Opinion
F072702
09-21-2017
THE PEOPLE, Plaintiff and Respondent, v. ZANE MOLINA HUBBARD, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF125964A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis, Judge. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Zane Molina Hubbard appeals from the order denying his petition under the Safe Neighborhoods and Schools Act (hereafter Proposition 47; Pen. Code, § 1170.18) to have his 2008 conviction for unauthorized possession of a controlled substance reclassified as a misdemeanor. The People opposed the petition on the basis that Hubbard was convicted in 2011 of kidnapping for the purpose of robbery or rape and kidnapping during the commission of carjacking. The trial court denied the petition, finding Hubbard was ineligible for Proposition 47 relief because of his prior disqualifying convictions. On appeal, Hubbard contends Proposition 47 only precludes reclassification where a defendant had a "prior" disqualifying conviction, and since his kidnapping for the purpose of rape or robbery and kidnapping during the commission of carjacking convictions occurred after his possession conviction, he is eligible for reclassification. Finding no merit to his contention, we affirm.
All further statutory references are to the Penal Code unless noted otherwise.
PROCEDURAL HISTORY
In 2008, Hubbard entered a plea to a felony violation of unauthorized possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). He was sentenced to 16 months in prison.
In 2011, Hubbard was convicted of the following Penal Code violations: kidnapping for purpose of robbery or rape (§ 209, subd. (b)(1)); kidnapping in the commission of carjacking (§ 209.5, subd. (a)); assault with a semi-automatic firearm (§ 245, subd. (b)); making a criminal threat (§ 422); participation in a criminal street gang (§ 186.22); and felon in possession of a firearm (former § 12021, subd. (a)(1)). He was sentenced to an indeterminate term of 15 years to life, as well as a determinate term of 24 years, four months.
On August 17, 2015, Hubbard filed a petition in the trial court for reclassification under Proposition 47, seeking to have his conviction under Health and Safety Code section 11377, subdivision (a) designated a misdemeanor. The People opposed the petition, urging that Hubbard was ineligible for reclassification because he had been convicted of kidnapping for the purpose of robbery or rape and kidnapping during the commission of carjacking, both considered "super strikes" under section 667, subdivision (e)(2)(C)(iv)(VIII).
During the two hearings held on the petition, the trial court and parties debated at length whether the phrase "prior conviction" in section 1170.18, subdivision (i) refers to a conviction before the conviction for the offense which is now sought to be reduced, or to a conviction before the ruling on the Proposition 47 petition. The superior court ultimately found Hubbard was not eligible for relief because his disqualifying convictions occurred prior to the hearing on his current Proposition 47 petition. In doing so, the trial court explained:
"It would appear to be somewhat inconsistent with the goals of the proposition if an individual could be convicted of murder after the commission of an offense and have that murder not be a disqualifying offense in light of the stated purpose [of the Act]."The superior court held that "prior conviction" meant "prior to today's date or the date of the petition and not prior to the date of the conviction."
DISCUSSION
Proposition 47 was enacted by voters, and took effect in November of 2014. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089 (Rivera).) Proposition 47 reduced the penalties for certain drug and theft-related offenses and reclassified those offenses as misdemeanors rather than felonies. (People v. Sherow (2015) 239 Cal.App.4th 875, 879; Rivera, supra, at p. 1091.) It also added section 1170.18 to the Penal Code, which allows those previously convicted of felonies which were reclassified as misdemeanors under Proposition 47, to petition the court to have their felony convictions designated as misdemeanors. (Rivera, supra, at pp. 1091-1092.) The text of Proposition 47 provides that "[t]his act shall be liberally constructed to effectuate its purposes." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 18, p. 74.) Among its stated purposes is to "[e]nsure that people convicted of murder, rape, and child molestation will not benefit from this act." (Id., § 3, p. 70.) The act also sought "to ensure that prison spending is focused on violent and serious offenses [and] to maximize alternatives for nonserious, nonviolent crime ...." (Id., § 2, p. 70.)
