their third strike conviction was for neither a serious

nor a violent felony and who may not now pose an unreasonable risk of danger to public

safety. (§ 1170.126, subds. (a)-(f).) Proposition 36 vests the trial court with discretion to

determine the eligibility for such relief. (§ 1170.126, subds. (f), (g).)

In contrast, Proposition 47 provides for resentencing in the much less

serious context of certain drug- and theft-related offenses that previously were felonies or

“‘wobblers”’ but are now misdemeanors, unless the defendant is ineligible for such

resentencing because he or she had been previously convicted of a statutorily enumerated

crime, such as murder, rape, or child abuse. (§ 1170.18, subds. (a), (i).)

In comparing the population of felons eligible for resentencing

consideration under the different propositions, there is a distinct difference between the

Proposition 36 group and the Proposition 47 group. For Proposition 36 to come into

play, the felon necessarily is a third striker. Third strikers are a riskier and more volatile

group of felons than the group of felons to which Proposition 47 applies.

With the exception of one clause in section 1170.18, subdivision (c),

nothing in Proposition 47 suggests even an indirect application of any of its provisions to

Proposition 36. Guzman argues the clause preceding the definition of the phrase

“‘unreasonable risk of danger to public safety’” in Proposition 47’s section 1170.18,

subdivision (c), supports its application to Proposition 36 because it states that definition

applies as the phrase is “used throughout this Code.”

Although the phrase, “[a]s used throughout this Code,” in section 1170.18,

subdivision (c) unambiguously refers to the Penal Code, and not merely section 1170.18

or the other provisions contained in Proposition 47, it does not necessarily follow that the

definition contained in section 1170.18, subdivision (c) must be read into

section 1170.126, subdivision (f). Under the governing principles of statutory

interpretation, we cannot read this phrase in isolation; instead, we must consider

Proposition 47 and Proposition 36 as a whole and in context. And, as discussed ante, the

definition is expressly limited to whether a petitioner (a person filing a petition under

Proposition 47) posed an unreasonable risk of danger to public safety.

The statutes must be read as a whole and in context with the statutory

schemes. Therefore, even if section 1170.18, subdivision (c)’s definition of

“‘unreasonable risk of danger to public safety’” could arguably apply to petitions brought

under Proposition 36, any argument favoring such an application would be far

outbalanced by the significant disparity between Proposition 36 and Proposition 47.

They are disparate in terms of the crimes to which they pertain and their respective

purposes, and the serious consequences at stake, namely, a significant reduction of the

trial court’s discretion to deny third strikers’ petitions brought under Proposition 36.

In addition, even if Proposition 47’s reference to the definition’s use

throughout the code creates an ambiguity in the propositions when read as a whole, we

would rely on extrinsic aids to ascertain the voters’ intent. (See People v. Rizo (2000) 22

Cal.4th 681, 685.) Our analysis of these extrinsic aids confirms our holding that

Proposition 47 does not apply to petitions under Proposition 36.

The Proposition 47 ballot materials do not refer to Proposition 36, much

less analyze any effect Proposition 47 might have on serious and/or violent recidivist

felons who have been convicted and sentenced under the Three Strikes law and seek

resentencing. Consequently, the voters had no notice (or even a hint) that Proposition 47

would be applied in any way that would affect petitioners under Proposition 36, and

nothing otherwise suggests the voters so intended such an application. Furthermore, it is

notable that the phrase “‘unreasonable risk of danger to public safety’” appears in only

one other place in the Penal Code—in Proposition 36 itself—and yet the Proposition 47

ballot materials conspicuously omit any reference to Proposition 36. It is unreasonable

for us to assume the voters in passing the initiative—despite complete silence on the

issue—meant to lump both groups of felons together and subject the third strikers

covered by Proposition 36 to a lower standard of dangerousness than already exists under

Proposition 36. Nor was there any notice to the voters that the judicial discretion

permitted by Proposition 36 would be drastically reduced by Proposition 47.

We therefore hold that section 1170.18, subdivision (c)’s definition does

not apply to petitions for resentencing under Proposition 36. Our conclusion “is more

faithful to the overarching purpose[s]” of Proposition 36 and Proposition 47. (People v.

Rizo, supra, 22 Cal.4th at p. 687.) Consequently, we do not reach Guzman’s argument

that section 1170.18, subdivision (c) of Proposition 47 retroactively applies to

Proposition 36.

Our holding is consistent with the holding of the appellate court in Davis,

supra, 234 Cal.App.4th 1001. Rejecting the conclusion “the drafters of Proposition 47,

or the electorate that approved it, intended it to rework the procedures established only

two years before to deal with resentencing Three Strikes offenders” (id. at p. 1022), the

Davis court held, “the five words ‘As used throughout this Code’ [citation] were not

intended by the voters to hamstring the Three Strikes Reform Act [(Proposition 36)]”

(id. at p. 1026). The court stated the “literal application of Proposition 47’s definition of

‘unreasonable risk of danger to public safety’ would no longer allow a court to consider

the galaxy of factors, including, for example, the ‘suitability’ and ‘unsuitability’ factors

used by the Board of Parole Hearings” in ruling on Proposition 36 petitions. (Id. at

p. 1023.) The Davis court added: “And, one must wonder, what would be left of that

provision in section 1170.126 [of Proposition 36] expressly granting the court the power

to rely on ‘Any other evidence the court, within its discretion, determines to be relevant

in deciding whether a new sentence would result in an unreasonable risk of danger to

public safety.’” (Id. at pp. 1023-1024.) The Davis court explained that the importation

of Proposition 47’s definition into Proposition 36 “would eviscerate [section 1170.126,

subdivision (g)(3)], as a court would be restricted to weighing only the likelihood that the

petitioner if released would commit one of the offenses specified in clause (iv) of

section 667, subdivision (e)(2)(C) [(Proposition 47)].” (Davis, supra, at p. 1024.)

