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People v. Cordova

California Court of Appeals, Sixth District

June 24, 2016

THE PEOPLE, Plaintiff and Respondent,
v.
JOHNNY MELENDEZ CORDOVA, Defendant and Appellant.

          Order Filed Date: 7/12/2016.

         Santa Clara County Super. Ct. No. 185632, Trial Judge: The Honorable Linda R. Clark.

          Attorney for Defendant and Appellant Johnny Melendez Cordova: Keith Allen Wattley, under appointment by the Court of Appeal for Appellant.

          Attorneys for Plaintiff and Respondent The People: Kamala D. Harris Attorney General, Gerald A. Engler, Chief Assistant Attorney General Jeffrey M. Laurence, Acting Senior Assitant Attorney General Catherine A. Rivlin, Supervising Deputy Attorney General Karen Z. Bovarnick, Deputy Attorney General.

         ORDER MODIFYING DISSENT

         BY THE COURT:

         It is ordered that the dissenting opinion filed herein on June 24, 2016, be modified in the following particulars:

         On page 70, first paragraph, after the first full sentence, the following sentence is added: “[I] recognize the basic principle of statutory and constitutional construction which mandates that courts, in construing a measure, not undertake to rewrite its unambiguous language. [Citation.] That rule is not applied, however, when it appears clear that a word has been erroneously used, and a judicial correction will best carry out the intent of the adopting body.” (People v. Skinner (1985) 39 Cal.3d 765, 775.)

         On page 70, first paragraph, the following citation is deleted: (See People v. Florez, previously published at 245 Cal.App.4th 1176, review granted and opinion superseded June 8, 2016, S234168.)

         There is no change in judgment.

          RUSHING, P.J.

         Defendant Johnny Melendez Cordova is serving a sentence of 25 years to life under the “Three Strikes” law. He petitioned the trial court for resentencing under Penal Code section 1170.126 (§ 1170.126), which is part of the Three Strikes Reform Act of 2012, also known as Proposition 36 (Reform Act). That act entitled him to a reduction in his sentence unless such a reduction would “pose an unreasonable risk of danger to public safety.” (Pen. Code, § 1170.126, subd. (f) (§ 1170.126(f).) The trial court found this condition to be present and denied his petition on that ground. While this appeal from that ruling was pending, voters adopted the Safe Neighborhoods and Schools Act, also known as Proposition 47 (Safe Neighborhoods Act), which substantially narrowed the definition of “unreasonable risk of danger to public safety” as that phrase was “used throughout this Code.” (Pen. Code, § 1170.18, subd. (c) (§ 1170.18(c)).) We conclude that the new definition applies, in accordance with its plain terms, to determinations of dangerousness under the Reform Act, and that notwithstanding the presumption against statutory retroactivity, it applies to petitions that had already been adjudicated when it was adopted. Accordingly, we will reverse with directions to conduct a new hearing on defendant’s petition in which section 1170.18(c)’s definition of dangerousness will govern the determination whether resentencing will pose an unreasonable risk of danger to public safety. This disposition renders moot defendant’s challenge to the sufficiency of the evidence to sustain the trial court’s ruling under the prior standard. We reject defendant’s contentions that (1) conditioning relief on non-dangerousness violates his right to equal protection of the laws; (2) failing to prove dangerousness to a jury beyond a reasonable doubt violates his constitutional right to jury trial; and (3) a “strong presumption” favors resentencing. We emphasize, however, that the state bears the burden of proving that resentencing would create an unreasonable risk of danger as defined in section 1170.18(c).

         BACKGROUND

         A. Defendant’s Strikes.

         In May 1973, at the age of 19, defendant was charged with a number of felonies arising from two incidents on successive days. One incident involved a home invasion robbery in which, according to the police report, defendant held a woman and her children at gunpoint while threatening violence against them. According to a later decision by this court, defendant eventually accumulated four convictions for serious or violent felonies-commonly known as strikes-for purposes of the Three Strikes law, Penal Code sections 667 and 1192.7. (People v. Cordova (Nov. 25, 1998, H015896) [nonpub. opn.] [at pp. 16-17].)[1]

         B. Three Strikes Law.

         Two decades after defendant sustained the foregoing convictions, voters and the Legislature, respectively, adopted the Three Strikes law.[2] (Former Pen. Code, § 667 [Stats. 1994, ch. 12, § 1]; former Pen. Code, § 1170.12 [Prop. 184, as approved by voters, Gen. Elec. (Nov. 8, 1994)].) From its enactment until 2012, it provided that a defendant with a prior strike who was convicted of any subsequent felony would receive what came to be known as a “second strike” sentence, i.e., imprisonment for “twice the term otherwise provided as punishment.” (Pen. Code, § 667, subd. (e)(1), as adopted by Stats. 1994, ch. 12, § 1; id., § 1170.12, subd. (c)(1), as adopted by Prop 184.) One with two strikes who suffered a subsequent felony conviction would receive a “third strike” sentence of 25 years to life. (Former Pen. Code, §§ 667, subds. (e)(1), (e)(2)(A)(ii), as adopted by Stats. 1994, ch. 12, § 1]; former Pen. Code, § 1170.12, subds. (c)(1), (c)(2)(A)(ii), as adopted by Prop 184.)

