Filed 10/7/13 See Concurring and Dissenting Opinion

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E055009

v. (Super.Ct.No. FSB1002367)

NICHOLAS DEMARCO LESTER, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. J. David Mazurek,

Judge. Affirmed with directions.

Eric R. Larson, under appointment by the Court of Appeal for Defendant and

Appellant.

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

General, Julie L. Garland, Assistant Attorney General, Michael T. Murphy and James D.

Dutton, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant, Nicholas Lester, of possessing cocaine for sale

(Health & Saf. Code, § 11351) and possessing marijuana for sale (Health & Saf. Code, §

11359). The jury further found that defendant had suffered three strike priors (Pen. Code,

1 § 667, subds. (b)-(i)), four prior convictions for which he served prison terms (Pen. Code,

§ 667.5, subd. (b))1 and a prior drug conviction (Health & Saf. Code, § 11370.2, subd.

(a)). He was sentenced to prison for 25 years to life, plus 6 years. He appeals, claiming

his motion to suppress should have been granted. In supplemental briefing, he also

asserts that he is entitled to be resentenced to twice the term for his conviction of

possessing cocaine for sale, with a concurrent sentence of twice the term for possessing

marijuana for sale. We reject both of his contentions and affirm, while directing the trial

court to correct an error in the abstract of judgment.

The facts of this case are not relevant to the appeal.2

ISSUES AND DISCUSSION

1. Denial of Motion to Suppress

1 Only three strike priors were alleged in the information. However, the jury also made true findings as to both counts that defendant had suffered three other felony convictions. Also, the information alleged only four prison priors, but the jury made true findings, as to both counts, that defendant had suffered six prison priors. Both below and here, the parties ignore the findings as to priors that were not alleged in the information. The trial court also ignored them and sentenced defendant only for the three strike priors and the four prison priors.

2 Counsel for appellant recently notified this court that the appeal had become moot because defendant has been ―resentenced to a determinate term . . . pursuant to the discretionary sentencing provisions of Proposition 36. (Pen. Code, §1170.126.)‖ However, ―‗―[i]f an action involves a matter of continuing public interest and the issue is likely to recur, a court may exercise an inherent discretion to resolve that issue, even though an event occurring during its pendency would normally render the matter moot.‖‘‖ (Baluyut v. Superior Court (1996) 12 Cal. 4th 826, 829, fn 2., and cases cited.) This is just such a case, and we have certified this opinion for publication. (See Cal. Rules of Court, rule 8.1105(c)(5) [addresses ―conflict in the law‖], (6) [―legal issue of continuing public importance‖].)

2 At the hearing on the motion to suppress, the first officer to arrive at defendant‘s

apartment testified that he was dispatched at 3:45 a.m. on June 10, 2010 for a disturbance

between subjects which the 911 caller believed were going to have a physical fight and

there were four to five female subjects near a red car who were yelling and screaming and

possibly going to engage in a physical fight.3 The 911 caller was at 1105 ―F‖ Street,

which was a two unit apartment. When the officer arrived after some delay,4 he saw that

there was no red car outside. As the officer and five others walked up to the building,

defendant and the codefendant walked out of the more eastern of the two apartments,

which turned out to be 1103 ―F‖ Street and which was attached to the apartment at 1105

―F‖ Street, and walked towards the officers in the driveway. The officer asked the men

what was going on. The codefendant said, ―There is a problem with my baby mama, but

it‘s all right now.‖ The defendant and codefendant were detained by two of the five other

officers and sat down at the curb, because it was suspected that they were involved in the

disturbance that caused the 911 call. The officer spoke to the 911 caller, who told him

that ―a large fight had taken place next door at 1103[,]‖ but she did not want to say

anything else.5 The officer knocked on the door at 1103, to see if any of the females

3 The officer denied being informed before he arrived that the parties to the argument had left. Another officer who followed him into the house testified that he was aware of this, but he did not inform the first officer of this fact.

4 The caller had given dispatch the wrong street name and after the officer and others arrived at the wrong location, she was called back and she gave the correct street.

5 In his reply brief, defendant points to the testimony of the 911 caller that she told the officer that the people who caused the disturbance had left the location. First,

3 involved in the disturbance were there, but there was no answer. The officer opened the

door, which was not locked, and announced himself, then entered in order to find the

females and ensure that there was not a physical fight and they were not injured. He

immediately detected the strong smell of marijuana. No one was inside. However, he

saw, in plain sight, suspected marijuana and cocaine. The officer returned to the curb,

where he overheard defendant tell another officer that defendant was on parole and the

apartment at 1103 was his apartment. The officer and another re-entered the house to

search due to defendant‘s parole status and because contraband had been seen in plain

sight.

this witness, who initially gave the police the wrong street name for her residence and the apartment next door, was extremely confused in her testimony during the hearing on the motion to suppress, frequently giving answers that were not responsive to the questions asked, prompting defense counsel to ask her if she was having psychological problems. The testimony on which defendant relies was one such example. In response to the question, ―when [the first officer] arrived, do you remember telling him that the people who caused the disturbance had left the location?‖ she responded, ―Yes, sir. There‘s been quite a few families moved out.‖ The 911 caller also testified almost immediately thereafter that she did not recall telling the officer anything. She also testified that she had ―been through quite a lot of medicine.‖ She testified that when she called 911, she could not recall her own phone number. The officer testified that when he spoke to the 911 caller at the scene he asked her if she had called, she said she had, he asked her what was going on, she said there had been a large fight next door, then she said she didn‘t want to say anything more. Second, the trial court was tasked with making a determination about the credibility of the witnesses. It may be inferred that it determined that any suggestion by the 911 caller that she had told the officer that the people who had caused the disturbance had left was unreliable. Finally, even if the 911 caller so testified, she did not say how the four to five females had left, thereby leaving open the possibility that all or some of them were still inside the apartment. Thus, even if the officer‘s testimony that he was unaware that the people who caused the disturbance had left was ignored and the testimony of the 911 caller and the officer who followed the first officer into the apartment that he was aware of this were given full credence, the result would not be different.

