People v. Valencia

Filed 7/3/17

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S223825

v. )

) Ct.App. 5 F067946

DAVID J. VALENCIA, )

) Tuolumne County

Defendant and Appellant. ) Super. Ct. No. CRF30714

____________________________________)

)

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S223676

v. )

) Ct.App. 3 C073949

CLIFFORD PAUL CHANEY, )

) Amador County

Defendant and Appellant. ) Super. Ct. No. 05CR08104

____________________________________)

In November 2012, California voters enacted Proposition 36, the Three

Strikes Reform Act of 2012 (Proposition 36 or Three Strikes Reform Act). With

some exceptions, Proposition 36 modified California‘s ―Three Strikes‖ law to

reduce the punishment imposed when a defendant‘s third felony conviction is not

serious or violent. (Pen. Code,1 § 667, subd. (e)(2)(C), as amended by Prop. 36,

1 All statutory references are to the Penal Code unless otherwise noted.

SEE CONCURRING & DISSENTING OPINIONS

§ 2, approved by the voters at Gen. Elec. (Nov. 6, 2012).) It also enacted a

procedure governing inmates sentenced under the former Three Strikes law whose

third strike was neither serious nor violent, permitting them to petition for

resentencing in accordance with Proposition 36‘s new sentencing provisions.

(§ 1170.126, subd. (e), as added by Prop. 36, § 2, approved by the voters at Gen.

Elec. (Nov. 6, 2012).) The resentencing provisions provide, however, that an

inmate will be denied resentencing if ―the court, in its discretion, determines that

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

safety.‖ (§ 1170.126, subd. (f), as added by Prop. 36, § 6, approved by the voters

at Gen. Elec. (Nov. 6, 2012).) Proposition 36 did not define the phrase

―unreasonable risk of danger to public safety.‖

Two years later, in November 2014, California voters approved Proposition

47, the Safe Neighborhoods and Schools Act (Proposition 47). Proposition 47

reduced certain drug-related and theft-related offenses that previously were

felonies or ―wobblers‖2 to misdemeanors. (§ 1170.18, added by Prop. 47, § 14,

approved by the voters at the Gen. Elec. (Nov. 4, 2014).) It also enacted a

procedure permitting inmates who are serving felony sentences for offenses that

Proposition 47 reduced to misdemeanors to petition to have their felony

convictions reclassified as misdemeanors and to be resentenced based on the

reclassification. Like Proposition 36, Proposition 47 gave resentencing courts

discretion to decline to impose a lesser sentence if resentencing ―would result in

an unreasonable risk of danger to public safety.‖ (§ 1170.18, subd. (b)(3).) In

2 Wobblers are ―a special class of crimes involving conduct that varies

widely in its level of seriousness,‖ and may therefore be ―chargeable or . . .

punishable as either a felony or a misdemeanor.‖ (People v. Park (2013) 56

Cal.4th 782, 789; see also People v. Kunkel (1985) 176 Cal.App.3d 46, 51, fn. 3.)

2

contrast to Proposition 36, however, Proposition 47 restricted that discretion by

defining the phrase ―unreasonable risk of danger to public safety.‖ (§ 1170.18,

subd. (c).) It stated: ―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‖ section 667, subdivision (e)(2)(C)(iv).

(§ 1170.18, subd. (c).) The cited subdivision of section 667 identifies eight types

of particularly serious or violent felonies, known colloquially as ―super strikes.‖3

We granted review in these two cases to resolve two related issues

concerning Proposition 47‘s effect on resentencing proceedings under Proposition

36. In People v. Valencia (S223825), we address whether Proposition 47‘s

definition of ―unreasonable risk of danger to public safety‖ (§ 1170.18, subd. (c))

applies to resentencing proceedings under Proposition 36. People v. Chaney

(S223676) presents the question whether, if Proposition 47‘s definition of

unreasonable risk of danger to public safety applies to resentencing proceedings

under the Three Strikes Reform Act, does the definition apply retroactively to

Proposition 36 resentencing petitions that a court has already denied but are not

yet final on appeal.

3 The felonies commonly referred to as super strikes are (1) a ― ‗sexually

violent offense,‘ ‖ as defined in Welfare & Institutions Code, section 6600,

subdivision (b); (2) oral copulation or sodomy, or sexual penetration of a child

under 14 years of age and more than 10 years younger than the defendant, as

defined in sections 286, 288a and 289; (3) a lewd or lascivious act involving a

child under 14 years of age, in violation of section 288; (4) any homicide offense,

including attempted homicide, as defined in sections 187 to 191.5; (5) solicitation

to commit murder, as defined in section 653f; (6) assault with a machine gun on a

peace officer or firefighter, as defined in section 245, subdivision (d)(3); (7)

possession of a weapon of mass destruction, as defined in section 11418,

subdivision (a)(1); and (8) any serious and/or violent felony offense punishable in

California by life imprisonment or death. (See § 667, subd. (e)(2)(C)(iv)(I-VIII).)

3

For the reasons set forth below, we hold that Proposition 47 did not amend

the Three Strikes Reform Act. Accordingly, we need not address whether, in

People v. Chaney (S223676), the measure applies retroactively to Proposition 36

resentencing petitions that have been denied.

I. FACTS

Defendant David J. Valencia has a lengthy criminal record. In 1995, he

was convicted of kidnapping. (§ 207, subd. (a).) In 1996, he was convicted of

making criminal threats (§ 422), resisting arrest by threat or violence (§ 69), and

driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)). In 2000,

he was convicted of corporal injury to a spouse or cohabitant. (§ 273.5.) In

addition, between 1987 and 2007, he was convicted of 12 misdemeanors. Finally,

in 2009, Valencia struck his wife during an argument over whether she should

drive while drunk, causing a laceration on her head that was closed with staples.

He was convicted a second time of corporal injury to a spouse or cohabitant

(§ 273.5), which qualified as a third strike offense, and he was sentenced to an

indeterminate term of 25 years to life.

In 2013, following the enactment of the Three Strikes Reform Act,

Valencia petitioned for resentencing. He was eligible for resentencing because

(1) his third strike was neither serious nor violent, as defined by statute, (2) his

third strike was not among the other crimes excluded from the sentencing

reforms,4 and (3) he had not suffered a prior conviction for a super strike. (See

People v. Johnson (2015) 61 Cal.4th 674, 681-682 (Johnson).)

4 A prisoner is not eligible for resentencing if his or her third strike offense

involved large quantities of controlled substances (§ 1170.12, subd. (c)(2)(C)(i))

or is one of various enumerated sex offenses (id., subd. (c)(2)(C)(ii)). A prisoner

is also ineligible if he or she used a firearm, was armed with a firearm or deadly

weapon, or intended to cause great bodily injury. (Id., subd. (c)(2)(C)(iii).)

4

The People opposed resentencing, arguing that releasing Valencia would

pose an unreasonable risk of danger to public safety based on his criminal history

of alcohol abuse and domestic violence. In August 2013, after considering

evidence from both parties and hearing testimony from Valencia and his mother,

the sentencing court denied Valencia‘s petition: ―I cannot grant this. I just feel

that he is a danger. He is an unreasonable risk to public safety. And, in particular,

to the women he‘s around. I just can‘t do this.‖

On appeal, Valencia argued that Proposition 47 had amended the Three

Strikes Law by narrowing the sentencing court‘s discretion to deny resentencing

on the ground that the petitioner posed an unreasonable risk to public safety. The

Court of Appeal rejected this contention and affirmed the judgment. All three

justices took the view that, read literally, Proposition 47‘s plain language —

defining ―unreasonable risk of danger to public safety‖ ―[a]s used throughout this

[Penal] Code‖ — applied to resentencing proceedings under Proposition 36. Two

justices concluded, however, that ―the literal meaning [of Proposition 47‘s

amendment] does not comport with the purpose of the [Three Strikes Reform] Act,

and applying it to resentencing proceedings under the [Three Strikes Reform] Act

would frustrate, rather than promote, that purpose and the intent of the electorate

in enacting both initiative measures.‖ The third justice found the text‘s plain

language insurmountable. But because he concluded that the electorate did not

clearly manifest an intent to apply Proposition 47 retroactively to sentencing

petitions like Valencia‘s that had already been denied, he concurred in the result.

In 2005, Clifford Paul Chaney was arrested for felony drunk driving after

having been convicted of three separate incidents of driving under the influence in

the prior 10 years. (Veh. Code, § 23550.) In exchange for having other counts

dismissed, Chaney admitted he had six prior 1984 convictions for armed robbery

and for conspiracy to commit robbery, which were all serious or violent felonies,

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and was sentenced as a third strike offender for the 2005 felony drunk-driving

conviction, receiving an indeterminate sentence of 25 years to life.

In 2013, Chaney unsuccessfully sought resentencing under the Three

Strikes Reform Act. The resentencing court stated that it was unconvinced ―that

[Chaney] would not re-engage in alcohol use and place the public at risk.‖

Accordingly, the court concluded that Chaney posed an ―unreasonable risk of

danger to public safety‖ (§ 1170.126, subd. (f)) and denied his petition.

On appeal, Chaney argued that Proposition 47‘s narrower definition of

―unreasonable risk of danger to public safety‖ (§ 1170.18, subd. (c)) applied

retroactively to resentencing proceedings under the Three Strikes Reform Act.

(§ 1170.126.) The Court of Appeal rejected Chaney‘s argument and concluded

that Proposition 47‘s definition of ―unreasonable risk of danger to public safety‖

did not apply retroactively to him because his resentencing petition was decided

before the effective date of Proposition 47.

II. DISCUSSION

A. The Three Strikes Reform Act (Proposition 36) and the Safe

Neighborhoods and Schools Act (Proposition 47)

1. Proposition 36: The Three Strikes Reform Act

We recently summarized the Three Strikes Reform Act in Johnson, supra,

61 Cal.4th 674. As we noted, ―[p]rior to its amendment by the [Three Strikes

Reform] Act, the Three Strikes law required that a defendant who had two or more

prior convictions of violent or serious felonies receive a third strike sentence of a

minimum of 25 years to life for any current felony conviction, even if the current

offense was neither serious nor violent. (Former §§ 667, subds. (d), (e)(2)(A),

1170.12, subds. (b), (c)(2)(A).)‖ (Id. at p. 680-681.) We explained that

Proposition 36 ―amended the Three Strikes law with respect to defendants whose

current conviction is for a felony that is neither serious nor violent. In that

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circumstance, unless an exception applies, the defendant is to receive a second

strike sentence of twice the term otherwise provided for the current felony,

pursuant to the provisions that apply when a defendant has one prior conviction

for a serious or violent felony.‖ (Id. at p. 681.) As noted above, Proposition 36

excluded from its reforms third strikes involving large quantities of controlled

substances, specified sex offenses, and offenses committed when the defendant

was armed or intended to cause great bodily harm. It also excluded defendants

with prior convictions for super strikes. (See ante, fns. 3 & 4.)

Most pertinent here is Proposition 36‘s resentencing provision, which

―provides a procedure by which some prisoners already serving third strike

sentences may seek resentencing in accordance with the new sentencing rules.

(§ 1170.126.)‖ (Johnson, supra, 61 Cal.4th at p. 682.) An inmate who is serving

a third strike sentence that would have yielded a second strike sentence under

Proposition 36‘s new sentencing rules ―shall be resentenced‖ as second strike

offender ―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 its discretion to deny resentencing, the court has broad

discretion to consider: (1) the inmate‘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) his or her ―disciplinary

record and record of rehabilitation while incarcerated‖; and (3) ―[a]ny 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)-(3).) Thus, as the Legislative Analyst explained

in the Voter Information Guide, ―[i]n determining whether an offender poses [an

unreasonable risk of danger to public safety], the court could consider any

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evidence it determines is relevant, such as the offender‘s criminal history, behavior

in prison, and participation in rehabilitation programs.‖ (Voter Information Guide,

Gen. Elec. (Nov. 6, 2012) analysis of Prop. 36, p. 50, italics added.)

Following the enactment of Proposition 36, Courts of Appeal have rejected

arguments that the phrase ―unreasonable risk of danger to public safety,‖ as used

in section 1170.126, subdivision (f), is unconstitutionally vague. (See, e.g.,

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

227 Cal.App.4th 1070, 1075 [―Surely a superior court judge is capable of

exercising discretion, justly applying the public safety exception, and determining

whether a lesser sentence would pose an unreasonable risk of harm to the public

safety‖].)

2. Proposition 47: The Safe Neighborhoods and Schools Act

Proposition 47 reclassified as misdemeanors certain drug- and theft-related

offenses that previously were felonies or wobblers. (§ 1170.18, subds. (a), (b); see

Health & Saf. Code §§ 11350 [possession of a controlled substance], 11357

[same], 11377 [possession of concentrated cannabis]; Pen. Code §§ 459.5

[shoplifting], 473 [forgery], 476a [writing bad checks], 490.2 [grand theft], 496

[receiving stolen property], and 666 [petty theft with a prior conviction].)

Proposition 47 also added a provision allowing felony offenders ―serving a

sentence for a conviction‖ for offenses now reclassified as misdemeanors to

petition to have their sentences recalled and to be resentenced. (§ 1170.18, subd.

(a); see also People v. Morales (2016) 63 Cal.4th 399, 404.)

The resentencing procedure provides that if an inmate ―would have been

guilty of a misdemeanor‖ had Proposition 47 been in effect at the time of the

offense, and he or she has no prior convictions for super strikes or any offense that

requires registration as a sex offender, the inmate may petition for a recall of his or

8

her sentence and resentencing in accordance with Proposition 47‘s reclassification

of certain offenses as misdemeanors. (§ 1170.18, subds. (a) - (i).) If the court

determines that the petitioner meets these criteria, it must recall the felony

sentence and resentence the petitioner based on the new classification of the

offense as 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).)

In exercising this discretion, the resentencing 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) his or her ―disciplinary record and record of

rehabilitation while incarcerated‖; and (3) ―[a]ny other evidence‖ the court deems

relevant. (§ 1170.18, subd. (b)(1)-(3).)

Significantly, however, in contrast to Proposition 36, Proposition 47 limits

the trial court‘s discretion to deny resentencing by defining the phrase

―unreasonable risk of danger to public safety‖ narrowly. In connection with

resentencing under Proposition 47, ― ‗unreasonable risk of danger to public safety‘

means an unreasonable risk that the petitioner will commit a [super strike].‖

(§ 1170.18, subd. (c); see ante, fn. 3.) Thus, under Proposition 47 a resentencing

court may not deny a petition for reclassification and resentencing for certain theft

and drug possession felonies to misdemeanors for an otherwise eligible petitioner

unless it finds that the resentencing would pose an unreasonable risk that the

petitioner will commit a super strike.

Of most significance to the present matter, Proposition 47 also provides that

its definition of ―unreasonable risk of danger to public safety‖ is effective ―[a]s

used throughout this Code.‖ (§ 1170.18, subd. (c).) Because section 1170.126,

subdivision (g)(3), added by Proposition 36, the Three Strikes Reform Act, also

9

requires the court to assess whether the petitioner‘s resentencing would pose ―an

unreasonable risk of danger to public safety,‖ this raises the question of whether

Proposition 47 amended the resentencing criteria for eligible third strike offenders

under the previously enacted measure, Proposition 36. The parties do not contest

that such an amendment would be more favorable to three strike inmates and

result in the release of more recidivist serious and/or violent offenders than had

been originally contemplated under Proposition 36.

B. Proposition 47’s Definition of “Unreasonable Risk of Danger to

Public Safety” Does Not Apply to the Three Strikes Reform Act

Viewed in isolation, Proposition 47‘s statement that its definition of

― ‗unreasonable risk of danger to public safety‘ ‖ is to be ―used throughout this

Code‖ (§ 1170.18, subd. (c)) would be understood to result in the amendment of

the entire Penal Code, which of course includes the resentencing criteria for the

Three Strikes Reform Act. But our courts have recognized that the meaning of

isolated statutory language can be informed by and indeed must be consistent with

the provisions of the relevant statute as whole. In the present matter, there are

several reasons why the meaning of the phrase ―[a]s used throughout this Code‖ in

section 1170.18, subdivision (c) should be subject to careful scrutiny.

First, the phrase ―[a]s used throughout this Code‖ in section 1170.18,

subdivision (c), when considered in the context of both section 1170.18 and other

provisions of Proposition 47 as a whole, renders the entirety of section 1170.18,

subdivision (c) ambiguous as to its potential application to the resentencing

criteria for the Three Strikes Reform Act. Second, the ballot materials for

Proposition 47 supplied no notice to voters that the measure intended to amend the

resentencing criteria of the Three Strikes Reform Act and that three strike inmates

previously convicted of serious or violent felonies could be released as a

consequence. Third, despite creating detailed procedures for the resentencing of

10

low-level felons to misdemeanants, Proposition 47 provided no similar procedural

guidance for the resentencing of three strike inmates under its definition of

―unreasonable risk of danger to public safety,‖ which further detached any

perceived connection with the Three Strikes Reform Act.