         C. Defendant’s Third-Strike Conviction.

         In December 1995 defendant was arrested on a charge of carrying a concealed dirk or dagger, a violation of former Penal Code section 12020, subdivision (a). (See now Pen. Code, § 21310.) In July 1996 a jury found him guilty of that offense. The offense was (and still is) a “wobbler, ” i.e., it could be prosecuted either as a misdemeanor or a felony; if punished as a felony, it would ordinarily carry a maximum penalty of three years’ imprisonment. (Former Pen. Code, § 12020, subd. (a), as adopted by Stats.1994, ch. 23, § 4, p. 132; former Pen. Code, § 18, as adopted by Stats. 1976, ch. 1139, § 98, p. 5089; see now Pen. Code, §§ 21310, 1170, subd. (h).) As a third-striker, however, defendant was sentenced to prison for 25 years to life.[3] This court affirmed the conviction and sentence. (People v. Cordova, supra, H015896 [p. 17].)

         D. Reform Act.

         Defendant was serving the above sentence on November 6, 2012, when voters adopted the Reform Act. It has two chief components: “the first part is prospective only, reducing the sentence to be imposed in future three strike cases where the third strike is not a serious or violent felony (Pen. Code, §§ 667, 1170.12); the second part is retrospective, providing similar, but not identical, relief for prisoners already serving third strike sentences in cases where the third strike was not a serious or violent felony (Pen. Code, § 1170.126).” (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1292 (Kaulick).) More specifically, the prospective provisions make new non-strike felonies generally punishable by a maximum sentence of double the base term-a former second-strike sentence-regardless of the number of strike priors. (Pen. Code, §§ 1170.12, subd. (c)(2)(C), 667, subd. (e)(2)(C).) The retrospective provision, section 1170.126(f), entitles third-strikers who would be eligible for reduced sentencing if their convictions were new to petition for recall of sentence.

         Section 1170.26(f) directs that a petitioner who satisfies the criteria for eligibility “shall be resentenced” as a second-striker “unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” In exercising the discretion thus granted, the court may consider: “(1) The petitioner’s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes; [¶] (2) The petitioner’s disciplinary record and record of rehabilitation while incarcerated; and [¶] (3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.” (Id., subd. (g).) However, the act contains no definition of “unreasonable risk of danger to public safety, ” a phrase which, at the time of its adoption, appeared nowhere else in the Penal Code.[4]

         E. Petition and Appeal.

         On August 22, 2013, defendant filed a petition for resentencing under section 1170.126(f). The court found that he satisfied the criteria for eligibility-a point the state does not contest-and appointed counsel to represent him. A clinical psychologist conducted a mental health examination and found no evidence that defendant, then 60 years old, would pose an unreasonable risk of danger to public safety if released. However, the prosecutor presented over 950 pages of records reflecting an extensive history of criminal conduct beginning at the age of 13. These materials alluded to a number of uncharged crimes involving incipient or actual violence, including two homicides in which defendant was reportedly implicated.[5] In all, between 1973 and 1995, defendant was convicted of 17 misdemeanors and 12 felonies. The prosecutor also cited an extensive disciplinary history in prison, although the only incidents that appeared to involve violence were (1) a reported threat by defendant in 2004 against an inmate he reportedly believed was a child molester-an incident attributed by both inmates to a misunderstanding; (2) a four-inmate fight in 2006, the origins of which officers were unable to establish, but in which one of the inmates was apparently armed with a razor blade[6]; and (3) a beating of defendant in 2006 by a cellmate for unknown reasons. Evidence was also adduced of in-prison employment, with favorable reports by a supervisor, as well as participation in various rehabilitative and educational programs. The evidence showed a history of drug use up to a few months before the hearing on the petition.[7]

         The trial court denied the petition on May 19, 2014, finding “nothing right up until the most recent triggering offense to suggest to this Court that the petitioner presents anything but a substantial risk to public safety.” Defendant took this timely appeal.

         F. Proposition 47.

         While the appeal was pending, on November 4, 2014, the electorate enacted the Safe Neighborhoods Act. It reclassified certain drug and theft related felonies as misdemeanors and, mirroring the Reform Act, provided for recall of sentences already being served for the reclassified offenses. The resentencing provision, Penal Code section 1170.18 (§ 1170.18), echoes section 1170.126 in directing that the petitioner “shall be... resentenced... unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (Id., subd. (b) (§ 1170.18(b).) But it goes on, as the Reform Act had not, to define this phrase: “As used throughout this Code, ‘unreasonable risk of danger to public safety’ means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.” (§ 1170.18(c), italics added.) The cross-referenced section sets forth a limited list of “violent felony” offenses, sometimes known as “super strikes.” (See Couzens, et al., Prop47FAQs.pdf (November 2015), <http://www.courts.ca.gov/documents/Prop47FAQs.pdf> (as of Jun. 20, 2016).) The effect of the new definition is to require resentencing unless the court finds an unreasonable risk that the petitioner will commit a super strike. The question here is whether defendant may avail himself of this narrowed definition. Basic principles of statutory construction compel the conclusion that he can.

         I. Applicability of Section 1170.18(c)

         A. Introduction.

         The central question is whether section 1170.18(c)’s definition of “unreasonable risk of danger to public safety” applies to that phrase as used in section 1170.126(f).[8] On the face of the two statutes the question seems to answer itself: Section 1170.18(c) declares the definition applicable “throughout this Code.” “This Code” can only mean the Penal Code. Section 1170.126 is part of the Penal Code. Quod est demonstrandum: the definition applies to petitions under section 1170.126, i.e., Proposition 36.