4 The trial court suggested that the facts were consistent with ―there [being] an

argument[,] then a fight and somebody is inside the apartment hurt . . . [and] . . . a

reasonable officer would be remiss [in] not further inquiring or investigating.‖ The trial

court denied defendant‘s motion to suppress, saying, ―[G]iven what confronted these

officers, the fact that there was an indication of a problem, . . . none of the females were

[sic] present, apparently the [red] car was gone, the [codefendant] was exiting an

apartment where he had indicated there was a problem with his ‗baby mama[,] but it was

okay now,‘ I think certainly the officers would have been remiss in their duties had they

not at least gone in and looked to see if somebody had been hurt[.] . . . [¶] . . . [¶] And

when they went [back] in to retrieve the . . . controlled substances, suspected narcotics,

and marijuana, they knew that [defendant] was on parole and subject to search . . . .‖

In reviewing a ruling on a motion to suppress, we view the record in the light most

favorable to the ruling and defer to the trial court‘s factual findings, express or implied,

when supported by substantial evidence. (People v. Rogers (2009) 46 Cal.4th 1136,

1157.) In determining whether, on the facts so found, the search or seizure was

reasonable under the Fourth Amendment, we exercise our independent judgment. (Ibid.)

Defendant contends that the trial court erred in denying his motion to suppress

because the People had not carried their burden of demonstrating that the circumstances

created an objectively reasonable basis for believing that a person within the house is in

need of immediate aid. (Michigan v. Fisher (2009) 588 U.S. 45 [130 S.Ct. 546, 549];

Brigham City v. Stuart (2006) 547 U.S. 398, 400, 403; People v. Troyer (2011) 51

Cal.4th 599, 606 [Troyer].) ―‗―‗There is no ready litmus test for determining whether

5 such circumstances exist, and in each case the claim of an extraordinary situation must be

measured by the facts known to the officers.‖‘‖‘ (Troyer, at p. 606.) However, we must

approach each case with at least some measure of pragmatism and we recognize that ―the

police must make split second decisions as to whether someone is in need of immediate

aid . . . .‖ (Ibid.) In making his assertion, defendant merely compares the facts of this

case with those of Fisher and Brigham City, wherein the entries were deemed to be

reasonable. This is not particularly helpful, as the facts of those cases differed from the

instant facts. Far more helpful is a discussion of cases in which the facts are closer to

those here.

Such a case is Troyer. Therein, there was a report of shots fired at a residence and

possibly an unidentified male being shot twice. (Troyer, supra, 51 Cal.4th at p. 603.)

The suspects were driving a two door Chevy. (Ibid.) When the first officer to arrive got

there, there was no such car in sight. (Ibid.) On the front porch, a man was administering

first aid to a woman who had been shot multiple times. (Ibid.) Another man on the porch

had a wound to the top of his head. (Ibid.) The woman was not able to give the officer

any information. There was blood on the front door situated in such a way that it

suggested that someone who was bleeding had either entered or exited the house. (Ibid.)

The wounded man hesitated and did not answer when the officer first asked him if there

was anyone inside; upon second inquiry, he hesitated and said he did not think so, and,

upon third inquiry, he hesitated and said no. (Ibid.) The officer was afraid that the man

was being untruthful or was inaccurate, the latter, due to his head wound. (Ibid.) The

officer felt he had a responsibility to determine if an additional victim or even suspects

6 were inside the house and he could neither see inside nor hear sounds coming from

inside, due to the commotion caused by arriving police and medical personnel. (Id. at pp.

603-604.) After announcing their presence, the officer, and others, entered the house to

look for victims and suspects. (Id. at p. 604.) Another officer who went upstairs

announced himself at the locked door of a bedroom, and, getting no response, kicked the

door open. (Ibid.) He smelled a strong odor of marijuana and saw the drug and a scale in

plain sight. (Ibid.) The California Supreme Court concluded, ―The record amply

supported an objectively reasonable belief that one or more shooting victims could be

inside the house. Police dispatch stated that shots had just been fired ‗at‘ [the house],

and . . . [the officer‘s] observations of the blood at the scene indicated that a shooting had

occurred ‗mere feet [from] or within the doorway area.‘ Bloodstains on the door signaled

that a bleeding victim had come into contact with the door, either by entering or by

exiting the residence. . . . [¶] Moreover, the original dispatch report stated that a male

victim had ‗possibly been shot twice‘—and no such victim had yet been located. . . .

[T]he officer never stated that . . . he had concluded [the wounded man] must have been

the man described in the dispatch report. In any event, a concern that [the wounded man]

might have suffered a gunshot wound did not foreclose the reasonable possibility that the

male victim described in the original dispatch was still at large. (Causey v. City of Bay

City (8th Cir. 2005) 442 F. 3d 524, 530 [despite the plaintiffs‘ assurances that no one was

injured, it was ―‗―equally plausible and not unreasonable‖‘‖ for the officers to infer that

the plaintiffs were concealing an injured victim . . . [Citation.] [¶] . . . [The wounded

man‘s] inconsistent answers [about whether there was anyone inside the residence] raised

7 serious concerns about [the man‘s] ability to give accurate and reliable responses.

[Citations.]]; State v. Frankel (2004) 179 N.J. 586 [847 A.2d 561, 574] [‗The responding

officer is not required to accept blindly the explanation for the 9-1-1 call offered by the

resident answering the door . . . ‘]; [Citations].)‖ (Troyer, at p. 608.) The wounded man

gave various answers to the officer‘s questions whether there was anyone inside. ―[The

officer] could not peek inside to verify whether [the wounded man‘s] final answer

[i.e., ‗No‘] was the correct one, nor, given the chaos at the scene, could he hear whether

any sounds were coming from inside the [house]. Under these circumstances, and

inasmuch as [the officer] did not know who lived at the [house] or who had been the

aggressor, an objectively reasonable basis existed to enter the [house] to search for

additional victims. [¶] The police entry here was no less justifiable than the police

reentry [in] Tamborino v. Superior Court [(1986)] 41 Cal. 3d 919 . . . . In Tamborino,

police responded to a reported robbery at a particular address, and a neighbor confirmed

that an injured person was inside the apartment. After receiving no response to a loud

knock and announcement of his presence, the officer kicked in the door and found

Tamborino, who seemed to be bleeding from the right side of his face . . . . [Citation.]