Nothing in this opinion precludes Guzman from filing the appropriate

petition under Proposition 47, if applicable, in which case the trial court must decide, in

the first instance, the threshold question whether he is eligible for resentencing under

Proposition 47.

III.

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING THE

PETITION UNDER PROPOSITION 36.

As Guzman was sentenced to a 25-year-to-life prison term under the Three

Strikes law after his conviction of felony receipt of stolen goods in violation of

section 496, subdivision (a), it is undisputed that Guzman’s conviction met the eligibility

requirements for consideration of a recall of sentence under section 1170.126,

subdivision (e) of Proposition 36. Guzman contends the trial court abused its discretion

by denying the petition under section 1170.126, subdivision (f).

“‘The abuse of discretion standard is used in many other contexts and

reflects the trial court’s superior ability to consider and weigh the myriad factors that are

relevant to the decision at hand. A trial court will not be found to have abused its

discretion unless it “exercised its discretion in an arbitrary, capricious, or patently absurd

manner that results in a manifest miscarriage of justice.” [Citation.]’ [Citation.]”

(People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1180.)

Subdivision (g) of section 1170.126 (of Proposition 36) provides: “In

exercising its discretion in subdivision (f), the court may consider: [¶] (1) The

petitioner’s criminal conviction history, including the type of crimes committed, the

extent of injury to victims, the length of prior prison commitments, and the remoteness of

the crimes; [¶] (2) The petitioner’s disciplinary record and record of rehabilitation while

incarcerated; and [¶] (3) Any other evidence the court, within its discretion, determines to

be relevant in deciding whether a new sentence would result in an unreasonable risk of

danger to public safety.” The prosecution bears the burden of demonstrating that an

Section 1170.126, subdivision (e) 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. [¶] (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.”

otherwise eligible petitioner poses an unreasonable risk of danger to public safety. (See

People v. Superior Court (Kaulick), supra, 215 Cal.App.4th at p. 1305.)

The trial court denied the petition in a minute order, explaining its ruling as

follows:

“ . . . The single issue before the Court, as agreed to by both the Petitioner

and Respondent is whether the Respondent has met its burden by a preponderance of the

evidence that the Petitioner poses an unreasonable risk to public safety.

“The Petitioner has engaged in substantially disciplinary free conduct since

being incarcerated in 2004 for the commitment crimes. Furthermore, no information was

presented to the Court that the Petitioner has committed any direct acts of violence upon

any victims.

“However, public safety includes being free from the commission of

property crimes. See People v. Nasa[l]ga (1996) 12 C[al.]4th 784, 790 (‘the Legislature

believes that it is in the best interest for Public Safety to enhance the penalties for the

crimes of vehicle theft and receiving stolen property.’). The Petitioner’s disposition to

commit such crimes when he is not incarcerated is so apparent from the record before the

Court. After being deported no less than three times from 1977 through 1980, the

Petitioner reentered the United States and committed five separate residential burglaries

in 1985. He was discharged from parole for those crimes in 1990. In 1995 Petitioner

was convicted of conspiracy to transport a substantial amount (20 pounds) of

methamphetamine. While on supervised release for that conviction, he committed the

crimes of receiving stolen property and possession of burglary tools in 2004, which are

the commitment crimes.

“This Court is convinced by a preponderance of the evidence that the

Petitioner [poses] an unreasonable risk to public safety. If he is released he will find his

way into the community and continue to commit property crimes. Thus, the Petition is

DENIED.” (Italics added.)

Guzman does not argue that any of the trial court’s stated findings was

unsupported by the record. Instead, he argues that by denying the petition, the court

“contradicted the spirit and purpose of the law.” Guzman further argues: “The reasoning

would essentially make any eligible petitioner an unreasonable risk of danger to society.

The law presupposes that the people to whom it applies, will all have multiple serious

and/or violent offenses in their background. At a minimum, every petitioner would have

two such crimes to even qualify for the law. The court denied resentencing because the

appellant suffered the prior convictions that the law recognizes as necessary for the

statute’s application. Denials of this sort would hinder the reduction of overcrowding,

would not save money and would not ‘make the punishment fit the crime.’ Rather, very

few people would be released and the law would serve little to no purpose.”

As demonstrated by the trial court’s minute order, quoted ante, the court’s

ruling was based on Guzman’s lengthy history of committing multiple crimes when free

from custody, including five counts of residential burglary and one count of conspiracy to

transport a substantial amount of methamphetamine; Guzman was on supervised release

for the latter offense when he committed the instant offenses, which involved, inter alia,

being found in possession of 27 pieces of jewelry that had been stolen from a nearby

residence and items commonly used as burglary tools, including a flashlight, several

screwdrivers, a pair of binoculars, and a knife with a four- or five-inch blade. The trial

court expressly stated it had reviewed all the court records in the matter, including a

forensic psychological evaluation of Guzman, showing he posed a low to medium risk of

recidivism.

We acknowledge the record does not show Guzman engaged in violent

conduct or that any of the prior residential burglary offenses were committed at a time

when the residence was occupied. Section 1170.126, however, does not require the recall

of a sentence unless the petitioner had engaged in violent conduct. Instead, it provides

that a petition to recall a sentence must be granted to an eligible petitioner if, in the trial

court’s discretion, the petitioner does not pose an unreasonable risk of danger to public

safety. (§ 1170.126, subd. (f).) The trial judge, who denied the petition, had also

presided at Guzman’s jury trial and imposed Guzman’s sentence. The trial court,

therefore, had “‘superior ability to consider and weigh the myriad factors that [we]re

relevant’” in determining whether Guzman posed an unreasonable risk of danger to

public safety. (People v. Hajek and Vo, supra, 58 Cal.4th at p. 1180.) Given Guzman’s

long and undisputed record of criminality, the trial court did not abuse its discretion by

concluding that Guzman posed an unreasonable risk of danger to public safety within the

meaning of Proposition 36, and denying the petition.