         It is of course the most fundamental of all principles of statutory construction that the role of the court in applying any statute is to carry out the intent manifested therein. (See Code Civ. Proc., § 1858 [“In the construction of a statute or instrument, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted”]; County of Santa Clara v. Escobar (2016) 244 Cal.App.4th 555, 562-563; People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 709 [“If the language contains no ambiguity, we presume the Legislature meant what it said, and the plain meaning of the statute governs.”].)

         Respondent offers four arguments for a contrary conclusion, three of which are incorporated by lengthy quotation from a case that can no longer be cited. (See fn. 8, ante.) The four arguments are: (1) section 1170.18(c) applies by its terms only to persons seeking resentencing under the Safe Neighborhood Act’s retroactive provisions; (2) the effect of section 1170.18(c) on Reform Act petitions was not mentioned in the ballot pamphlet and thus cannot have been intended by voters; (3) the “timing” of the Safe Neighborhood Act makes an intent to alter the Reform Act “illogical”; and (4) applying the new definition to Proposition 36 petitions contravenes the declaration in Proposition 47 that “[n]othing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this act” (§ 1170.18, subd. (n)). These arguments do not, singly or in combination, override the plain language of section 1170.18(c).

         B. Use of “Petitioner.”

         We find somewhat bewildering the argument that section 1170.18(c) applies by its terms only to petitioners under the Neighborhoods Act. This conclusion is said to flow from “the plain language of Proposition 47, ” in that the definition refers to “the petitioner, ” which according to respondent can only mean a petitioner under section 1170.18. The statute thus “substantively limit[s]” the definition to Proposition 47 petitions.

         This argument cannot withstand scrutiny. If anything, the use of “petitioner” is further evidence (see pt. I(C), I(F), post) that the drafters had Proposition 36 applicants-who are also “petitioner[s]”- in mind when they adopted a new and narrower definition for a phrase used in that earlier measure. Given the explicit directive to apply this definition “throughout this Code, ” respondent’s argument could at best give rise to an internal ambiguity or contradiction which would have to be resolved in favor of the latter phrase as the more definite and concrete expression of legislative intent. But this would assume that some clear textual basis could be found for respondent’s reading. The directive that the definition apply “throughout this Code” actually appears in the statute, while the language imputed by respondent does not. There is thus no ambiguity or conflict to resolve. By unmistakable directive, the definition is to apply wherever the defined phrase appears. As it happens, the defined phrase appears in only one other place-the Reform Act-where it is relevant to determine a “petitioner’s” right to relief. It is therefore applicable by its plain terms to this proceeding.

         C. Voter Understanding.

         1. No Presumption of Voter Ignorance.

         The no-longer citable decision quoted by respondent states its chief rationale as follows: “[B]ecause Proposition 47’s ballot materials and proposed statutory language contained nothing whatsoever to suggest that Proposition 47 would have any impact on the resentencing of anyone who was serving a sentence for a crime other than one of the specified nonserious, nonviolent property or drug crimes, it is inconceivable that voters intended for subdivision (c) of section 1170.18 to severely restrict the ability of a court to reject a resentencing petition under the Reform Act by a person convicted of crimes other than one of the specified property or drug crimes and whom the court considered dangerous. The Proposition 47 ballot materials contained no mention of such a possible consequence....” (First and fourth italics added.)

         This passage exemplifies two rhetorical devices generally employed to obscure rather than illuminate the truth. The first known as “honor by association, ” in which a false statement is coupled to a true one in hopes that the latter’s luster will attach to the former in the mind of the listener. It appears here in the coupling of the phrase “and proposed statutory language” with “ballot materials.” It is true that the ballot materials contain no reference to the measure’s effect on Proposition 36 petitions. But it is patently false that the statutory language contained “nothing whatsoever to suggest that Proposition 47 would have any impact” on persons serving sentences for crimes other than those for which Proposition 47 reduced the penalty. By its plain terms, the statute would apply “throughout this Code, ” which would include anywhere else the defined phrase was used. The attempt to grant substance to a contrary premise by coupling it to a true statement says more about the insecurity of the speaker’s position than it does about the merits of the controversy.

         A more serious defect is reflected in the quoted passage’s use of an argumentum ad ignorantiam, or argument from ignorance, in which the absence of evidence for a premise is asserted as proof of the opposite premise. Such an argument is doubly offensive when, as here, there is evidence of the disputed premise, i.e., the plain statutory language, which is indeed the best, most reliable, and safest evidence of the point at issue. The argument’s implicit major premise is that in the absence of affirmative extrinsic evidence to the contrary, voters can be presumed not to have understood the effects of the measures they adopt, however unmistakably those effects may flow from the language adopted. The court’s reluctance to enunciate this premise-let alone defend it-is entirely understandable, since it contravenes fundamental principles of statutory construction as well as any concept of judicial restraint and, not surprisingly, nearly a century of precedent.