The officer, unsure whether Tamborino was a suspect or a victim, brought [him] out of

the apartment and handcuffed him. The officer immediately reentered the apartment,

based on his concern that there might be other injured persons inside, without even asking

Tamborino whether anyone else was there . . . . [Citation.] [¶] . . . [W]e explained that

‗the observation of Tamborino, wounded and bleeding, coupled with the earlier report of

a robbery, constituted ―articulable facts‖ that reasonably could have led the officer to

8 decide that an immediate, brief search of the apartment was warranted to determine

whether additional persons were present . . . . [The officer] had no prior information

indicating that only one victim was involved in the robbery, and in light of the situation

he confronted, ordinary, routine common sense and a reasonable concern for human life

justified him in conducting a walk-through search truly limited in scope to determining

the presence of other victims.‘ [Citation.]‖ (Troyer, at pp. 608-609, italics added and

omitted.)

The Supreme Court also concluded that kicking in the door of an upstairs bedroom

was justified, despite the absence of blood or signs of a struggle downstairs. (Troyer,

supra, 51 Cal.4th at pp. 612-613.) The court reasoned, ―Bloodstains . . . ‗are not

prerequisites to a finding of exigency.‘ [Citation.] [¶] Nor are signs of a struggle in the

interior of a residence. [¶] . . . [¶] . . . The People‘s burden under the Fourth

Amendment is to identify an objectively reasonable basis for believing that someone

inside was in need of immediate aid—not to eliminate every other reasonable inference

that might also have been supported by those facts. (See State v. Mielke (2002) 257 Wis.

2d. 876 [652 N.W. 2d. 316, 319] [‗[T]he question is whether the officers would have

been derelict in their duty had they acted otherwise.‘].)‖ (Troyer, at pp. 612-613.)

Applying the reasoning in Troyer here, we note that the 911 caller believed the

four to five female subjects were going to have a fight and the officer had been delayed in

his arrival at the apartment. The four to five females were not present, nor was the car

associated with them. However, defendant and the codefendant walked out of the

apartment that was the source of the disturbance. The codefendant confirmed that there

9 had, indeed, been a ―problem,‖ and the officer was free to disbelieve his representation

that everything was now all right. The 911 caller confirmed to the officer that a ―large

fight‖ had taken place at the apartment. No one answered the door at the apartment and

the officer entered to find the females and make sure that none were injured. We agree

with the trial court that these circumstances created a reasonable basis for the officer to

believe that the females were in the apartment and in need of immediate aid.

Additionally, the items seized from defendant‘s apartment would have been

otherwise seized pursuant to the search conditions of his parole. ―Appellate review ‗is

confined to the correctness or incorrectness of the trial court‘s ruling, not the reasons for

its ruling.‘ [Citation.]‖ (People v. Baker (2008) 164 Cal.App.4th 1152, 1156.) The fact

that the trial court here did not additionally justify the search and seizure based on the

inevitable discovery doctrine does not prohibit us from relying on that doctrine. 6 The

6 Defendant‘s reliance on People v. Hines (1997) 15 Cal.4th 997, 1034, footnote 4, in support of his position that the People forfeited this ground is misplaced. Hines relied, as is pertinent here, on Lorenzana v. Superior Court (1973) 9 Cal.3d 626. In Green v. Superior Court (1985) 40 Cal.3d 126, 137, the California Supreme Court said of Lorenzana, ―[T]he People‘s new theory [on appeal there] was not supported by the record made at the first hearing and would have necessitated the taking of considerably more evidence, thus thwarting Penal Code section 1538.5‘s purpose of avoiding continued relitigation of admissibility questions.‖ The California Supreme Court continued, ―In still other cases the defendant had no notice of the new theory and thus no opportunity to present evidence in opposition. [Citations.] [¶] The present case does not suffer from those problems. The evidence supporting the plain view/inevitable discovery theory was fully developed by both the prosecution and defense. . . . The factual basis for the theory is fully set forth in the record, and it does not appear that any further evidence could have been introduced to suggest that [the officer] lacked probable cause to inspect and seize . . . without a warrant or consent. [¶] To close our eyes to the clear applicability of the inevitable discovery doctrine would run contrary to the settled principle of appellate review that a correct decision of the trial court must be affirmed on appeal even if it is based on erroneous reasoning. [Citations.] . . . [¶] When, as here, the record fully

10 prosecution‘s burden in this regard is to show a reasonably strong probability that the

police would have discovered the evidence. (In re Javier A. (1984) 159 Cal.App.3d 913,

928.) The People contended in their moving papers below that defendant and the

codefendant had not been detained for an improper amount of time, during which

defendant admitted he was a parolee, and, as such, he was subject to the search of his

home, which he admitted was 1103 ―F‖ Street. Thus, they argued, the items would

inevitably have been discovered. The officer testified that he re-entered the apartment to

search it and to seize the items that had already been seen in plain view, in part, because

defendant was on parole. No evidence was admitted at the hearing on the motion that the

detention of defendant was unduly prolonged; the other factual matters were testified to

by the officer. Therefore, a preponderance of the evidence established that the items

would have been discovered during a parole search of defendant‘s home.