DISPOSITION

The postjudgment order is affirmed without prejudice to Guzman

petitioning for relief from the trial court under section 1170.18.

FYBEL, J.

I CONCUR:

O’LEARY, P. J.

ARONSON, J., Concurring:

In Proposition 47, the “Safe Neighborhoods and Schools Act,” the voters

defined the phrase “unreasonable risk of danger to public safety,” as it is “used

throughout this Code,” to mean an unreasonable risk of committing certain enumerated

felonies designated as the most violent and serious offenses. This is a straightforward

command. Proposition 47’s definition applies wherever the phrase “unreasonable risk of

danger to public safety” appears in the Penal Code. The identical phrase is found in

Proposition 36, the “Three Strikes Reform Act of 2012.” It therefore logically follows

Proposition 47’s definition applies to Proposition 36. Indeed, it is beyond coincidence

that the only other Penal Code section to contain the phrase “unreasonable risk of danger

to public safety” is found in Proposition 36.

The majority concedes Proposition 47’s command is unambiguous, but

nevertheless surmises Proposition 47’s definition of a particular phrase as it is “used

throughout this Code” does not mean it should be used throughout the Code. According

to the majority, Proposition 47’s enactors could not have intended to apply

Proposition 47’s definition of risk to Proposition 36 because the general purposes of the

two propositions are incompatible. But the majority does not discuss either proposition’s

enumerated purposes or explain how applying Proposition 47’s definition of risk to

Proposition 36 conflicts with or frustrates its purpose. Indeed, although examining the

purpose of a statute or initiative may be necessary to resolve an ambiguity, avoid an

absurd consequence, or avoid a result that would patently frustrate the intent of the law,

none of these criteria are present here and the majority offers no convincing reason not to

follow Proposition 47’s unambiguous directive.

In adding section 1170.18, subdivision (c), to the Penal Code,

Proposition 47 meant exactly what it says—its definition of the phrase “unreasonable risk

of danger to public safety” applies “throughout” the Penal Code, including the provisions

Proposition 36 earlier added to that code. There is no alternative meaning to this

mandate, and the majority offers none. The majority simply reads this directive out of

the initiative, rendering it a useless appendage without meaning. I write separately to

voice my disagreement with this analysis.

I concur in the result, however, because nothing in Proposition 47, or any

extrinsic evidence regarding its purpose and intent, overcomes the statutory presumption

that amendments to the Penal Code only operate prospectively. The trial court decided

Guzman’s Proposition 36 resentencing petition before Proposition 47 passed and went

into effect, and therefore Proposition 47’s definition of the phrase “unreasonable risk of

danger to public safety” does not apply retroactively to Guzman’s petition. I also agree

with the majority’s conclusion the trial court did not abuse its discretion in denying

Guzman’s petition based on the court’s finding he poses an “unreasonable risk of danger

to public safety,” as that phrase was defined when the court decided Guzman’s petition.

I. Background on Proposition 36 and Proposition 47

As originally adopted, the “Three Strikes” law (Penal Code, §§ 667,

subds. (b)-(i), 1170.12; all statutory references are to the Penal Code unless otherwise

stated) required a defendant with two prior serious or violent felony convictions to be

sentenced to 25 years to life for any third felony conviction. When the voters passed

Proposition 36 in November 2012, they changed the Three Strikes law so that “a

defendant convicted of two prior serious or violent felonies is subject to the 25-year-to-

life sentence only if the third felony is itself a serious or violent felony. If the third felony

is not a serious or violent felony, the defendant will receive a sentence as though the

defendant had only one prior serious or violent felony conviction, and is therefore a

second strike, rather than a third strike, offender.” (People v. Superior Court (Kaulick)

(2013) 215 Cal.App.4th 1279, 1285-1286, original italics, footnote omitted (Kaulick).)

The defendant receives an enhanced sentence, but not an automatic 25-year-to-life

sentence. (§ 1170.126, subd. (f).)

Proposition 36 also created a postconviction procedure that allows an

inmate to petition for resentencing if he or she was sentenced to 25 years to life based on

a third strike that was neither a serious nor violent felony. (Kaulick, supra,

215 Cal.App.4th at p. 1292.) An inmate is not eligible for resentencing under

Proposition 36 if (1) the current sentence is for a serious drug offense, a felony sex

offense requiring registration as a sex offender, or a felony involving a firearm, a deadly

weapon, or the intent to cause great bodily injury; or (2) the inmate has been convicted of

one of the felonies Proposition 36 designates as the most serious and violent offenses

(hereinafter, Super Strike felonies).1 (§ 1170.126, subd. (e)(2) & (3).) The trial court

must grant an eligible inmate’s resentencing petition “unless the court, in its discretion,

determines that resentencing the petitioner would pose an unreasonable risk of danger to

public safety.” (§ 1170.126, subd. (f).) In exercising that discretion, the trial court may

consider the following factors: “(1) The petitioner’s criminal conviction history,

including the type of crimes committed, the extent of injury to victims, the length of prior

prison commitments, and the remoteness of the crimes; [¶] (2) The petitioner’s

disciplinary record and record of rehabilitation while incarcerated; and [¶] (3) Any other

evidence the court, within its discretion, determines to be relevant in deciding whether a

new sentence would result in an unreasonable risk of danger to public safety.”

(§ 1170.126, subd. (g).)