         The correct rule is that voters “must be assumed to have voted intelligently upon an amendment to their organic law, the whole text of which was supplied each of them prior to the election, and which they must be assumed to have duly considered, regardless of any insufficient recitals in the instructions to voters or the arguments pro and con of its advocates or opponents accompanying the text of the proposed measure.” (Wright v. Jordan (1923) 192 Cal. 704, 713.) This principle has been reaffirmed through the years: “Petitioners’ entire argument that, in approving Proposition 8, the voters must have been misled or confused is based upon the improbable assumption that the people did not know what they were doing. It is equally arguable that, faced with startling crime statistics and frustrated by the perceived inability of the criminal justice system to protect them, the people knew exactly what they were doing. In any event, we should not lightly presume that the voters did not know what they were about in approving Proposition 8. Rather, in accordance with our tradition, ‘we ordinarily should assume that the voters who approved a constitutional amendment “... have voted intelligently upon an amendment to their organic law, the whole text of which was supplied each of them prior to the election and which they must be assumed to have duly considered.” ’ ”[9] (Brosnahan v. Brown (1982) 32 Cal.3d 236, 252 (Brosnahan), quoting Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 243-244 (Amador Valley); see In re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11 [upholding “truth in evidence” provision of Proposition 8; “The adopting body is presumed to be aware of existing laws and judicial construction thereof.”].)

         Here voters-faced with the startling fiscal and human costs of earlier reactions to crime-manifestly concluded that certain classes of prison inmates should never have been imprisoned in the first place-or in the case of the Reform Act, should not have been imprisoned for life-and should be therefore be resentenced to punishments better suited to “MAKE THE PUNISHMENT FIT THE CRIME, ” as the proponents of the Reform Act loudly proclaimed in the ballot pamphlet. (Ballott Pamp., Gen. Elec. (Nov. 6, 2012) text of Prop. 36, p. 52.) We must assume that in enacting the Safe Neighborhoods Act, with its modification of the grounds on which such relief could be denied-a modification explicitly declared applicable throughout the code-voters “knew exactly what they were doing.” (Brosnahan, supra, 32 Cal.3d at p. 252.)

         A presumption of voter incomprehension is all the more repugnant when the measure at issue was “extensively publicized and debated.” (Amador Valley, supra, 22 Cal.3d at p. 243.) In Brosnahan, the court rejected a contention that the measure at issue could be denied effect on the ground that its “complexity... may have led to confusion or deception among voters, who were assertedly uninformed regarding the contents of the measure.” (Brosnahan, supra, 32 Cal.3d at p. 251.) In addition to the information in the ballot pamphlet, the court observed, voters had been exposed to “widespread publicity” concerning the measure: “Newspaper, radio and television editorials focused on its provisions, and extensive public debate involving candidates, letters to the editor, etc., described the pros and cons of the measure.” (Id. at p. 252.) As demonstrated below, the same is true of Proposition 47, at least to the extent of newspaper editorials, opinion pieces, and web pages debating its merits.[10] Further, Proposition 47 was far less complex than the measure under scrutiny in Brosnahan, as to which the court rejected the suggestion that complexity alone could vitiate the voters’ objectively manifested will: “ ‘Our society being complex, the rules governing it whether adopted by legislation or initiative will necessarily be complex. Unless we are to repudiate or cripple use of the initiative, risk of confusion must be borne.’ ” (Ibid., quoting Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 42.)

         Lawmakers are not only presumed to be aware of the contents of their enactments; they are “ ‘ “deemed to be aware of statutes and judicial decisions already in existence, and to have enacted or amended a statute in light thereof.” ’ ” (People v. Scott (2014) 58 Cal.4th 1415, 1424.) This principle has been applied to voter initiatives; indeed, it has been specifically applied to Proposition 47. (People v. Scarbrough (2015) 240 Cal.App.4th 916, 925 [court would “deem the voters to have been aware of” judicial “interpretation” of good cause provision in Reform Act “when they approved Proposition 47”].) Thus, “[a]bsent ambiguity, we presume that the voters intend the meaning apparent on the face of an initiative measure [citation] and the court may not add to the statute or rewrite it to conform to an assumed intent that is not apparent in its language. [Citation.]” (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 543.) If the language of a voter-enacted measure is “clear and unambiguous, there ordinarily is no need for construction. [Citations.] We presume that the voters intended the meaning apparent on the face of the measure, and our inquiry ends. [Citation.]” (Woo v. Superior Court (2000) 83 Cal.App.4th 967, 975; cf. Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901, italics added [“ ‘When the language is ambiguous, “we refer to other indicia of the voters’ intent, particularly the analyses and arguments contained in the official ballot pamphlet.” [Citation.]’ [Citation.]”]; Amador Valley, supra, 22 Cal.3d 208, 245-246, italics added [“[T]he ballot summary and arguments and analysis presented to the electorate in connection with a particular measure may be helpful in determining the probable meaning of uncertain language.”].)

         Here no ambiguity appears. That should end the inquiry. This result is mandated not only by the most basic principles of statutory construction, but also by the constitutional separation of powers. In enacting a ballot measure the voters are exercising a legislative power no less worthy of respect than that of their representatives in Sacramento. (Cal. Const., art. IV, § 1; see Brosnahan, supra, 32 Cal.3d at p. 241, quoting Amador Valley, supra, 22 Cal.3d at p. 248 [“it is our solemn duty jealously to guard the sovereign people’s initiative power, ‘it being one of the most precious rights of our democratic process’ ”].).) To nullify statutory language because voters’ attention was not specifically drawn to it in the ballot pamphlet strikes at the heart of the initiative power and, more fundamentally, at the sovereign dignity of the legislative branch. Due regard for that dignity requires that when legislative will is expressed in clear language whose effects are not absurd and do not frustrate other positive manifestations of legislative intent, lawmakers-here, voters-must be deemed to have intended the effect of their enactments, whatever courts may believe about their subjective expectation, understanding, or level of insight.