2. Resentencing

On October 28, 2011, defendant was sentenced to a 25-years-to-life term for his

conviction of possessing cocaine for sale,7 according to the terms of Penal Code section

667, subdivision (e)(2)(A)—the Three Strikes Law—as it then provided. On November

establishes another basis for affirming the trial court‘s ruling and there does not appear to be any further evidence that could have been introduced to defeat the theory, we hold that the failure to have urged the theory below does not preclude our reliance on it to affirm the trial court‘s ruling.‖ (Green at pp. 138-139, italics added, fn. omitted. See also People v. Nottoli (2011) 199 Cal.App.4th 531, 561, fn. 14.) 7 He also received a concurrent 25 years to life sentence for his conviction of possessing marijuana for sale.

11 6, 2012, when defendant‘s judgment was not yet final,8 the voters of California enacted,

by initiative measure, changes to several provisions of the Three Strikes Law.9 As is

pertinent here, had defendant been sentenced under the new version of the law, he would

have received a sentence of double the determinate term for his conviction. (Pen. Code, §

667, subds. (e)(1) & (e)(2)(C).) Amongst the changes enacted in November, 2012 was

also the creation of Penal Code section 1170.126, which provides that a prison inmate

serving an indeterminate term pursuant to Penal Code section 667, subdivision (e)(2)

whose sentence under the new act would not have been indeterminate, may petition the

trial court that sentenced the inmate for a recall of his or her sentence. (Pen. Code, §

1170.126, subds. (a) & (b).)10 The trial court would then resentence the inmate according

to the new version of Penal Code section 667, subdivision (e), unless it determined that a

resentencing would ―pose an unreasonable risk of danger to public safety.‖ (Pen. Code, §

1170.126, subd. (f).) Defendant here contends that under In re Estrada (1965) 63 Cal.2d

740 (Estrada), he is entitled to have his sentence automatically reduced to double the

determinate term for possessing cocaine for sale. The People argue that defendant is not

entitled to have the new version of Penal Code section 667, subdivision (e) retroactively

8 See In re N.D. (2008) 167 Cal.App.4th 885, 891.

9 Those changes took effect the following day. (Three Strikes Reform Act of 2012, Section 10 [Prop. 36, as approved by voters Ballot Pamp., Gen. Elec. (Nov. 6, 2012)].)

10 This excludes that group of inmates whose current crimes are listed in Penal Code section 667, subdivisions (e)(2)(C)(i), (ii) & (iii) and those whose prior convictions are listed in Penal Code section 667, subdivision (e)(C)(iv). Our discussion of this issue does not include this group, as defendant is not a member of it.

12 applied to him and his only recourse is to petition the trial court for recall of his sentence

pursuant to Penal Code section 1170.126.

In Estrada, supra, 63 Cal.2d at pages 740, 744, the California Supreme Court said

of a law that reduced the punishment for a crime which became effective after the crime

was committed but before the defendant‘s trial, conviction and sentencing, ―The

problem . . . is one of trying to ascertain the legislative intent—did the Legislature intend

the old or new statute to apply? Had the Legislature expressly stated which statute

should apply, its determination, either way, would have been legal and constitutional.‖

(Estrada at p. 744.) Because, in the case of the statute in Estrada, the Legislature had

not, it fell to the California Supreme Court to determine the Legislature‘s intent. (Ibid.)

The court was guided in its effort by the following concept: ―When the Legislature

amends a statute so as to lessen the punishment it has obviously expressly determined

that its former penalty was too severe and that a lighter punishment is proper as

punishment for the commission of the prohibited act.‖ (Id. at p. 745) The court went on

to note, ―[W]here the amendatory statute mitigates punishment and there is no saving

clause, the rule is that the amendment will operate retroactively so that the lighter

punishment is imposed.‖ (Id. at p. 748.)

As in Estrada, we must ascertain the intent of the voters in passing the

amendments pertinent here to the Three Strikes Law. (Citizens Assn. of Sunset Beach v.

Orange County Local Agency Formation Comm. (2012) 209 Cal.App.4th 1182, 1189.)

―To determine intent, courts look first to the language of the provision, giving its words

their ordinary meaning. If that language is clear in relation to the problem at hand, there

13 is no need to go further. [Citation.] If, on the other hand, the language is ambiguous, we

turn to extrinsic indicia of voter intent, particularly what the ballot pamphlet said about

the initiative. [Citation.]‖ (Ibid.) Likewise, ballot pamphlet arguments have been

recognized as a proper extrinsic aid. (People v. Floyd (2003) 31 Cal.4th 179, 187-188.)

Penal Code section 1170.126, which provides for the recalling of sentences and

possible resentencing states, ―The resentencing provisions under this section and related

statutes are intended to apply exclusively to persons presently serving an indeterminate

term of imprisonment pursuant to paragraph (2) of subdivision (e) of Section

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

sentence.‖ If, as defendant argues, he, and all other inmates with Three Strike Law

indeterminate terms whose judgments are not yet final, are entitled to the retroactive

application of amendments to the Three Strikes Law that reduced indeterminate terms to

determinate ones, and, thus, to have his sentence automatically reduced, there would be

no purpose served by the existence of Penal Code section 1170.126, except for inmates

whose sentences were final as of November 6, 2012. However, looking at the

information conveyed to voters, that was clearly not the intent of the initiative.

The ballot pamphlet for the initiative stated, ―This measure reduces prison

sentences served under the three strikes law by certain third strikers whose current

offenses are non-serious, non-violent felonies. The measure also allows resentencing of

certain third strikers who are currently serving life sentences for specified non-serious,

non-violent felonies. . . . [¶] [It] requires that an offender who has two or more prior

serious or nonviolent felony convictions and whose new offense is a nonserious,

14 nonviolent felony receive a prison sentence that is twice the usual term for the new

offense, rather than a minimum sentence of 25-years–to-life as is currently required. . . .

