Opinion
C075153
03-08-2017
THE PEOPLE, Plaintiff and Appellant, v. BARRY TURNAGE, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. CRF041665, CRF065019) OPINION AFTER REMAND
This matter comes to us on remand from the California Supreme Court with directions to reconsider our earlier decision in light of People v. Conley (2016) 63 Cal.4th 646 (Conley). On reconsideration we shall affirm our earlier decision in its entirety.
INTRODUCTION
This is our fourth occasion to review issues raised by defendant's conviction of maliciously placing a false or facsimile bomb in 2006 with the intent to cause others to fear for their safety (Pen. Code, § 148.1, subd. (d)). Following the jury's verdict, the trial court sentenced defendant to state prison for the upper term on a 2004 drug offense, with a consecutive indeterminate prison term of 25 years to life for the present offense. (§ 667, subd. (e)(2)(A)(ii).)
Further statutory references are to the Penal Code unless otherwise designated.
First Appeal
In our initial review of the conviction, we agreed with defendant's equal protection claim that there was no rational basis for distinguishing the two crimes—section 148.1, subd. (d) and sections 11418.1, 11418.5, subd. (b)—and concluded that a violation of section 148.1, subdivision (d) would be punishable only as a misdemeanor. Our conclusion made it unnecessary to address defendant's challenge to the recidivist finding under the "Three Strikes" law (based on his 1985 entry of a guilty plea). The California Supreme Court granted review in 2010 and in August 2012 affirmed our judgment "insofar as it upheld the trial court's finding of a probation violation and declined to reverse, in its entirety, defendant's conviction under Penal Code section 148.1, subdivision (d)" but articulated the rational basis that eluded us in our initial review. (People v. Turnage (2012) 55 Cal.4th 62, 81.)
Opinion Following Remand
On remand we applied the Supreme Court's reasoning, affirming defendant's conviction, and addressed his other arguments that we had not considered in light of our earlier opinion, including his assertion that there was not sufficient evidence to prove the 1985 prior strike conviction. Because the record underlying that conviction was unclear, and the evidence confusing, we reversed and remanded for retrial to permit the trial court to take additional clarifying evidence on the 1985 conviction. The remittitur issued in July 2013.
Following the Supreme Court's August 2012 opinion in this case, but before our second opinion and remittitur, the people of California enacted the Three Strikes Reform Act of 2012 (the Act) which became effective on November 7, 2012. In September 2013 a jury found defendant's prior strike conviction allegation true, and in October 2013 the trial court concluded defendant was entitled to be sentenced pursuant to the Act, reasoning as follows: "The defendant is presently unsentenced. The true finding as to his second strike occurred after the amendment to Penal Code Section 667. The Court finds that under the facts of this case the amended Penal Code Section 667 applies. The defendant's conviction of Penal Code Section 148.1 is not a serious or violent felony. None of the exclusions under [section] 667 apply. Therefore, an indeterminate sentence may not be imposed." The court then imposed a determinate term of six years (the upper term of three years, doubled because of the strike) plus an effective consecutive term of one year four months for a separate case for which defendant was on probation. The People again appealed.
Second Appeal
We disagreed with the trial court's conclusion that because the true finding as to his second strike occurred after the effective date of the Act, his sentencing would be governed by section 667 as amended. First, we noted that "the Act makes clear that a defendant whose original sentence is to be imposed on or after November 7, 2012, and who qualifies for sentencing under amended section 667, subdivision (e) must be sentenced under that section. However, the Act does not address whether, as here, a defendant originally sentenced before November 7, but whose sentence was vacated on appeal and the matter remanded for resentencing after November 7, is in the same unsentenced position as he or she was when originally sentenced. Thus, in such circumstances the Act is ambiguous, and therefore it is appropriate to look to extrinsic evidence, such as the argument contained in the Amendment's ballot pamphlet, to determine voter intent. (People v. Yearwood (2013) 213 Cal.App.4th 161, 171. (Yearwood).)" (People v. Turnage (Apr. 15, 2015, No. C075153) [nonpub. opn.] slip opn. at p. 4.)
