Opinion
No. B249197.
07-17-2014
THE PEOPLE, Plaintiff and Respondent, v. ABELARDO SOTO, Defendant and Appellant.
Cheryl Lutz , under appointment by the Court of Appeal, for Defendant and Appellant.
Steven Graff Levine as Amicus Curiae on behalf of Defendant and Appellant.
Michael Stone Romano for Stanford Law School Three Strikes Project as Amicus Curiae on behalf of Defendant and Appellant.
Kamala D. Harris , Attorney General, Dane R. Gillette , Chief Assistant Attorney General, Lance E. Winters , Assistant Attorney General, Scott A. Taryle , Kimberley J. Baker-Guillemet and Noah P. Hill , Deputy Attorneys General, for Plaintiff and Respondent.
Jackie Lacey , District Attorney, Beth L. Widmark and Matthew Aaron Brown , Deputy District Attorneys, as Amicus Curiae on behalf of Plaintiff and Respondent.
CERTIFIED FOR PARTIAL PUBLICATION
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, the opinion is certified for partial publication. The portions of the opinion certified for publication are as follows: The first introductory paragraph in page 969 and the Procedural history with the exception of the final sentence. On pages 970, 971 and 972, parts 2. and 3. of the discussion and on page 973, the Disposition.
OPINION
KLEIN, P. J.
Appellant Abelardo Soto filed a petition to recall his sentence pursuant to the provisions of Penal Code section 1170.126, which was enacted by Proposition 36 in 2012. The gist of the reform enacted by Proposition 36 was to limit sentences of 25 years to life to those defendants who are (or were) convicted of serious or violent felonies. The trial court denied appellant's petition on the ground that he was ineligible because his current offense fell under subdivision (e)(2)(C)(iii) of section 667. The operative part of subdivision (e)(2)(C)(iii) is clause (iii) which disqualifies a defendant from resentencing if "[d]uring 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." We affirm.
All further statutory references are to the Penal Code unless otherwise noted.
PROCEDURAL HISTORY
Appellant was convicted on March 4, 1998, of possession of a controlled substance (count 1; Health & Saf. Code, § 11350); transportation of a controlled substance (count 2; Health Saf. Code, § 11352, subd. (a)); and possession of a firearm by a felon (count 3; former § 12021, subd. (a)). The jury found true the allegation that in the commission of count 2 appellant was personally armed with a firearm. Appellant admitted two prior robbery convictions. Appellant was sentenced on count 1 to 25 years to life, plus three years for a firearm enhancement; on count 2 to an identical term but stayed under section 654; on count 3 to a concurrent term of 25 years to life.
In the appeal from this conviction, appellant contended that count 1 had been improperly enhanced, a point that was conceded by the Attorney General. This court agreed and remanded for resentencing, noting that the trial court might decide to impose a 25-year-to-life sentence on count 1. The trial court did just that and struck the enhancement of count 1. The sentences on counts 2 and 3 were the same as those that had been originally imposed, i.e., the sentence on count 2 was again stayed under section 654.
We hold that the trial court correctly concluded that appellant was ineligible for resentencing under section 1170.126.
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, the opinion is certified for partial publication. The portions of the opinion certified for publication are as follows: The first introductory paragraph in page 969 and the Procedural history with the exception of the final sentence. On pages 970, 971 and 972, parts 2. and 3. of the discussion and on page 973, the Disposition.
DISCUSSION
1. The order under review is appealable.
See footnote, ante, page 967.
2. The stay of the sentence of count 2 has no effect on the conviction
Appellant concedes that the arming allegation found true under count 2 would disqualify him under subdivision (c)(2)(C)(iii) of section 1170.12 but "because the sentence for that crime [count 2] was stayed, appellant is not `serving' a sentence for it, and it does not therefore disqualify him from relief."
(1) Under subdivision (e) of section 1170.126, an inmate is eligible for resentencing if three conditions are met. They are: "(1) The inmate is serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7. [¶] (2) The inmate's current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12. [¶] (3) The inmate has no prior convictions for any of the offenses appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12." (§ 1170.126, subd. (e).)
It is undisputed that appellant satisfies the first and third conditions. The issue therefore is whether he complies with the second condition. The phrasing of the second condition is fatal to appellant's argument. While the first condition is that the inmate "is serving an indeterminate term," the second condition makes no reference to the inmate "serving" a term. The second condition only states that the "inmate's current sentence was not imposed for any of the offenses" listed in the referenced statutes.
