Filed 11/8/13 P. v. Brinson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E054511

v. (Super.Ct.No. RIF150426)

HIRAM BRINSON, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Harry A. Staley (retired

judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the

Cal. Const.) and Richard Todd Fields, Judges. Affirmed.

Elisa A. Brandes, 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, Melissa Mandel, Charles C.

Ragland, Warren J. Williams and Marissa Ann Bejarano, Deputy Attorneys General, for

Plaintiff and Respondent.

1 A jury found defendant and appellant Hiram Brinson guilty of (1) attempting to

elude a pursuing peace officer (Veh. Code, § 2800.2, subd. (a)); (2) driving under the

influence of alcohol (Veh. Code, § 23152, subd. (a)); (3) obstructing a peace officer

(Pen. Code, § 148, subd. (a)(1)); and (4) driving without a valid driver’s license (Veh.

Code, § 12500, subd. (a)).

The trial court found true the allegations that defendant (1) suffered two prior

strike convictions (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)),1 and

(2) two prior convictions for which he served prison terms (§ 667.5, subd. (b)). The

trial court sentenced defendant to prison for a determinate term of two years and an

indeterminate term of 25 years to life.

Defendant raises three issues on appeal. First, defendant asserts his 2004

convictions cannot be used as strikes and a prison prior in this case because his pleas in

the prior case were involuntary. Second, defendant contends equal protection requires

retroactive application of section 4019. Third, defendant asserts he is entitled to be

automatically resentenced under the “Three Strikes Reform Act of 2012” (Prop. 36, as

approved by voters, Gen. Elec. (Nov. 6, 2012)) (the “Reform Act”). We affirm the

judgment.

FACTUAL AND PROCEDURAL HISTORY

Defendant’s crimes in the instant case were committed in May 2009. The First

Amended Information alleged defendant suffered two prison priors (§ 667.5, subd. (b))

1 All subsequent statutory references will be to the Penal Code unless otherwise indicated.

2 and two prior strike convictions (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).

The first prison prior involved a conviction for child abuse or endangerment in 1996.

The second prison prior and both strike convictions concerned convictions for first

degree burglary (§ 459) in 2004.

In 2004, defendant completed a plea form, indicating that he would plead guilty

to 12 different charges plus enhancements on the condition that he receive a prison term

of seven years and accrue credits at a rate of 50 percent. At the plea hearing, defendant

pled guilty to (1) five counts of first degree burglary (Pen. Code, § 459), (2) one count

of inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)), (3) two counts

of taking a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a)), (4) one

count of trespassing and building fires (Pen. Code, § 602, subd. (i)), and (5) two counts

of receiving stolen property (Pen. Code, § 496, subd. (a)).2 Defendant also admitted

suffering a prior conviction for which he served a prison term. (Pen. Code, § 667.5,

subd. (b).)

At the 2004 hearing, defendant’s trial attorney said, “I’d also like to make the

record clear, it’s in writing, but also that this is to be seven years to be served at half

time, and that’s the reason for the great detail in the various charges. And the low term

counts on all the 459s.” The court asked the prosecutor if she wanted to place anything

on the record. The prosecutor responded, “Just that this is a plea to the Court.” When

2Only 11 crimes are listed because the trial court did not ask for a guilty plea on Count 9. The court skipped from Count 8 to Count 10.

3 the trial court pronounced defendant’s sentence it said the term would be a “total [of]

seven years.”

In October 2006 defendant wrote a letter to the trial court about his credit

accrual. In the letter, defendant explained that he was given 963 days of credit for the

22 months he spent in the county jail. Defendant explained he had been given a release

date of September 14, 2006, upon arriving at prison, but that date was later changed to

March 7, 2007. Defendant asserted he had been free from discipline and was not

earning credits at the agreed upon 50 percent rate.3

On March 22, 2007, a trial court clerk responded to defendant’s letter. The letter

informed defendant that a properly noticed motion would be required to modify

defendant’s sentence. The court clerk suggested defendant contact the attorney who

handled defendant’s case, the Riverside County Public Defender’s Office, or the

Riverside County Lawyer Referral Service. There is nothing in the record indicating

defendant followed through with this recommendation.