Next, reviewing the arguments set forth in the ballot pamphlet, we pointed out the arguments of the proponents that "one of the primary purposes of the Act was to make the punishment fit the crime while guarding public safety. [Citation.] . . . Public safety was addressed by limiting application of the Act to defendants whose crimes for which they were to be sentenced or had been sentenced were neither serious nor violent felonies, nor did they come within the scope of other specified offenses or circumstances. (§ 667, subd. (e).)" (People v. Turnage, supra, C075153, slip opn. at p. 5.) Indeed, according to the proponents, because the Act was so carefully crafted, "dangerous criminals will receive no benefits whatsoever from the reform." (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) argument in favor of Prop. 36 [(the Act)], p. 52.)
Then we discussed People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1293 (Kaulick) to illustrate the proper application of the prospective and retrospective parts of the Act. In 2000, the defendant in Kaulick, though charged with assault with intent to commit rape (§ 220), and making criminal threats (§ 422), was only convicted of false imprisonment, which is not a serious or violent felony. The court found two alleged prior serious or violent felony allegations true and sentenced Kaulick to 25 years to life in state prison. (Kaulick, at p. 1288.)
In December 2012, around 12 years after his sentencing, Kaulick filed a petition for resentencing under section 1170.126. (Kaulick, supra, 215 Cal.App.4th at p. 1289.) He minimized his dangerousness and claimed that his prior convictions arose from a family dispute gone awry for which he had naively accepted a plea bargain. He provided no evidence regarding his behavior while in prison or his current risk of dangerousness. The trial court, without giving notice or opportunity to be heard to the district attorney, granted the petition and resentenced Kaulick to seven years. (Id. at pp. 1289-1290.)
The district attorney sought and obtained an immediate 30-day stay. (Kaulick, supra, 215 Cal.App.4th at p. 1290.) A review of Kaulick's prison records disclosed that he had been found guilty of serious rules violations—twice for battery on a peace officer (2002, 2005); six times for fighting (2001, 2003, 2007, 2010, 2011, 2012); and once for disrespecting staff (2011), possession of alcohol (2009), being under the influence of alcohol (2008), and destruction of property (2002). (Ibid.)
The district attorney also reviewed the facts of Kaulick's present and past convictions, which the defendant had minimized in his petition. (Kaulick, supra, 215 Cal.App.4th at p. 1290.) The review established the aggravated circumstances of both his false imprisonment conviction and his prior serious felonies. A writ of mandate directed the trial court to vacate its resentencing of Kaulick under the Act and to conduct a new hearing wherein the prosecution was afforded the opportunity to challenge Kaulick's qualification for resentencing under section 1170.126. (Kaulick, supra, 215 Cal.App.4th at pp. 1306-1307.)
Following the discussion of the voters pamphlet and the holding in Kaulick, we concluded:
"In the present case, by sentencing defendant pursuant to the prospective part of the Act the trial court permitted defendant to bypass having the trial court determine whether, as in Kaulick, facts existed that established he posed an unreasonable risk of danger to public safety based upon any evidence relevant on the issue. As in Kaulick, such a bypass was clearly contrary to the intent of the voters in passing the Act." (People v. Turnage, supra, C075153, slip opn. at p. 7.)
We again vacated defendant's sentence and remanded the matter to the superior court with directions to resentence defendant under the Three Strikes law as it stood at the time of his original sentencing, which included the trial court's discretion to strike one or more of his prior strikes if the court determined that he so qualified.
Supreme Court Grant of Review and Remand
The California Supreme Court granted defendant's petition for review and deferred action pending resolution of a similar issue in People v. Conley, California Supreme Court No. S211275. Following its decision in Conley, supra, 63 Cal.4th 646, the Supreme Court transferred the matter back to this court, with directions to vacate our decision and reconsider the issue in light of the Conley decision. On reconsideration, we shall affirm our earlier decision.