(2) In interpreting a statute, words must be given the usual and ordinary meaning of the language used. (People v. Ramirez (2009) 45 Cal.4th 980, 987 [89 Cal.Rptr.3d 586, 201 P.3d 466].) The ordinary meaning will be given effect if there is no ambiguity. (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 321 [74 Cal.Rptr.3d 891, 180 P.3d 935].) When a word used in a statute has a well-established legal meaning, it will be given that meaning in construing the statute. (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 19 [56 Cal.Rptr.2d 706, 923 P.2d 1].)
(3) Even though the sentence on count 2 was stayed, the sentence on count 2 is still part of appellant's "current sentence." Citing People v. Norrell (1996) 13 Cal.4th 1, 13-14 [51 Cal.Rptr.2d 429, 913 P.2d 458] (cone. & dis. opn. of Arabian, J.), appellant concedes that a sentence that has been stayed under section 654 has nevertheless been imposed. It is also true that for purposes of "Three Strikes" sentencing, a stayed sentence still qualifies as a strike. (People v. Benson (1998) 18 Cal.4th 24, 29-30 [74 Cal.Rptr.2d 294, 954 P.2d 557].) Thus, the stay of the sentence does not expunge the conviction. The usual and ordinary meaning, as well as the legal understanding, of the words "current sentence" necessarily includes the stayed sentence on count 2.
(4) While the second condition could have been set forth as stating that "the inmate is serving a sentence that was not imposed" for the listed offenses, this is not what the Legislature did. "While a court may consider logic and practical considerations when there is room for interpretation, where the language is so clear that no reasonable mind can differ as to the meaning of the words used, the Court has no alternative but must enforce the statute as written. To hold otherwise would be to hold that this Court may legislate, which, of course, it cannot." (Estate of Sahlender (1948) 89 Cal.App.2d 329, 346 .)
It is of marginal interest that if the second condition had been phrased as in the text, appellant's argument could have won the day since it is hardly possible to serve a suspended sentence.
(5) Appellant is not eligible for resentencing. In light of our disposition, it is unnecessary to consider the further argument that appellant is also ineligible because he was convicted of being in possession of a firearm as a felon. 3. Appellant should not be resentenced on count 1.
Appellant also contends that even if he is ineligible for resentencing under counts 2 and 3, he is eligible under count 1 since there is no question that possession of a controlled substance qualifies him for resentencing. The question posed by this contention is whether, in a case involving convictions of multiple counts, a defendant should be resentenced on a count which, if standing alone, would qualify him for resentencing.
We reject this argument. Taken to its logical conclusion, this argument would result in two strike sentences for defendants who otherwise are ineligible for resentencing or, alternatively, resentencing appellant on count 1 would amount to an idle act.
Addressing the first alternative and adopting appellant's argument for purposes of illustration, appellant would be deemed ineligible for resentencing on counts 2 and 3 but he would be resentenced to a two strike sentence on count 1. If the only legally operative conviction and sentence is the new two strike sentence on count 1, this defendant would enjoy the benefits of Proposition 36 resentencing, even though he is not eligible for resentencing on counts 2 and 3.
The flaw in appellant's argument is that it ignores the convictions and resulting sentences on counts 2 and 3. If appellant had only committed the crime of possessing a controlled substance, there would of course be no problem and appellant would be resentenced. But he did more than possess a controlled substance. He transported a controlled substance while personally armed with a firearm and, as a felon, he was in possession of a firearm and he was found guilty of these two offenses. One cannot pretend that these two convictions and resulting sentences simply did not happen. Appellant is not eligible for resentencing on count 2 and possibly not on count 3, either, although, as we point out below, we need not decide this issue. It is important to keep in mind that it is appellant's conviction of count 2 with its armed allegation that makes him ineligible for resentencing and that this conviction remains in effect.
This squares with the principle we discussed above that even though a sentence has been stayed under section 654, the sentence has nevertheless been imposed. That is, a stay of the sentence does not expunge the conviction and resulting sentence.
What if appellant is resentenced to a two strike sentence on count 1 and is denied resentencing on counts 2 and 3 because he is not eligible under section 1170.126? In this event, resentencing on count 1 is a meaningless gesture. As we pointed out above, appellant's "current sentence" under subdivision (e)(2) of section 1170.126 includes the stayed sentence on count 2. The conviction of count 2, which remains in effect, renders him ineligible for resentencing under section 1170.126. Thus, resentencing appellant on count 1 changes nothing.
In sum, appellant's argument that he should be resentenced on count 1 is without merit. Count 2 renders him ineligible for resentencing.
Appellant also contends that being in possession of a firearm as a felon is not the equivalent of being armed with a firearm and that he is therefore eligible for resentencing on count 3. We need not decide this issue since appellant is ineligible for resentencing on count 2 and therefore cannot avail himself of section 1170.126.
DISPOSITION
The judgment (order) is affirmed.
Kitching, J., and Aldrich, J., concurred.