[¶] [It] allows certain third strikers to apply to be resentenced by the courts. . . . The

court would be required to resentence eligible offenders unless it determines that

resentencing the offenders would pose an unreasonable risk to public safety. In

determining whether an offender poses such a risk, the court could consider any evidence

it determines is relevant, such as the offender‘s criminal history, behavior in prison, and

participation in rehabilitation programs. [It] requires resentenced offenders to receive

twice the usual term for their most recent offense instead of the sentence previously

imposed. Offenders whose requests for resentencing are denied by the courts would

continue to serve out their life terms as they were originally sentenced.‖ (Ballot Pamp.,

Gen. Elec. (Nov. 6, 2012) (Ballot Pamp.) analysis by the Legislative Analyst, pp. 49-50,

italics added.) In describing the correctional savings engendered by the initiative, the

analysis stated, ―[It] would reduce state prison costs in two ways. First, fewer inmates

would be incarcerated for life sentences under the three strikes law because of the

measure‘s provisions requiring that such sentences be applied only to third strikers whose

current offense is serious or violent. This would reduce the sentences of some future

felony offenders. Second, the resentencing of third strikers could result in many existing

inmates receiving shorter prison sentences.‖ (Ibid.) We note the distinction clearly

drawn in the analysis between the new offense committed by future felony offenders who

are subject to the new twice-the-base-term sentence and the most recent offense

committed by existing inmates who have already been sentenced to a 25-years-to-life

15 term under the old law. The analysis could not have been more clear in its distinction

between the two and nowhere is there a reference to the possibility that some existing

inmates would automatically receive a twice-the-base-term sentence merely because their

judgments are not yet final.

An argument in favor of the initiative in the ballot pamphlet was the following,

―Criminal justice experts and law enforcement leaders carefully crafted [it] so that truly

dangerous criminals will receive no benefits whatsoever from the reform.‖ (Ballot

Pamp., argument in favor of Prop. 36, p. 52) In their opposition to this particular aspect

of the initiative, the rebuttal to the argument in favor of it and the argument against it

both stated that it would result in ―thousands of dangerous criminals . . . get[ting] their

prison sentence[s] reduced and then released from prison early.‖ (Ballot Pamp., rebuttal

to argument in favor of Prop. 36, p. 52; Ballot Pamp., argument against Prop. 36, p. 53.)

In fact, the provisions of the initiative allowing inmates already serving Three Strike Law

indeterminate sentences to be resentenced was the only objection to the initiative stated in

the argument against it in the Ballot pamphlet. (Ballot Pamp., argument against Prop. 36,

p. 53.)

Given the information supplied to the voters, we view Penal Code section

1170.126 as the functional equivalent of a saving clause.11 ―The rule in Estrada . . . is

not implicated where the Legislature clearly signals its intent to make the amendment

prospective, by the inclusion of either an express saving clause or its equivalent. In

11 In People v. Yearwood (2013) 213 Cal.App.4th 161, 172, 175-176, the Fifth District reached the same conclusion.

16 Pedro T. [(1994) 8 Cal.4th 1041, 1049], we determined the absence of an express saving

clause, emphasized in Estrada [citation] . . . , does not end ‗our quest for legislative

intent.‘ ‗Rather, what is required is that the Legislature demonstrates its intention with

sufficient clarity that a reviewing court can discern and effectuate it.‘ [Citation.]‖

(People v. Nasalga (1996) 12 Cal.4th 784, 793, italics added, fn. omitted.) The existence

of the mechanism set forth in Penal Code section 1170.126 and the analysis and

arguments in the Ballot Pamphlet for the initiative persuade us that the voters did not

intend that every inmate serving a Three Strike Law indeterminate term whose judgment

is not yet final automatically have his or her sentence reduced to twice the determinate

term for his or her conviction and completely bypass the safeguards provided by Penal

Code section 1170.126.

Defendant asserts that subdivision (k) of Penal Code section 1170.126 suggests

that the existence of the mechanism provided by that section was not intended to be the

sole relief available to an inmate sentenced to a Three Strike Law indeterminate term.

That subdivision provides, ―Nothing in this section is intended to diminish or abrogate

any rights or remedies otherwise available to the [inmate].‖ However, we do not see this

as dictating that the reduction in terms for third strikers be applied retroactively—rather,

we see it as a pronouncement that inmates included in the provisions of Penal Code

section 1170.126 still retained their ability to file petitions for habeas corpus and various

other remedies.

The People point to language in the post November 6, 2012 version of Penal Code

section 667, subdivision (e) itself, which suggests that its reduced sentence provisions

17 were not intended to apply to those who are already convicted and serving Third Strike

Law determinate terms. Specifically, it states that a defendant who has two or more

strike priors, but the current offense is not a strike, will receive a term of twice the

sentence for the convicted offense unless the ―prosecution pleads and proves‖ a current

conviction or a past conviction of specified crimes. (§ 667, subds. (e)(2)(c)(i)-(iv).) As

the People correctly point out, an inmate serving a Three Strikes Law determinate term is

long past the pleading and proof stage of proceedings.

Finally, we cannot ignore the possibility that, under the old law, in more than one

case, a prosecutor has elected not to retry a defendant on one or more counts on which the

jury hung because the defendant was to receive a 25 years to life term on another count.

To have such a defendant now have his or her sentence automatically reduced, without

the safeguards of 1170.126, would undermine the purpose of the initiative.

Accordingly, we decline defendant‘s request to reduce his sentence or to direct the

trial court to impose a reduced sentence. Defendant retains his ability, under section

1170.126, to petition the trial court to recall his indeterminate sentence and to possibly

resentence him to a determinate term.

DISPOSITION

The trial court is directed to amend the abstract of judgment to omit the reference

18 to a 75-year-to-life term. In all other respects, the judgment is affirmed.

CERTIFIED FOR PUBLICATION

RAMIREZ

P. J.

I concur:

RICHLI

J.

19 [People v. Lester — E055009]

HOLLENHORST, J., Concurring and Dissenting.