1 The Super Strike felonies are (a) a “‘sexually violent offense’”; (b) oral

copulation, sodomy, sexual penetration, or a lewd or lascivious act involving a child

under 14 years of age; (c) any homicide offense, including any attempted homicide;

(d) solicitation to commit murder; (e) assault with a machine gun on a peace officer or

firefighter; (f) possession of a weapon of mass destruction; and (g) any serious or violent

felony offense punishable in California by life imprisonment or death. (§§ 667,

subd. (e)(2)(C)(iv), 1170.12, subd. (c)(2)(C)(iv).)

In November 2014, the voters passed Proposition 47 to reduce the

punishment for certain drug- and theft-related offenses by designating them as

misdemeanors. Before Proposition 47, the same offenses were designated as felonies or

“wobblers,” which are crimes punishable as either felonies or misdemeanors depending

on the underlying facts. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Similar

to Proposition 36, Proposition 47 creates a postconviction procedure that allows an

inmate to petition for resentencing if he or she is “currently serving” a felony sentence for

a crime Proposition 47 now designates as a misdemeanor. (§ 1170.18, subd. (a); Rivera,

at p. 1092.) If the petitioner satisfies Proposition 47’s criteria, the petitioner’s “felony

sentence shall be recalled and the petitioner resentenced to a misdemeanor . . . unless the

court, in its discretion, determines that resentencing the petitioner would pose an

unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b); Rivera, at p. 1092.)

Proposition 47 uses the same standard as Proposition 36 for determining whether a

person should be resentenced. Moreover, Proposition 47 identifies the identical three

factors as Proposition 36 for the trial court to consider in making that determination.

(Compare § 1170.18, subd. (b) and § 1170.126, subd. (g).)

Unlike Proposition 36, however, Proposition 47 defines the phrase

“unreasonable risk of danger to public safety.” Specifically, section 1170.18,

subdivision (c), states, “As used throughout this Code, ‘unreasonable risk of danger to

public safety’ means an unreasonable risk that the petitioner will commit a new violent

felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of

subdivision (e) of Section 667.” (§ 1170.18, subd. (c), italics added.) The “new violent

felon[ies]” identified in section 1170.18, subdivision (c) are the identical Super Strike

felonies that disqualify an inmate from resentencing under Proposition 36. (Compare

§ 1170.18, subd. (c) and § 1170.126, subd. (e)(3).)

II. Proposition 47’s Definition of the Phrase “Unreasonable Risk of Danger to

Public Safety” Applies “Throughout” the Penal Code

Guzman contends Proposition 47’s definition of the phrase “unreasonable

risk of danger to public safety” applies to his Proposition 36 petition because

Proposition 47’s plain language declares the definition must be used “throughout this

Code.”2 I agree it applies, but not retroactively to Guzman’s petition.

When interpreting voter initiatives like Proposition 47 and Proposition 36,

we apply the same principles that govern statutory interpretation. (People v. Rizo (2000)

22 Cal.4th 681, 685 (Rizo).) Our task “‘is to ascertain and effectuate legislative intent.

[Citations.]’ [Citation.] In order to do so, ‘[w]e turn first to the words of the statute

themselves, recognizing that “they generally provide the most reliable indicator of

legislative intent.” [Citations.]’ [Citation.]” (People v. Leal (2004) 33 Cal.4th 999, 1007

(Leal).) We give the words their ordinary meaning, and construe them in the context of

the statute as a whole and the overall statutory scheme. (Rizo, at p. 685.)

“When the language is ambiguous, ‘we refer to other indicia of the voters’

intent, particularly the analyses and arguments contained in the official ballot pamphlet.’

[Citation.]” (Rizo, supra, 22 Cal.4th at p. 685.) But “‘[w]hen “‘statutory language is . . .

clear and unambiguous there is no need for construction, and courts should not indulge in

it.’” [Citations.]’ [Citation.]” (Leal, supra, 33 Cal.4th at p. 1008.) Indeed, “‘[a]bsent

ambiguity, we presume that the voters intend the meaning apparent on the face of an

initiative measure [citation] and the court may not add to the statute or rewrite it to

conform to an assumed intent that is not apparent in its language.’ [Citation.]” (People

ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 301.)

2 As the majority notes, this issue currently is pending in the Supreme Court.

(People v. Valencia (2014) 232 Cal.App.4th 514, review granted Feb. 18, 2015,

S223825.)

“‘It is our task to construe, not to amend, the statute. “In the construction

of a statute . . . the office of the judge is simply to ascertain and declare what is in terms

or in substance contained therein, not to insert what has been omitted or omit what has

been inserted. . . .” [Citation.] We may not, under the guise of construction, rewrite the

law or give the words an effect different from the plain and direct import of the terms

used.’ [Citation.]” (Leal, supra, 33 Cal.4th at p. 1008.)

Here, Proposition 47’s definition of the phrase “unreasonable risk of danger

to public safety” is set forth in section 1170.18, subdivision (c), and that subdivision

unambiguously declares the definition applies “throughout this Code.” Accordingly,

section 1170.18, subdivision (c)’s plain language makes the definition applicable to the

entire Penal Code, including those provisions previously added by Proposition 36.

Similar language has been construed to unambiguously refer to the entire code of which it

is a part. For example, in Marshall v. Pasadena Unified School Dist. (2004)

119 Cal.App.4th 1241, the court considered a provision in the Public Contract Code

defining the term “emergency” “as used in this code.” (Marshall, at p. 1255, italics

omitted.) The Marshall court concluded, “There is nothing ambiguous about the phrase

‘as used in this code.’ In enacting [this] section . . . , the Legislature did not merely

define the term ‘emergency’ for a particular chapter, article or division of the Public

Contract Code—rather, it defined the term ‘emergency’ for the entire Public Contract

Code. It logically follows the definition . . . must be read into [all other sections using

that term].” (Marshall, at p. 1255.) Similarly, in People v. Bucchierre (1943)

57 Cal.App.2d 153, the Court of Appeal concluded, “The words ‘as in this code

provided’ (Penal Code, § 182) refer to the Penal Code.” (Bucchierre, at p. 166.)

