Opinion
E066374
03-10-2017
THE PEOPLE, Plaintiff and Respondent, v. PATRICIA WRIGHT, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CR32786) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. REQUEST FOR JUDICIAL NOTICE. Granted. Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
The only issue in this appeal is whether a "super-strike" conviction sustained after a theft-related felony conviction is nevertheless a "prior conviction" such that it bars the reduction of the theft-related felony to a misdemeanor under Proposition 47.
Consistent with the three published opinions on this issue, we will hold that it is.
I
FACTUAL AND PROCEDURAL BACKGROUND
In 1981 — according to evidence that a jury later found convincing beyond a reasonable doubt — defendant hired Larry Slaughter to murder Willie Scott so that she could collect $80,000 worth of insurance on Scott's life. Slaughter killed Scott by stabbing him 17 times.
In 1989, while defendant and Slaughter were touring model homes, defendant stole six to eight towels, a stuffed spider, and a toy wooden cart from two of the homes.
Later in 1989, defendant was charged with two counts of second degree burglary arising out of the thefts from the model homes. At that point, her only prior conviction was for petty theft. (Pen. Code, § 484.) The probation officer discovered, however, that she had multiple aliases and multiple social security numbers. A representative of the Social Security Administration described defendant as "street-wise" and reported that she was under investigation for fraud. A social worker, who had been involved in removing defendant's children from her custody based on physical abuse and neglect, believed that she was "more criminally sophisticated than her records indicate
In 1990, defendant pleaded guilty to the two burglaries, as felonies, and was placed on probation for three years. Later in 1990, she absconded. In 1997, she was located; her probation was extended for one year.
Also in 1997, defendant was charged with the 1981 murder. In 1998, she was convicted of first degree murder, with a financial gain special circumstance, and sentenced to life without the possibility of parole.
Defendant has requested judicial notice of the appellate opinion in her murder case, People v. Wright (B133341, July 17, 2000) [nonpub. opn.]. The People have not opposed that request. The request is hereby granted. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).) We note that the opinion was not before the trial court. However, it is not of substantial consequence to the determination of the action; we have used it only to lend nondispositive background, color, or continuity. In any event, both sides have forfeited any irregularity in our taking the requested judicial notice.
In 2010, defendant moved to reduce her burglary convictions to misdemeanors. (Pen. Code, § 17, subd. (b)(3).) She represented that she had been diagnosed with terminal cancer and told that she had six months to live. She argued that the reduction would permit her to obtain compassionate release. The trial court denied the motion.
Defendant requested judicial notice of our opinion in her appeal from the denial of her motion, People v. Ramdhanramjohn (E054203, June 21, 2012) [nonpub. opn.]. We have already granted that request.
In 2015, defendant commenced the present proceeding by filing a petition to reduce the two burglaries to misdemeanors pursuant to Proposition 47. (Pen. Code, § 1170.18.) The People filed a response asserting that she was ineligible for relief due to her murder conviction.
The trial court denied the petition without a hearing. It ruled that defendant was ineligible for relief because she had a "prior conviction[]" for murder within the meaning of Penal Code section 1170.18, subdivision (i).
II
DEFENDANT'S MURDER CONVICTION IS A DISQUALIFYING
"PRIOR CONVICTION" WITHIN THE MEANING OF PROPOSITION 47,
EVEN THOUGH IT OCCURRED AFTER HER BURGLARY CONVICTIONS
A. Statutory Background.
Proposition 47 reduced specified theft-related offenses — provided they involve property worth $950 or less — as well as specified drug-related offenses from felonies (or wobblers) to misdemeanors. (Couzens & Bigelow, Proposition 47: "The Safe Neighborhoods and Schools Act" (May 2016 rev. ed.) pp. 24-28.)
Available at <http://www.courts.ca.gov/documents/Prop-47-Information.pdf>, as of March 10, 2017. --------
The specified offenses include burglary whenever it also qualifies as the new crime of "shoplifting." (Pen. Code, § 459.5.) "[S]hoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950)." (Id., subd. (a).) The People do not dispute that, if Proposition 47 had been in effect when defendant committed the burglaries, she would have been guilty of shoplifting rather than burglary.