Finally, under the circumstances of this matter, it is unreasonable to assign

dispositive significance to the legal presumptions we normally apply to voters who

approve an initiative in order to interpret the phrase ―[a]s used throughout this

Code.‖ Those presumptions, even if applicable, would not alter our conclusion

that the statutory language is ambiguous and that this ambiguity should be

resolved by construing section 1170.18, subdivision (c) not to apply to petitioners

under other provisions of the Penal Code such as the Three Strikes Reform Act.

Furthermore, as we will explain, neither the initiative‘s text nor its supporting

materials describe any intention to amend the criteria for the resentencing of

recidivist serious or violent felons, and both the Attorney General, who is required

by law to summarize ballot measures, and the Legislative Analyst, who is required

by law to provide and explain to voters a measure‘s potential impacts, did not

interpret the phrase ―[a]s used throughout this Code‖ as referring to the sentencing

criteria for the Three Strikes Reform Act. Given these circumstances, it is

unreasonable to assume or presume that voters, with greater acumen than the legal

professionals of the offices of the Attorney General and Legislative Analyst,

somehow discerned a connection with the Three Strikes Reform Act. Thus, those

legal presumptions provide no assistance in determining whether such a

connection existed.

1. The Rules of Statutory Interpretation

We have long recognized that the language used in a statute or

constitutional provision should be given its ordinary meaning, and ―[i]f the

11

language is clear and unambiguous there is no need for construction, nor is it

necessary to resort to indicia of the intent of the Legislature (in the case of a

statute) or of the voters (in the case of a provision adopted by the voters).‖

(Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) To that end, we generally

must ―accord[] significance, if possible, to every word, phrase and sentence in

pursuance of the legislative purpose,‖ and have warned that ―[a] construction

making some words surplusage is to be avoided.‖ (Dyna-Med, Inc. v. Fair

Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.)

But ―[t]he words of the statute must be construed in context, keeping in

mind the statutory purpose, and statutes or statutory sections relating to the same

subject must be harmonized, both internally and with each other, to the extent

possible.‖ (Dyna-Med, Inc. v. Fair Employment & Housing Com., supra, 43

Cal.3d at p. 1387.) ―Where uncertainty exists consideration should be given to the

consequences that will flow from a particular interpretation.‖ (Ibid.)

2. Prior Cases Involving Ambiguous Statutory Language

A reason to further explore the meaning of statutory language and to

consider extrinsic evidence of legislative intent is where statutory language is

ambiguous when considered ―in the context of the statute and initiative as a

whole.‖ (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.) This is

because an initiative‘s ― ‗language must also be construed in the context of the

statute as a whole‘ ‖ and its ― ‗overall … scheme.‘ ‖ (Professional Engineers in

California Government v. Kempton (2007) 40 Cal.4th 1016, 1037, quoting People

v. Rizo (2000) 22 Cal.4th 681, 685.)

In Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, this

court interpreted the meaning of the phrase ―governing body,‖ as used in Evidence

Code former section 669.5, subdivision (a), a statute that sought to limit growth

12

control legislation ―enacted by the governing body of a city, county, or city and

county.‖ Opponents of a local growth control ordinance, adopted by city voters as

a local initiative, claimed the ordinance was invalid because it did not comply with

the requirements of Evidence Code section 669.5. This court acknowledged that,

under its plain meaning, ―[t]he term ‗governing body‘ excludes the electorate.‖

(Building Industry Assn., supra, 41 Cal.3d at p. 818.) But the court further noted

that ―the words ‗governing body‘ cannot be considered by themselves, but must be

analyzed within the context of the entire statute,‖ which also included an

exception for certain voter-approved initiatives, and when so read, ―[a]mbiguity

does exist within [Evidence Code] section 669.5.‖ (Id. at pp. 818-819, italics

omitted.) This court then reviewed the legislative history of Evidence Code

section 669.5 in order to reach the conclusion that it does apply to growth control

legislation enacted by local initiatives. (Id. at pp. 819-820.)

In Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal.3d

245, this court interpreted a provision of article XIII A, section 3 of the California

Constitution (hereafter, article XIII A, section 3) that stated that any changes in

state taxes collected for increasing revenue ― ‗must be imposed by an Act passed

by no less than two-thirds of all members elected to each of the two houses of the

Legislature . . . .‘ ‖ (Id. at p. 248, quoting Cal. Const., art. XIII A, § 3.)

Opponents of Proposition 99, a measure passed by the voters in 1988 that

increased the tax on tobacco products, contended that article XIII A, section 3

rendered the measure void because only a supermajority of the Legislature may

impose such taxes. This court acknowledged that, considered in isolation, the

plain meaning of article XIII A, section 3 would have such an effect. (Kennedy

Wholesale, supra, 53 Cal.3d at p. 249.) Instead, however, the court found section

3 ―ambiguous when read in the context of the whole Constitution.‖ (Ibid.) We

construed section 3 in light of article IV, section 1 of the state Constitution,

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through which ―the people expressly ‗reserve to themselves the powers of

initiative and referendum.‘ ‖ (Kennedy Wholesale, at p. 249, quoting Cal. Const.,

art. IV, § 1.) Accordingly, we concluded that ―[t]o interpret section 3 as giving the

Legislature exclusive power to raise taxes would implicitly repeal article IV,

section 1, pro tanto‖ even though article XIII A, section 3 ―does not even mention

the initiative power, let alone purport to restrict it.‖ (Kennedy Wholesale, at p.

249.) This court then turned to the ballot materials of the measure that enacted

article XIII A, section 3 and found ―[n]othing in the official ballot pamphlet

supports the inference that the voters intended to limit their own power to raise

taxes in the future by statutory initiative.‖ (Kennedy Wholesale, at p. 250.)

In People v. Hazelton (1996) 14 Cal.4th 101, we interpreted a provision

enacted in 1994 by Proposition 184, the initiative version of the Three Strikes law

that mandated life sentences as the third strike penalty for those who have ― ‗two

or more prior felony convictions, as defined in paragraph (1) of subdivision (b)‘ ‖

of former section 1170.12. (Hazelton, supra, 14 Cal.4th at p. 105, quoting former

§ 1170.12, subd. (c)(2)(A).) At issue was whether former section 1170.12

permitted third strike penalties for similar out-of-state prior felony convictions,

which were defined not in paragraph (1) but in paragraph (2) of subdivision (b) in

section 1170.12. Instead, paragraph (1) defined an eligible prior felony conviction

as ―[a]ny offense defined in subdivision (c) of Section 667.5 as a violent felony or

any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this

state.‖ (Former § 1170.12, subd.(b)(1), as added by Prop. 184, Gen. Elec. (Nov. 8,

1994).) The defendant in Hazelton contended that the life sentence required by

former section 1170.12, subdivision (c)(2)(A), should not apply to him because his

prior out-of-state conviction was not included in ―paragraph (1) of subdivision

(b),‖ and the life sentence provision did not expressly refer to out-of-state felony

14

convictions described in paragraph (2) of subdivision (b) in former section

1170.12.

We rejected this argument by concluding that ―[r]ead in the context of

section 1170.12 as a whole, the language of subdivision (c)(2)(A) is ambiguous

regarding the inclusion of out-of-state convictions . . . .‖ (Hazelton, supra, 14

Cal.4th at p. 105.) This court observed that introductory language in section

1170.12, subdivision (b) stated: ― ‗Notwithstanding any other provision of law and

for the purposes of this section, a prior conviction of a felony shall be defined

as:‘ ‖ followed by the list of subparts that included both paragraph (1) and

paragraph (2) of subdivision (b). (Hazelton, at p. 106, quoting former § 1170.12,

subd. (b).) When read in light of this introductory language, we concluded that

―[s]ubdivision (c)(2)(A), therefore, arguably proffers a different and inconsistent

definition to the extent it limits the definition of a prior felony for purposes of the

three strikes provision to only adult California convictions.‖ (Hazelton, at p. 106.)

As a result, we turned to the ballot materials of the initiative that enacted section

1170.12 and found ―no evidence in the legislative history that the voters intended

to exclude out-of-state convictions from the purview of the initiative‘s third strike

penalty.‖ (Hazelton, at p. 108.)

Consequently, Building Industry Assn., Kennedy Wholesale, and Hazelton

all established that statutory language, even if it appears to have a clear and plain

meaning when considered in isolation, may nonetheless be rendered ambiguous

when the language is read in light of the statute as a whole or in light of the overall

legislative scheme.

3. Ambiguity of Section 1170.18’s Application to the Three Strikes

Reform Act

Section 1170.18, subdivision (c) states: ―As used throughout this Code,

‗unreasonable risk of danger to public safety‘ means an unreasonable risk that the

15

petitioner will commit a new violent felony within the meaning of‖ section 667,

subdivision (e)(2)(C)(iv). The dissents argue this language should have made it

plain to voters that only offenders at risk of committing a super strike could be

denied resentencing under either Proposition 47 or the Three Strikes Reform Act.

But the initiative‘s language is ambiguous when viewed in the context of the

subject matter of Proposition 47 as a whole and, in particular, in the context of

section 1170.18 in which subdivision (c) is located. The ambiguity is

compounded because the alleged effect on the Three Strikes Reform Act is not

reflected in the uncodified provisions of Proposition 47 that set forth the purposes

of the measure.

First, although the words ―as used throughout this code‖ in section 1170.18,

subdivision (c) may appear clear and unambiguous when viewed in isolation, the

ambiguity regarding the intended meaning and scope of subdivision (c) becomes

apparent when this language is viewed in context. To begin with, the subdivision

was enacted as part of an initiative measure — Proposition 47 — whose primary

focus was reducing the punishment for a specifically designated category of low-

level felonies from felony to misdemeanor sentences. The measure did not

purport to alter the sentences for felonies other than those that the measure

reduced to misdemeanors.

Moreover, section 1170.18, subdivision (c) itself contains language that

reasonably supports the conclusion that it was intended to apply only to persons

who are eligible for resentencing to misdemeanors under the provisions of

Proposition 47. To reiterate, 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 . . . .‖

(Italics added.) As the Attorney General contends, the use of the phrase ―the

petitioner‖ in section 1170.18, subdivision (c) is significant because section

16

1170.18, subdivision (a), provides that an eligible person may file a petition for a

recall of sentence in order to reduce the conviction to a misdemeanor, and,

thereafter, the statute repeatedly refers to such a person as ―the petitioner.‖

(§§ 1170.18, subds. (b), (c), (l), (m).) For the reasons described in Justice

Kruger‘s concurring opinion, it is unclear whether the petitioners referred to in

section 1170.18, subdivision (c) include ―any petitioner in any proceeding

governed by any provision of the Penal Code, including Proposition 36‖ or

whether it refers ―only to the lower-level offenders who have petitioned for relief

under Penal Code section 1170.18, subdivision (a).‖ (Conc. opn. of Kruger, J.,

post, at p. 9.) Moreover, the use of the definite article ―the,‖ instead of ―a‖

petitioner, is an indication that Proposition 47‘s definition of ―unreasonable risk of

danger to public safety‖ applies only to those individuals applying for relief under

Proposition 47.

If Proposition 47‘s definition of ―unreasonable risk of danger to public

safety‖ was intended to apply to petitioners both under Proposition 36 and

Proposition 47, then section 1170.18, subdivision (c), should have referred to ―a

petitioner‖ or otherwise made clear that it applied both to individuals seeking

relief under section 1170.18, subdivision (a), and to those seeking relief under

section 1170.126, subdivision (b), part of the Three Strikes Reform Act. To read

the statute as applying to the latter individuals would transform the meaning of the

phrase ―the petitioner.‖

Additionally, the location of the provision in question within section

1170.18 is informative. As noted, section 1170.18 creates the procedure through

which those persons who, having been previously convicted and sentenced for

those low-level felonies now reducible to misdemeanors, may petition to have

their convictions resentenced as misdemeanors.

17

Section 1170.18 begins by listing the previously designated low-level

felony convictions that are eligible for relief under Proposition 47 in subdivision

(a). This is followed by subdivision (b), which describes the criteria a

resentencing court may apply in granting or denying relief to Proposition 47

eligible offenders. (§ 1170.18, subd. (b).) The next subdivision of section

1170.18 is subdivision (c), and it defines the phrase ―unreasonable risk of danger

to public safety,‖ which is one of the resentencing criteria listed in subdivision (b)

for the resentencing of the low-level felonies described in subdivision (a). Thus,

the placement of subdivision (c) tends to reinforce its application to crimes that

had previously been low-level felonies. Given that nothing in the subject matter of

section 1170.18 as a whole suggests a connection to the Three Strikes Reform Act

or serious and violent felonies, the placement of subdivision (c) in section 1170.18

obscures any indication that the subdivision was intended to amend the

resentencing criteria for the Three Strikes Reform Act. (See, e.g., Lonicki v. Sutter

Health Central (2008) 43 Cal.4th 201, 210-211 [relying upon the location of

statutory provision in ascertaining its meaning and scope].)

It is true that the use of the phrase ―[a]s used throughout this Code‖ in

section 1170.18, subdivision (c) could support an alternative interpretation of its

intended scope, under which the limiting definition it sets forth would apply to

persons seeking resentencing under other statutory provisions in addition to

section 1170.18. For this reason, these two opposing interpretations render section

1170.18, subdivision (c) ambiguous. But, as further explained below, the

interpretation that takes into account both the meaning of the phrase ―the

petitioner‖ and the location of subdivision (c) itself within section 1170.18 appears

more consistent with the express purpose and intended scope of Proposition 47, as

stated in its uncodified sections, which we describe below.

18

Second, another indication that section 1170.18, subdivision (c) is

ambiguous rests on the fact that the subdivision, as construed by defendant and the

dissenting opinions, is difficult to reconcile with Proposition 47‘s uncodified

preamble, which was presented to the electorate. The preamble, which describes

Proposition 47 to the voters, contains uncodified sections expressing the measure‘s

―Findings and Declarations‖ and its ―Purpose and Intent.‖ (Voter Information

Guide, Gen. Elec. (Nov. 4, 2014) (Voter Information Guide) text of Prop. 47, §§ 2,

3, p. 70.) ―In considering the purpose of legislation, statements of the intent of the

enacting body contained in a preamble, while not conclusive, are entitled to

consideration.‖ (People v. Canty (2004) 32 Cal.4th 1266, 1280.) As we explain,

these uncodified provisions are inconsistent with and beyond the scope of any

intention to amend the resentencing criteria for the Three Strikes Reform Act or to

release additional three strike inmates.

The initiative‘s Findings and Declarations state that the ―act ensures that

sentences for people convicted of dangerous crimes like rape, murder, and child

molestation are not changed.‖ (Voter Information Guide, supra, text of Prop. 47,

§ 2, p. 70.) Similarly, Proposition 47 reiterates its Purpose and Intent as being to

―[e]nsure that people convicted of murder, rape, and child molestation will not

benefit from this act,‖ and to ―[r]equire misdemeanors instead of felonies for

nonserious, nonviolent crimes like petty theft and drug possession, unless the

defendant has prior convictions for specified violent or serious crimes.‖ (Id., § 3,

p. 70.) The Purpose and Intent of the initiative is also to ―[a]uthorize

consideration of resentencing for anyone who is currently serving a sentence for

any of the offenses listed herein that are now misdemeanors.‖ (Ibid.)

Thus, the expressly stated central objectives of Proposition 47 were to

redesignate specified minor felony offenses as misdemeanors and to permit those

persons previously convicted of these same low-level felonies to seek resentencing

19

as misdemeanors. Proposition 47 further assured voters that persons convicted of

murder, rape, and child molestation would not benefit from Proposition 47 and

specifically declared that the ―act ensures that sentences for people convicted of

dangerous crimes . . . are not changed.‖ (Voter Information Guide, supra, text of

Prop. 47, § 2, p. 70, italics added.)

