Opinion
H044741
07-06-2018
THE PEOPLE, Plaintiff and Respondent, v. JERRY ALAN RICHARDSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. CC336661)
Defendant Jerry Alan Richardson appeals from an order denying his petition for redesignation of his felony drug possession conviction pursuant to Proposition 47 (Pen. Code, § 1170.18, subd. (a)). Defendant contends that he had no prior convictions for a "super strike" offense when he sustained his conviction for drug possession and thus he was eligible to have this conviction reduced to a misdemeanor. The order is affirmed.
All further statutory references are to the Penal Code unless stated otherwise. We also refer to the version of section 1170.18 in effect when defendant brought his petition. --------
I. Statement of the Case
In May 2005, defendant was charged by information with possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a)), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and possession of drug paraphernalia (Health & Saf. Code, § 11364). It was also alleged that defendant suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and served a prior prison term (§ 667.5, subd. (b)). Defendant pleaded guilty to the charges and admitted the allegations. The trial court dismissed the prior strike conviction under section 1385 and sentenced defendant to two years in state prison.
In August 2012, defendant was convicted of kidnapping during a carjacking (§ 209.5) and later was sentenced to an indeterminate term of 19 years to life in state prison.
In April 2017, defendant filed a petition to redesignate his felony drug conviction to a misdemeanor. The trial court denied the petition.
II. Discussion
In November 2014, voters enacted Proposition 47, the Safe Neighborhoods and Schools Act. (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), eff. Nov. 5, 2014.) Proposition 47 reclassified certain nonviolent crimes, including the drug possession offense in the present case, from felonies or wobblers to misdemeanors unless they were committed by statutorily ineligible individuals. (People v. Morales (2016) 63 Cal.4th 399, 404.)
Proposition 47 also included provisions for redesignation of felonies by defendants who had completed their sentences for an offense which is eligible for reduction to a misdemeanor. In this situation, a defendant must file an application to have the felony reduced to a misdemeanor pursuant to section 1170.18, subdivision (f). (People v. Shabazz (2015) 237 Cal.App.4th 303, 310.) If the application satisfies the criteria in section 1170.18, subdivision (f), the trial court must reduce the felony to a misdemeanor. (People v. Shabazz, at pp. 310-311.) However, section 1170.18 "shall not apply to persons who have one or more prior convictions for an offense specified in [section 667, subdivision (e)(2)(C)(iv)] . . . ." (§ 1170.18, subd. (i).) Section 667, subdivision (e)(2)(C)(iv)(VIII) includes offenses "punishable in California by life imprisonment or death." These disqualifying offenses are sometimes referred to as super strikes. (People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310.) Kidnapping in the course of a carjacking is a violent felony punishable by life in prison. (§§ 209.5, subd. (a), 667.5, subd. (c)(14).)
At issue in the present case is whether defendant's conviction for kidnapping during a carjacking is a "prior conviction[]" within the meaning of section 1170.18, subdivision (i). Defendant contends that it is not a prior conviction, because it occurred after his methamphetamine possession conviction for which he seeks redesignation.
"In construing statutes adopted by the voters, we apply the same principles of interpretation we apply to statutes enacted by the Legislature. [Citation.] ' "The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law." ' [Citation.] We begin with the language of the statute, to which we give its ordinary meaning and construe in the context of the statutory scheme. If the language is ambiguous, we look to other indicia of voter intent. [Citations.]" (People v. Johnson (2015) 61 Cal.4th 674, 682.)
The appellate courts in People v. Zamarripa (2016) 247 Cal.App.4th 1179, 1184 (Zamarripa), People v. Montgomery (2016) 247 Cal.App.4th 1385, 1391-1392 (Montgomery), People v. Walker (2016) 5 Cal.App.5th 872, 876, 879 (Walker), and People v. Casillas (2017) 13 Cal.App.5th 745, 752-754 (Casillas), have interpreted the phrase "one or more prior convictions" as used in section 1170.18, subdivision (i) to mean any conviction which occurred prior to the filing of the application for reclassification. We agree with these courts' statutory interpretation.
In Zamarripa, the court reasoned: "We find the 'prior conviction' ineligibility for relief means a disqualifying conviction that occurred any time before the filing of the application for Proposition 47 relief. It would make no sense, and would disserve the stated purposes of Proposition 47, for us to construe the phrase 'prior conviction' as limited only to those convictions that preceded the crime the defendant seeks to reclassify as a misdemeanor. 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. The plain language of the statute suggests a general disqualification regardless of when a defendant was convicted of the disqualifying offense. Furthermore, such an interpretation is the most consistent with the intent of the enactors not to benefit persons convicted of a super strike or required to register as a sex offender." (Zamarripa, supra, 247 Cal.App.4th at p. 1184.)