         This principle, which should be too obvious to need saying, is reflected in countless decisions. For example, in In re Gabriel G. (2005) 134 Cal.App.4th 1428, 1436, this court rejected a contention that the plain meaning of a statute could be disregarded because it led to unintended consequences: “[W]e must recall that in construing a statute, ‘that which is construed is the statutory text.’ [Citation.] Evidence of legislative inadvertence would have to be quite compelling before we would ignore the plain language of the law. [Citation.] The only evidence of inadvertence the Department offers is its assessment of the unintended consequences the change will have. Legislation often has unintended consequences. But we cannot construe the amendment in a manner wholly unsupported by its text merely to avoid the purported unintended consequences. [Citation.]” (Id. at pp. 1436-1437, italics added.)

         The tacit premise of respondent’s argument is that the literal effect of section 1170.18(c) on Reform Act petitions is an unintended consequence which courts can and should avert by refusing effect to the plain statutory language. But a consequence cannot be deemed unintended when the most reliable evidence of intent-the language lawmakers adopted as the objective manifestation of their will-clearly and unambiguously directs it. “Courts may, of course, disregard even plain language which leads to absurd results or contravenes clear evidence of a contrary legislative intent.” (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1105.) However, in the absence of such a predicate, “ ‘there is no need for construction, and courts should not indulge in it.’ ” (Ibid., fn. 8, quoting Delaney v. Superior Court (1990) 50 Cal.3d 785, 800.) Since there is no evidence that voters intended not to produce the effect in question, courts have no legitimate alternative but to give effect to the statute as it is written.

         2. Ballot Pamphlet as Sole Evidence of Voter Understanding.

         If further inquiry into voter intentions were warranted, there would be no sound reason to confine it to the contents of the ballot pamphlet, which are constrained by considerations of space, time, and subjective determinations of materiality. The official summary of any ballot measure is authored by the office of the Legislative Analyst. (Elec. Code, §§ 9087, 9086, subd. (b).) The summary is required only to “generally set forth in an impartial manner the information the average voter needs to adequately understand the measure.” (Elec. Code, § 9087, subd. (b), italics added.) Note the absence of any directive that the Legislative Analyst attempt to provide voters with a complete understanding of the measure, which would be a practical impossibility in any event; few judges or lawyers would be so arrogant as to profess that they completely understand any provision of law, at least in the sense of being able to forecast all of its effects. (See In re Gabriel G., supra, 134 Cal.App.4th at p. 1437 [“Legislation often has unintended consequences.”].) In manifest recognition of this fact, the governing statute states only that the ballot summary “may contain” such “background information” as “the effect of the measure on existing law.” (Elec. Code, § 9087, subd. (b), italics added.) The Legislative Analyst is thus called upon only to make a rational judgment about what effects are most likely to matter to voters, and to describe them in a fair and intelligible way. Inherent in this undertaking is the necessity of informational triage-of determining what details are necessary to form an “adequate[] understanding[ing], ” and what details may be omitted. The preparer of such a summary necessarily exercises a discretionary function requiring courts to allow considerable latitude when the result is challenged as incomplete or inaccurate. (See Brennan v. Board of Supervisors (1981) 125 Cal.App.3d 87, 96 [“Faced with the difficult task of simplifying a complex proposal, the Committee drafted a summary which, if not all-encompassing, at least briefly described its major subjects.”].)

         When the Legislative Analyst fails to mention some effect of a ballot measure, it remains open to the measure’s official proponents and opponents to use their space in the ballot pamphlet to supply any perceived lack. But they too must practice triage; their arguments are restricted to 500 words to open and 250 words in rebuttal. (See Elec. Code, §§ 9062, 9069, cf. id., § 9041.)[11] This means the advocates must select a limited number of points to include in their ballot pamphlet arguments, relying on other media to pursue issues deemed of lesser moment. Here, both sides evidently concluded that the effect of section 1170.18(c) on Proposition 36 petitions was not a powerful enough ground of argument to warrant mention in the pamphlet. That decision can hardly furnish an occasion for judicial nullification.

         3. Public Debate.

         As already noted and as reflected in the Appendix, Proposition 47 aroused a great deal of public debate. Much of it was devoted to various aspects of the measure’s prospective reclassification of specified offenses to misdemeanors. But opponents of the measure also sought to publicize its narrowed definition of dangerousness and the effect that definition would have on other proceedings, specifically including petitions for resentencing under the Reform Act. Thus one opposition Web site, as archived 36 days before the election placed this effect at the top of a list of reasons to vote against the measure: “Prop 47 will release dangerous Three Strikes inmates. Prop 47 goes far beyond petty crimes. It rewrites our laws to make it easier for violent Three Strikes felons to gain early release. [¶] The Three Strikes reform law (Proposition 36) allowed certain Three Strikes prisoners to petition for early release, as long as they did not pose ‘an unreasonable risk of danger to public safety.’ [¶] Prop 47 would rewrite California law, including the Three Strikes Reform law, to give the term ‘unreasonable risk of danger to public safety’ a very narrow definition. [¶] Under the Prop 47 definition, only an inmate likely to commit murder, rape, or a handful of other rare crimes like possession of a weapon of mass destruction can be kept behind bars as a danger to public safety. [¶] If Prop 47 passes, violent Three Strikes inmates who might commit robbery, assault with a deadly weapon, felony child abuse, arson, kidnapping, spousal abuse, child abduction, carjacking, and scores of other serious felonies will no longer be defined as ‘dangerous’ under California law. If the inmate is eligible for early release under either Prop 47 or the Three Strikes Reform law, the court will be powerless to stop it.” (Facts - No on Prop 47 (archived Sept. 28, 2014) <https://web.archive.org/web/20140928005627/http://votenoprop47.org/No_On_Prop_47__Facts.html> (as of Jun 6, 2016).)[12]