It is not unreasonable to view the term ―dangerous crimes‖ as

encompassing the serious and violent felonies addressed by both the Three Strikes

law and the Three Strikes Reform Act. The uncodified introductory provisions of

Proposition 47 further assured voters that the measure would reduce low-level

felony convictions to misdemeanors, ―unless the defendant has prior convictions

for specified violent or serious crimes.‖ (Voter Information Guide, supra, text of

Prop. 47, § 3, p. 70.) By design, those convicted under either the former Three

Strikes law or the amended version enacted by Proposition 36 are persons

convicted of dangerous crimes and have prior convictions for various violent or

serious crimes. These uncodified introductory provisions, therefore, are

inconsistent with any intention to make the resentencing provisions of the Three

Strikes Reform Act more favorable to the resentencing and release of three strike

inmates, who are felons with recidivist convictions for serious or violent felonies.

Also, an extension of Proposition 47‘s definition of ―an unreasonable risk

of danger to public safety‖ to the previously enacted Three Strikes Reform Act

would conflict with the measure‘s stated purpose to ―[e]nsure that people

convicted of murder, rape, and child molestation will not benefit from this act.‖

(Voter Information Guide, supra, text of Prop. 47, § 3, p. 70.)

As previously discussed, the list of super strike offenses is limited to a set

of eight categories of serious or violent felonies. (See, ante, p. 2, fn. 3.) The only

sexual offenses included in that set are specific sexually violent offenses involving

threats, force, violence, duress, menace, or fear of immediate and unlawful bodily

20

injury and specific sexual offenses involving minors under the age of 14. (See

§ 667, subd. (e)(2)(C)(iv)(I-VIII).) Thus, contrary to Proposition 47‘s Purpose and

Intent, three strike inmates previously convicted of nonforcible rape or molestation

of a child over the age of 14 would stand to benefit under Proposition 47‘s

definition of ―an unreasonable risk of danger to public safety.‖ Proposition 47‘s

uncodified Purpose and Intent, therefore, appears inconsistent with the application

of the phrase ―[a]s used throughout this Code,‖ under its section 1170.18,

subdivision (c), which would have the effect of extending possible sentencing

relief to convicted rapists and child molesters.

Construing the phrase ―[a]s used throughout this Code‖ as a more

expansive standard to permit the resentencing of three strikes offenders would thus

be inconsistent with Proposition 47‘s uncodified findings, declarations, purpose,

and intent. This stark inconsistency reinforces the conclusion that the meaning of

section 1170.18, subdivision (c) is ambiguous.

4. The Voter Information Materials Concerning Proposition 47

Accordingly, we turn to evidence, outside the measure‘s express provisions,

to ascertain the voter‘s intent in approving the initiative. Specifically, we examine

the materials that were before the voters.5 (Robert L. v. Superior Court (2003) 30

Cal.4th 894, 905 (Robert L.) [in order resolve questions of purpose and ambiguity,

―we look to the materials that were before the voters‖].)

5 Even assuming a few advocacy groups may have predicted that Proposition

47 could affect three strikes resentencing, there is no evidence that the electorate

as a whole, or indeed any significant part of it, was aware of such statements. (See

Farmers Ins. Exchange v. Superior Court (2006) 137 Cal.App.4th 842, 857 [―We

cannot presume that the electorate as a whole was aware of statements made in an

article published in legal periodicals before the election, or in a magazine article

published after the election . . . .‖].)

21

Nothing in the materials accompanying the text of Proposition 47 suggested

that the initiative would alter the resentencing criteria under the previously enacted

Three Strikes Reform Act, resulting in the potential release of additional recidivist

serious or violent felony offenders. ―We cannot presume that . . . the voters

intended the initiative to effect a change in law that was not expressed or strongly

implied in either the text of the initiative or the analyses and arguments in the

official ballot pamphlet.‖ (Farmers Ins. Exchange v. Superior Court, supra, 137

Cal.App.4th at pp. 857-858.)6

Proposition 47 voter information materials focused on describing the

reclassification of certain theft- and drug-related felonies to misdemeanors and did

not make any reference to three strike inmates. For instance, the ―Official Title

and Summary,‖ which was prepared by the Attorney General, states that the

measure ―[r]equires [a] misdemeanor sentence instead of [a] felony for certain

drug possession offenses,‖ as well as ―petty theft, receiving stolen property, and

forging/writing bad checks.‖ (Voter Information Guide, supra, Summary of Prop.

47, p. 34.) The Official Title and Summary further clarifies that a ―felony

6 We recognize that the materials in the ballot pamphlet may not touch on

every aspect of an initiative, no matter how minor. ―A statute, of course, must

prevail over any summary. Were it not so, no statute could ever be enacted whole

and entire. For every summary, by definition, is incomplete.‖ (In re Cervera

(2001) 24 Cal.4th 1073, 1079-1080.) When, for example, an initiative contains a

clear and unambiguous provision that, because of its relatively limited

significance, is not mentioned in ballot summary or arguments, the absence of

such a reference will not nullify its effectiveness. Here, however, the language of

Proposition 47 is not free from ambiguity. And the application of its definition of

dangerousness to inmates seeking resentencing under the Three Strikes Reform

Act is a matter of such substantial import that the voters could reasonably expect

that, if Proposition 47 applied to such inmates, the ballot materials would mention

it.

22

sentence for these offenses‖ would remain intact if the person ―has [a] previous

conviction for crimes such as rape, murder, or child molestation or is [a] registered

sex offender‖ or unless the court ―finds [an] unreasonable public safety risk.‖

(Ibid., italics added.) The Official Title and Summary makes no mention of the

Three Strikes Law, the Three Strikes Reform Act, three strike inmates, or life

sentences for recidivist serious or violent felons.

Nor does the Legislative Analyst‘s Analysis of Proposition 47 included in

the Voter Information Guide make any reference to the Three Strikes Law, the

Three Strikes Reform Act, three strike inmates, or life sentences for recidivist

serious or violent felons. Under the Elections Code, the Legislative Analyst must

―prepare an impartial analysis of the measure describing the measure and

including a fiscal analysis of the measure showing the amount of any increase or

decrease in revenue or cost to state or local government.‖ (Elec. Code, § 9087,

subd. (a).) Accordingly, if the Legislative Analyst had recognized that Proposition

47 would have also negated life sentences and facilitated the resentencing and

release of third strike inmates under the more restrictive definition of an

―unreasonable risk of danger to public safety,‖ the Analyst would have been

required to provide the voters with an estimate of the fiscal scope of such an

application. Yet the analysis provides no estimate of any effect on third strike

offenders and their crimes nor any discussion of the fiscal effects on the state

prison system from the invalidation of life sentences for recidivist serious or

violent felons or on the parole system in handling the release of inmates caused by

a resentencing of third strike inmates under a standard that would be more

favorable to them.

In addition, the Legislative Analyst must provide an analysis that is ―easily

understood by the average voter‖ and it ―may contain background information,

including the effect of the measure on existing law and the effect of enacted

23

legislation which will become effective if the measure is adopted, and shall

generally set forth in an impartial manner the information the average voter needs

to adequately understand the measure.‖ (Elec. Code, § 9087, subd. (b).)

However, the analysis mentions no ―effect‖ on the ―existing‖ Three Strikes

Reform Act. Instead, it focuses on Proposition 47‘s proposal to reduce

punishment for nonserious and nonviolent felony crimes. In explaining what

Proposition 47 proposed, the Legislative Analyst declared: ―This measure reduces

penalties for certain offenders convicted of nonserious and nonviolent property

and drug crimes,‖ and would allow ―certain offenders who have been previously

convicted of such crimes to apply for reduced sentences.‖ (Voter Information

Guide, supra, analysis of Prop. 47, p. 35, italics added.) The analysis then lists the

offenses for which the measure would reduce punishment — grand theft,

shoplifting, receiving stolen property, writing bad checks, check forgery, and drug

possession. (Id. at pp. 35-36.) Thus, the Legislative Analyst discerned that

Proposition 47 would provide reduced punishment for only nonserious and

nonviolent property and drug offenses.7

7 In his dissenting opinion, Justice Liu correctly notes that the analysis

provided by the Legislative Analyst ―may contain background information,

including the effect of the measure on existing law.‖ (Elec. Code, § 9087, subd.

(b), italics added.) Quoting Justice Rushing‘s majority opinion in People v.

Cordova (2016) 248 Cal.App.4th 543 (Cordova), however, his dissent further

contends that the Analyst, under these circumstances, is only required to make ― ‗a

rational judgment about what effects are most likely to matter to voters.‘ ‖ (Dis.

opn. of Liu, J., post, at pp. 21-22, quoting Cordova, supra, 248 Cal.App.4th at p.

559.) But the majority in Cordova cited no authority for its described scope of the

Analyst‘s duties. More important, the majority in Cordova held that Proposition

47‘s definition of ―unreasonable risk of danger to public safety‖ applies to

determinations of dangerousness under the Three Strikes Reform Act of 2012

(Cordova, at p. 578), and we granted review of it (People v. Cordova, rev. granted

Aug. 31, 2016, S236179). Our decision today, therefore, effectively overrules the

majority decision in Cordova. (Cal. Rules of Court, rule 8.1115, subd. (e)(2)

(Footnote continued on next page)

24

Turning to the assessments of Proposition 47‘s impacts, the Legislative

Analyst again focused solely on the effect of the reduction of certain crimes from

felonies to misdemeanors: ―We estimate that about 40,000 offenders annually are

convicted of the above crimes [grand theft, shoplifting, receiving stolen property,

writing bad checks, check forgery, and drug possession] and would be affected by

the measure.‖ (Voter Information Guide, supra, analysis of Prop. 47, at p. 36.)

Furthermore, the Legislative Analyst expressed uncertainty regarding the

measure‘s fiscal impact, noting that ―[i]n particular, it would depend on the way

individuals are currently being sentenced for the felony crimes changed by this

measure.‖ (Ibid.) There was no discussion of the probable fiscal effects related to

the resentencing of third strike inmates, especially notable considering the

significant costs associated with life sentences for recidivist serious or violent

felons.

Finally, the arguments in favor of and opposed to Proposition 47 discussed

only the reductions of certain felonies to misdemeanors and did not mention the

previously enacted Three Strikes Reform Act.8 (Voter Information Guide, supra,

arguments regarding Prop. 47, at pp. 38-39.)

(Footnote continued from previous page)

[―any published opinion of a Court of Appeal in a matter in which the Supreme

Court has ordered review and deferred action pending the decision, is citable and

has binding or precedential effect, except to the extent it is inconsistent with the

decision of the Supreme Court or is disapproved by that court‖].) Moreover,

assuming, without deciding, that Cordova accurately describes the scope of the

Analyst‘s duty under the Elections Code, it would seem logical to conclude that it

would matter to voters whether a measure under their consideration might result in

the release of additional recidivist serious or violent felony offenders.

8 In his dissenting opinion, Justice Cuéllar contends that the ballot arguments

made by opponents of Proposition 47 warned voters that persons with violent

criminal histories might benefit from the measure. (Dis. opn. of Cuéllar, J., post,

(Footnote continued on next page)

25

Accordingly, nothing in the voter information pamphlet for Proposition 47

informed the electorate that the definition of ―unreasonable risk of danger to

public safety,‖ contained in section 14 of the measure, proposed section 1170.18,

subdivision (c), was intended to amend and narrow the resentencing criteria under

Proposition 36, the Three Strikes Reform Act. The materials for Proposition 47

signaled no relationship at all with that prior initiative. In fact, based on the

analysis and summary they prepared, there is no indication that the Legislative

Analyst or the Attorney General were even aware that the measure might amend

the resentencing criteria governing the Three Strikes Reform Act.

5. The Absence of Procedures for Resentencing Third Strike Offenders

under the New Definition

Further weighing against the defendants‘ proposed interpretation of the

phrase ―[a]s used throughout this Code‖ is the fact that Proposition 47 provides no

guidance whatsoever concerning how to implement the resentencing of three strike

inmates under the new definition of ―unreasonable risk of danger to public safety.‖

(§ 1170.18, subd. (c).) Given the effective date of Proposition 47 in 2014, any

amendatory effect on the previously enacted 2012 Three Strikes Reform Act raises

serious procedural questions that the measure does not address. This circumstance

further widens the gap concerning the voters‘ understanding of whether

Proposition 47 would amend the resentencing criteria for three strike inmates.

(Footnote continued from previous page)

at p. 19.) This ballot argument, however, is made in the context of discussing only

the 10,000 felons whose theft- and drug- related convictions would be reduced

under Proposition 47. As previously discussed, the Legislative Analyst made no

estimated count of any three strike inmates that would benefit from the measure

nor did the drafters or proponents of the measure provide such a number.

26

As previously described, Proposition 36, the Three Strikes Reform Act,

took effect on November 7, 2012, and it gave inmates ―two years after the

effective date of the act‖ or ―at a later date upon a showing of good cause‖ to file

any petition for resentencing. (§ 1170.126, subd. (b).) Proposition 47 took effect

on November 5, 2014, two days short of the two-year window enacted by the

Three Strikes Reform Act to file a resentencing petition. Assuming Proposition 47

were construed to amend the Three Strikes Reform Act, its provisions are silent

with respect to whether its definition of ―an unreasonable risk of danger to public

safety‖ in section 1170.18, subdivision (c), would apply only to inmates who had

not yet sought resentencing, or whether it would also apply to inmates whose

resentencing petitions had already been filed but not acted upon, and to those

whose petitions had already been denied.

An application only to inmates who had not yet sought resentencing would

mean that such inmates would have only two days to seek resentencing under the

new definition, unless the passage of Proposition 47 could constitute ―good cause‖

for an untimely resentencing petition under section 1170.126, subdivision (b). In

any event, it is reasonable to infer that, by November 5, 2014, most of the three

strike inmates eligible for resentencing under the Three Strikes Reform Act would

have already petitioned for resentencing.

Even if we were to assume without deciding that the new definition may

apply to any inmate who had filed a resentencing petition, but the proceedings on

that petition were not yet final (see In re Estrada (1965) 63 Cal.2d 740, 744

[without legislative guidance to the contrary, courts ordinarily presume that newly

enacted legislation ameliorating criminal punishment is intended to apply to all

cases not yet reduced to final judgment on the statute‘s effective date]), such an

application would serve, only a subset of third strike inmates — those who had

unsuccessfully petitioned for resentencing and whose judgments on those petitions

27

were not final as of November 5, 2014. Although Proposition 47 created new

procedures for the resentencing of felons as misdemeanants, it created no similar

procedural mechanism enabling previously unsuccessful third strike petitioners to

seek a second opportunity for resentencing using the new definition of ―an

unreasonable risk of danger to public safety.‖ (§ 1170.18, subd. (c).)

If one of the purposes of Proposition 47 was to narrow the criteria

applicable to resentencing third strike offenders, one would expect the drafters to

have addressed at least some of the above described problems. Instead, the

measure was silent on these matters.9 This further exacerbated the unlikelihood

that the Attorney General, the Legislative Analyst, and the voters understood that

the measure would potentially release not just low-level, nonviolent offenders, but

also three strike inmates with repeat convictions for serious and violent felonies.

In fact, had Proposition 47 tried to answer the questions surrounding its procedural

9 As defendants note, following the November 2014 election, one of

Proposition 47‘s drafters, a law professor at Stanford School of Law, stated that

three strike inmates who had been previously denied relief under the resentencing

provisions of the Three Strikes Reform Act ―could return to court and cite

Proposition 47‘s new definition of an ‗unreasonable risk of danger.‘ ‖ (St. John &

Gerber, Prop. 47 jolts landscape of California justice system, L.A. Times (Nov. 5,

2014) online at <http://www.latimes.com/local/politics/la-me-ff-pol-

proposition47-20141106-story.html> [as of July 3, 2017].) But ― ‗[t]he opinion of

drafters or legislators who sponsor an initiative is not relevant since such opinion

does not represent the intent of the electorate and we cannot say with assurance

that the voters were aware of the drafters‘ intent.‘ ‖ (Robert L., supra, 30 Cal.4th

at p. 904.) This caution applies with even greater force here where a single drafter

expressed an intent and interpretation only after the passage of the measure.

28

applicability to the Three Strikes Reform Act, it would have alerted the public to

its proposed direct applicability to that prior measure.10

6. The Presumptions Concerning an Initiative Adopted by Voters

In favor of applying the defendants‘ proposed interpretation, defendants

and the dissents rely heavily on two presumptions we generally apply to measures

approved by the initiative process. The first is the assumption that voters who

approve an initiative are presumed to ― ‗have voted intelligently upon an

amendment to their organic law, the whole text of which was supplied [to] each of

them prior to the election and which they must be assumed to have duly

considered . . . .‘ ‖ (Amador Valley Joint Union High Sch. Dist. v. State Bd. of

Equalization (1978) 22 Cal.3d 208, 243-244, quoting Wright v. Jordan (1923) 192

Cal. 704, 713.) The second is a presumption, which we also apply to the

Legislature, that the voters, in adopting an initiative, did so being ―aware of

existing laws at the time the initiative was enacted.‖ (Professional Engineers in

California Government v. Kempton, supra, 40 Cal.4th at p. 1048; see also In re

Lance W. (1985) 37 Cal.3d 873, 890, fn. 11.)