In July 2010, as part of the instant case, defendant filed a motion to dismiss the

strike allegations against him because his 2004 guilty plea was involuntary and illegal,

in that he was falsely led to believe he would receive a sentence of seven years with 50

percent credit accrual. Defendant asserted his 2004 plea was “fraudulently induced.” In

response, the prosecutor argued defendant could not challenge the strike priors on the

3 Due to defendant pleading guilty to first degree burglary, under section 2933.1, subdivision (a), defendant could only earn worktime credits at a rate of 15 percent (§ 667.5, subd. (c)(21)).

4 basis of a falsely induced plea. Rather, defendant could only collaterally attack the prior

conviction based upon a denial of counsel (Gideon4 error) or failure to observe

defendant’s rights to a jury trial, silence, and confrontation (Boykin/Tahl rights5).

On August 11, 2010, the trial court held a hearing on defendant’s motion. The

trial court found that in 2004 defendant was informed of his Boykin-Tahl rights, he

understood the rights, and he knowingly waived them. The trial court cited defendant’s

plea form and a transcript of defendant’s plea hearing as evidence that defendant had a

“clear understanding” of the rights he was waiving. The trial court concluded credit

accrual agreements were “not anything that’s required under Boykin Tahl.” Further, the

trial court concluded defendant did not have a plea agreement or plea bargain; rather, he

entered an open plea to the court. The trial court denied defendant’s motion, reasoning

that the motion was based on improper advisement of his Boykin/Tahl rights but the

evidence reflected defendant was properly advised of his rights.

DISCUSSION

A. GUILTY PLEA

Defendant contends his 2004 convictions cannot be used as prior convictions for

sentencing in the instant case because the pleas were unconstitutional in that they were

induced by a promise that was legally impossible to fulfill. We disagree.

4 Gideon v. Wainwright (1963) 372 U.S. 335.

5 Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.

5 A trial court may not increase a defendant’s prison term based upon a prior

felony conviction that was obtained in violation of the defendant’s constitutional rights.

(People v. Allen (1999) 21 Cal.4th 424, 429.) A collateral attack on a prior conviction,

brought via a motion to strike, may only be based on certain recognized theories:

(1) denial of counsel (Gideon error), or (2) failure to secure a proper waiver of the

defendant’s rights to a jury trial, silence, and confrontation (Boykin/Tahl). (Allen, at pp.

433, 439-440.) Otherwise, the validity of a prior conviction may be litigated via a

separate proceeding, such as habeas corpus. (Id. at p. 435; People v. Villa (2009) 45

Cal.4th 1063, 1074.)

We review rulings on motions to strike prior convictions for an abuse of

discretion. (People v. Williams (1998) 17 Cal.4th 148, 162.) We review the

constitutionality of guilty pleas under the de novo standard of review. (See People v.

Howard (1992) 1 Cal.4th 1132, 1175 [setting forth the test for determining the

constitutional validity of a plea].) Since we are reviewing a hybrid of these two rulings,

we will take the cautious approach and apply the more stringent de novo standard of

review.

Defendant’s concerns about his 2004 guilty plea involve allegations that he was

induced to enter the plea by a false promise of a 50 percent credit accrual. Defendant’s

concerns about the plea do not relate to a denial of counsel or his rights of silence,

confrontation, and a jury. Since defendant’s motion does not pertain to one of the

recognized theories upon which a special motion to strike may be based, we conclude

6 the trial court did not err by denying defendant’s motion. Defendant failed to show

Gideon error or Boykin/Tahl error in his 2004 guilty plea.