I respectfully concur in part and dissent in part. I concur with the

majority‘s discussion of the denial of the motion to suppress; however, I disagree

with the discussion of the Three Strikes Reform Act of 2012, Section 10 (Prop. 36,

as approved by voter Ballot Pamp., Gen. Elec. (Nov. 6, 2012)) (hereafter the

Reform Act or the act). The Reform Act became effective on November 7, 2012.

(§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C), 1170.126.)1

1. Proposition 36

Under the Three Strikes law as it existed before the passage of the Reform

Act, a defendant with two or more strike priors who is convicted of any new

felony would receive a sentence of 25 years to life. (Former § 667, subd.

(e)(2)(A).) As amended, section 667 provides that a defendant who has two or

more strike priors is to be sentenced pursuant to paragraph 1 of section 667,

subdivision (e)—i.e., as though the defendant had only one strike prior—if the

current offense is not a serious or violent felony as defined in section 667.5,

1 All further statutory references are to the Penal Code unless otherwise indicated. For convenience, we will refer solely to section 667, subdivision (e) in discussing the Reform Act, omitting reference to the substantially identical section 1170.12, subdivision (c). However, the analysis applies to both sections 667 and 1170.12.

1 subdivision (c) or section 1192.7, subdivision (c), unless certain disqualifying

factors are pleaded and proven.2 (§§ 667, subds. (d)(1), (e)(2)(C).)

2 Section 667, subd. (e)(2)(C) provides that second strike sentencing does not apply if the prosecution pleads and proves any of the following: ―(i) The current offense is a controlled substance charge, in which an allegation under Section 11370.4 or 11379.8 of the Health and Safety Code was admitted or found true. ―(ii) The current offense is a felony sex offense, defined in subdivision (d) of Section 261.5 or Section 262, or any felony offense that results in mandatory registration as a sex offender pursuant to subdivision (c) of Section 290 except for violations of Sections 266 and 285, paragraph (1) of subdivision (b) and subdivision (e) of Section 286, paragraph (1) of subdivision (b) and subdivision (e) of Section 288a, Section 311.11, and Section 314. ―(iii) During the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person. ―(iv) The defendant suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of this section, for any of the following felonies: ―(I) A ‗sexually violent offense‘ as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. ―(II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289. ―(III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288. ―(IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive. ―(V) Solicitation to commit murder as defined in Section 653f. ―(VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245. ―(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418. ―(VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.‖ 2 The Reform Act also provides a procedure that allows a person who is

―presently serving‖ an indeterminate life sentence imposed pursuant to the Three

Strikes law to petition to have his or her sentence recalled and to be sentenced as a

second strike offender, if the current offense is not a serious or violent felony and

the person is not otherwise disqualified. The trial court may deny the petition

even if those criteria are met, if the court determines that resentencing would pose

an unreasonable risk of danger to public safety. (§ 1170.126, subds. (a)-(g).)

Accordingly, under section 1170.126, resentencing is discretionary even if the

defendant meets the objective criteria (§ 1170.126, subds. (f), (g)), while

sentencing under section 667, subdivision (e)(2)(C) is mandatory, if the defendant

meets the objective criteria.

The majority agrees that, had defendant been sentenced under the new

version of the law, he would have received a sentence of double the determinate

term for his conviction of possessing cocaine for sale. (§ 667, subds. (e)(1) &

(e)(2)(C). (Maj. opn., ante, at pp. 11-12.) Defendant requests that the matter be

remanded for resentencing. Relying on In re Estrada (1965) 63 Cal.2d 740

(Estrada), he contends section 667, subdivision (e)(2)(C) is an ameliorative

sentencing statute which presumptively applies to all criminal judgments which

were not yet final as of its effective date, and that there is nothing in the language

of the Reform Act which overcomes the presumption. The People oppose the

request, arguing that the act allows persons like defendant, who are presently

3 serving an indeterminate sentence but whose sentence under the act would not

have been an indeterminate sentence, to file a petition for recall in the trial court.

2. Section 667, subdivision (e)(2)(C) Applies to Defendants Whose

Judgments Were Not Yet Final on the Effective Date of the Reform Act.

There is a general rule of statutory construction, embodied in section 3 of

the Penal Code, that ―‗when there is nothing to indicate a contrary intent in a

statute it will be presumed that the Legislature intended the statute to operate

prospectively and not retroactively.‘ [Citation.]‖ (People v. Floyd (2003) 31

Cal.4th 179, 184 (Floyd).) In Estrada, supra, 63 Cal.2d 740, the California

Supreme Court created a limited exception to that presumption. In that case, the

court held that where a statute has been amended to lessen the punishment for an

offense and there is no clear indication of an intent to apply the amendment

prospectively only, it must be presumed that the Legislature intended the mitigated

punishment to apply to all judgments not yet final as of the effective date of the

amended statute. (Id. at pp. 744-747.) The court held: ‗―A legislative mitigation

of the penalty for a particular crime represents a legislative judgment that the

lesser penalty or the different treatment is sufficient to meet the legitimate ends of

the criminal law.‖‘ (Id. at 745.) From this, ―[i]t is an inevitable inference that the

Legislature must have intended that the new statute imposing the new lighter

penalty now deemed to be sufficient should apply to every case to which it

constitutionally could apply,‖ including those which are not yet final. (Ibid.) vitality were most recently discussed by the California Supreme Court in People v.

Brown (2012) 54 Cal.4th 314 (Brown).) In Brown, the court reiterated that

Estrada ―is today properly understood, not as weakening or modifying the default

rule of prospective operation codified in section 3, but rather as informing the

rule‘s application in a specific context by articulating the reasonable presumption

that a legislative act mitigating the punishment for a particular criminal offense is

intended to apply to all nonfinal judgments.‖ (Brown, supra, at p. 324, italics

added.)