Even if we assume for the sake of argument that these presumptions apply

here, they do not alter our conclusion that the electorate did not intend to apply

Proposition 47‘s definition of ―unreasonable risk of danger to public safety‖ to

inmates seeking resentencing under the Three Strikes Reform Act, because the

10 Of course, as the dissenters point out, the Legislature can always enact

necessary procedures to implement directives in a voter-enacted measure. But the

utter absence of procedures for revised three strikes resentencing is significant

because the measure included detailed procedures for resentencing Proposition 47

petitioners. Without similar attention to three strikes resentencing, or indeed any

mention of the Three Strikes Reform Act, the measure gave voters no notice of a

potential change in that law.

29

presumptions have no bearing on our determination that the statutory language is

ambiguous and that this ambiguity should be resolved by construing the definition

as inapplicable to those inmates. In any event, we have found compelling reasons

not to apply such presumptions in prior cases, and, to an even greater degree, they

are also inapt in the present matter.

a) The Presumption that Voters Have Considered the Text of the

Laws Proposed by an Initiative

In Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Comm.

(1990) 51 Cal.3d 744 (Taxpayers), we declined to credit the presumption that

voters had thoroughly studied the probable impact of proposed initiatives. (Id. at

pp. 769-770.) There, we considered the voters‘ simultaneous approval of two

overlapping ballot measures regulating campaign contributions and spending. We

examined the reach of California Constitution article II, section 10, subdivision

(b), which provides: ―If provisions of 2 or more measures approved at the same

election conflict, those of the measure receiving the highest affirmative vote shall

prevail.‖ In determining the voters‘ intent, the court had to decide whether this

constitutional provision required the measure with the highest votes to prevail

entirely or whether the rules of statutory construction required the individual

provisions of each measure to be grafted into a hybrid form and put into effect,

despite any conflicting provisions. (Taxpayers, supra, 51 Cal.3d at p. 747.) We

observed that both a state commission and the Court of Appeal had attempted to

reconcile the measures using the latter approach, but noted that each had reached

―divergent conclusions‖ concerning whether various provisions from each

measure were irreconcilable and whether the voters would have adopted various

parts of the measure that had received fewer votes if they had ―not been part of

that measure.‖ (Id. at p. 760.)

30

In rejecting the contention that the voters intended a hybrid version of the

measures if they were both approved, this court acknowledged the ―presumption

that the voters thoroughly study and understand the content of complex initiative

measures.‖ (Taxpayers, supra, 51 Cal.3d at p. 768.) But we refused to assume

further ―that voters not only recognized that they were approving initiatives with

fundamentally conflicting provisions intended to regulate the same subject, but

also analyzed the remaining provisions in order to predict which would be

implemented if either measure received a lesser affirmative vote.‖ (Ibid.) This

court remarked ―that even the most conscientious voters may lack the time to

study ballot measures with that degree of thoroughness.‖ (Id. at p. 770.) ― ‗ ―We

think the assertion may safely be ventured that it is only the few persons who

earnestly favor or zealously oppose the passage of a proposed law initiated by

petition who have attentively studied its contents and know how it will probably

affect their private interests.‖ ‘ ‖ (Ibid., quoting Wallace v. Zinman (1927) 200

Cal. 585, 592-593, quoting in turn State v. Richardson (1906) 48 Or. 309, 319.)

The present case is similar. In defining the phrase ―unreasonable risk of

danger to public safety,‖ it is peculiar that section 1170.18, subdivision (c),

extended that definition to the Three Strikes Reform Act by use of the phrase ―[a]s

used throughout this Code.‖ When Proposition 47 was presented to the voters, the

phrase ―unreasonable risk of danger to public safety‖ appeared in only one other

section of the Penal Code. (§1170.126, subd. (f).) Given this unique

circumstance, it is highly unusual that the drafters of Proposition 47 did not simply

make a direct reference to the single relevant provision intended to be amended —

section 1170.126, the resentencing statute previously enacted by the Three Strikes

Reform Act. Such a direct reference would have expressly disclosed to the voters

a connection between Proposition 47 and the Three Strikes Reform Act. Instead,

Proposition 47 applied its definition of ―unreasonable risk of danger to public

31

safety‖ to the entire Penal Code, which has thousands of sections encompassing

hundreds of thousands of provisions, only one of which was relevant to the

proposed new definition.

Consequently, without an express reference to section 1170.126, part of the

Three Strikes Reform Act, the average voter would not have known the impact or

import of the phrase ―[a]s used throughout this Code‖ in section 1170.18,

subdivision (c), unless they had exhaustively sifted through the voluminous Penal

Code in order to find the single other reference to the phrase ―unreasonable risk of

danger to public safety.‖ We similarly recognized in Taxpayers that it is

unreasonable to presume that the voters had such a ―degree of thoroughness‖ that

they ― ‗ ―attentively studied‖ ‘ ‖ the measure and analyzed various provisions

using the acumen of a legal professional. (Taxpayers, supra, 51 Cal.3d at p. 770.)

Indeed, in the present matter, even professional bodies charged with the

duty of enforcing the law and assessing the effects of proposed legislation did not

identify the need to refer to the Three Strikes Reform Act‘s section 1170.126.

First, the Attorney General‘s Official Title and Summary fails to note or describe

any effect Proposition 47 might have in facilitating the release of serious or violent

recidivist felons. In general, the Official Title and Summary prepared by the

Attorney General plays an important role in preempting voter confusion and

manipulation in the initiative process. If the Attorney General had omitted a key

provision from Proposition 47‘s title and summary, the initiative‘s drafters should

have brought this to her attention during the measure‘s public review period. (See

Elec. Code, §§ 9002, subd. (a), 9004, subd. (a).) Their failure to do so suggests no

32

such change was contemplated.11 Second, the Legislative Analyst‘s Analysis of

Proposition 47, included alongside the Attorney General‘s Official Title and

Summary in the Voter Information Guide, also make no mention of the Three

Strikes Law, the Three Strikes Reform Act, three strike inmates, or the life

sentences for serious or violent recidivist felons.

Defendants and our dissenting colleagues find these circumstances

unremarkable and engage in the fiction that we should still apply the presumption

that the voters thoroughly study and understand the content of complex initiative

11 After the review period, the Attorney General issued the following Official

Title and Summary for Proposition 47, which ultimately appeared on the

November 2014 ballot:

―Criminal Sentences. Misdemeanor Penalties. Initiative Statute.

• Requires misdemeanor sentence instead of felony for certain drug possession

offenses.

• Requires misdemeanor sentence instead of felony for the following crimes when

amount involved is $950 or less: petty theft, receiving stolen property, and

forging/writing bad checks.

• Allows felony sentence for these offenses if person has previous conviction for

crimes such as rape, murder, or child molestation or is registered sex offender.

• Requires resentencing for persons serving felony sentences for these offenses

unless court finds unreasonable public safety risk.

• Applies savings to mental health and drug treatment programs, K-12 schools,

and crime victims.

Summary of Legislative Analyst‘s Estimate of Net State and Local Government

Fiscal Impact:

• Net state criminal justice system savings that could reach the low hundreds of

millions of dollars annually. These savings would be spent on school truancy and

dropout prevention, mental health and substance abuse treatment, and victim

services.

• Net county criminal justice system savings that could reach several hundred

million dollars annually.‖

33

measures, even though the implications for three strikes resentencing were

apparently opaque to the Attorney General and the Legislative Analyst. They

were almost certainly opaque to the average voter as well. It is not reasonable to

apply a presumption of voter awareness when the text of the initiative and the

voter information guide supporting it make no reference whatsoever to any effect

on a different law.12

b) The Presumption that Voters Are Aware of Existing Laws

In Robert L., supra, 30 Cal.4th 894, we refused to presume that voters were

aware of the legal meaning of the term ―wobbler.‖ (See ante, p. 2, fn. 2.) There,

we interpreted the meaning of a gang enhancement adopted by the 2000 electorate

in Proposition 21, finding no evidence presented to the voters of the interpretation

put forth by the defendant. The enhancement provides that ―[a]ny person who is

convicted of a public offense punishable as a felony or a misdemeanor,‖

committed for the benefit of a criminal street gang, is to be punished by

imprisonment in the county jail, or by imprisonment in the state prison for one,

two, or three years. (§ 186.22, subd. (d).) We rejected the defendant‘s contention

that the phrase ― ‗punishable as a felony or a misdemeanor‘ ‖ in Proposition 21

meant that the enhancement applied only to so-called wobbler offenses. (Robert

L., supra, 30 Cal.4th at p. 902.)

12 Concurring with the result in Taxpayers, Justice Mosk warned: ―It is a sad

fact of democratic life that many voters have neither the time nor the will to

scrutinize a measure‘s contents in the detail needed to discern a conflict not

squarely presented in the ballot arguments or title‖ and that the drafter of an

initiative ―could take advantage of this reality to offer the voters a competing

initiative that artfully conceals its true aim by failing to declare its opposition to

the target initiative in materials the voter can readily comprehend.‖ (Taxpayers,

supra, 51 Cal.3d at p. 772 (conc. & dis. opn. of Mosk, J.).)

34

In reaching this conclusion, we first analyzed the statute‘s plain meaning.

We acknowledged that wobblers are the only ―offenses punishable as a

misdemeanor or felony,‖ but we refused to apply the standard presumption that

voters are aware of existing law when approving an initiative. (Robert L., supra,

30 Cal.4th at p. 901, italics omitted.) Although the term ―wobbler‖ is commonly

used by ―attorneys, judges, and law enforcement personnel who are familiar with

criminal law,‖ we observed that the word ―does not have a meaning defined by

statute or commonly understood by the electorate.‖ (Id. at p. 902.) We refused to

attribute this level of knowledge to the electorate such that voters would have

recognized the phrase ―punishable as a felony or a misdemeanor‖ as restricting the

enhancement to ―wobbler‖ offenses. ―We are confident that the average voter,

unschooled in the patois of criminal law, would have [instead] understood the

plain language of section 186.22(d) to encompass all misdemeanors and all

felonies.‖13 (Robert L., at p. 902.)

Similarly, in this matter, without further guidance from Proposition 47‘s

drafters or its Voter Information Guide materials, it is unreasonable to conclude

that the measure‘s reference to an ―unreasonable risk of danger to public safety‖

13 In his dissenting opinion, Justice Cuéllar contends that our holding in

Robert L. did not disregard the presumption that voters are presumed to be aware

of existing laws. (Dis. opn. of Cuéllar, J., post, at p. 23.) But in Robert L., we

rejected the petitioner‘s argument that that ―section 186.22(d) ‗perfectly describes

wobblers,‘ because ‗[w]obblers are the only public offenses punishable as a

misdemeanor or felony,‘ and the voters, who are presumed to know this fact,

therefore intended section 186.22(d) to be limited to wobblers.‖ (Robert L., supra,

30 Cal.4th at p. 901, original italics omitted, new italics added.) In rejecting this

contention, we refused to apply such a presumption, recognizing that ―the average

voter, unschooled in the patois of criminal law, would have understood‖ a

different meaning. (Id. at p. 902.) Thus, in Robert L., we found it unreasonable to

presume that a lay voter would understand or give credit to a term of legal art.

35

would have triggered awareness on the part of voters that this was precisely the

same language applied to govern the resentencing of three strike inmates.

7. Conclusion

The parties agree that the application of Proposition 47‘s definition of an

―unreasonable risk of danger to public safety‖ to the resentencing proceedings of

three strike inmates would ease the burden for recidivist serious or violent

offenders to have their life sentences vacated, and render them more likely to be

released. If Proposition 47 had truly intended to amend the Three Strikes Reform

Act in order to allow additional three strike inmates, who by definition, have

records for multiple serious or violent felonies to be resentenced, one would

expect its drafters to have mentioned or referred to such a purpose and intention in

the measure‘s preamble. They did not.

Moreover, such an amendment necessarily would suggest disfavor with the

broad discretion that Proposition 36, two years earlier, had given resentencing

courts to determine which offenders are too dangerous to the public to be eligible

for resentencing. If Proposition 47 actually intended to curtail this discretion, just

two years after Proposition 36 went into effect, and confine trial courts to consider

only whether the resentencing of a recidivist serious or violent offender posed a

danger of committing one of eight categories of super strike offenses, one would

expect to see some mention of the Three Strikes Law, the Three Strikes Reform

Act, three strike inmates, life sentences, or why the resentencing discretion

required reform in the text of the initiative. But there is none.

Instead, Proposition 47 explicitly assured voters that the sentences of

persons convicted of dangerous crimes and various sex crimes would not change.

In describing to voters Proposition 47‘s title and summary, the Attorney

General failed to note or identify any effect the measure might have in facilitating

36

the release of serious or violent recidivist felons. In describing to voters

Proposition 47‘s effect on public safety, the criminal justice system, and fiscal

policy, the Legislative Analyst also failed to note or identify any effect the

measure might have in facilitating the release of serious or violent recidivist

felons.

Our dissenting colleagues argue that our decision here subverts the will of

the voters and impermissibly interferes with the sanctity of our state‘s initiative

process. On the contrary, adopting the construction advocated by defendants and

the dissents as to the scope of a phrase in a measure without notice to the voters,

not mentioned by the Attorney General or Legislative Analyst, and contrary to the

stated purposes and assurances described in the measure‘s own preamble, would

not protect the voters‘ right to directly enact laws but could very likely encourage

the subversion and manipulation of that democratic right.

―While we are of the opinion that statutes dealing with the initiative should

be liberally construed to permit the exercise by the electors of this most important

privilege, we are also of the opinion that statutes passed for the purpose of

protecting electors from confusing or misleading situations should be enforced.‖

(Clark v. Jordan (1936) 7 Cal.2d 248, 252.) The statutory provisions imposed on

the Attorney General and Legislative Analyst in order to educate voters about the

effect of proposed initiatives and to protect them from being misled or confused,

would have no meaning and would not serve their intended purpose of protecting

the democratic process if we adopted the defendants‘ and the dissents‘

interpretation of Proposition 47. In that scenario we would be imputing to voters

an intent that could not reasonably have existed, where even the Attorney General

and Legislative Analyst, in advising voters, apparently were unaware of that

professed intent.

37

We cannot infer the realization of a voter intent where there was nothing to

enlighten it in the first instance. As we have aptly recognized, and reiterated in

Robert L., ― ‗[i]n the case of a voters‘ initiative statute . . . we 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.‘ ‖14 (Robert L., supra, 30

Cal.4th at p. 909, quoting Hodges v. Superior Court (1999) 21 Cal.4th 109, 114.)

For the reasons described above, we decline to credit defendants‘ proposed

interpretation of section 1170.18, subdivision (c) as enacted by Proposition 47, the

Safe Neighborhoods and Schools Act. Given the circumstances, it is reasonable to

interpret section 1170.18, subdivision (c)‘s definition of an ―unreasonable risk of

danger to public safety‖ as applicable only to the resentencing proceedings that are

authorized under Proposition 47.

14 In addition to the complaint that we are not making a finding of drafting

error, to varying degrees of forcefulness, the dissents also fault us for purportedly

failing to contend that we are not adopting their interpretation on the basis that it

would generate absurd results or that their interpretation would frustrate the

manifest purposes of Proposition 47, regardless of any ambiguity in its language.

But there is no value in raising and then rejecting arguments that the majority does

not rely upon to reach its ultimate conclusion. (Branch v. Smith (2003) 538 U.S.

254, 280-281 [addressing the dissent‘s various irrelevant arguments in favor of a

different interpretation of redistricting statutes].) The arguments distract from the

question of whether Proposition 47, as a whole, is ambiguous as to any intent to

facilitate the release of recidivist serious and violent felons in light of the

measure‘s express promise that dangerous criminals would not benefit from the

act. Nor do the dissents adequately address the omission by the entities entrusted

to ensure that voters are fully informed and not misled by the provisions of an

initiative, the Attorney General and the Legislative Analyst.

38

C. Equal Protection Does Not Compel the Application of Proposition

47’s Definition of “Unreasonable Risk of Danger to Public Safety”

to the Three Strikes Reform Act

We further conclude that refusing to construe Proposition 47‘s definition as

applicable to the previously enacted Three Strikes Reform Act does not violate

equal protection or due process; nor does our determination raise any question

concerning cruel and unusual punishment under the federal Constitution.