As expressed in our earlier opinion, the Act does not address whether, as here, a defendant originally sentenced before November 7, but whose sentence was vacated on appeal and the matter remanded for resentencing after November 7, is in the same unsentenced position as he or she was when originally sentenced. Nor is that question directly addressed in Conley, where the defendant raised no issues on appeal but sought independent review of the record under People v. Wende (1979) 25 Cal.3d 436. This court had earlier affirmed Conley's conviction two days after the Act was enacted and though our court later granted rehearing to clarify an earlier denial of rehearing, the sentence was unaffected. Thus, Conley does not directly address the issue before us.
Nonetheless, the reasoning of our earlier opinion anticipated and mirrors to a great degree the reasoning of the Supreme Court's Conley opinion. More cogently, the Supreme Court's explication of the crucial question—the people's intent in passing the Act—supports the conclusion reached in our earlier opinion.
In his supplemental brief defendant cites the plain meaning rule and insists that, as applied to him, the language of the Act is unambiguous: he was not "presently serving an indeterminate term of imprisonment" (§ 1170.126, subd. (a)) at the time of his resentencing and thus section 1170.126 does not apply to him. He is not required to petition for relief from the earlier imposed three strikes sentence. Rather, he should enjoy the full benefit of the Act, though he was found guilty and sentenced before passage of the Act. For that reason he also escapes exposure to the disqualifying factors in the Act because his resentencing takes place after the prosecution's opportunity to plead such factors.
It is true that in interpreting a statute enacted by means of a voter initiative, we turn first to the language of the statute. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901.) "But the 'plain meaning' rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose . . . ." (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) And the meaning "may not be determined from a single word or sentence; the words must be construed in context . . . . [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.]" (Ibid.) " ' "[W]e do not construe statutes in isolation, but rather read every statute 'with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.' " ' " (People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, 1014.) In understanding and ascertaining the intent of the electors with reference to an initiative statute we may consider ballot summaries and arguments. (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1037.)
It was in light of these rules of interpretation that the Supreme Court in Conley considered the Act. A central underlying premise motivating the Act was "a determination that sentences under the prior version of the Three Strikes law were excessive." (Conley, supra, 63 Cal.4th at p. 658.) "But voters were motivated by other purposes as well, including the protection of public safety. The ballot materials explained that 'dangerous criminals are being released early from prison because jails are overcrowded with nonviolent offenders who pose no risk to the public.' ([Voter Information Guide, Gen. Elec. (Nov. 6, 2012) rebuttal to argument against Prop. 36, p. 53].) Voters were told that the . . . Act would protect public safety by 'prevent[ing] dangerous criminals from being released early' (ibid.) and would have no effect on 'truly dangerous criminals' (id., argument in favor of Prop. 36, p. 52)." (Conley, at p. 658.)
As a consequence, the measure was written to sweep within its ameliorative provisions not only prisoners sentenced after passage of the Act but also prisoners sentenced under the former act, including prisoners sentenced prior to passage of the Act and whose cases were final on that date, as well as prisoners who were sentenced prior to passage of the Act but whose cases were pending on direct review and thus not final. But mechanisms were included to strike a balance between mitigating punishment and protecting public safety. These mechanisms operated differently, depending on when the defendant was sentenced.
As to prisoners sentenced in cases arising after the Act's effective date, the Act expressly provides that certain offenses render a defendant disqualified from receiving the Act's mitigating benefits. The disqualifiers addressed the public safety concerns mentioned in the voters pamphlet. The Act also "[creates] a resentencing mechanism for persons serving indeterminate life terms under the former Three Strikes law, but making resentencing subject to the trial court's evaluation of whether, based on their criminal history, their record of incarceration, and other relevant considerations, their early release would pose an 'unreasonable risk of danger to public safety.' " (Conley, supra, 63 Cal.4th at p. 658.)