Despite the Estrada presumption, however, a court interpreting a statute

that ameliorates punishment must nevertheless determine the intent of the

Legislature or of the electorate in enacting the statute. (Floyd, supra, 31 Cal.4th at

p. 184.) To determine intent, courts look first to the language of the provision,

giving its words their ordinary meaning. If that language is clear in relation to the

problem at hand, there is no need to go further. (Ibid.) If the language is not clear,

the tools of statutory construction must be applied, including but not limited to the

Estrada rule. If necessary, the court must also look to other extrinsic indicators of

intention. (Nasalga, supra, 12 Cal.4th at p. 794.)

There is no question that section 667, subdivision (e)(2)(C) is an

amendment which ameliorates punishment under the Three Strikes law for those

5 defendants who meet its criteria. However, the Reform Act does not contain any

explicit provision for retroactive or prospective application, and it does not

explicitly state what remedy—i.e., section 667, subdivision (e)(2)(C) or section

1170.126—applies to a person in defendant‘s position. Consequently, we must

―look for any other indications‖ to determine and give effect to the intent of the

electorate. (Nasalga, supra, 12 Cal.4th at p. 794.)

In enacting new laws, both the Legislature and the electorate are ―presumed

to be aware of existing laws and judicial construction thereof.‖ (In re Lance W.

(1985) 37 Cal.3d 873, 890, fn. 11.) Accordingly, we presume that in enacting the

Reform Act, the electorate was aware of the Estrada presumption that a law

ameliorating punishment applies to all judgments not yet final on appeal on the

effective date of the new statute. We also presume the electorate was aware that a

saving clause may be employed to make it explicit that the amendment is to apply

prospectively only, and that in the absence of a saving clause or another clear

signal of intent to apply the amendment prospectively, the statute is presumed to

apply to all nonfinal judgments. (Nasalga, supra, 12 Cal.4th at p. 793; Estrada,

supra, 63 Cal.2d at p. 747.) Previous ballot initiatives have employed explicit

language making an ameliorative statute prospective. For example, the California

Supreme Court held that the previous Proposition 36, approved by voters on

November 7, 2000, applied prospectively only, despite its ameliorative effect,

because it expressly stated, ―‗Except as otherwise provided, the provisions of this

6 act shall become effective July 1, 2001, and its provisions shall be applied

prospectively.‘ [Citations.]‖ (Floyd, supra, 31 Cal.4th at pp. 183-185.) The court

in Floyd held that the plain language of this saving clause trumped any other

possible interpretation of the proposition. (Id. at pp. 185-187.) In the Reform Act,

in contrast, the absence of such language is persuasive evidence that the electorate

did intend to apply section 667, subdivision (e)(2)(C) to nonfinal judgments.

This construction, moreover, is fully consistent with the expressed purposes

of the Reform Act. In Floyd, supra, 31 Cal.4th at pages 187 through 188, the

court found further support in the ballot arguments in support of the proposition,

which stated that ―‗[i]f Proposition 36 passes, nonviolent drug offenders convicted

for the first or second time after 7/1/2000, will get mandatory, court-supervised

treatment instead of jail.‘ (Ballot Pamp., Gen. Elec. (Nov. 7, 2000) argument in

favor of Prop. 36, p. 26 . . . .‖ (Italics added.) The ballot arguments in support of

the Reform Act stated that its purpose was to ensure that ―[p]recious financial and

law enforcement resources‖ were not diverted to impose life sentences for some

nonviolent offenses, while assuring that violent repeat offenders are effectively

punished and not released early. The proponents stated that the act would ―help

stop clogging overcrowded prisons with non-violent offenders, so we have room

to keep violent felons off the streets‖ and ―help[] ensure that prisons can keep

dangerous criminals behind bars for life.‖ An additional purpose was to save

taxpayers ―$100 million every year‖ by ending wasteful spending on housing and

7 health care costs for ―non-violent Three Strikes inmates.‖ Moreover, the act

would ensure adequate punishment of nonviolent repeat offenders by doubling

their state prison sentences. The proponents pointed out that dangerous criminals

were being released early because ―jails are overcrowded with nonviolent

offenders who pose no risk to the public.‖ And, the proponents stated that by

passing Proposition 36, ―California will retain the toughest recidivist Three Strikes

law in the country but will be fairer by emphasizing proportionality in sentencing

and will provide for more evenhanded application of this important law.‖ The

proponents pointed out that ―[p]eople convicted of shoplifting a pair of socks,

stealing bread or baby formula don‘t deserve life sentences.‖ (Voter Information

Guide, Gen. Elec. (Nov. 6, 2012) argument in favor of Prop. 36 and rebuttal to

argument against Prop. 36,

arguments-rebuttals.htm> [as of September 9, 2013].) Applying section 667,

subdivision (e)(2)(C) to nonfinal judgments is wholly consistent with these

objectives, in that doing so would enhance the monetary savings projected by the

proponents and would further serve the purposes of reducing the number of

nonviolent offenders in prison populations and of reserving the harshest

punishment for recidivists with current convictions for serious or violent felonies,

while still assuring public safety by imposing doubled prison terms on less serious

repeat offenders.

8 For both of these reasons—the absence of any expressed intent to apply the

act prospectively only and the stated intent underlying the proposition—we

conclude that section 667, subdivision (e)(2)(C) applies to judgments which were

not final as of its effective date.

The first published appellate decision that addresses this issue is People v.

Yearwood (2013) 213 Cal.App.4th 161 (Yearwood). In Yearwood, as in this case,

the defendant would have been entitled to second strike sentencing under the

Reform Act if he had been sentenced initially after the effective date of the

Reform Act. He had already been sentenced and his appeal was pending on the

date the act became effective. The court held that even though the judgment was

not yet final, Yearwood‘s only remedy was to petition for recall of his sentence

and for resentencing pursuant to section 1170.126. (Yearwood, supra, at pp. 167,

168, 169.)

The court concluded, as we have, that the Reform Act does not contain a

saving clause or refer to retroactive or prospective application or refer explicitly to

persons in Yearwood‘s position. Nevertheless, the court held, section 1170.126

unambiguously applies to prisoners whose judgments were not final on the

Reform Act‘s effective date, because those prisoners were ―presently serving‖ an

indeterminate life term under the Three Strikes law. (See § 1170.126, subd. (a).)