―The concept of equal protection recognizes that persons who are similarly

situated with respect to a law‘s legitimate purposes must be treated equally.

[Citation.] Accordingly, ‗ ―[t]he first prerequisite to a meritorious claim under the

equal protection clause is a showing that the state has adopted a classification that

affects two or more similarly situated groups in an unequal manner.‖ ‘ [Citation.]

‗This initial inquiry is not whether persons are similarly situated for all purposes,

but ―whether they are similarly situated for purposes of the law challenged.‖ ‘

[Citation.]‖ (People v. Brown (2012) 54 Cal.4th 314, 328, italics omitted.)

It is not difficult to conclude that those resentenced under Proposition 36

are not similarly situated to those resentenced under Proposition 47. These are

two very different populations of offenders. As the text of Proposition 47

indicates, that measure focused on offenders convicted of a set of low-level,

nonserious, nonviolent felonies and reduced them to misdemeanors. In contrast,

Proposition 36 concerned the resentencing of recidivist offenders who had two

prior violent or serious felony convictions and a third nonserious, nonviolent

felony conviction, and who are serving terms of 25 years to life. Obviously, those

recidivists with criminal records involving serious or violent felonies, who may

have already been incarcerated for a lengthy period, raise concerns for public

safety different from those who committed what were previously low-level

felonies. Thus, the two groups are not similarly situated for purposes of

resentencing because one group consists of recidivist serious or violent offenders,

39

who may have the propensity to commit serious or violent felony crimes and the

other generally consists of low-level offenders.15

For these same reasons, the defendants‘ Eighth Amendment challenge fails

as well because there is a valid reason to apply less lenient resentencing criteria to

third strike offenders, as opposed to low-level offenders whose crimes are now

reclassified as misdemeanors.

Because we hold that Proposition 47‘s definition of ―unreasonable risk of

danger to public safety‖ does not apply to resentencing proceedings under the

Three Strikes Reform Act, we need not address whether, in People v. Chaney

(S223676), that definition applies retroactively to petitions that a court has already

denied but are not yet final on appeal.

15 Accordingly, we also reject application of the rule of statutory construction

that when statutes are in pari materia similar phrases appearing in each should be

given like meanings because Proposition 47 and the Three Strikes Reform Act do

not address the same subject. (California Fed. Savings & Loan Assn. v. City of

Los Angeles (1995) 11 Cal.4th 342, 352.) In addition, we observe that this

doctrine might carry greater force concerning provisions enacted by the same

initiative or initiatives on the same ballot. But here, the electorate that enacted

Proposition 47 in 2014 was obviously different from the one that had endorsed

Proposition 36 in 2012. More important, because the voters in 2014 were not

advised of any overlap between the two measures when they considered

Proposition 47, reliance on the appearance of the phrase ―unreasonable risk of

public safety‖ as proof that voters intended the same meaning is not justified,

especially where the later measure, at best, tacitly attempted to amend the same

language used in the former measure.

40

III. DISPOSITION

For the foregoing reasons, we affirm the judgments of the Courts of Appeal

in both People v. Valencia (S223825) and People v. Chaney (S223676).

CANTIL-SAKAUYE, C. J.

WE CONCUR:

CHIN, J.

CORRIGAN, J.

KRUGER, J.

41

CONCURRING OPINION BY KRUGER, J.

A provision of the Safe Neighborhoods and Schools Act of 2014 (better

known as Proposition 47) permits inmates serving felony sentences for certain

drug- and theft-related offenses to petition to have their sentences recalled and to

be resentenced as misdemeanants. (Pen. Code, § 1170.18, subd. (a).) If the

inmate otherwise satisfies the statutory criteria for resentencing, the court must

grant the petition unless it ―determines that resentencing the petitioner would pose

an unreasonable risk of danger to public safety.‖ (Id., subd. (b).) The provision

goes on to specify that, ―[a]s used throughout this Code, ‗unreasonable risk of

danger to public safety‘ means an unreasonable risk that the petitioner will

commit‖ one of an enumerated list of violent felonies, colloquially known as super

strikes. (Id., subd. (c) (section 1170.18(c)); see Pen. Code, § 667, subd.

(e)(2)(C)(iv).)

The question before us is whether this definition of ―unreasonable risk of

danger to public safety‖ applies only to petitioners who seek resentencing under

Proposition 47, or whether it also applies to individuals who have petitioned for

relief under a different provision of the Penal Code — specifically, life prisoners

seeking resentencing under the earlier enacted Three Strikes Reform Act of 2012

(better known as Proposition 36), which contains a parallel recall procedure. I

agree with the majority that the text of this definitional provision contains

conflicting indications about its intended scope. I also agree that standard

interpretive aids resolve the ambiguity in favor of the narrower interpretation.

Every other provision of Proposition 47 reflects a clear and exclusive focus on

affording relief to individuals who have committed specified drug- and theft-

related offenses, and neither the stated purposes of the proposition nor the ballot

materials alerted voters to any possibility that a favorable vote might also result in

a significant change to the separate statutory scheme governing the resentencing of

life prisoners under the ―Three Strikes‖ law. Although this is certainly a choice

the voters could make, I do not think we can say it is a choice the voters have

already made.

I.

At issue in this case are two related statutory schemes: Proposition 36,

which amended the Three Strikes law, and Proposition 47. As first enacted in

1994, the Three Strikes law provided that the prison sentence of a defendant

convicted of a felony who had a single prior conviction for a violent or serious

felony (a strike) was doubled (Pen. Code, § 1170.12, former subd. (c)(1)), and a

defendant convicted of a felony (no matter how minor) who had two or more prior

strikes would be sentenced to a minimum of 25 years to life in prison (id., former

subd. (c)(2)).1 Nearly 20 years later, partly in response to the swelling prison

population and rising incarceration costs, voters passed Proposition 36. It

provides that a defendant with two prior strikes who commits a felony that is

1 What is commonly referred to as the Three Strikes law ―consists of two,

nearly identical statutory schemes‖: the first enacted by the Legislature in March

1994 (Pen. Code, former § 667, subds. (b)-(i)), and the second enacted by ballot

initiative in November 1994 (Pen. Code, former § 1170.12, added by Prop. 184, as

approved by voters, Gen. Elec. (Nov. 8, 1994)). (People v. Superior Court

(Romero) (1996) 13 Cal.4th 497, 504-505.)

2

neither violent nor serious is no longer subject to a 25-years-to-life sentence;

instead, the sentence is merely doubled, as is the case for a defendant with only

one prior strike. (Pen. Code, §§ 667, subd. (e), 1170.12, subd. (c).)

Proposition 36 also permits inmates who, before its enactment, had

received a life sentence under the Three Strikes law as the result of a conviction of

a nonserious and nonviolent felony with two or more prior strikes to file a petition

asking the trial court to instead impose a second-strike sentence. (Pen. Code,

§ 1170.126.) But not all such inmates may apply. Those whose third strike was a

sex offense, involved large amounts of drugs, involved a firearm or deadly

weapon, or was committed with the intent to inflict great bodily injury may not

seek resentencing. (Pen. Code, § 1170.12, subd. (c)(2)(C).) Also barred from

applying are inmates with prior convictions for certain extremely serious crimes

that have come to be referred to as super strikes: violent sex crimes, child

molestation, homicide, solicitation of murder, assaulting a police officer or

firefighter with a machine gun, possession of a weapon of mass destruction, or any

crime punishable by life imprisonment or death. (Id., subd. (c)(2)(C)(iv).)

Finally, the trial court may deny a petitioner‘s request for resentencing when ―the

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

unreasonable risk of danger to public safety‖ (Pen. Code, § 1170.126, subd. (f),

italics added), based on the petitioner‘s criminal record, disciplinary record in

prison, and other relevant evidence. Proposition 36 did not define the phrase

―unreasonable risk of danger to public safety.‖

In November 2014, two years after the enactment of Proposition 36, the

voters approved Proposition 47. Proposition 47 reclassifies certain drug offenses

and theft-related crimes, which previously were either felonies or wobblers, as

misdemeanors. Much like Proposition 36, Proposition 47 creates a recall

procedure that permits previously sentenced individuals to seek the benefit of its

3

ameliorative changes to the law. Such a petition may be brought by a person

whose felony conviction was based on conduct that the initiative reclassified as a

misdemeanor (Pen. Code, § 1170.18, subd. (a)), but resentencing may be denied

when ―the court, in its discretion, determines that resentencing the petitioner

would pose an unreasonable risk of danger to public safety‖ (id., subd. (b)), based

on the petitioner‘s criminal record, disciplinary record in prison, and other relevant

evidence. But unlike Proposition 36, Proposition 47 defines ―unreasonable risk of

danger to public safety‖: ―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.‖ (Id., subd. (c).) The specified

clause lists the super strikes. In other words, section 1170.18(c) states that a court

may find a petitioner to be dangerous to public safety only if it finds that there is

an unreasonable risk that the petitioner will commit a super strike offense.

II.

The question before us is one of statutory interpretation: whether

Proposition 47‘s definition of ―unreasonable risk of danger to public safety,‖ set

forth in section 1170.18(c), applies to petitioners who have received life sentences

under the Three Strikes law and are seeking resentencing under Proposition 36.

California cases have established a set of standard rules for the construction

of voter initiatives. ―We interpret voter initiatives using the same principles that

govern construction of legislative enactments. [Citation.] Thus, we begin with the

text as the first and best indicator of intent. [Citations.] If the text is ambiguous

and supports multiple interpretations, we may then turn to extrinsic sources such

as ballot summaries and arguments for insight into the voters‘ intent.‖ (People

v. Mentch (2008) 45 Cal.4th 274, 282.) On the other hand, ― ‗ ―[i]f there is no

ambiguity, then we presume the lawmakers meant what they said,‖ ‘ ‖ and the

4

plain meaning of the language ordinarily will govern. (Mays v. City of Los

Angeles (2008) 43 Cal.4th 313, 321.) In interpreting a voter initiative, we ―give

effect to the voters‘ formally expressed intent, without speculating about how they

might have felt concerning subjects on which they were not asked to vote.‖ (Ross

v. RagingWire Telecom., Inc. (2008) 42 Cal.4th 920, 930 (Ross).)

Proposition 47‘s resentencing provision states, as relevant here: ―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(c).) The central interpretive task before us is to identify

the ―petitioner[s]‖ to whom this provision refers. Does it refer to petitioners

seeking resentencing under the provisions of Proposition 47? Or does it refer to

any petitioner in any proceeding provided for in the Penal Code — in which case

the definition also applies to life prisoners seeking resentencing under Proposition

36?

The text of section 1170.18(c) alone does not provide a clear answer. On

the one hand, the breadth of the introductory clause of section 1170.18(c) (―As

used throughout this Code‖) suggests that the ―unreasonable risk‖ definition is

designed to apply broadly, for purposes of evaluating the dangerousness of any

―petitioner‖ in any petition proceeding under any provision of the Penal Code.

And not coincidentally, the phrase ―unreasonable risk of danger to public safety‖

appears only in one other place in the Penal Code: the earlier-enacted, parallel

resentencing provision of Proposition 36 (§ 1170.126, subd. (f)), which contains

an essentially identical petition procedure.

But on the other hand, reading section 1170.18(c) in the context of

surrounding provisions, the focus of the provision appears much narrower.

Subdivision (a) of Penal Code section 1170.18 explains that ―[a] person . . .

5

serving a sentence for a conviction . . . of a felony or felonies who would have

been guilty of a misdemeanor under the act that added this section . . . may

petition for a recall of sentence . . . .‖ The next subdivision explains that ―[u]pon

receiving a petition under subdivision (a), the court shall determine whether the

petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the

criteria in subdivision (a), 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. In exercising its discretion, the court may consider all of

the following: [¶] (1) The petitioner’s criminal conviction history . . . . [¶]

(2) The petitioner’s disciplinary record and record of rehabilitation . . . . [¶]

(3) Any other evidence the court . . . determines to be relevant . . . .‖ (Pen. Code,

§ 1170.18, subd. (b), italics added.)

In total, the phrase ―the petitioner‖ appears seven times in subdivision (b)

of Penal Code section 1170.18. Each time, the phrase is unmistakably used to

refer to a person who has filed ―a petition under subdivision (a)‖ — that is, a

person who ―would have been guilty of a misdemeanor‖ under Proposition 47 and

has asked to be resentenced accordingly, barring a finding that his or her

resentencing ―would pose an unreasonable risk of danger to public safety.‖ The

natural inference is that when the very next subdivision of the statute supplies a

definition of ―unreasonable risk‖ that refers to the ―risk that the petitioner will

commit a new [super strike]‖ (§ 1170.18(c), italics added), the definition uses the

phrase in the same way — that is, to refer to a person who has filed a petition

under subdivision (a) to reduce a conviction for a minor felony or wobbler to a

misdemeanor, and not to other persons who have filed other petitions in other

proceedings governed by other provisions of the Penal Code. (See, e.g., People

v. Blackburn (2015) 61 Cal.4th 1113, 1125 [― ‗it is generally presumed that when

6

a word is used in a particular sense in one part of a statute, it is intended to have

the same meaning if it appears in another part of the same statute‘ ‖]; Wilcox v.

Birtwhistle (1999) 21 Cal.4th 973, 979 [―words or phrases given a particular

meaning in one part of a statute must be given the same meaning in other parts of

the statute‖]; see also Department of Revenue of Ore. v. ACF Industries, Inc.

(1994) 510 U.S. 332, 342 [― ‗ ― ‗identical words used in different parts of the same

act are intended to have the same meaning‘ ‖ ‘ ‖].)

The remainder of the statute reinforces the inference. The phrase ―the

petitioner‖ appears in just two other places in the statute, and each time, it again

clearly refers to persons who have filed a petition authorized by subdivision (a).

(See Pen. Code, § 1170.18, subd. (l) [―If the court that originally sentenced the

petitioner is not available, the presiding judge shall designate another judge to rule

on the petition or application.‖]; id., subd. (m) [―Nothing in this section is intended

to diminish or abrogate any rights or remedies otherwise available to the petitioner

or applicant.‖].)

Defendants argue that if the ―unreasonable risk‖ definition in section

1170.18(c) does not apply to Proposition 36 petitioners, then the introductory

language providing that the definition is to apply ―throughout this Code‖ is

superfluous. Because no other provision of the Penal Code applies to Proposition

47 petitioners, section 1170.18(c) would operate no differently had the drafters of

Proposition 47 omitted the introductory clause entirely. But while we do generally

strive to construe enactments to avoid rendering any word or provision surplusage

(City of Alhambra v. County of Los Angeles (2012) 55 Cal.4th 707, 724), we have

also made clear that, like all such interpretive canons, the canon against surplusage

is a guide to statutory interpretation and is not invariably controlling. (People v.

Cruz (1996) 13 Cal.4th 764, 782; see also In re J.W. (2002) 29 Cal.4th 200, 209;

accord, e.g., Arlington Central School Dist. Bd. of Ed. v. Murphy (2006) 548 U.S.

7

291, 299, fn. 1 [―While it is generally presumed that statutes do not contain

surplusage, instances of surplusage are not unknown.‖]; Lamie v. United States

Trustee (2004) 540 U.S. 526, 536 [―[O]ur preference for avoiding surplusage

constructions is not absolute.‖].)2

In truth, either interpretation of section 1170.18(c) raises oddities. If we

accept the proposition that the phrase ―throughout this Code‖ must be given

independent significance, then we also must accept that Proposition 47 contains a

definitional provision that uses the phrase ―the petitioner‖ differently from every

other provision of the Act in which that phrase appears — including its

2 Justice Liu‘s dissenting opinion suggests that a reviewing court may

construe statutory language as surplusage only when the resulting interpretation

renders that language redundant. (Dis. opn., of Liu, J., p. 5.) There is, however,

no such rigid rule; other instances of surplusage, too, are not unknown. (See, e.g.,

King v. Burwell (2015) ___ U.S. ___, ___-___ [135 S.Ct. 2480, 2489-2492];

Chickasaw Nation v. United States (2001) 534 U.S. 84, 89-90 (Chickasaw

Nation); People v. Watts (2016) 2 Cal.App.5th 223, 236-237.)