Defendant asserts the trial court erred because the test for whether a plea is

constitutionally valid requires consideration of the “totality of the circumstances”

involved with the plea, and the trial court did not consider the allegedly false promise

made to defendant when ruling on defendant’s motion; defendant asserts the totality of

the circumstances reflect his plea was involuntary. Defendant’s argument is not

persuasive because the “totality of the circumstances” analysis is relevant in a harmless

error review, which we are not performing in this matter.

In Howard, our Supreme Court decided whether “error involving Boykin/Tahl

admonitions [citations] is reversible per se, or regardless of prejudice.” (People v.

Howard, supra, 1 Cal.4th at pp. 1174-1175.) The court decided such an error should be

reviewed by considering “the totality of the circumstances.” (Id. at p. 1175.) So, for

example, if a defendant were not properly advised of his right to remain silent, but his

plea could be found to be knowing and voluntary under the totality of the

circumstances, then the prior conviction would not necessarily need to be stricken.

(People v. Knight (1992) 6 Cal.App.4th 1829, 1831-1832.) Given that we are not

performing a harmless error analysis, we find defendant’s reliance on the “totality of the

circumstances” rule to be unpersuasive.

B. SECTION 4019

Defendant contends the trial court erred in calculating his presentence conduct

credits because the recent amendment to section 4019 should be retroactively applied to

7 his case. Defendant relies on principles of equal protection to support his argument.

We disagree.

In the current version of section 4019, the Legislature expressly provided the

statute is to only be applied prospectively. Specifically, the current version of the

statute applies to defendants who commit their offenses on or after October 1, 2011.

(People v. Rajanayagam (2012) 211 Cal.App.4th 42, 52 (Rajanayagam).) Consistent

with that plain expression, we interpret the most recent version of section 4019 as

applying only to defendants who committed their offenses on or after October 1, 2011.

Defendant’s crimes in the instant case were committed in May 2009. Thus, the trial

court correctly applied the prior version of section 4019 when calculating defendant’s

credits.

In regard to equal protection, Defendant contends equal protection requires his

conduct credits be calculated at the same rate as inmates who committed crimes on or

after October 1, 2011, because there can be no justification for awarding inmates

conduct credits at different rates based on the days they committed their crimes. We

disagree.

Where a statute at issue distinguishes between classes of people but “neither

touches upon fundamental interests nor is based on gender, there is no equal protection

violation if the challenged classification bears a rational relationship to a legitimate state

purpose. [Citations.]” (Rajanayagam, supra, 211 Cal.App.4th at p. 53.) The interest at

issue in section 4019 is conduct credits or incentives to perform assigned work and

comply with rules and regulations. (Id. at pp. 54-55.) This is not a fundamental

8 interest, and therefore, the issue is whether the separate treatment of the classes bears a

rational relationship to a legitimate state interest. (Id. at pp. 53-54.)

The separate classifications at issue in section 4019 bear a rational relationship to

the state interest in cost savings. (Rajanayagam, supra, 211 Cal.App.4th at p. 55.) In

other words, section 4019 is rationally related to the objective of reducing prison

spending, which was a primary purpose of the Realignment Act. (Id. at p. 49.) Thus,

we conclude defendant’s equal protection rights were not violated.

C. THREE STRIKES REFORM ACT OF 2012

Defendant asserts he is automatically entitled to be resentenced under the Reform

Act because his appeal was not final at the time the law became effective. We disagree.

We find the interpretation of the Reform Act set forth in People v. Yearwood

(2013) 213 Cal.App.4th 161 (Yearwood) reflects the plain meaning of the Reform Act’s

language. In Yearwood, the Fifth District Court of Appeal concluded the Reform Act

was intended to apply prospectively only and, therefore, people who were sentenced

prior to the effective date of the Reform Act, but whose cases were pending appeal after

the Reform Act became effective, could not automatically be resentenced (id. at p. 168);

rather, they would have to petition the trial court for a reduced sentence (id. at p. 179).