The court further held that section 1170.126 therefore effectively operates as the

functional equivalent of a saving clause and, if section 667, subdivision (e)(2)(C)

9 is read not in isolation but in the context of the entire statutory scheme, it is clear

that the mandatory sentencing provision of section 667, subdivision (e)(2)(C) is

intended to operate prospectively only. (Yearwood, supra, 213 Cal.App.4th at p.

175.)

Yearwood is correct that even in the absence of an express saving clause

there may be other reasons to determine that the enacting body intended the statute

to apply prospectively only. Brown, supra, 54 Cal.4th 314, provides an example.

In that case, the court held that an amendment to section 4019, which increased the

rate at which prisoners may earn credits for good behavior, applied prospectively

only, despite the absence of express language to that effect, because the purpose of

section 4019 is to provide an incentive for good behavior during incarceration.

Accordingly, rather than reflecting a determination that a reduced penalty for past

criminal conduct satisfies the legitimate ends of criminal law, section 4019

addresses ―future conduct in a custodial setting by providing increased incentives

for good behavior.‖ (Brown, supra, at p. 325.) Awarding the credit retroactively,

for time spent in custody before the effective date of the amendment, would not

further that purpose. Consequently, the court held, there is no logical basis for

inferring that the Legislature intended the amended statute to apply retroactively,

and the Estrada rule does not apply. (Id. at p. 325 & fn. 15.) The same is not true

of the Reform Act, however. As we discussed above, retroactive application of

section 667, subdivision (e)(2)(C) is consistent with the proponents‘ stated

10 objectives of reducing prison overcrowding, reducing the resources expended on

third strike offenders whose current and prior offenses are nonviolent and less

serious, and enhancing public safety by ensuring that the truly dangerous repeat

offenders serve indeterminate life terms less. Accordingly, there is a logical basis

for inferring that the electorate intended the amendment to apply to nonfinal

judgments.

Moreover, we do not agree with Yearwood that section 1170.126

unambiguously applies to defendants who were serving nonfinal third strike

sentences on the effective date of the Reform Act. In light of the Estrada

presumption and the absence of a saving clause in section 667, subdivision

(e)(2)(C), the provision that section 1170.126, subdivision (a) applies ―exclusively

to persons presently serving‖ a third strike sentence is ambiguous—does it refer

only to prisoners serving sentences that are final, or does it include those whose

judgments are not final? It is certainly not so clear as to qualify as the functional

equivalent of a saving clause. In Nasalga, supra, 12 Cal.4th 784, the California

Supreme Court held that the rule of Estrada is ―not implicated where the

Legislature clearly signals its intent‖ to make an amendment prospective, ―by the

inclusion of either an express saving clause or its equivalent.‖ (Nasalga, supra, at

p. 793, italics added.) The court did not describe what constitutes an ―equivalent‖

to an express saving clause. However, the court stated that in the absence of an

express saving clause, the ―‗quest for legislative intent‘‖ requires that ―‗the

11 Legislature demonstrate its intention with sufficient clarity that a reviewing court

can discern and effectuate it.‘ [Citation.]‖ (Ibid.) In our opinion, the statutory

language that Yearwood relies on does not meet that requirement because it is

ambiguous. We note, too, that Yearwood does not cite a single case in which

similarly ambiguous language was deemed to be the equivalent of a saving clause.

Yearwood finds support for its position in the ballot arguments in favor of

the Reform Act. It points out that enhancing public safety was a key purpose of

the act. (Yearwood, supra, 213 Cal.App.4th at p. 175.) The court states that

giving section 667, subdivision (e)(2)(C) prospective-only application furthers that

purpose by reducing the likelihood that prisoners who are currently dangerous will

be released from prison under the Reform Act. In contrast with section 1170.126,

section 667, subdivision (e)(2)(C) does not provide the court with discretion to

impose a third strike sentence if it finds that the defendant poses an ―unreasonable

risk of danger to public safety.‖ (§ 1170.126, subd. (f).) Yearwood points out that

several years may elapse between sentencing and finality, and a defendant who

might objectively qualify for second strike sentencing under section 667,

subdivision (e)(2)(C) may have shown himself or herself to pose such a risk by

misconduct during postsentencing incarceration. (Yearwood, supra, at pp. 175-

176.)

This is arguably a valid concern. However, it is not reflected in the ballot

arguments in support of the Reform Act. We cannot say that a concern not

12 expressed in a ballot argument is a clear indication of voter intent, no matter how

valid the concern may be. Moreover, a defendant may also be incarcerated for

many months before being convicted and sentenced for a third strike offense.

Such a defendant may also display a propensity for violence or other conduct

while incarcerated, which indicates that he or she poses a risk to public safety.

Nevertheless, any qualifying defendant convicted and sentenced after the effective

date of the Reform Act is entitled to sentencing under section 667, subdivision

(e)(2)(C), and the trial court has no discretion to impose a third strike sentence

even if the court has concerns about the defendant‘s future dangerousness for any

reason, including the defendant‘s conduct while in custody. For this reason as

well, we do not find Yearwood‘s analysis persuasive.

3. Conclusion

I respectfully part company with the majority‘s conclusion that defendant is

not entitled to a reduction in his sentence or resentencing because he retains the

ability, under section 1170.126, to petition the trial court to recall his

indeterminate sentence and to possibly resentence him to a determinate term. I

conclude that in passing the Three Strikes Reform Act of 2012, the electorate

intended the mandatory sentencing provision of sections 667, subdivision

(e)(2)(C) and 1170.12, subdivision (c)(2)(C) to apply to qualifying defendants

whose judgments were not yet final on the effective date of the act. Hence, I

13 would vacate defendant‘s sentence and remand the matter to the trial court for

resentencing.

HOLLENHORST

J.

14