Opinion
C079348
09-05-2017
THE PEOPLE, Plaintiff and Respondent, v. JAY MCCURRY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13CR21010)
Defendant Jay McCurry appeals from the trial court's denial of his petition under Proposition 47 for recall of the felony sentence imposed on his burglary conviction and for resentencing to a misdemeanor term for shoplifting. (Pen. Code, § 1170.18, subd. (a).) The trial court concluded resentencing defendant would pose an unreasonable risk of danger to public safety, i.e., an unreasonable risk that he will commit one of the "super strikes" listed in section 667, subdivision (e)(2)(C)(iv), one of which is "[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death." (§ 667, subd. (e)(2)(C)(iv)(VIII).) The trial court reasoned that because of defendant's drug abuse and criminal history, including three juvenile strike adjudications, he posed an unreasonable risk of committing another strike "of any variety" that would qualify him for a life sentence under the three strikes law. In other words, under the trial court's reasoning, where a defendant has at least two prior strike convictions and poses an unreasonable risk of committing another strike offense, by definition he also poses an unreasonable risk of committing a super strike because one of the super strike offenses is any strike offense punishable by life imprisonment.
Undesignated statutory references are to the Penal Code. --------
We conclude the trial court misinterpreted "[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death." (§ 667, subd. (e)(2)(C)(iv)(VIII).) Properly understood, only those serious and/or violent felony offenses that are punishable by life imprisonment, without the cumulative effect of the three strikes law, qualify as super strikes under this provision. Because the trial court's determination that defendant poses an unreasonable risk of danger to public safety is expressly based on a misreading of this provision, and because it is not for this court to determine in the first instance whether defendant poses such a risk under a proper reading of the provision, we shall reverse the order denying defendant's petition for recall and resentencing and remand the matter to the trial court for reconsideration of the petition in light of this opinion.
BACKGROUND
Ordinarily, we would recount defendant's social and criminal background in some detail, as this is relevant to the trial court's determination that resentencing him to a misdemeanor term would pose an unreasonable risk of danger to public safety. Here, however, the trial court's determination that resentencing would pose such a risk was based on an erroneous interpretation of the applicable law. For purposes of setting up our discussion of that error, the following condensed recitation of facts and procedure will suffice.
In 2013, defendant and his wife were caught shoplifting from a hardware store in Amador County. Pursuant to negotiated plea agreement, defendant entered a plea of guilty to one count of second degree burglary and admitted having one prior strike conviction. In exchange for this plea and admission, an additional count of conspiracy to commit theft was dismissed, as were two additional strike allegations, one prior prison term allegation, and one allegation that defendant was released from custody on bail or on his own recognizance at the time he stole from the hardware store. Defendant was sentenced to serve a stipulated term of four years in state prison.
Defendant's prior strike offenses were committed in 1995, when he was 17 years old. He and several other minors stole a gun, ammunition, and money from the home of one of the minors and unsuccessfully attempted to steal two vehicles from the garage. Then, after also breaking into a neighbor's garage, the minors went to a supermarket parking lot, where they robbed, carjacked, and kidnapped an elderly woman at gunpoint, placing her in the trunk of her own car as they drove around. About an hour later, they let the woman out of the trunk, took her eyeglasses, and left her on the side of the road. Based on these events, defendant entered a plea of no contest to first degree burglary, second degree burglary, carjacking, and kidnapping. He also admitted enhancement allegations for personal use of a firearm and victimizing a person over the age of 65 years. He was sentenced to serve 17 years in state prison.
We also note, as did the trial court in ruling on the resentencing petition, defendant smoked marijuana the night he committed the strike offenses, began using heroin while in prison for those offenses, and began using methamphetamine following his release in 2012. Between that release and his arrest for the current offense, defendant attempted to enter one drug rehabilitation program, but was not accepted because the program did not consider him ready to begin treatment. He was accepted by a second program, but left voluntarily after one day because the facility "reminded him of a mini prison and [exacerbated] his Post Traumatic Stress Disorder." Defendant was diagnosed with that disorder, as well as anxiety and depression. It appears from the record that his drug abuse stems from an attempt to self-medicate.
After California voters approved Proposition 47 (Gen. Elec., Nov. 4, 2014, eff. November 5, 2014), defendant filed a petition pursuant to section 1170.18 to recall his sentence and reduce his present burglary conviction to a misdemeanor shoplifting conviction. Following a hearing on the petition, the trial court determined resentencing defendant would pose an unreasonable risk of danger to public safety, i.e., an unreasonable risk he will commit a super strike offense listed in section 667, subdivision (e)(2)(C)(iv), one of which is "[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death." (§ 667, subd. (e)(2)(C)(iv)(VIII).) As mentioned, the trial court reasoned that because of defendant's drug abuse and criminal history, particularly three prior strike adjudications, he posed an unreasonable risk of committing another strike "of any variety" that would qualify him for a life sentence under the three strikes law.
DISCUSSION
Defendant contends the trial court erred in concluding "the super strikes list includes crimes eligible for a life sentence because of the Three Strikes Law, and not on their own terms." We agree.