Based on Proposition 47’s plain language, the majority concedes “the

phrase, ‘[a]s used throughout this Code,’ in section 1170.18, subdivision (c),

unambiguously refers to the Penal Code, and not merely section 1170.18 or the other

provisions contained in Proposition 47.” (Maj. opn. ante, at p. 8.) The majority

nonetheless refuses to apply Proposition 47’s definition of the phrase “unreasonable risk

of danger to public safety” to Proposition 36’s use of that identical phrase. In doing so,

the majority fails to offer an alternative interpretation of Proposition 47’s command that

its definition shall apply as the phrase is “used throughout this Code.” Instead, the

majority simply declines to follow the command, concluding Proposition 47’s drafters

and the voters who approved it could not have intended to apply the definition to

Proposition 36 because Proposition 47’s ballot pamphlet analysis and argument neither

stated that intent nor referred to Proposition 36.3 This approach fails for two reasons.

First, it does not give meaning to every word of Proposition 47. (People v.

Briceno (2004) 34 Cal.4th 451, 465 [“courts are to give meaning to every word of an

initiative if possible, and should avoid a construction making any word surplusage”].)

The majority assigns no meaning to the phrase “as used throughout this Code,” striking

its application to the only other instance of the “unreasonable risk of danger to public

safety” phase in the Penal Code. The majority’s conclusion renders the phrase “as used

throughout this Code” meaningless. But the enactors must have intended it to have the

meaning it plainly carries if there is no other possible meaning. I can think of no

alternative meaning, and the majority offers none.

3 The majority also concludes Proposition 47’s definition of the phrase

“unreasonable risk of danger to public safety” only applies to petitions filed under

Proposition 47 because the definition refers to “the petitioner,” and the only petitions

referenced in Proposition 47 are those seeking relief under that same proposition. (Maj.

opn. ante, at p. 7.) But it does not logically follow that Proposition 47’s general

definition of the risk to public safety, expressly applied “throughout this Code,” does not

apply “throughout this Code” because of Proposition 47’s specific remedies. I fail to see

how this circular argument allows the majority to disregard Proposition 47’s plain

language. Section 1170.18, subdivision (c) unambiguously states its definition of the

phase applies “throughout this Code,” not merely to petitions filed under Proposition 47.

Second, the majority’s approach ignores that the ballot pamphlet analysis

and arguments were not required to explain or expressly set forth the voters’ intent to

make the definition applicable to Proposition 36 because Proposition 47’s plain language

unambiguously declared the voters’ intent to apply the definition to the entire Penal

Code. (See Leal, supra, 33 Cal.4th at p. 1008.) When an initiative’s plain language is

clear and unambiguous, “[w]e presume that the voters intended the meaning apparent on

the face of the measure and our inquiry ends.” (Woo v. Superior Court (2000)

83 Cal.App.4th 967, 975 (Woo); see Leal, at p. 1008; Jahr v. Casebeer (1999)

70 Cal.App.4th 1250, 1254 [“‘“If the language is clear and unambiguous there is no need

for construction, nor is it necessary to resort to indicia of the intent . . . of the voters . . . .”

. . .’”].)

The majority also refuses to apply the plain meaning of Proposition 47’s

language because it concludes there is a “significant disparity between Proposition 36 and

Proposition 47 . . . in terms of the crimes to which they pertain and their respective

purposes.” (Maj. opn. ante, at p. 8.) Although there may be a difference in the nature of

the principal crimes each proposition addresses—serious and violent felonies for

Proposition 36 and drug- and theft-related crimes for Proposition 47—that difference in

subject matter does not equate to a difference in purpose nor does it allow the court to

disregard Proposition 47’s plain meaning. We may disregard a statute’s plain meaning

only when that meaning is “‘“‘repugnant to the general purview of the act’”’” (Leal,

supra, 33 Cal.4th at p. 1008), or would lead to “absurd consequences” inconsistent with

the legislation’s intent (In re Michele D. (2002) 29 Cal.4th 600, 606; Woo, supra,

83 Cal.App.4th at p. 975). The majority, however, fails to identify either proposition’s

purpose or explain how applying Proposition 47’s definition of the phrase “unreasonable

risk of danger to public safety” to Proposition 36 is repugnant to Proposition 36’s

objective or would lead to an absurd consequence inconsistent with its underlying goals.

Proposition 36’s declared purpose includes (1) “Restor[ing] the Three

Strikes law to the public’s original understanding by requiring life sentences only when a

defendant’s current conviction is for a violent or serious crime”; (2) “Sav[ing] hundreds

of millions of taxpayer dollars every year . . . [by] no longer pay[ing] for housing or

long-term health care for elderly, low-risk, non-violent inmates serving life sentences for

minor crimes”; and (3) “Prevent[ing] the early release of dangerous criminals who are

currently being released early because jails and prisons are overcrowded with low-risk,

non-violent inmates serving life sentences for petty crimes.”4 (Prop. 36, § 1, approved

Nov. 6, 2012, eff. Nov. 7, 2012.)