         Another opposition Web site, accessible only in archived form, listed the effect on Reform Act petitions in a table, as follows (CALIFORNIANS AGAINST PROP. 47 | No on Proposition 47 (archived Oct. 8, 2014) <http://web.archive.org/web/20141008185016/http://californiansagainst47.com/> (as of Jun. 20, 2016).):

Current Law

Proposition 47

Implications

Under the Three Strikes Reform Act of 2012 (Proposition 36), Penal Code § 1170.126 provides for resentencing petitioners previously sentenced to life terms pursuant to the Three Strikes Law (Penal Code §§ 667(b)-(i) and 1170.12) whose committing offense was non-violent and non-serious.

The proposed language in Penal Code § 1170.18(c) would require the prosecution to prove, and the court to find, that the defendant is an unreasonable risk to society because he or she would likely commit a sexually violent offense, murder, certain sex crimes with children under 14, solicitation to commit murder, assault with a machine gun on a peace officer, possession of weapons of mass destruction or a crime punishable by death or life imprisonment.

Many potentially violent individuals will be released–not because they do not pose a violent risk to society, but because the Act has unreasonably limited the scope of what is considered a risk of danger to society and what the prosecution can present to counter the defendant’s eligibility.

         Another archived page on the same website recapitulated criticisms leveled against Proposition 47 by the California District Attorneys Association (CDAA): “[T]he Three Strikes Reform Act of 2012... provides for resentencing petitioners previously sentenced to life terms pursuant to the Three Strikes Law [citations] whose committing offense was non-violent and non-serious. Penal Code §1170.126 requires that when a petitioner meets the basic criteria for eligibility, the court shall resentence the offender unless the petitioner poses ‘an unreasonable risk of danger to public safety.’... Although this is a demanding standard, it provides a fair balance and allows the prosecution and court to rely on several sources and areas of risk to establish that the individual is unsuitable for resentencing. [¶] Penal Code § 1170.18... changes that standard to an altogether unreachable level. [It]... would require the prosecution to prove, and the court to find, that the defendant is an unreasonable risk to society because he would likely commit one of the listed violent crimes in § 667(e)(2)(C)(iv). [¶]... [¶] Further, this proposed new definition of ‘dangerousness’ is not limited to only the types of offenders serving terms for crimes affected by this Act, but applies to any resentencing permitted by the Penal Code. Proposed Penal Code § 1170.18(c) states, ‘As used throughout this Code, “unreasonable risk of danger to public safety[”] means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of [§ 667(e)(2)(C)(iv)].’ (§ 1170.18, subd. c [emphasis added].) By referring to ‘Code, ’ § 1170.18 would alter the meaning of ‘unreasonable risk of danger to public safety, ’ not only as it is applied in § 1170.18 resentencing hearings, but in all other hearings that rely on the dangerousness standard throughout the entire Code. As a result, the prosecution would face the impossible barrier when opposing resentencing for the Three Strikes defendants under Penal Code § 1170.126. [¶] Moreover, for [sic] any of the Three Strikes defendants previously denied resentencing based upon a judicial finding of dangerousness, may appeal that ruling and request the court now apply this new standard of dangerousness, resulting in a further cost to a court system already struggling financially.” (CALIFORNIANS AGAINST PROP. 47 | About Proposition 47 (archived Oct. 10, 2014) <https://web.archive.org/web/20141010054701/http://californiansagainst47.com/about-proposition-47/> (as of Jun. 20, 2016), italics added; see Proposition47_A_Cruel_Fraud.pdf, <http://www.co.mendocino.ca.us/da/pdf/Proposition47_A_Cruel_Fraud.pdf> (as of Jun 20, 2016) [apparent copy of CDAA report]; Proposition 47: A Cruel Fraud <http://docplayer.net/1464582-Proposition-47-a-cruel-fraud.html> (as of Jun. 20, 2016) [same].)

         Nor did these arguments appear only on opponents’ Web sites. A Davis newspaper ran an op-ed piece by a superior court judge enumerating several perceived flaws in the Neighborhoods Act. “Most significantly, ” he wrote, “Prop. 47 expands the resentencing provisions under the three-strikes law. Prop. 36, enacted by the voters in 2011 [sic], permits resentencing of certain strike offenders, unless to do so would create an ‘unreasonable risk of danger to public safety.’ Broad discretion was given to judges to determine who would pose such a danger. [¶] Prop. 47 imposes its more restrictive definition of dangerousness on people sentenced under the three-strikes law. People now serving a third-strike sentence will be allowed to submit a request for resentencing under the more liberal provisions of Prop. 47, even though a judge has already determined they are too dangerous to get relief under the existing law.” (Couzens, Prop. 47: a perspective from the bench (Oct. 28, 2014) <http://www.davisenterprise.com/forum/opinion-columns/prop-47-a-perspective-from-the-bench/> (as of Jun. 20, 2016); see Print, <http://www.davisenterprise.com/print/?edition=2014-10-28&ptitle=A6> (as of Jun. 20, 2016 [facsimile of print edition]; D. Greenwald, Analysis: Perspectives on Proposition 47 (Oct. 29, 2014) Davis People’s Vanguard <http://www.davisvanguard.org/2014/10/analysis-perspectives-on-proposition-47/> (as of Jun. 20, 2016) [discussing Couzens article and noting effect on Reform Act petitions].)