As is relevant here, section 1170.18 provides that:
"(f) A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors. [¶] (g) If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor."However, section 1170.18, subdivision (i) expressly disqualifies certain offenders from resentencing and reclassification providing that "[t]his section does not apply to a person who has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290." (§ 1170.18, subd. (i).)
It is undisputed that Hubbard suffered at least one "super strike" conviction specified in "clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667" (§ 1170.18, subd. (i)) in 2011, before he sought reclassification of his 2008 conviction. (See § 667, subd. (e)(2)(C)(iv)(VIII).) The parties dispute whether section 1170.18, subdivision (i)'s exemption of those certain "prior convictions" means prior to Hubbard's 2008 conviction, or prior to his petition for reclassification.
Because the sole issue in this appeal is one of statutory construction, we apply a de novo standard of review. (People v. Tran (2015) 61 Cal.4th 1160, 1166.)
"'"In construing a statute, our task is to determine the Legislature's intent and purpose of the enactment. [Citation.] We look first to the plain meaning of the statutory language, giving the words their usual and ordinary meaning. [Citation.] If there is no ambiguity in the statutory language, its plain meaning controls; we presume the Legislature meant what it said. [Citation.] ..." [Citations.] We examine the statutory
language in the context in which it appears, and adopt the construction that best harmonizes the statute internally and with related statutes. [Citations.]' In addition, we may examine the statute's legislative history. [Citation.]" (People v. Whitmer (2014) 230 Cal.App.4th 906, 917.)We apply the same basic principles of statutory construction when interpreting a voter initiative. (Rivera, supra, 233 Cal.App.4th at p. 1099.)
Nothing in section 1170.18, subdivision (i) limits its application to time periods prior to the commission of the offense for which reclassification is sought. Thus, as determined in People v. Zamarripa (2016) 247 Cal.App.4th 1179, 1184, "[t]he plain language of the statute suggests a general disqualification regardless of when a defendant was convicted of the disqualifying offense."
In contrast, the court in People v. Montgomery (2016) 247 Cal.App.4th 1385 (Montgomery), faced with the same issue, found the term "prior conviction" as used in the statute ambiguous. But, after examining the stated purpose of Proposition 47 in the historical and statutory notes following Government Code section 7599 and examining the Proposition 47 materials in the 2014 voter pamphlet, concluded that
"regardless of what 'prior conviction' means in other statutes (see, e.g., § 1170, subd. (h)(3) ['prior or current felony conviction'], in section 1170.18, subdivision (i), as applied to redesignation of completed sentences, it means a conviction that occurred at any time before filing the redesignation application. Both the Legislative Analyst and the proposition's proponents promised the electorate that violent criminals would not get a break under the new law. It seems their intent was to assure that 'dangerous' criminals could not be released, and we cannot see that it would have made a difference to the voters when that dangerousness became apparent. The term is ambiguous, and we conclude that this interpretation is more in keeping with the intent of the voters who passed Proposition 47." (Montgomery, supra, at p. 1391.)
See this court's decision in People v. Spiller (2016) 2 Cal.App.5th 1014, 1026, footnote 3, interpreting the term "prior conviction" in the context of Proposition 36 and the distinction between the interpretation of that term in Proposition 36 and Proposition 47.
As stated in Montgomery the intent of the voters "could not have been to mete out leniency based upon whether one attempts murder and then possesses cocaine or possesses cocaine and then attempts murder." (Montgomery, supra, 247 Cal.App.4th at p. 1392.) We agree and conclude the "prior conviction" ineligibility for relief means a disqualifying conviction that occurred any time before the filing of the petition for Proposition 47 relief. (See People v. Casillas (2017) 13 Cal.App.5th 745, 751-752.)
DISPOSITION
The postjudgment order denying Hubbard's petition under section 1170.18, subdivision (f), is affirmed.
/s/_________
FRANSON, Acting P.J. WE CONCUR: /s/_________
PEÑA, J. /s/_________
BLACK, J.
Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------