Proposition 47’s declared purpose includes (1) “ensur[ing] that prison

spending is focused on violent and serious offenses”; (2) “maximiz[ing] alternatives for

nonserious, nonviolent crime”; and (3) “invest[ing] the savings generated from this act

into prevention and support programs for K-12 schools, victim services, and mental

health and drug treatment.” (Prop. 47, § 2, approved Nov. 4, 2014, eff. Nov. 5, 2014; see

id. at § 3.) The ballot argument in favor of Proposition 47 also explains the proposition

(1) “Stops wasting prison space on petty crimes and focuses law enforcement resources

on violent and serious crime by changing low-level nonviolent crimes such as simple

drug possession and petty theft from felonies to misdemeanors”; (2) “Authorizes felonies

for registered sex offenders and anyone with a prior conviction for rape, murder or child

molestation”; and (3) “Stops wasting money on warehousing people in prisons for

nonviolent petty crimes, saving hundreds of millions of taxpayer funds every year.”

4 Additional declared purposes of Proposition 36 include (1) “Requir[ing]

that murderers, rapists, and child molesters serve their full sentences—they will receive

life sentences, even if they are convicted of a new minor third strike crime”; and

(2) “Maintain[ing] that repeat offenders convicted of non-violent, non-serious crimes like

shoplifting and simple drug possession will receive twice the normal sentence instead of

a life sentence.” (Prop. 36, § 1, approved Nov. 6, 2012, eff. Nov. 7, 2012.)

(Voter Information Guide, Gen. Elec. (Nov. 4, 2014) argument in favor of Prop. 47,

p. 38.)

Proposition 36 and Proposition 47 therefore share the common purpose of

reworking significant portions of California’s statutory sentencing scheme to ensure

prison resources are devoted to violent and serious offenders, and to ensure those who

commit violent and serious offenses are not released early because of overcrowding.

Both propositions accomplish this purpose by reducing the sentences for a wide variety

of nonviolent and nonserious felonies. Both propositions also allow inmates serving a

sentence they would not have received after the passage of Proposition 36 and

Proposition 47 to petition for resentencing.

Applying Proposition 47’s definition of the phrase “unreasonable risk of

danger to public safety” to Proposition 36 furthers this common purpose by providing

trial courts with the discretion to deny a Proposition 36 resentencing petition only for

those inmates who pose an unreasonable risk of committing certain violent and serious

offenses. Without the definition, the phrase has no fixed meaning in Proposition 36 and

trial courts may deny a resentencing petition by a nonviolent offender without evaluating

whether the petitioner poses a risk of committing a specific violent or serious felony.

(People v. Garcia (2014) 230 Cal.App.4th 763, 769-770; People v. Flores (2014)

227 Cal.App.4th 1070, 1075.) But applying the definition to Proposition 36 requires the

trial court to find an inmate poses an unreasonable risk of committing one of the most

serious and violent felonies that both Proposition 36 and Proposition 47 identify, namely,

the Super Strike felonies. The trial court still retains significant discretion to consider a

wide variety of factors and evidence; the court merely is required to evaluate those

factors and evidence in the context of determining whether the petitioner poses an

unreasonable risk of committing one of these aggravated felonies.

In considering the impact Proposition 47’s definition has on Proposition 36,

it warrants emphasizing who is eligible to apply for resentencing under Proposition 36.

To be eligible, (1) an inmate must be serving an indeterminate life sentence for

committing a nonviolent, nonserious felony; (2) the felony for which the inmate was

sentenced must not be a serious drug crime, a sex offense requiring registration as a sex

offender, or any felony involving a firearm, a deadly weapon, or the intent to cause great

bodily injury; and (3) the inmate must not have a prior conviction for any of the Super

Strike felonies. (§ 1170.126, subd. (e).) These eligibility restrictions make the most

serious and violent felons categorically ineligible for resentencing. Consequently, the

trial court is never faced with considering whether resentencing such felons would pose

an unreasonable risk of danger to public safety. I therefore fail to see how applying

Proposition 47’s definition to Proposition 36 is repugnant to the general purpose of

Proposition 36 or Proposition 47, leads to absurd consequences, or frustrates the purpose

behind either proposition. Without reaching at least one of those conclusions, I cannot

join the majority in disregarding Proposition 47’s plain language.

The requirement courts must follow express unambiguous provisions unless

it would lead to absurd consequences or clearly frustrate the legislative purpose exists to

prevent courts from unintentionally interpreting a statute to say what the court believes it

ought to say, rather than what it actually says. (California School Employees Assn. v.

Governing Bd. of South Orange County Community College Dist. (2004)

124 Cal.App.4th 574, 588.) That risk is especially pertinent when voters have acted

through the initiative process to adopt legislation. Here, the voters passed

Propositions 36 and 47 to recalibrate the balance between punishment and public safety.

These issues touch on controversial and difficult policy decisions involving various

penalogical theories, such as deterrence, proportionality, and incapacitation. It is not for

the courts to wade into that debate, however. “Our role as a reviewing court is simply to

ascertain and give effect to the electorate’s intent guided by the same well-settled

principles we employ to give effect to the Legislature’s intent when we review

enactments by that body. [Citation.] We do not, of course, pass upon the ‘“‘“wisdom,

expediency, or policy”’”’ of enactments by the voters any more than we would

enactments by the Legislature. [Citation.]” (Professional Engineers in California

Government v. Kempton (2007) 40 Cal.4th 1016, 1043.) “Where the [voters] ha[ve]

made a policy choice, using as here particularly clear and unambiguous language, we

may not second-guess [their] determination.” (Joshua D. v. Superior Court (2007)

157 Cal.App.4th 549, 565.)

The majority concludes Proposition 47’s drafters could not have meant

what they said when they declared the definition of the phrase “unreasonable risk of

danger to public safety” applied “throughout” the Penal Code because “[t]hird strikers are

a riskier and more volatile group of felons than the group of felons to which

Proposition 47 applies.” (Maj. opn. ante, p.8.) The majority apparently believes this

distinction demonstrates why Proposition 47’s drafters could not have intended to apply

the definition of risk to Proposition 36 petitioners. This would be true for inmates who

committed a Super Strike felony, but those offenders are ineligible for resentencing.