In Montgomery, the court found that the term " 'prior conviction' " was ambiguous and consulted ballot materials, including review by the Legislative Analyst, to determine voter intent. (Montgomery, supra, 247 Cal.App.4th at pp. 1389-1391.) The court focused on the Legislative Analyst's comment that " 'no offender who has committed a specified severe crime could be resentenced or have their conviction changed.' [Citation.]" (Id. at pp. 1390-1391, italics omitted.) The court then observed that the proponents of Proposition 47, "in response to the specter of a tsunami of dangerous felons unleashed on the public conjured up by the opposition, stated, 'Don't be fooled by the opposition's deceptive scare tactics: [¶] Proposition 47 does not require automatic release of anyone. There is no automatic release. [The proposition] includes strict protections to protect public safety and make sure rapists, murderers, molesters, and the most dangerous criminals cannot benefit.' [Citation.]" (Montgomery, at p. 1391, italics added.) The court also considered the "summary of the proposition's purpose and intent preceding the text of the changes to the existing codes . . ." which stated: " 'In enacting this act, it is the purpose and intent of the people of the State of California to: [¶] (1) Ensure that people convicted of murder, rape, and child molestation will not benefit from this act.' [Citation.] The Findings and Declarations portion of the proposed law assured voters that 'sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed.' [Citation.]" (Montgomery, at p. 1391, fn. omitted.)
Based on these materials, the Montgomery court concluded that " 'prior conviction' " "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." (Montgomery, supra, 247 Cal.App.4th at p. 1391.)
After examining ballot materials and the Legislative Analyst's comments, the court in Walker reached the same conclusion as did the court in Montgomery. (Walker, supra, 5 Cal.App.5th at pp. 876-877.) The decision in Casillas also includes the same analysis as that in Montgomery. (Casillas, supra, 13 Cal.App.5th at pp. 750-752.)
Defendant contends that these cases were wrongly decided, because they violated a principle of statutory construction by relegating the word "prior" to verbal surplusage. However, "[r]ules such as those directing courts to avoid interpreting legislative enactments as surplusage are mere guides and will not be used to defeat legislative [or voter] intent. [Citations.]" (People v. Cruz (1996) 13 Cal.4th 764, 782.) As previously stated, the Montgomery and Zamarripa courts concluded that the voters' intent was to ensure that a defendant convicted of a super strike would not benefit under Proposition 47.
Defendant next relies on People v. Spiller (2016) 2 Cal.App.5th 1014 (Spiller) to support his interpretation of "prior conviction." In Spiller, the court held that a defendant is eligible for relief under Proposition 36 (the "Three Strikes Reform Act of 2012," § 1170.126, subd. (e)) if the disqualifying super strike conviction occurred after his commission of the nonserious crime for which he sought resentencing. (Spiller, at pp. 1018, 1021-1026.) The Walker court explained why Spiller does not apply in the present case: "Although Propositions 36 and 47 share some similar language, the two ballot initiatives reflect profound differences in purpose and intent. . . . [¶] . . . [¶] . . . Spiller kept its analysis within the context of Proposition 36 and consistent with the provisions of the Three Strikes scheme as a whole. [Citation.] We must likewise confine our interpretation of 'prior conviction' to the context of Proposition 47 and the voters' intent in enacting it. That means we must adopt the interpretation most consistent with the intent of the voters, and refrain from falling back on understandings of the term from other contexts which conflict with the voters' intent in enacting this law." (Walker, supra, 5 Cal.App.5th at pp. 878-879.) We agree with the reasoning in Walker and reject defendant's argument.
Defendant also relies on People v. Page (2017) 3 Cal.5th 1175 (Page). In Page, the California Supreme Court held that a conviction for taking a motor vehicle (Veh. Code, § 10851, subd. (a)) can be reduced to a misdemeanor under Proposition 47 if the value of the vehicle was less than $950. (Page, at p. 1184.) The Attorney General argued that since Vehicle Code section 10851 was not one of the offenses listed in section 1170.18, subdivision (a), the voters did not intend to affect punishment under that section. (Page, at p. 1184.) The Page court stated: "The Attorney General's argument misconceives the nature of the list in section 1170.18, subdivision (a). The statute does not say that only those defendants who were convicted under the listed sections are eligible for resentencing. The statute instead says that those who are eligible (i.e., defendants serving a felony sentence who would have only been guilty of a misdemeanor had Proposition 47 been in effect at the time of their offenses) may 'request resentencing in accordance with' the listed sections. (§ 1170.18, subd. (a).)" (Ibid.)
Defendant argues that since he " 'is serving a felony sentence' and 'would have only been guilty of a misdemeanor had Proposition 47 been in effect at the time of [his] offense,' " he is eligible to have his drug possession conviction redesignated a misdemeanor. However, the Page court did not interpret the term "prior conviction" in the context of section 1170.18, subdivision (i). " 'It is axiomatic that cases are not authority for propositions not considered.' [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 566.) Accordingly, we reject defendant's argument.
III. Disposition
The order is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.