In People v. Hernandez (2017) 10 Cal.App.5th 192 (Hernandez), our colleagues at the Sixth Appellate District recently held, "the phrase 'offense punishable in California by life imprisonment or death' (§ 667, subd. (e)(2)(C)(iv)(VIII)) means an offense that itself has an associated statutory punishment of life imprisonment or death, not an offense such as robbery, which has an associated statutory punishment of two, three, or five years. An offense such as robbery is not converted to an 'offense punishable in California by life imprisonment or death' (§ 667, subd. (e)(2)(C)(iv)(VIII)) by virtue of the fact that the particular offender has two prior serious or violent felony convictions." (Id. at p. 202.) Beginning with the statutory language, the court explained "the ordinary meaning of the phrase 'offense punishable in California by life imprisonment' as used in section 667, subdivision (e)(2)(C)(iv)(VIII). The word 'offense' generally refers to a criminal act. Section 15 specifies: 'A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction,' punishment by death, imprisonment, a fine, removal from office, or disqualification from office. By using the term 'offense punishable . . . by life imprisonment,' section 667, subdivision (e)(2)(C)(iv)(VIII) focuses on the offense and its associated statutory punishment, not the type of offender or the effect of other prior convictions on the offender's sentence. Since the 'offense' of robbery has an associated statutory punishment of 'imprisonment in the state prison for two, three, or five years' (§ 213, subd. (a)(2)), it is not an 'offense punishable in California by life imprisonment or death' (§ 667, subd. (e)(2)(C)(iv)(VIII))." (Id. at p. 199.)
Turning to the context of section 667, subdivision (e)(2)(C)(iv)(VIII), the court noted the provision was enacted as part of Proposition 36 "to provide a list of 'super strikes'—prior convictions that make a defendant ineligible for the Three Strike reforms enacted by [that proposition]." (Hernandez, supra, 10 Cal.App.5th at p. 200.) The court found significance in the fact this provision "is the final sub-clause in a list of specific crimes and categories of crimes," none of which "focuses on characteristics of the offender or the effect of other prior convictions on the offender's sentence," explaining: " 'The rule of statutory construction, noscitur a sociis, a word takes meaning from the company it keeps, is useful here. . . . If we were to adopt the Attorney General's interpretation of the term 'offense punishable in California by life imprisonment' as including offenses that are punishable by life imprisonment due to factors such as the presence of prior convictions, sub-clause (VIII) would be markedly dissimilar to the other seven items listed in section 667, subdivision (e)(2)(C)(iv), which are: sexually violent offenses, specified sex crimes against minors, homicide offenses, solicitation to commit murder, assault with a machine gun on a police officer or firefighter, and possession of a weapon of mass destruction." (Ibid.)
We agree with the Hernandez court's interpretation of section 667, subdivision (e)(2)(C)(iv)(VIII). (10 Cal.App.5th 192.) During oral argument, the Attorney General also conceded this to be the proper interpretation of the provision. While Hernandez specifically dealt with the question of whether that defendant was disqualified from Proposition 47 relief because he had a prior super strike conviction (§ 1170.18, subd. (i)) that the trial court in that case determined included robbery because the defendant received a life term under the three strikes law, and this case involves the trial court's determination defendant poses an unreasonable risk of committing a super strike in the future because he has three prior strikes and therefore will be subject to a life term if he commits another strike offense "of any variety," the same mistaken interpretation of sub-clause (VIII) occurred. The question the trial court should have resolved is whether defendant poses an unreasonable risk of committing, not any strike offense, but only those strike offenses "for which the usual prescribed punishment is a life sentence, such as kidnapping [for ransom, reward, extortion, or to commit robbery or rape] in violation of section 209." (Hernandez, supra, 10 Cal.App.5th at p. 198.)
However, having conceded the foregoing error, the Attorney General argues we may nevertheless affirm because the record supports an inference the trial court also found defendant poses an unreasonable risk of committing such a super strike offense. We disagree. While the trial court found defendant's 1995 criminal conduct—resulting in burglary, carjacking, and kidnapping convictions—to be "disturbing," and while the facts of the prior kidnapping arguably would have supported an aggravated kidnapping conviction in violation of section 209, that is not the crime defendant was convicted of committing. Nor did the trial court conclude defendant poses an unreasonable risk of repeating that prior conduct. Instead, the trial court specifically concluded defendant poses an unreasonable risk of "commit[ting] himself to a course of conduct that would trigger any number of strike offenses, from kidnapping, to robbery, to residential burglary, and to other serious and violent offenses." As we have explained, this is not the proper standard. We express no opinion as to whether defendant's prior criminal conduct and drug abuse would support a conclusion he poses an unreasonable risk of committing the crime of kidnapping for purposes of robbery, or other crime for which the usual prescribed punishment is a life sentence. This is for the trial court to determine in the first instance. We shall therefore reverse the order denying defendant's petition for recall and resentencing and remand the matter to the trial court for reconsideration of the petition.
DISPOSITION
The order denying defendant's petition for recall of sentence and for resentencing under Penal Code section 1170.18 is reversed and the matter is remanded to the superior court for reconsideration of whether resentencing defendant would pose an unreasonable risk of danger to public safety.
/s/_________
HOCH, J. We concur: /s/_________
BUTZ, Acting P. J. /s/_________
RENNER, J.