Otherwise, the accuracy of the majority’s vague, generalized pronouncement varies

greatly from case to case. Guzman’s profile illustrates the point. His criminal record

shows numerous drug and property offenses, but as the trial court expressly found,

Guzman had no record of violence. Guzman may be eligible for a sentence reduction

under Proposition 47 because his third strike was receiving stolen property, an offense

reduced to a misdemeanor under certain circumstances. Under the majority’s analysis,

Guzman is a “riskier and more volatile” felon when petitioning for relief under

Proposition 36, but not when he petitions for relief under Proposition 47. That result is

not consistent with the common purpose the two propositions share.

Finally, the majority notes its conclusion is consistent with the First

Appellate District, Division Two’s recent decision in People v. Davis (2015)

234 Cal.App.4th 1001, which concluded “the five words ‘As used throughout this Code’

(§ 1170.18, subd. (c)) were not intended by the voters to hamstring [Proposition 36]”

(Davis, at p. 1026), and applying Proposition 47’s definition to Proposition 36 would

“eviscerate” the “provision in [Proposition 36] expressly granting the court the power to

rely on ‘Any other evidence the court, within its discretion, determines to be relevant in

deciding whether a new sentence would result in an unreasonable risk of danger to public

safety. (§ 1170.126, subd. (g)(3).)’” (Davis, at p. 1024, italics omitted.) I disagree with

both of these conclusions.

Applying the definition would not “hamstring” Proposition 36 because

doing so is consistent with Proposition 36’s purpose. As explained above, Proposition 36

seeks to free up prison space for the most serious and violent felons by reducing the

sentences for other felons. By focusing the trial court’s discretion on only those inmates

who pose an unreasonable risk of committing a Super Strike felony, the definition

furthers Proposition 36’s purposes. Likewise, applying Proposition 47’s definition to

Proposition 36 would not “eviscerate” the cited provision in Proposition 36, which allows

the trial court to consider any evidence it deems relevant when determining whether

resentencing an inmate would result in an unreasonable risk of danger to public safety.

Applying Proposition 47’s precise definition of what amounts to an unreasonable risk of

danger to public safety to Proposition 36 does not limit what evidence the trial court may

consider in making that determination. Indeed, despite including its definition of the

phrase “unreasonable risk of danger to public safety,” Proposition 47 also includes the

exact same provision as Proposition 36 in allowing the trial court to consider any

evidence it deems relevant in determining whether an offender poses an unreasonable risk

of danger to public safety. (Compare, § 1170.126, subd. (g)(3) and § 1170.18,

subd. (b)(3).)

III. Proposition 47’s Definition Does Not Apply Retroactively to Guzman’s

Resentencing Petition

Although I conclude Proposition 47’s definition of the phrase

“unreasonable risk of danger to public safety” applies to Proposition 36, it does not apply

to Guzman’s Proposition 36 resentencing petition because the trial court decided the

petition before the voters passed Proposition 47. Guzman contends Proposition 47’s

definition applies retroactively to his petition based on In re Estrada (1965) 63 Cal.2d

740 (Estrada), and cases applying Estrada. But the well-established rule is that statutes

only apply prospectively, and Estrada merely recognized a limited exception for statutes

that reduce the punishment for a particular crime. Proposition 47’s definition does not

reduce the punishment for a particular crime, and therefore Estrada does not support

retroactively applying the definition to Guzman’s petition.5

“Whether a statute operates prospectively or retroactively is, at least in the

first instance, a matter of legislative intent. When the Legislature has not made its intent

on the matter clear with respect to a particular statute, the Legislature’s generally

applicable declaration in section 3 provides the default rule: ‘No part of [the Penal Code]

is retroactive, unless expressly so declared.’ We have described section 3, and its

identical counterparts in other codes (e.g., Civ. Code, § 3; Code Civ. Proc., § 3), as

codifying ‘the time-honored principle . . . that in the absence of an express retroactivity

provision, a statute will not be applied retroactively unless it is very clear from extrinsic

sources that the Legislature . . . must have intended a retroactive application.’ [Citation.]

5 This issue currently is pending in the Supreme Court. (People v. Chaney

(2014) 231 Cal.App.4th 1391, review granted Feb. 18, 2015, S223676.)

In applying this principle, we have been cautious not to infer retroactive intent from

vague phrases and broad, general language in statutes. [Citations.] Consequently, ‘“a

statute that is ambiguous with respect to retroactive application is construed . . . to be

unambiguously prospective.”’ [Citations.]” (People v. Brown (2012) 54 Cal.4th 314,

319-320 (Brown).)

Estrada creates a “contextually specific qualification” to this ordinary rule

of prospective application: “When the Legislature has amended a statute to reduce the

punishment for a particular criminal offense, we will assume, absent evidence to the

contrary, that the Legislature intended the amended statute to apply to all defendants

whose judgments are not yet final on the statute’s operative date.” (Brown, supra,

54 Cal.4th at p. 323, fn. omitted.) Estrada explained the rationale for its rule as follows:

“When the Legislature amends a statute so as to lessen the punishment it has obviously

expressly determined that its former penalty was too severe and that a lighter punishment

is proper as punishment for the commission of the prohibited act. It 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. The amendatory act imposing the lighter punishment can be

applied constitutionally to acts committed before its passage provided the judgment

convicting the defendant of the act is not final. This intent seems obvious, because to

hold otherwise would be to conclude that the Legislature was motivated by a desire for

vengeance, a conclusion not permitted in view of modern theories of penology.”

(Estrada, supra, 63 Cal.2d at p. 745.)

Estrada involved a statute that had been amended to reduce the minimum

term for the crime of escape without force or violence. (Estrada, supra, 63 Cal.2d at

pp. 743-744.) Based on the foregoing rationale, the Supreme Court concluded the

amended statute’s reduced sentence applied to the defendant because the judgment

against him was not yet final. (Id. at p. 751.)