In Chickasaw Nation, for example, the United States Supreme Court held

that a statutory cross-reference should be treated as surplusage, even though doing

so gave no effect to the language at issue. (Chickasaw Nation, supra, 534 U.S. at

p. 94; see also pp. 97-98 (dis. opn. of O‘Connor, J.).) The court explained that it

was impossible to give effect to the cross-reference without either ―seriously

rewriting the language of the rest of the statute‖ (id. at p. 89) or adopting a

construction that, though ―comprehensible,‖ would expand the statute well beyond

its apparently intended scope (id. at p. 90). The court further explained that while

courts ordinarily endeavor to ―give effect to each word ‗if possible,‘ ‖ that canon

of construction ―is sometimes offset by the canon that permits a court to reject

words ‗as surplusage‘ if ‗inadvertently inserted or if repugnant to the rest of the

statute . . . .‘ [Citation.] And the latter canon has particular force here where the

surplus words consist simply of a numerical cross-reference in a parenthetical.‖

(Id. at p. 94; see also pp. 90-91, 92 [concluding that Congress had simply ―fail[ed]

to delete an inappropriate cross reference‖ that ―might easily escape notice‖ in the

legislative process.) This case raises similar considerations, though it does not

concern the meaning of a specific cross-reference to another statute; it instead

concerns the meaning of a general reference to the Penal Code, which, it is argued,

should be understood as an oblique cross-reference to Proposition 36.

8

immediately preceding subdivision, in which the same phrase appears no fewer

than seven times, and which contains the operative ―unreasonable risk‖ language

to which the definition attaches. This, too, would be a departure from ordinary

interpretive rules.

All this leads to the unavoidable conclusion that the text of section

1170.18(c)‘s ―unreasonable risk‖ definition is indeed ambiguous. It is possible

that it was meant to apply to any petitioner in any proceeding governed by any

provision of the Penal Code, including Proposition 36. It is also possible that it

applies only to the lower-level offenders who have petitioned for relief under

Penal Code section 1170.18, subdivision (a). To determine section 1170.18(c)‘s

intended scope, we must look beyond the provision itself.

This wider look ultimately settles the matter, because, with the arguable

exception of section 1170.18(c)‘s introductory phrase, every other provision of the

initiative focuses exclusively on the category of offenders covered by Proposition

47‘s operative provisions — that is, the lower-level offenders who have committed

certain drug- and theft-related crimes the law now treats as misdemeanors. No

provision of Proposition 47 manifests an intent to change the law applicable to

other categories of offenders, nor were the voters otherwise informed that their

vote on the initiative might result in any such change.

Uncodified section 3 of Proposition 47, entitled ―Purpose and Intent,‖

identifies six statutory purposes: (1) to ―[e]nsure that people convicted of murder,

rape, and child molestation will not benefit from this act,‖ (2) to create a ―Safe

Neighborhoods and Schools Fund,‖ (3) to ―[r]equire misdemeanors instead of

felonies for nonserious, nonviolent crimes like petty theft and drug possession,

unless the defendant has prior convictions for specified violent or serious crimes,‖

(4) to ―[a]uthorize consideration of resentencing for anyone who is currently

serving a sentence for any of the offenses listed herein that are now

9

misdemeanors,‖ (5) to ―[r]equire a thorough review of criminal history and risk

assessment of any individuals before resentencing to ensure that they do not pose a

risk to public safety,‖ and (6) to ―save significant state corrections dollars‖ and to

―increase investments in programs that reduce crime and improve public safety.‖

(Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, at p. 70.)

The fourth and fifth items on this list describe the purposes of Proposition

47‘s resentencing provision: namely, to permit persons who have been convicted

of specified minor offenses that the initiative designates as misdemeanors to

obtain reduction of their sentences, while ensuring that none of those individuals

―pose[s] a risk to public safety.‖ (Voter Information Guide, supra, at p. 70.)

Neither provision contains any indication that the voters also intended the

resentencing provision to make a significant alteration to the existing law

governing resentencing for life prisoners under Proposition 36. On the contrary,

uncodified section 3 suggests that, as far as resentencing is concerned, the only

persons to whom section 1170.18(c) applies are those ―currently serving a

sentence for any of the offenses listed herein that are now misdemeanors.‖ (Voter

Information Guide, supra, at p. 70.)

The remaining text of Proposition 47 is to similar effect. (See Horwich v.

Superior Court (1999) 21 Cal.4th 272, 276 [― ‗we do not construe statutes in

isolation, but rather read every statute ―with reference to the entire scheme of law

of which it is part so that the whole may be harmonized and retain

effectiveness‖ ‘ ‖].) It describes the reclassification of certain felonies and

wobblers as misdemeanors, it explains the relief that is available to persons

previously convicted of those offenses as felonies, and it discusses what to do with

the money saved by the reclassification. The initiative makes no reference to any

other provision of law, including Proposition 36 or the Three Strikes law, or to any

10

other kind of petition besides the recall petition authorized by Penal Code section

1170.18, subdivision (a).

As the majority opinion explains (maj. opn., ante, at pp. 21-26), the ballot

materials accompanying Proposition 47 also focus exclusively on the lower-level

offenders who are the subject of Proposition 47‘s operative provisions. (See

Robert L. v. Superior Court (2003) 30 Cal.4th 894, 905 [to determine the voters‘

intent in adopting ambiguous language, ―we look to the materials that were before

the voters‖].) On the subject of resentencing, the analysis of the initiative

prepared by the Legislative Analyst states that Proposition 47 ―reduces penalties

for certain offenders convicted of nonserious and nonviolent property and drug

crimes,‖ and ―allows certain offenders who have been previously convicted of

such crimes to apply for reduced sentences‖ (Voter Information Guide, supra, at

p. 35). After describing the crimes that are reduced to misdemeanors by the

initiative, the analysis states that an offender who is serving a felony sentence for

one of those crimes may ―apply to the court to have their felony conviction

changed to a misdemeanor.‖ (Id. at p. 36.) The analysis contains no indication

that the initiative‘s definition of dangerousness would also apply to inmates

sentenced under the Three Strikes law who are seeking reduction of their sentence

under Proposition 36.

This omission is not, of course, dispositive. But neither is it irrelevant. Our

cases recognize that, as a practical matter, voters often rely on the experts

employed by the Attorney General and the Legislative Analyst to summarize

proposed initiatives and to discuss their significant effects. Here, the use of the

phrase ―[a]s used throughout this Code‖ in section 1170.8(c) was, it appears,

sufficiently oblique that neither the Attorney General nor the Legislative Analyst

appeared to recognize the possibility that its purpose might be to make a

significant amendment to the resentencing provisions of Proposition 36. When

11

these trained experts were apparently unaware of the initiative‘s possible effect on

Proposition 36, and thus did not alert the voters to the possibility of such an effect,

it becomes more difficult to conclude that the voters understood that a ―yes‖ vote

would have that consequence.

The ballot arguments both for and against Proposition 47 likewise made no

mention of petitioners seeking relief under Proposition 36. As pertinent to the

resentencing provision, the proponents argued that the initiative ―[s]tops wasting

prison space on petty crimes and focuses law enforcement resources on violent

and serious crime‖ (Voter Information Guide, supra, at p. 38), and that it ―[s]tops

wasting money on warehousing people in prisons for nonviolent petty crimes‖

(ibid.), whereas the opponents stressed that the initiative would make thousands of

felons eligible for early release and that judges could block their release only in

very rare cases. Neither side suggested that Proposition 47 might have any effect

on other categories of offenders.

Finally, the circumstances surrounding the enactment of Proposition 47

reinforce this conclusion. Proposition 36 prescribed a two-year window,

beginning on November 7, 2012, during which life prisoners could file a petition

for resentencing. Proposition 47 took effect on November 5, 2014, two days

before that window closed. Had the voters intended to make significant changes

to the procedures governing Proposition 36 resentencing so shortly before the

window closed, one might have expected to see some acknowledgment of this

state of affairs, if not some effort to address how the changes might apply to

petitions that had already been filed or adjudicated. Proposition 47 contains no

such acknowledgment.

In sum, aside from the unelaborated reference to ―this Code‖ in section

1170.18(c)‘s definitional provision, every provision of the statute, as well as the

ballot materials accompanying the initiative, focuses exclusively on the

12

mechanisms for providing relief for the lower-level offenders covered by

Proposition 47 itself. All available interpretive aids thus point in the same

direction: The phrase ―the petitioner‖ in section 1170.18(c) refers to an offender

seeking to reduce convictions for specified minor felonies to misdemeanors under

Proposition 47.3

III.

It is entirely possible that, if the choice had been put to them, the voters

might have decided that Proposition 47‘s definition of ―unreasonable risk of

danger to public safety‖ should apply equally to inmates serving life sentences

under the Three Strikes law who are seeking resentencing under Proposition 36.

Proposition 36 itself supplied no definition of the term, instead conferring more

open-ended discretion on judges to evaluate a life prisoner‘s dangerousness. (Cf.

People v. Conley (2016) 63 Cal.4th 646, 659 [advising that the public safety

requirement ―must be applied realistically, with careful consideration of the [Three

3 To read the statute otherwise would, I fear, lay the groundwork for abuse of

the initiative system. I see no reason to question the intentions or good faith of the

drafters of Proposition 47 — neither of which is particularly relevant to the

analysis in any event. But if the drafters had intended to submit to voters a

provision that modified the existing resentencing scheme under Proposition 36,

they chose a curious way to accomplish that goal. To give dispositive effect to an

oblique reference to an entire statutory code, in the face of considerable evidence

suggesting the intended scope of the statute is materially narrower, would

undoubtedly encourage drafters in future cases to deploy similarly oblique

references to hide the true scope of proposed legislation from the electorate.

The alternative is to recognize the practical reality that voters are

sometimes asked to vote on statutory language that is not drawn with the precision

one might hope for. In the initiative process, there are no hearings, no committee

reports, no opportunities to propose amendments from the floor. Our job,

ultimately, is to give effect to the voters‘ intent, ―without speculating about how

they might have felt concerning subjects on which they were not asked to vote.‖

(Ross, supra, 42 Cal.4th at p. 930.)

13

Strikes] Reform Act‘s purposes of mitigating excessive punishment and reducing

prison overcrowding‖].) There is nothing inherently improbable or absurd about a

conclusion that life prisoners should be entitled to resentencing under Proposition

36 unless a court determines that there is an unreasonable risk that they will

commit future super strikes. That is not the only possible policy choice the voters

could make, but it is a plausible one.

But voters can make that choice only if the question is presented in the

initiative on which they have been asked to vote. The question was not presented

in Proposition 47, and so it is not a choice we can say the voters have already

made.

Voter initiatives play a unique role in California‘s system of government.

They are designed to ―enable the people to amend the state Constitution or to enact

statutes when current government officials have declined to adopt (and often have

publicly opposed) the measure in question.‖ (Perry v. Brown (2011) 52 Cal.4th

1116, 1125.) In interpreting a voter initiative, we are bound to respect both the

choices the voters have made and the limits of those choices. ―For a court to

construe an initiative statute to have substantial unintended consequences

strengthens neither the initiative power nor the democratic process . . . .‖ (Ross,

supra, 42 Cal.4th at p. 930.) For these reasons, I concur.

KRUGER, J.

WE CONCUR:

CHIN, J.

CORRIGAN, J.

14

DISSENTING OPINION BY LIU, J.

In 1994, California voters enacted the ―Three Strikes‖ law, one of the

toughest sentencing laws in the country. This measure required any person

convicted of two prior serious or violent felonies to receive a sentence of 25 years

to life imprisonment for a third felony conviction, even if the third felony was not

serious or violent. (Pen. Code, former § 1170.12, subds. (b), (c)(2)(A); all

undesignated statutory references are to the Penal Code.) For over two decades,

we have applied the Three Strikes law in accordance with its plain meaning, and

we have done so regardless of whether the text, history, or ballot materials

addressed the particular application of the statute at issue. (See In re Cervera

(2001) 24 Cal.4th 1073, 1078–1080 (Cervera); People v. Deloza (1998) 18 Cal.4th

585, 594; People v. Benson (1998) 18 Cal.4th 24, 30–35; People v. Fuhrman

(1997) 16 Cal.4th 930, 939.) Today the court departs from plain meaning in

deciding whether the terms of a recent initiative broaden a statutory entitlement to

resentencing for certain inmates whose third strike was neither serious nor violent.

This turnabout is as unorthodox in its methodology as it is unsettling in its

implications for the initiative process and the limited role of courts in interpreting

statutes.

In 2012, the California electorate passed Proposition 36. This initiative

reduced the punishment for nonviolent, nonserious third-strike felonies and allows

eligible persons who had received third-strike sentences for such felonies to

petition for resentencing. (§ 1170.126.) An eligible petitioner ―shall be

resentenced . . . 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 2014, California voters passed Proposition 47. This measure reduced

certain low-level crimes from felonies to misdemeanors and allows eligible

persons previously convicted of such crimes to seek recall of the felony sentence

and resentencing to a misdemeanor. (§ 1170.18, subd. (a).) An eligible person

―shall‖ be resentenced ―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).) Proposition 47 then says: ―As used throughout

this Code, ‗unreasonable risk of danger to public safety‘ means an unreasonable

risk that the petitioner will commit‖ one of several particularly violent felonies

known as ―super strikes.‖ (§ 1170.18, subd. (c) (hereafter section 1170.18(c)).)

Everyone agrees that ―this Code‖ means the Penal Code and that the resentencing

provision of Proposition 36 is the only other place in the Penal Code where the

term ―unreasonable risk of danger to public safety‖ is used.

The question here is whether Proposition 47‘s definition of ―unreasonable

risk of danger to public safety‖ applies to that term as used in Proposition 36. The

plain meaning of section 1170.18(c) supplies the answer: Proposition 47‘s

definition applies to that term ―[a]s used throughout this Code‖ (§ 1170.18(c)), and

Proposition 36‘s resentencing provision is part of the Penal Code.

Instead of following this straightforward analysis, the court today nullifies

the phrase ―As used throughout this Code‖ in section 1170.18(c). This judicial

override of statutory text defies basic rules of interpretation and the democratic

values those rules are designed to serve. We interpret voter initiatives as we

interpret all legislative enactments: ― ‗we begin with the text as the first and best

2

indicator of intent.‘ ‖ (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310,

321.) ― ‗Absent 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.] Of course, in construing the statute, ‗[t]he words . . .

must be read in context, considering the nature and purpose of the statutory

enactment.‘ ‖ (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294,

301 (Lungren).) ― ‗A court must, where reasonably possible, harmonize statutes,

reconcile seeming inconsistencies in them, and construe them to give force and

effect to all of their provisions.‘ ‖ (Pacific Palisades Bowl Mobile Estates, LLC v.

City of Los Angeles (2012) 55 Cal.4th 783, 805.)

A statute‘s plain meaning need not be given effect if the text clearly reveals

a drafting error, but the court does not say there was a drafting error here. A

statute‘s plain meaning need not be given effect if doing so would produce absurd

results, but the court does not claim any absurdity here. The plain meaning rule

does not apply if the text is in fact ambiguous, but the court identifies no

ambiguity in the phrase ―As used throughout this Code.‖ Indeed, what two ways

are there to read those words? Finally, we have said the plain meaning rule does

not apply if it would contravene the manifest purpose of the statute, but the

evidence of a purpose to restrict the applicability of Proposition 47‘s definition of

―unreasonable risk of danger to public safety‖ is underwhelming. The court says

nothing indicates the voters intended or knew that Proposition 47‘s definition of

that term would apply to Proposition 36. Nothing, that is, except the unambiguous

words they enacted, which we must presume the voters duly considered against

the backdrop of existing laws.

Today‘s decision crosses the line from statutory interpretation to judicial

legislation. When the voters enacted Proposition 47, they spoke clearly on how

3

widely its resentencing criteria would apply. We cannot now tell inmates like

David Valencia and Clifford Chaney, whose third strike was neither serious nor

violent, that what Proposition 47 plainly says is not what the voters really meant. I

respectfully dissent.

I.

At the outset, it is essential to note that the phrase ―As used throughout this

Code‖ in section 1170.18(c) has a plain meaning, and no one suggests otherwise.

No member of the court contends that this phrase is itself ambiguous. Yet the

court contends that the entirety of section 1170.18(c) is ambiguous when

considered in context. This seriously distorts the concept of ambiguity.

The court relies on cases ―where statutory language is ambiguous when

considered ‗in the context of the statute and initiative as a whole.‘ ‖ (Maj. opn.,

ante, at p. 12.) But in those cases, the consideration of context did not create

ambiguity in statutory text that was otherwise unambiguous. Instead, the

consideration of context showed that the text itself was susceptible to multiple

meanings and therefore ambiguous. (See Kennedy Wholesale, Inc. v. State Bd. of

Equalization (1991) 53 Cal.3d 245, 249 [statutory text is ―susceptible of the

interpretation that plaintiff has proposed‖ (italics added)]; People v. Hazelton

(1996) 14 Cal.4th 101, 105–106 [the statutory term ― ‗prior felony convictions . . .‘

could be interpreted . . . to refer to the forum in which the prior conviction was

obtained‖ or ―the nature of the prior conviction‖]; Building Industry Assn. v. City

of Camarillo (1986) 41 Cal.3d 810, 819–820 [―the Legislature must have assumed

that measures enacted by a ‗governing body‘ included initiatives adopted by the

electorate‖].) No one could disagree with the principle that statutory language

must be construed in the context of the statute as a whole, and there are many

cases where context sheds light on alternative ways of interpreting language. But

those cases provide no support for what the court has done here.