         The Web sites for several newspapers published an opinion piece, typically signed by local law enforcement officials, echoing the opposition website first quoted above: “This deceptive proposition also rewrites our laws to make it easier for violent Three Strikes inmates to gain early release. The Alliance for a Safer California says, ‘The Three Strikes reform law (Proposition 36) allowed certain Three Strikes prisoners to petition for early release, as long as they did not pose “an unreasonable risk of danger to public safety.” ’ [¶] Prop 47 would rewrite California law, including the Three Strikes Reform law, to give the term ‘unreasonable risk of danger to public safety’ a very narrow definition. Under the Prop 47 definition, only an inmate likely to commit murder, rape, or a handful of other rare crimes (like possession of a weapon of mass destruction) can be kept behind bars as a danger to public safety. [¶] If Prop 47 passes, violent Three Strikes inmates who commit robbery, assault with a deadly weapon, felony child abuse, arson, kidnapping, spousal abuse, child abduction, carjacking, and scores of other serious felonies will no longer be defined as “dangerous” under California law.” (Our Readers Say: Police, sheriffs say no to Prop 47 (Oct. 24, 2014) <http://www.redlandsdailyfacts.com/opinion/20141024/our-readers-say-police-sheriffs-say-no-to-prop-47> (as of Jun. 20, 2016), italics added; see San Bernardino County Police Chiefs and Sheriff’s Association says: No on Prop 47 – Highland Community News: Opinion (Oct. 24, 2014) <http://www.highlandnews.net/opinion/san-bernardino-county-police-chiefs-and-sheriff-s-association-says/article_1d3fb9f8-5bc3-11e4-8c0f-47ac194ced49.html> (as of Jun. 20, 2016); County police chiefs, sheriff’s say no on 47 - Opinion - VVdailypress.com - Victorville, CA (Oct. 27, 2014) <http://www.vvdailypress.com/article/20141027/OPINION/141029812> (as of Jun. 20, 2016.)[13]

         Two of the three signatories to the opposition argument in the ballot pamphlet were associated with public opposition on this ground. (See Ballot Pamp., General Elec. (Nov. 4, 2014) (2014 Ballot Pamphlet), argument against Prop. 47, p. 39 <http://vig.cdn.sos.ca.gov/2014/general/en/pdf/proposition-47-arguments-rebuttals.pdf> (as of Jun. 20, 2016).) One, Christopher W. Boyd, was identified in the pamphlet as “President, California Police Chiefs Association [(CPCA)].” (Ibid.) The other, Gilbert G. Otero, is named as “President, California District Attorneys Association [(CDAA)].” (Ibid.) According to online records of campaign contributors, CPCA contributed to the lead opposition entity, Californians Against Proposition 47 (CAP47). (California Secretary of State – CalAccess – Campaign Finance <http://cal-access.ss.ca.gov/Campaign/Committees/Detail.aspx?id=1368083&session=2013&view=received> (as of Jun. 20, 2016).) CAP47 created a website in opposition to the measure, including the page described above, which sets forth what it describes as an “extensive evaluation of Proposition 47 from the [CDAA].” (Californians Against Prop. 47 | About Proposition 47 (archived Oct. 5, 2014) <https://web.archive.org/web/20141010054701/http://californiansagainst47.com/about-proposition-47/> (as of Jun. 20, 2016.)

         It thus appears that one opposition author was president of an organization that wrote and circulated a paper specifically attacking Proposition 47 for its effect on Reform Act petitions-including those that had already been adjudicated. Another opponent was president of an organization that contributed to an entity whose Web site highlighted that effect as a reason to vote no. Their failure to cite this effect in the ballot pamphlet supports an inference, not that the effect was too obscure to be noticed, but that opponents did not think it a powerful enough argument for inclusion in the limited space available to them. This in turn suggests that by invalidating the plainly expressed will of the voters, we would be handing opponents of the measure a victory they could not, and knew they could not, win at the ballot box.

         In any event, given this public opposition to the measure on the very grounds at issue here, it simply cannot be said that voters were unaware of the challenged effect when they adopted Proposition 47. The reality of course is that some voters were aware of it and some were not. It is no proper role of the courts to guess at these numbers or to impose thresholds of voter comprehension which must be met to our satisfaction before we will carry out the terms of voter-enacted legislation. We are constrained by the separation of powers to trust not only the ballot pamphlet, but arguments in the public marketplace of ideas, to ensure that adopted measures reflect the actual will of the voters. In the absence of absurdity, constitutional infirmity, or frustration of an affirmatively manifested purpose, a voter-adopted statute must be given effect according to its plain meaning.

         D. “Illogical Timing.”

         The no-longer-citable decision incorporated in respondent’s brief asserts that Proposition 47’s “timing” made it “illogical” to suppose that section 1170.81(c) would apply to Reform Act petitions: “ ‘The Reform Act required petitions to be brought within two years unless a court concluded that there was good cause for a late-filed petition. ([Pen. Code, ] § 1170.126, subd. (b).) By the time Proposition 47 took effect, only two days remained in the two-year period for filing a Reform Act petition. No rational voter could have intended to change the rules for Reform Act petitions at the last moment, when nearly all petitions would already have been filed and most of them adjudicated.”