The scope of the resentencing mechanism is alluded to in the court's reasoning with respect to the question of retroactivity:
"Where, as here, the enacting body creates a special mechanism for application of the new lesser punishment to persons who have previously been sentenced, and where the body expressly makes retroactive application of the lesser punishment contingent on a court's evaluation of the defendant's dangerousness, we can no longer say with confidence, as we did in Estrada, that the enacting body lacked any discernible reason to limit application of the law with respect to cases pending on direct review. On the contrary, to confer an automatic entitlement to resentencing under these circumstances would undermine the apparent intent of the electorate that approved section 1170.126: to create broad access to resentencing for prisoners previously sentenced to indeterminate life terms, but subject to judicial evaluation of the impact of resentencing on public safety, based on the prisoner's criminal history, record of incarceration, and other factors." (Conley, supra, 63 Cal.4th at pp. 658-659.)
Shining further light on the phrase "presently serving . . . ." the court declared: "[W]e can discern no basis to conclude that the electorate would have intended for courts to bypass the public safety inquiry altogether in the case of defendants serving sentences that are not yet final." (Conley, supra, 63 Cal.4th at p. 659.)
The court explained: "[T]he revised sentencing provisions at issue in this case do more than merely reduce previously prescribed criminal penalties. They also establish a new set of disqualifying factors that preclude a third strike defendant from receiving a second strike sentence. (See Pen. Code, § 1170.12, subd. (c)(2)(C).) The sentencing provisions further require that these factors be 'plead[ed] and prove[d]' by the prosecution. (Ibid.)
"These provisions add an additional layer of complexity to defendant's request for automatic resentencing under the revised penalty scheme. In cases arising after the . . . Act's effective date, operation of the pleading-and-proof requirements is straightforward enough. But for defendants who have already been tried and sentenced, the matter would be considerably more complicated. Before the . . . Act, prosecutors may have had no reason to plead and prove the new disqualifying factors in a particular case." (Conley, supra, 63 Cal.4th at p. 659.)
"Unless defendants were to be resentenced solely based on the existing trial court record—leaving the prosecution without the opportunity to plead and prove the presence of disqualifying factors or offenses that have become newly relevant under the Act—trial courts presumably would have to permit prosecutors to hold mini-trials for the sole purpose of determining whether, for example, the defendant's offense of conviction involved arming with a firearm or an intent to cause great bodily injury (see Pen. Code, § 1170.12, subd. (c)(2)(C)(iii))." (Conley, supra, 63 Cal.4th at p. 660.)
The court went on to note that such procedures would not be unprecedented. However, "the question . . . is not whether such trials are possible. The question is whether this is the system the voters intended to create, though no provision of the Act contains any affirmative indication to that effect. We find it difficult to escape the conclusion that the Act does not address the complexities involved in applying the pleading-and-proof requirements to previously sentenced defendants precisely because the electorate did not contemplate that these provisions would apply. Rather, voters intended for previously sentenced defendants to seek relief under section 1170.126, which contains no comparable pleading-and-proof requirements. (See Pen. Code, § 1170.126, subd. (e)(2), (3).)" (Conley, supra, 63 Cal.4th at pp. 660-661.)
The Supreme Court was thus concerned, as we were in our earlier opinion, with the prospect that "the defendant might receive a second strike sentence without the prosecution ever having had occasion to plead and prove" (Conley, supra, 63 Cal.4th at p. 660) a disqualifying factor or without a review by the trial court to determine whether he poses an "unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).) It would also be anomalous to make the application of the new Act hinge on whether during the course of a protracted appellate review process the reviewing court vacated the sentence to facilitate a remand and further proceedings. As the Supreme Court suggested, there is no reason to confer an automatic entitlement to sentencing under the Act to cases on direct review. Nor is there any reason to create such an automatic entitlement where an order vacating the sentence accompanies a remand as an extension of the review process and where, ultimately, the three strikes sentence originally imposed by the trial court is affirmed. Defendant retains the right to file a petition for recall of sentence under the procedure set forth in the Act. He does not gain a windfall and escape the review required of other defendants who are similarly situated.
DISPOSITION
Defendant's sentence is vacated and the matter is remanded to the superior court with directions to resentence defendant under the Three Strikes law as it stood at the time of his original sentencing, which includes the trial court's discretion to strike one or more of his prior strikes if the court determines that he so qualifies. The judgment is otherwise affirmed.
RAYE, P. J. We concur: BUTZ, J. MURRAY, J.