Proposition 47 also allows persons previously convicted of a felony who would now only be guilty of a misdemeanor to petition to reduce the conviction. Specifically, it enacted Penal Code section 1170.18, which, as relevant here, provides:
"(f) A person who has completed his or her sentence for a conviction . . . 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. [¶] . . .
"(i) The provisions of this section shall not apply to persons who have one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 . . . ." (Italics added.)
The disqualifying prior convictions — nicknamed "super-strikes" — include murder. (Pen. Code, § 667, subd. (e)(2)(C)(iv)(IV).)
B. Discussion.
"'When interpreting a voter initiative such as Proposition 47, we apply the same principles that govern statutory construction. [Citations.] Under well-founded principles of statutory construction, "in construing a statute we ascertain the Legislature's intent in order to effectuate the law's purpose. [Citation.] We must look to the statute's words and give them 'their usual and ordinary meaning.' [Citation.] 'The statute's plain meaning controls the court's interpretation unless its words are ambiguous.' [Citations.] 'If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy.' [Citation.]" [Citation.] . . . .' [Citation.]" (People v. Hall (2016) 247 Cal.App.4th 1255, 1264.) "We review the trial court's construction of Proposition 47 de novo. [Citation.]" (People v. Salmorin (2016) 1 Cal.App.5th 738, 743.)
The relevant statutory language states that Proposition 47 "shall not apply to persons who have one or more prior convictions for a [disqualifying] offense . . . ." (Pen. Code, § 1170.18, subd. (i), italics added.) "Have" is present tense. Thus, it focuses on the moment when the statute is being applied by the trial court. If the drafters intended the meaning for which defendant argues, they could easily have written that Proposition 47 "shall not apply to persons who had, prior to their conviction for the current offense, one or more convictions for a [disqualifying] offense . . . ."
Uncodified portions of Proposition 47 support this reading. Section 2 provides: "This act ensures that sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.) Section 3 similarly states: "In enacting this act, it is the purpose and intent of the people of the State of California to: [¶] . . . Ensure that people convicted of murder, rape, and child molestation will not benefit from this act." (Id., § 3, subd. (1), p. 70.)
Even if we were to consider legislative history material, it would only reinforce our conclusion. In the voter guide, the Legislative Analyst stated: "[N]o offender who has committed a specified severe crime could be resentenced or have their conviction changed." (Voter Information Guide, supra, analysis by the Legis. Analyst of Prop. 47, p. 36.) Similarly, the "Rebuttal to Argument Against Proposition 47" stated: "It includes strict protections to protect public safety and make sure rapists, murderers, molesters and the most dangerous criminals cannot benefit." (Id., rebuttal to argument against Prop. 47, p. 39.)
We are not alone in our interpretation; every published decision that has considered the question has come to the same conclusion. (People v. Walker (2016) 5 Cal.App.5th 872, 877-878 [Second Dist., Div. One]; People v. Montgomery (2016) 247 Cal.App.4th 1385, 1389-1392 [Fourth Dist., Div. Three]; People v. Zamarripa (2016) 247 Cal.App.4th 1179, 1183-1184 [Second Dist., Div. Eight].)
Defendant relies on People v. Spiller (2016) 2 Cal.App.5th 1014, which came to the opposite conclusion about the meaning of "prior conviction" as used in Proposition 36. (Id. at pp. 1020-1026.) In Walker, however, the court found Spiller irrelevant: "Although Propositions 36 and 47 share some similar language, the two ballot initiatives reflect profound differences in purpose and intent." (People v. Walker, supra, 5 Cal.App.5th at p. 878.) "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." (Id. at p. 879.)
Defendant asserts that she "is dying of cancer" and thus "clearly not a danger to anyone . . . ." No matter how sympathetic we may be, this is irrelevant.
We therefore conclude, based on the statute's plain meaning, that a conviction for a super-strike is disqualifying, even if it occurred after the current conviction, as long as it occurred before the trial court's consideration of the petition.
III
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: CODRINGTON
J. SLOUGH
J.