In Brown, the Supreme Court recently revisited its Estrada decision,

explaining Estrada “‘should not be interpreted as modifying [section 3’s] well-

established, legislatively-mandated principle [that no statute applies retroactively unless

expressly so declared].’ [Citation.] Accordingly, Estrada is today properly understood,

not as weakening or modifying the default rule of prospective operation codified in

section 3, but rather as informing the rule’s application in a specific context by

articulating the reasonable presumption that a legislative act mitigating the punishment

for a particular criminal offense is intended to apply to all nonfinal judgments. [¶] . . .

The holding in Estrada was founded on the premise that ‘“[a] legislative mitigation of the

penalty for a particular crime represents a legislative judgment that the lesser penalty or

the different treatment is sufficient to meet the legitimate ends of the criminal law”’

[citation] and the corollary inference that the Legislature intended the lesser penalty to

apply to crimes already committed.” (Brown, supra, 54 Cal.4th at pp. 324-325, original

italics, fn. omitted; see Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209.)

Brown involved an amendment to the Penal Code that increased the rate at

which a prisoner in local custody received credit against his or her sentence for good

behavior. The Supreme Court concluded the amendment did not apply retroactively

because it did not alter the penalty for a particular crime, but rather addressed “future

conduct in a custodial setting by providing increased incentives for good behavior.”

(Brown, supra, 54 Cal.4th at p. 325, italics omitted.) In Brown, the defendant argued “the

rule of Estrada [citation] should be understood to apply more broadly to any statute that

reduces punishment in any manner,” but the Supreme Court rejected that contention

because “the argument does not in any event represent a logical extension of Estrada’s

reasoning. . . . [T]he rule and logic of Estrada is specifically directed to a statute that

represents ‘“legislative mitigation of the penalty for a particular crime”’ [citation]

because such a law supports the inference that the Legislature would prefer to impose the

new, shorter penalty rather than to ‘“satisfy a desire for vengeance”’ [Citation.] The

same logic does not inform our understanding of a law that rewards good behavior in

prison.” (Ibid., original italics.)

Here, Guzman does not contend Proposition 47 or its ballot pamphlet refers

to or even suggests an intent to retroactively apply the definition of the phrase

“unreasonable risk of danger to public safety” to Proposition 36 resentencing petitions

that a trial court has rejected. The presumption of prospective operation therefore

governs unless Proposition 47’s definition reduces the penalty for a particular crime and

thereby gives rise to an inference the voters intended the reduced penalty to apply to

crimes already committed. (Brown, supra, 54 Cal.4th at pp. 324-325.) True,

Proposition 47 reduced the penalties for various drug and theft crimes. But the issue is

not whether those reduced penalties apply retroactively. Proposition 47’s definition of

the phrase “unreasonable risk of danger to public safety” must itself reduce the penalty

for a particular crime because that is the provision Guzman seeks to apply retroactively.

Proposition 47’s definition, however, does not reduce the sentence for any

particular crime. Instead, the definition merely narrows the broad discretion

Proposition 36 confers on the trial court in deciding whether to resentence an inmate who

already has received an indeterminate life sentence for a nonviolent, nonserious, third

strike offense. When the definition is applied to Proposition 36, the trial court still has

considerable discretion to determine whether an inmate should be resentenced based on a

number of factors related to the particular inmate, such as the inmate’s criminal

conviction history, the inmate’s disciplinary and rehabilitation record, and any other

evidence bearing on whether the inmate poses an unreasonable risk of committing a

Super Strike felony if he or she is resentenced. Not all inmates eligible for resentencing

under Proposition 36 will be resentenced.

Without a reduction in the penalty for a particular crime, Estrada simply

does not apply because there is nothing to support an inference the voters intended

Proposition 47’s definition of the phrase “unreasonable risk of danger to public safety” to

apply retroactively. Applying the definition retroactively would require an extension of

Estrada well beyond its rationale and limitations the Supreme Court explained in Brown.

(People v. Crockett (2015) 234 Cal.App.4th 642, 660-661 [Estrada does not make

Proposition 47’s definition apply retroactively because the definition does not reduce a

particular punishment for a particular crime].)

To support his contention to the contrary, Guzman relies on three cases that

applied Estrada’s rationale to conclude an amendment to the Penal Code applied

retroactively. (See People v. Nasalga (1996) 12 Cal.4th 784; People v. Vinson (2011)

193 Cal.App.4th 1190; People v. Figueroa (1993) 20 Cal.App.4th 65.) Each of these

cases, however, involved an amendment that directly reduced the penalty for the

particular crime the defendant had committed, and therefore gave rise to Estrada’s

inference of retroactive application. In Nasalga, the amendment increased the property

loss threshold for a two-year sentence enhancement on a grand theft conviction from

$100,000 to $150,000, and therefore the defendant’s conviction for stealing property

valued at $124,000 no longer supported the two-year enhancement. (Nasalga, at p. 787.)

In Vinson, the amendment increased the number of prior theft convictions for a sentence

enhancement from one to three convictions, and therefore the defendant was no longer

eligible for the enhancement because he did not have three prior convictions. (Vinson, at

pp. 1193-1194, 1197.) In Figueroa, the amendment modified a sentence enhancement

for selling drugs within 1,000 feet of a school to require a showing the school was in

session or children were present, and therefore the defendant could not receive the

enhancement without evidence establishing this new element. (Figueroa, at pp. 69-70.)

As explained above, Proposition 47’s definition of the phrase “unreasonable risk of

danger to public safety” does not reduce the punishment for a particular crime, and

therefore these cases are inapposite.

ARONSON, J.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.