4

The court contends that section 1170.18(c) is ambiguous because its use of

the term ―the petitioner‖ may be understood to mean only a Proposition 47

petitioner, which is what the term means in subdivisions (b), (l), and (m) of section

1170.18. This interpretation of ―the petitioner‖ is not unreasonable. But it does

not establish that there are two ways of reading the entirety of section 1170.18(c).

Instead, reading ―the petitioner‖ to mean what the court says it means requires us

to wholly disregard the introductory phrase ―As used throughout this Code.‖

Although the concurring opinion suggests that the phrase may be read as

tolerable ―surplusage‖ (conc. opn., ante, at pp. 7–8), all the instances of tolerable

surplusage cited in the main text of the concurring opinion involve language that

was construed as redundant. (See People v. Cruz (1996) 13 Cal.4th 764, 782–783;

In re J.W. (2002) 29 Cal.4th 200, 209–210; Arlington Central School Dist. Bd. of

Ed. v. Murphy (2006) 548 U.S. 291, 299, fn. 1; Lamie v. United States Trustee

(2004) 540 U.S. 526, 536.) It is one thing to tolerate redundancy in interpreting

statutory text; it is quite another to give no independent significance to operative

language that cannot be construed as redundant of anything else in the statute. In a

case of redundancy, the text is still given a meaning; here the court gives the

phrase ―As used throughout this Code‖ no meaning at all.

In a footnote, the concurring opinion says Chickasaw Nation v. United

States (2001) 534 U.S. 84, 94, held that ―a statutory cross-reference should be

treated as surplusage, even though doing so gave no effect to the language at

issue.‖ (Conc. opn., ante, at p. 8, fn. 2.) But Chickasaw Nation said the statutory

cross-reference was language that ―Congress included inadvertently‖ — in other

words, ―a drafting mistake.‖ (Chickasaw Nation, at pp. 90, 91.) No member of

the court contends that the phrase ―As used throughout this Code‖ in section

1170.18(c) was a drafting error. The concurring opinion‘s reliance on King v.

Burwell (2015) 576 U.S. __, __–__ [135 S.Ct. 2480, 2489–2492], is also

5

unavailing. The high court there said it was deciding between two plausible

interpretations of a statutory provision, not between one interpretation that gives

effect to all the words of the provision and another that does not. (Id. at p. __ [135

S.Ct. at p. 2491].) And in People v. Watts (2016) 2 Cal.App.5th 223, the court

declined to apply the rule against surplusage because doing so would not

― ‗result[] in a reasonable reading of the legislation.‘ ‖ (Id. at p. 237.) No

member of the court contends that giving effect to the plain meaning of ―As used

throughout this Code‖ in section 1170.18(c) would be unreasonable. In short, the

cases cited by the concurring opinion serve only to underscore how novel the

court‘s analysis is here.

There is indeed nothing unreasonable about reading ―the petitioner‖ in

section 1170.18(c) to include any petitioner who is subject to evaluation for

―unreasonable risk of danger to public safety‖ ―throughout this Code,‖ including a

petitioner who seeks resentencing under Proposition 36. Both Proposition 47 and

Proposition 36 refer to ―the petitioner‖ in setting forth similar petitioning schemes.

(Compare § 1170.18, subds. (a), (b), (l), (m) with § 1170.126, subds. (b), (f), (g).)

Reading ―the petitioner‖ in section 1170.18(c) to include ―the petitioner‖ under

either Proposition 47 or Proposition 36 readily harmonizes the term with section

1170.18(c)‘s unambiguous specification of how widely its definition of

―unreasonable risk of danger to public safety‖ applies — i.e., ―As used throughout

this Code.‖

Thus, the issue before us presents a choice between (1) giving ―the

petitioner‖ a reasonable construction that effectuates the plain meaning of ―As

used throughout this Code‖ and (2) giving ―the petitioner‖ a different, reasonable

construction that ignores the plain meaning of ―As used throughout this Code.‖

These two options do not show that section 1170.18(c) as a whole is ambiguous.

Deciding the meaning of ―the petitioner‖ involves a choice between accepting and

6

disregarding the plain meaning of ―As used throughout this Code.‖ The analytical

framework for making that choice consists of the rules governing when to follow

and when to depart from plain meaning, not the rules for resolving statutory

ambiguity.

Nor is it correct to say that section 1170.18(c) is ambiguous because giving

effect to the plain meaning of the phrase ―As used throughout this Code‖ would be

―inconsistent with Proposition 47‘s uncodified findings, declarations, purpose, and

intent.‖ (Maj. opn., ante, at p. 21.) The ―stark inconsistency‖ the court alleges

(ibid.) is illusory, as explained further below. But setting that issue to one side,

the contention that the plain meaning of an operative provision ―conflict[s] with‖

the statute‘s purposes (id. at p. 20) is an argument for disregarding plain meaning;

it is not an argument for ambiguity. Were it otherwise, then every case involving

whether to effectuate or disregard plain meaning in light of the statute‘s purposes

could be recast as a case about ambiguity. As today‘s decision shows, distorting

the concept of ambiguity in this way significantly, and unjustifiably, expands the

power of courts to rewrite statutes.

A finding of ambiguity opens the door to consideration of extrinsic sources

that may tip the balance between two reasonable readings of the text. But in order

to apply a statute in a manner that disregards its plain meaning, the burden of

justification is much steeper. Plain meaning may be disregarded if the text

contains a clear drafting error or if the consequences would be unreasonable or

absurd. (See, e.g., People v. Broussard (2003) 5 Cal.4th 1067, 1071; People v.

Skinner (1985) 39 Cal.3d 765, 775.) As noted, the court does not allege any

drafting error or absurd consequences here. We have also said courts may

disregard plain meaning when it ―contravenes clear evidence of a contrary

legislative intent.‖ (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1105 (Ornelas).)

In truth, this is the standard of justification that the court‘s decision to disregard

7

the plain meaning of the phrase ―As used throughout this Code‖ must meet. The

court is not unaware of this, for why else does today‘s opinion argue at such length

that giving effect to the phrase‘s plain meaning would violate the voters‘ intent?

This labored effort to prove that the voters who enacted the phrase did not really

mean it is the real ground of today‘s decision, notwithstanding the court‘s attempt

to conjure ambiguity out of unambiguous text.

II.

To show that the voters did not mean what the statute says, the court points

to (1) uncodified language in Proposition 47 illuminating the initiative‘s purpose,

(2) the absence of procedural mechanisms for applying Proposition 47‘s definition

of ―unreasonable risk of danger to public safety‖ to Proposition 36 resentencing,

and (3) extrinsic evidence that voters were unaware of, and therefore could not

have intended, the plain meaning of the phrase ―As used throughout this Code.‖

None of these, singly or together, is convincing.

A.

According to the court, uncodified provisions of Proposition 47 make clear

that the initiative was not intended to affect the resentencing criteria for

Proposition 36 petitioners. (Maj. opn., ante, at pp. 19–21.) The court quotes the

initiative‘s ―Findings and Declarations‖ section, which says ―[t]his act ensures that

sentences for people convicted of dangerous crimes like rape, murder, and child

molestation are not changed.‖ (Voter Information Guide, Gen. Elec. (Nov. 4,

2014) text of Prop. 47, § 2, p. 70 (Voter Information Guide).) The court also

quotes the ―Purpose and Intent‖ section, which says ―it is the purpose and intent of

the people of California to: [¶] (1) Ensure that people convicted of murder, rape,

and child molestation will not benefit from this act. [¶] . . . . [¶] (3) Require

misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft

and drug possession, unless the defendant has prior convictions for specified

8

violent or serious crimes. [¶] (4) Authorize consideration of resentencing for

anyone who is currently serving a sentence for any of the offenses listed herein

that are now misdemeanors.‖ (Id., § 3, at p. 70.)

The court reasons that because three-strikes offenders who are eligible for

resentencing under Proposition 36 necessarily have been convicted of violent or

serious crimes, the application of Proposition 47‘s definition of ―unreasonable risk

of danger to public safety‖ to resentencing under Proposition 36 would contravene

Proposition 47‘s purpose to ―ensure[] that sentences for people convicted of

dangerous crimes . . . are not changed.‖ (Voter Information Guide, supra, text of

Prop. 47, § 2, at p. 70.) It would also conflict with Proposition 47‘s purpose to

―[e]nsure that people convicted of murder, rape, and child molestation will not

benefit from this act‖ (id., § 3, subd. (1), at p. 70), the court says, because three-

strikes offenders convicted of nonforcible rape or child molestation involving

minor victims over the age of 14 are eligible for resentencing under Proposition

36.

This line of argument is problematic for several reasons. First, although we

have looked to statements of purpose contained in a preamble to inform our

interpretation of an operative statutory provision that is ambiguous (see Carter v.

California Dept. of Veteran Affairs (2006) 38 Cal.4th 914, 922–927; People v.

Canty (2004) 32 Cal.4th 1266, 1280–1281), I am not aware of any case — the

court cites none — in which we have relied on statements of purpose in a

preamble to nullify an operative provision that is unambiguous. Indeed, we have

repeatedly declined to construe such statements of purpose in a manner that

restricts or alters a statute‘s operative provisions. (See, e.g., Scher v. Burke (2017)

__ Cal.5th __, __ [2017 WL 2589509, p. *5]; Equilon Enterprises v. Consumer

Cause, Inc. (2002) 29 Cal.4th 53, 58–61; Briggs v. Eden Council for Hope &

Opportunity (1999) 19 Cal.4th 1106, 1117–1119.)

9

Second, one reason courts do not assign much weight to preamble language

relative to operative provisions is that such language is often phrased at a high

level of generality and typically includes multiple purposes that point in different

directions. (Cf. Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1167

[― ‗[N]o statute . . . pursues its ―broad purpose‖ at all costs.‘ ‖]; ibid. [― ‗ ―[I]t

frustrates rather than effectuates legislative intent simplistically to assume that

whatever furthers the statute‘s primary objective must be the law.‖ ‘ ‖].) That is

certainly true here. The court, while citing the purposes above, neglects to

mention other purposes stated in Proposition 47: to ―save significant state

corrections dollars on an annual basis‖ and to ―increase investments in programs

that reduce crime and improve public safety, such as prevention programs in K-12

schools, victim services, and mental health and drug treatment, which will reduce

future expenditures for corrections.‖ (Voter Information Guide, supra, text of

Prop. 47, § 3, subd. (6), at p. 70; see id., § 2, at p. 70 [―The people enact

[Proposition 47] to ensure that prison spending is focused on violent and serious

offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest

the savings generated from this act into prevention and support programs in K–12

schools, victim services, and mental health and drug treatment.‖].) Applying

Proposition 47‘s definition of ―unreasonable risk of danger to public safety‖ to

Proposition 36 petitioners whose third strike is not serious or violent is fully

consistent with Proposition 47‘s purpose of maximizing alternatives for

nonserious, nonviolent crime, saving significant state correction dollars each year,

and increasing investment in crime prevention, victim services, and mental health

and drug treatment to reduce recidivism.

Third, apart from the court‘s one-sided presentation of Proposition 47‘s

purposes, there is no inconsistency between the purposes the court focuses on and

the application of Proposition 47‘s definition of ―unreasonable risk of danger to

10

public safety‖ to Proposition 36. It is true that inmates eligible for resentencing

under Proposition 36 have been convicted of violent or serious felonies. But that

is also true of many inmates eligible for resentencing under Proposition 47, which

excludes only persons who have been convicted of a ―super strike‖ or a registrable

sex offense. (§ 1170.18, subd. (i); see, e.g., Harris v. Superior Court (2016) 1

Cal.5th 984, 987–988 [Prop. 47 petitioner had a prior strike for robbery]; People v.

Hernandez (2017) 10 Cal.App.5th 192, 195–196 [Prop. 47 petitioner had two prior

strikes]; People v. Cortez (2016) 3 Cal.App.5th 308, 310 [Prop. 47 petitioner

admitted a prior strike].) Indeed, the Legislative Analyst made clear in the ballot

materials for Proposition 47 that some petitioners eligible for Proposition 47

resentencing had been sent to state prison instead of county jail for now-

reclassified nonserious, nonviolent felonies ―because they had a prior serious or

violent conviction.‖ (Voter Information Guide, supra, analysis by the Legis.

Analyst, at p. 36.)

Further, the fact that a smaller share of eligible Proposition 47 petitioners,

compared to eligible Proposition 36 petitioners, have prior serious or violent

felony convictions does not compel the inference that Proposition 47‘s definition

of ―unreasonable risk of danger to public safety‖ must apply only to the former

and not the latter. The definition establishes the level of risk that the electorate

found acceptable to authorize a reduced sentence in each individual case. (See

Voter Information Guide, supra, text of Prop. 47, § 3, subd. (5), at p. 70 [Prop. 47

―[r]equire[s] a thorough review of criminal history and risk assessment of any

individuals before resentencing to ensure that they do not pose a risk to public

safety‖].) It is perfectly rational for the voters to have established the same risk

threshold for evaluating individuals from both populations, even if the populations

differ on average in terms of criminal history. The Court of Appeal in Valencia‘s

case said it would be ―logical‖ and not ―absurd‖ to treat differently ―someone with

11

multiple prior serious and/or violent felony convictions whose current offense is

(or would be, if committed today) a misdemeanor‖ versus ―someone whose

current offense is a felony.‖ But even so, there is also nothing illogical or absurd

about using the same risk criteria in evaluating both types of recidivist offenders.

That is simply a policy judgment — and one that the voters made clearly in the

text of Proposition 47.

Nor does it help the court‘s analysis that Proposition 47, but not Proposition

36, excludes from resentencing eligibility persons who have committed certain sex

offenses involving minor victims over the age of 14. It is true that Proposition 47

declares a general purpose of ―ensur[ing] that people convicted of murder, rape,

and child molestation will not benefit from this act.‖ (Voter Information Guide,

supra, text of Prop. 47, § 3, subd. (1), at p. 70.) But Proposition 36 likewise states

in its uncodified preamble that its purpose is ―to restore the original intent of

California‘s Three Strikes Law—imposing life sentences for dangerous criminals

like rapists, murderers, and child molesters‖ and to ―[r]equire 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.‖ (Voter

Information Guide, Gen. Elec. (Nov. 6, 2012), text of Prop. 36, § 1, subd. (1),

p. 105.) It is entirely reasonable that the electorate understood Proposition 47‘s

intent not to benefit ―people convicted of murder, rape, and child molestation‖ in

the context of the initiative‘s other purposes in the same way it understood

Proposition 36‘s intent not to benefit ―murderers, rapists, and child molesters‖ in

the context of that initiative‘s other purposes just two years earlier.

It is important to keep in mind the burden that the court‘s analysis must

satisfy here. In order to disregard plain meaning, there must be ―clear evidence of

a contrary legislative intent‖ (Ornelas, supra, 4 Cal.4th at p. 1105, italics added);

the plain meaning must be inconsistent with the ―manifest purpose‖ of the statute

12

(Arias v. Superior Court (2009) 46 Cal.4th 969, 979, italics added). It is hardly

enough to cite generally worded preamble language that declares several

competing purposes. Such language falls well short of the clarity and precision

required to nullify the plain meaning of an operative provision.

B.

As a further reason to reject section 1170.18(c)‘s plain meaning, the court

identifies several questions that would arise from applying Proposition 47‘s

definition of ―unreasonable risk of danger to public safety‖ to Proposition 36

petitioners: Would the definition apply prospectively or retroactively? Would

Proposition 47‘s new definition constitute ―good cause‖ for filing a Proposition 36

resentencing petition beyond the statutory two-year window? (§ 1170.126,

subd. (b).) And what about Proposition 36 petitioners whose resentencing

petitions are already final? The fact that Proposition 47 does not address these

―serious procedural questions,‖ the court says, is an indication that the initiative

was not intended to amend the resentencing criteria for Proposition 36 petitioners.

(Maj. opn., ante, at p. 27.)