In In re Estrada (1965) 63 Cal.2d 740, 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.) In Yearwood, the

9 appellate court concluded the Estrada rule is inapplicable to the Reform Act because the

Reform Act’s language is unambiguous, in that “voters intended a petition for recall of

sentence to be the sole remedy available under the Act for prisoners who were serving

an indeterminate life sentence imposed under the former three strikes law on the Act’s

effective date without regard to the finality of the judgment.” (Yearwood, supra, 213

Cal.App.4th at p. 172.)

The appellate court further reasoned that applying the Estrada rule to the Reform

Act was problematic when considering the Act as a whole because “[e]nhancing public

safety was a key purpose of the Act,” and “prospective-only application supports the

Act’s public safety purpose by reducing the likelihood that prisoners who are currently

dangerous will be released from prison due to the Act.” (Yearwood, supra, 213

Cal.App.4th at pp. 175-176.) The court explained that retroactive application of the

Reform Act would “create a loophole whereby prisoners who were sentenced years

before the Act’s effective date are now entitled to [an] automatic sentencing reduction

even if they are currently dangerous and pose an unreasonable public safety risk.” (Id.

at p. 176.)

We agree with the Yearwood opinion, in that the language of the Reform Act is

unambiguous and reflects an intent on the part of the electorate to have the law apply

prospectively only, thus making the Estrada rule inapplicable. We focus on the portion

of Proposition 36, which set forth: “[a]ny person serving an indeterminate term . . . may

file a petition for a recall of sentence, within two years after the effective date of the

10 act . . . .”6 (Italics added.) (See People v. Alanis (2008) 158 Cal.App.4th 1467, 1475-

1476 [a defendant’s sentence commences after being sentenced by the trial court when

s/he is committed to custody]; see also People v. Howard (1997) 16 Cal.4th 1081, 1087-

1088 [discussing the difference between pre-commitment and post-commitment time

periods].) Given the “any person” language, it does not appear the electorate intended

to create an exception for defendants who were serving their sentences but whose cases

were pending appeal. Thus, we conclude the Yearwood opinion is correct, in that the

Reform Act would not provide defendant with automatic resentencing. As a result, we

conclude defendant is not entitled to automatic resentencing.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

I concur:

RAMIREZ

P. J.

6 http://vig.cdn.sos.ca.gov/2012/general/pdf/text-proposed-laws- v2.pdf#nameddest=prop36, as of October 30, 2013.

11 HOLLENHORST, J., Concurring and Dissenting.

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

majority’s discussion of the use of defendant’s 2004 convictions as strikes and

application of Penal Code1 section 4019; 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.)2

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.

2 For convenience, I 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.3 (§§ 667, subds. (d)(1), (e)(2)(C).)

3 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.

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.{Supp AOB 3, 5-8} The People oppose the request, arguing that the

act allows persons like defendant, who are presently 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.{Supp RB 1-2}

3 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.)

The Legislature has never abrogated the Estrada rule. (See People v.

Nasalga (1996) 12 Cal.4th 784, 792, fn. 7 (Nasalga).) The rule and its continued

4 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

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

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

5 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, I 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. I 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

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

6 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

health care costs for “non-violent Three Strikes inmates.” Moreover, the act

would ensure adequate punishment of nonviolent repeat offenders by doubling

7 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 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.

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

act prospectively only and the stated intent underlying the proposition—I conclude

8 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 I 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)

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

9 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 I discussed above, retroactive application of

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

objectives of reducing prison overcrowding, reducing the resources expended on

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

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

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

inferring that the electorate intended the amendment to apply to nonfinal

judgments.

Moreover, I 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

Legislature demonstrate its intention with sufficient clarity that a reviewing court

can discern and effectuate it.’ [Citation.]” (Ibid.) In my opinion, the statutory

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

ambiguous. I 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. I cannot say that a concern not expressed

in a ballot argument is a clear indication of voter intent, no matter how valid the

concern may be. Moreover, a defendant may also be incarcerated for many

12 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, I 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

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

resentencing.

HOLLENHORST

J. 13