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245 Cal.App.4th 1176, review granted and opinion superseded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 ...