         We find this argument badly flawed at multiple levels. In the first place, courts cannot deny effect to plain statutory language merely because they find it “illogical” in some unexplained way. The most nearly apposite rule, noted above, is that plain language may be overlooked when its literal application would produce absurd results. (California Highway Patrol v. Superior Court (2008) 158 Cal.App.4th 726, 736 [“The literal meaning of unambiguous statutory language ‘may be disregarded to avoid absurd results....”]; Amador Valley, supra, 22 Cal.3d 208, 245 [acknowledging rule in context of initiative effecting sweeping constitutional amendment].) The underlying rationale is that the Legislature cannot have intended to bring about an absurdity, so if a literal application has that effect, the statute must fail to accurately express the Legislature’s true intent. (See Sterling Park, L.P. v. City of Palo Alto (2013) 57 Cal.4th 1193, 1203 [proposed interpretation “would lead to absurd results the Legislature cannot have intended”]; Fireman’s Fund Ins. Co. v. Superior Court (2011) 196 Cal.App.4th 1263, 1281, fn. omitted [“We cannot conclude that our Legislature intended such absurd results.”]; Simmons v. Ghaderi (2008) 44 Cal.4th 570, 586 [unambiguous statutes must be applied as written “unless the statutes cannot be applied according to their terms or doing so would lead to absurd results, thereby violating the presumed intent of the Legislature”].)

         There is nothing even remotely “absurd” about giving effect to the definition in section 1170.18(c) according to its plain meaning. Indeed, we see nothing illogical about it. Where we do find patent illogic is in the tacit, unexplained assumption-contrary to the opinions of the measure’s opponents, as described above-that the newly adopted definition of dangerousness could only apply in cases not yet filed or, at most, not yet adjudicated. The quoted decision acknowledged, only to ignore, the flexible deadline for Proposition 36 petitions, i.e., “within two years after the effective date of the act that added this section or at a later date upon a showing of good cause.” (Pen. Code, § 1170.126, subd. (b), italics added.) We think it highly likely that the adoption of a new standard governing dangerousness determinations, if otherwise applicable to a petition, would be held to provide “good cause” for its later presentation. But the question is almost certainly academic because it is probably true that, as the quoted decision acknowledged, nearly all Proposition 36 petitions would already have been filed when Proposition 47 took effect.[14] The two-year limitation could have no impact on those petitions because they had been filed within the allotted time. All or nearly all of those petitions were probably on appeal when Proposition 47 took effect. The question before voters, then, was not whether any Proposition 36 petitions remained unadjudicated but whether the benefits of the new definition should extend to petitions that had already been adjudicated. We discuss that question in part I(F), post.

         E. Finality of Judgments.

         Respondent also adopts a passage from the above-mentioned uncitable decision in which the court concludes that literal application of section 1170.18(c) is barred by another subdivision of the same section declaring that “[n]othing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this act.” (Pen. Code, § 1170.18, subd. (n) (§ 1170.18(n)).)[15] The first flaw in this reasoning is that insofar as section 1170.18(c) applies to petitions brought under the Reform Act, those petitions are within the statute’s “purview, ” i.e., its “limit, purpose, or scope.” (Merriam-Webster’s Collegiate Dict. (10th ed. 1999) p. 950.) Second, the application of section 1170.18(c) to Reform Act petitions does not “diminish or abrogate the finality of judgments” in those cases. If defendant’s petition here is ultimately granted, whether or not section 1170.18(c) plays a material role in that outcome, it will be the Reform Act itself that has “diminish[ed] or abrogate[d] the finality” of his conviction by requiring that he be resentenced unless found to present an unreasonable danger. Proposition 47 now supplies the test to be applied in determining the latter issue, but it is not Proposition 47 that impairs the finality of his original conviction. That is the Reform Act’s doing. The petitioner in such a case is not invoking Proposition 47 as a basis to reopen or attack the judgment, but as the source for the rule of decision governing a subsidiary issue, in accordance with Proposition 47’s plain terms. Complying with that mandate does not “diminish or abrogate” the original judgment, even if it proves dispositive of the petition. It is still the Reform Act, not Proposition 47, that impairs the finality of his sentence.

         Had the drafters and voters intended to achieve the result urged by respondent, they could have simply replaced “throughout this Code” with “in this act” in section 1170.18(c). We must give effect to all of the language chosen by the voters, including the directive that section 1170.18(c)’s definition of dangerousness govern determinations of that issue in Proposition 36 proceedings.

         We conclude that section 1170.18(c) applies to Reform Act petitions by its terms and that no meritorious ground has been cited for departing from the plain meaning of those terms. This brings us to the question whether application of that provision to this particular case would offend the presumption against giving retroactive effect to statutory provisions.

         F. Retroactive Effect.

         1. Effect of Estrada and Brown.

         In his opening brief defendant anticipated an objection based on the presumption against retroactivity, as follows: “The general rule is that a new statute which lessens punishment will be applied to a non-final judgment. (In re Estrada (1965) 63 Cal.2d 740, 748 (Estrada).) The exception to the rule is that a statute will not be given retroactive effect when it contains a savings clause. (Id.) In this instance, there is no savings clause in section 1170.18 with respect to the operation of the new definition of ‘unreasonable risk of danger to public safety.’ ”

         Respondent counters that the absence of an express retroactivity clause renders section 1170.18(c) unavailable to persons in defendant’s position, and that Estrada was inapplicable in light of its interpretation in People v. Brown (2012) 54 Cal.4th 314, 324-325 (Brown).

         The briefs thus echo a number of cases which have addressed the question of retroactivity as if it were a matter of ...


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