Conspicuously absent from the court‘s discussion of this point is any

citation to precedent suggesting that the absence of details addressing the

procedure for implementing a statutory provision is a reason to disregard the

provision‘s plain meaning. As to whether Proposition 47‘s narrowing of the

definition of unreasonable risk constitutes ―good cause‖ for filing a new or

renewed Proposition 36 resentencing petition beyond the two-year window, isn‘t

this the kind of question that lawmakers regularly leave for the courts to answer?

Similarly, when we encounter a statute that does not say whether it applies

retroactively or prospectively, we do not simply throw up our hands in confusion

and infer that the lawmakers, having not addressed this issue, did not mean to

enact what they enacted. Instead, we regularly give effect to such statutes in a

13

manner guided by interpretive presumptions in our case law. (See, e.g., People v.

Conley (2016) 63 Cal.4th 646, 656–657 (Conley); In re Pedro T. (1994) 8 Cal.4th

1041, 1049; People v. Hajek (2014) 58 Cal.4th 1144, 1195–1196; People v. Brown

(2012) 54 Cal.4th 312.)

Here, I would apply the presumption that new statutes reducing criminal

punishment apply to cases that have not yet proceeded to final judgment, absent

evidence of contrary legislative intent. (See In re Estrada (1965) 63 Cal.2d 740,

745 [―[w]hen the Legislature amends a statute so as to lessen the punishment‖ for

a crime, ―[i]t is an inevitable inference that the Legislature must have intended that

the new statute imposing the new lighter penalty now deemed to be sufficient

should apply to every case to which it constitutionally could apply‖].) The

Attorney General says the Estrada presumption does not apply because section

1170.18(c) merely narrows resentencing discretion and does not reduce the

punishment for a particular crime. But by narrowing the definition of

―unreasonable risk of danger to public safety,‖ Proposition 47 recalibrates the

universe of third-strike offenders entitled to lesser punishment for a defined

category of offenses, i.e., nonserious, nonviolent felonies. (§ 1170.126, subd. (f)

[a third-strike offender eligible for resentencing ―shall‖ be resentenced unless the

court determines that resentencing the offender ―would pose an unreasonable risk

of danger to public safety‖].) Proposition 47‘s definition of unreasonable risk

plainly ― ‗represents a legislative judgment that the lesser penalty or the different

treatment is sufficient to meet the legitimate ends of the criminal law‘ ‖ for a

subset of defendants whose third strike was a nonviolent, nonserious felony.

(Estrada, at p. 745.) This would not be the first time we have applied the Estrada

presumption to a statute revising trial courts‘ sentencing discretion to allow for

lesser punishment. (See People v. Francis (1969) 71 Cal.2d 66, 76.) Because

nothing in the text or history of Proposition 47 rebuts the Estrada presumption, I

14

would hold that Proposition 47‘s definition of ―unreasonable risk of danger to

public safety‖ applies to all Proposition 36 resentencing petitions that have not yet

proceeded to final judgment, including the two defendants‘ petitions here.

The main point is that courts do not infer that a statute does not mean what

it says simply because the statute does not say more about how it is to be

implemented. Lawmakers know that courts have plenty of tools to answer

questions that statutes leave unanswered. The court‘s approach, which effectively

― ‗dictate[s] to legislative drafters the forms in which laws must be written‘ ‖

(Conley, supra, 63 Cal.4th at p. 656), is unprecedented, as the court‘s failure to

cite any precedent confirms.

C.

In addition to citing the lack of procedures to guide Proposition 47‘s

applicability to resentencing under Proposition 36, the court says the ballot

materials for Proposition 47 ―signaled no relationship at all‖ with Proposition 36.

(Maj. opn., ante, at p. 26.) The court treats this silence as a reason to jettison the

usual presumptions that the voters have duly considered the initiative‘s text and

are aware of existing laws. (Id. at pp. 29–36.) According to the court, we should

not give effect to the plain meaning of the phrase ―As used throughout this Code‖

in section 1170.18(c) because apart from the statutory text, nothing else informed

the voters that Proposition 47‘s definition of ―unreasonable risk of danger to

public safety‖ would apply to Proposition 36 petitioners.

This line of argument is as startling as it is threatening to the orderly

development of the law. (See Eskridge et al., Legislation and Statutory

Interpretation (2d ed. 2006) p. 231 [―plain meaning is the most obvious and

perhaps the most objective focal point for all of us to know what the rule of law

requires of us and our neighbors‖].) Is the judiciary free to nullify an

unambiguous statutory provision whenever it can be shown that the ballot

15

materials did not inform the electorate of its consequences? Our precedent,

including two recent decisions construing Proposition 47, makes clear this is not

the law. We do not impute such ignorance to the voters out of respect for the

democratic process and out of concern for overstepping the judicial function. If

we can rewrite statutes on the ground that the voters were not aware of what they

were enacting, there will be no end to the mischief that courts and litigants can

inflict on the initiative process.

We have long followed the rule that voters ―must be assumed to have voted

intelligently upon an [initiative measure], the whole text of which was supplied

each of them prior to the election, and which they must be assumed to have duly

considered, regardless of any insufficient recitals in the instructions to voters or

the arguments pro and con of its advocates or opponents accompanying the text of

the proposed measure.‖ (Wright v. Jordan (1923) 192 Cal. 704, 713, italics

omitted (Wright).) This rule has led us, repeatedly, to enforce the plain meaning

of an initiative‘s text even when its consequences were not apparent from the

ballot materials.

In People v. Romanowski (2017) 2 Cal.5th 903, we held that theft of access

card (e.g., credit or debit card) information is a crime eligible for reduced

punishment under Proposition 47. We explained that Proposition 47 reduced

various theft crimes from felonies to misdemeanors where the value of the

property taken does not exceed $950. (Romanowski, at p. 908.) Although neither

the initiative‘s text nor the ballot materials mentioned theft of access card

information in describing reclassified theft offenses, we observed that the text of

Proposition 47 does refer to ― ‗[s]ection 487 or any other provision of law defining

grand theft.‘ ‖ (Romanowski, at p. 908, quoting § 490.2, italics added by

Romanowski.) We said: ―We deny a phrase like ‗any other provision of law‘ its

proper impact if we expect a penal statute — whether enacted by the Legislature

16

or the electorate — to further enumerate every provision of the Penal Code

to which it is relevant. And we generally presume that the electorate is aware of

existing laws. [Citation.] Here this means we must presume that voters were at

least aware that the Penal Code sets out ‗grand theft‘ crimes that included theft of

access card account information.‖ (Romanowski, at pp. 908–909.)

In People v. Gonzales (2017) 2 Cal.5th 858, we held that the new crime of

shoplifting created by Proposition 47 includes any entry into a commercial

establishment during regular business hours with intent to take property worth no

more than $950, including entering a bank to cash a forged check. We

acknowledged that this holding diverged from the ―colloquial understanding‖ of

shoplifting (Gonzales, at p. 871), and our examination of the ballot materials

revealed nothing that mentioned its application to nonlarcenous thefts (id. at

pp. 869–870). But we observed that Proposition 47‘s definition of shoplifting

―expressly mentions the burglary statute‖ (Gonzales, at p. 869), and we said the

burglary statute had long been construed to cover theft by false pretenses (id. at

pp. 867–868). Reasoning that ―[t]he electorate ‗is presumed to be aware of

existing laws and judicial construction thereof,‘ ‖ we concluded that the voters

intended the definition of shoplifting to have the same scope as the burglary

statute. (Id. at p. 869.)

In Day v. City of Fontana (2001) 25 Cal.4th 268, we held that a provision

of Proposition 213 ―precludes uninsured drivers from recovering noneconomic

damages in actions against local public entities for nuisance and dangerous

condition of property.‖ (Day, at p. 282.) Finding that ―[s]uch actions fall squarely

within the terms‖ of the statute barring liability (id. at p. 282; see id. at pp. 273,

277), we said ―it is of no consequence here that the ballot materials did not

specifically refer to the act‘s application in actions against local public entities for

nuisance and dangerous condition of property‖ (id. at p. 282). Ballot arguments,

17

we explained, ― ‗are not legal briefs and are not expected to cite every case the

proposition may affect.‘ [Citations.] Here we may reasonably infer from the

ballot arguments that a primary aim of Proposition 213 was to protect insured

motorists and to reduce automobile insurance rates. [Citation.] Such arguments,

however, did not imply that protection of insured motorists was the initiative‘s

sole aim; nor did they suggest that reductions in automobile insurance premiums

would be the initiative‘s only effect.‖ (Id. at pp. 278–279.)

In Lungren, supra, 14 Cal.4th 294, we held that Proposition 65‘s

prohibition on releasing toxic chemicals ― ‗into any source of drinking water‘ ‖

covered the discharge of toxic chemicals into faucet water. The defendants argued

that the analysis of the Legislative Analyst, which spoke of the initiative‘s effect

on government-issued permits, suggested to the electorate that Proposition 65 had

to do with surface and ground waters, not plumbing faucets. (Lungren, at p. 308.)

We said: ―The Legislative Analyst did not suggest that all the effects and

ramifications of the Act were being set forth in his brief summation. . . . In light

of the explicit language and purpose of the statute, and the generality and brevity

of the Legislative Analyst‘s commentary, the latter cannot plausibly be viewed as

implicitly limiting the scope of the statute in the manner advocated by

defendants.‖ (Ibid.)

In Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, we concluded

that Proposition 103 applied to surety insurance, finding the statutory text ―clear‖

and not ―ambiguous.‖ (Amwest, at p. 1260.) The plaintiff insurance company

observed that the ballot materials ―did not mention surety insurance‖ and thus ―it

is unlikely the voters understood that Proposition 103 applied to surety insurance.‖

(Ibid.) But we declined the plaintiff‘s suggestion ― ‗to make [the proposition] say

what the voters thought it meant.‘ ‖ (Amwest, at pp. 1260–1261.)

18

In Delaney v. Superior Court (1990) 50 Cal.3d 785, we considered whether

an initiative amending the newsperson‘s shield law in our state Constitution

applied only to confidential as opposed to all unpublished information collected by

reporters. We found it ―clear and unambiguous‖ that the enacted text — which

protected any newsperson for ― ‗refusing to disclose any unpublished

information‘ ‖ — applied to all such information. (Id. at p. 798, italics added by

Delaney.) The defendant, who sought to compel testimony from two journalists,

suggested we rely on the Legislative Analyst‘s statement and ballot arguments to

find that the voters intended the shield law to apply only to confidential

information. (Id. at pp. 801–802.) We declined to do so: ―We cannot conclude

that, by emphasizing one purpose, perhaps the primary purpose of the measure, the

argument misled voters into thinking confidentiality was the only purpose,

especially when the measure itself made clear that all unpublished information

would be protected. Moreover, a possible inference based on the ballot argument

is an insufficient basis on which to ignore the unrestricted and unambiguous

language of the measure itself.‖ (Id. at pp. 802–803.)

And in Cervera, supra, 24 Cal.4th 1073, we held that the Three Strikes law

does not authorize prison conduct credits for use against indeterminate terms

despite legislative history and ballot materials suggesting otherwise. We observed

that the text of the Three Strikes laws authorize the award of prison conduct

credits pursuant to a separate statute addressing only the application of such

credits to determinate sentences. (Cervera, at p. 1078.) We acknowledged that

the Legislative Analyst‘s analysis, the ballot arguments, and various legislative

committee analyses discussed the availability of prison conduct credits without

distinguishing between determinate and indeterminate terms. (Id. at p. 1079.)

―But,‖ we concluded, ―it was the Three Strikes law that was enacted, not any of

the documents within its legislative or initiative history. A statute, of course, must

19

prevail over any summary. Were it not so, no statute could ever be enacted whole

and entire. For every summary, by definition, is incomplete. A summary is a

model of the body of the statute, well executed or not as the case may be. It is not

a procrustean bed for the stretching or lopping off of its limbs. The summary must

yield to the statute, not the statute to the summary.‖ (Id. at pp. 1079–1080.)

The lessons of this body of precedent are clear. The unambiguous language

of an initiative is the best evidence of the voters‘ intent. Ballot materials may help

illuminate the purpose of an initiative statute. But the fact that ballot materials do

not speak to the application of the statute in a particular case is not a reason to

disregard the plain meaning of the enacted text. Ballot materials are necessarily

incomplete and serve as summaries. ―The summary must yield to the statute, not

the statute to the summary.‖ (Cervera, supra, 24 Cal.4th at p. 1080.)

Against the backdrop of this case law, it is mystifying how the court can

place such heavy reliance on the fact that the ballot materials prepared by the

Attorney General and Legislative Analyst did not mention Proposition 47‘s effects

on resentencing three-strikes inmates. (Maj. opn., ante, at pp. 22–26, 32–34, 36–

37.) The court makes reference to ―[t]he statutory provisions imposed on the

Attorney General and Legislative Analyst in order to educate voters about the

effect of proposed initiatives and to protect them from being misled or confused.‖

(Id. at p. 37.) But as the Court of Appeal explained in People v. Cordova (2016)

248 Cal.App.4th 543, 558–559 (Cordova), the contents of the ballot pamphlet ―are

constrained by considerations of space, time, and subjective determinations of

materiality. The official summary of any ballot measure is authored by the office

of the Legislative Analyst. (Elec. Code, §§ 9087, 9086, subd. (b).) The summary

is required only to ‗generally set forth in an impartial manner the information

the average voter needs to adequately understand the measure.‘ (Elec. Code,

§ 9087, subd. (b), italics added.) Note the absence of any directive that the

20

Legislative Analyst attempt to provide voters with a complete understanding of the

measure, which would be a practical impossibility in any event; few judges or

lawyers would be so arrogant as to profess that they completely understand any

provision of law, at least in the sense of being able to forecast all of its effects.

(See In re Gabriel G. [(2008)] 134 Cal.App.4th [1428,] 1437 [―Legislation often

has unintended consequences.‖].) In manifest recognition of this fact, the

governing statute states only that the ballot summary ‗may contain‘ such

‗background information‘ as ‗the effect of the measure on existing law.‘ (Elec.

Code, § 9087, subd. (b), italics added.) The Legislative Analyst is thus called

upon only to make a rational judgment about what effects are most likely to matter

to voters, and to describe them in a fair and intelligible way. Inherent in this

undertaking is the necessity of informational triage—of determining what details

are necessary to form an ‗adequate[ ] understanding[ing],‘ and what details may be

omitted. The preparer of such a summary necessarily exercises a discretionary

function requiring courts to allow considerable latitude when the result is

challenged as incomplete or inaccurate. (See Brennan v. Board of Supervisors

(1981) 125 Cal.App.3d 87, 96 [―Faced with the difficult task of simplifying a

complex proposal, the Committee drafted a summary which, if not all-

encompassing, at least briefly described its major subjects.‖].)

―When the Legislative Analyst fails to mention some effect of a ballot

measure, it remains open to the measure‘s official proponents and opponents to

use their space in the ballot pamphlet to supply any perceived lack. But they too

must practice triage; their arguments are restricted to 500 words to open and 250

words in rebuttal. (See Elec. Code, §§ 9062, 9069; cf. id., § 9041.) This means

the advocates must select a limited number of points to include in their voter

information guide arguments, relying on other media to pursue issues deemed of

lesser moment. Here, both sides evidently concluded that the effect of section

21

1170.18(c) on Proposition 36 petitions was not a powerful enough ground of

argument to warrant mention in the guide. That decision can hardly furnish an

occasion for judicial nullification.‖ (Fn. omitted.) Today‘s opinion does not

contend that Cordova‘s description of the Legislative Analyst‘s duties under the

Elections Code is incorrect. (Maj. opn., ante, at pp. 24–25, fn. 7; see Cal. Rules of

Court, rule 8.1115, subd. (e)(2) [a published Court of Appeal opinion on a matter

in which we have granted review ―is citable and has binding or precedential effect,

except to the extent it is inconsistent with the decision of the Supreme Court or is

disapproved by that court‖].)

Instead of grappling with the precedent above, the court relies on Robert L.

v. Superior Court (2003) 30 Cal.4th 894 and Taxpayers to Limit Campaign

Spending v. Fair Political Practices Comm. (1990) 51 Cal.3d 744 (Taxpayers).

But in Robert L., we rejected a technical reading of the phrase ―punishable as a

felony or a misdemeanor‖ in section 186.22, subdivision (d) in favor of how ―the

average voter . . . would have understood the plain language.‖ (Robert L., at

p. 902.) In this case, the court is rejecting how the average voter would have

understood the plain language of section 1170.18(c) in favor of nullifying the

disputed language altogether.

It is also far-fetched to say this case is ―similar‖ to Taxpayers in demanding

an unreasonable degree of thoroughness on the part of the electorate. (Maj. opn.,

ante, at p. 31.) In Taxpayers, the voters approved

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