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People v. Valencia

Supreme Court of California

July 3, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
DAVID J. VALENCIA, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
v.
CLIFFORD PAUL CHANEY, Defendant and Appellant.

         Superior Court Amador & Tuolumne County, Nos. CRF30714, 05CR08104, Ct.App. 5 F067946, 3 C073949 Steve Hermanson & Eleanor Provost, Judge

          Michael Satris, under appointment by the Supreme Court, for Defendant and Appellant Clifford Paul Chaney.

          Stephanie L. Gunther, under appointment by the Supreme Court, for Defendant and Appellant David John Valencia.

          Three Strikes Project and Michael S. Romano for George Gascon, Bill Landsdowne and David Mills as Amici Curiae on behalf of Defendants and Appellants.

          Richard Such and John T. Philipsborn for California Attorneys for Criminal Justice as Amici Curiae on behalf of Defendants and Appellants.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Rachelle A. Newcomb, Peter W. Thompson and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

          CANTIL-SAKAUYE, C. J.

         In November 2012, California voters enacted Proposition 36, the Three Strikes Reform Act of 2012 (Proposition 36 or Three Strikes Reform Act). With some exceptions, Proposition 36 modified California's “Three Strikes” law to reduce the punishment imposed when a defendant's third felony conviction is not serious or violent. (Pen. Code, [1] § 667, subd. (e)(2)(C), as amended by Prop. 36, § 2, approved by the voters at Gen. Elec. (Nov. 6, 2012).) It also enacted a procedure governing inmates sentenced under the former Three Strikes law whose third strike was neither serious nor violent, permitting them to petition for resentencing in accordance with Proposition 36's new sentencing provisions. (§ 1170.126, subd. (e), as added by Prop. 36, § 2, approved by the voters at Gen. Elec. (Nov. 6, 2012).) The resentencing provisions provide, however, that an inmate will be denied resentencing if “the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f), as added by Prop. 36, § 6, approved by the voters at Gen. Elec. (Nov. 6, 2012).) Proposition 36 did not define the phrase “unreasonable risk of danger to public safety.”

         Two years later, in November 2014, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47). Proposition 47 reduced certain drug-related and theft-related offenses that previously were felonies or “wobblers”[2] to misdemeanors. (§ 1170.18, added by Prop. 47, § 14, approved by the voters at the Gen. Elec. (Nov. 4, 2014).) It also enacted a procedure permitting inmates who are serving felony sentences for offenses that Proposition 47 reduced to misdemeanors to petition to have their felony convictions reclassified as misdemeanors and to be resentenced based on the reclassification. Like Proposition 36, Proposition 47 gave resentencing courts discretion to decline to impose a lesser sentence if resentencing “would result in an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b)(3).) In contrast to Proposition 36, however, Proposition 47 restricted that discretion by defining the phrase “unreasonable risk of danger to public safety.” (§ 1170.18, subd. (c).) It stated: “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” section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (c).) The cited subdivision of section 667 identifies eight types of particularly serious or violent felonies, known colloquially as “super strikes.”[3]

         We granted review in these two cases to resolve two related issues concerning Proposition 47's effect on resentencing proceedings under Proposition 36. In People v. Valencia (S223825), we address whether Proposition 47's definition of “unreasonable risk of danger to public safety” (§ 1170.18, subd. (c)) applies to resentencing proceedings under Proposition 36. People v. Chaney (S223676) presents the question whether, if Proposition 47's definition of unreasonable risk of danger to public safety applies to resentencing proceedings under the Three Strikes Reform Act, does the definition apply retroactively to Proposition 36 resentencing petitions that a court has already denied but are not yet final on appeal.

         For the reasons set forth below, we hold that Proposition 47 did not amend the Three Strikes Reform Act. Accordingly, we need not address whether, in People v. Chaney (S223676), the measure applies retroactively to Proposition 36 resentencing petitions that have been denied.

         I. FACTS

         Defendant David J. Valencia has a lengthy criminal record. In 1995, he was convicted of kidnapping. (§ 207, subd. (a).) In 1996, he was convicted of making criminal threats (§ 422), resisting arrest by threat or violence (§ 69), and driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)). In 2000, he was convicted of corporal injury to a spouse or cohabitant. (§ 273.5.) In addition, between 1987 and 2007, he was convicted of 12 misdemeanors. Finally, in 2009, Valencia struck his wife during an argument over whether she should drive while drunk, causing a laceration on her head that was closed with staples. He was convicted a second time of corporal injury to a spouse or cohabitant (§ 273.5), which qualified as a third strike offense, and he was sentenced to an indeterminate term of 25 years to life.

         In 2013, following the enactment of the Three Strikes Reform Act, Valencia petitioned for resentencing. He was eligible for resentencing because (1) his third strike was neither serious nor violent, as defined by statute, (2) his third strike was not among the other crimes excluded from the sentencing reforms, [1] and (3) he had not suffered a prior conviction for a super strike. (See People v. Johnson (2015) 61 Cal.4th 674, 681-682 (Johnson).)

         The People opposed resentencing, arguing that releasing Valencia would pose an unreasonable risk of danger to public safety based on his criminal history of alcohol abuse and domestic violence. In August 2013, after considering evidence from both parties and hearing testimony from Valencia and his mother, the sentencing court denied Valencia's petition: “I cannot grant this. I just feel that he is a danger. He is an unreasonable risk to public safety. And, in particular, to the women he's around. I just can't do this.”

         On appeal, Valencia argued that Proposition 47 had amended the Three Strikes Law by narrowing the sentencing court's discretion to deny resentencing on the ground that the petitioner posed an unreasonable risk to public safety. The Court of Appeal rejected this contention and affirmed the judgment. All three justices took the view that, read literally, Proposition 47's plain language - defining “unreasonable risk of danger to public safety” “[a]s used throughout this [Penal] Code” - applied to resentencing proceedings under Proposition 36. Two justices concluded, however, that “the literal meaning [of Proposition 47's amendment] does not comport with the purpose of the [Three Strikes Reform] Act, and applying it to resentencing proceedings under the [Three Strikes Reform] Act would frustrate, rather than promote, that purpose and the intent of the electorate in enacting both initiative measures.” The third justice found the text's plain language insurmountable. But because he concluded that the electorate did not clearly manifest an intent to apply Proposition 47 retroactively to sentencing petitions like Valencia's that had already been denied, he concurred in the result.

         In 2005, Clifford Paul Chaney was arrested for felony drunk driving after having been convicted of three separate incidents of driving under the influence in the prior 10 years. (Veh. Code, § 23550.) In exchange for having other counts dismissed, Chaney admitted he had six prior 1984 convictions for armed robbery and for conspiracy to commit robbery, which were all serious or violent felonies, and was sentenced as a third strike offender for the 2005 felony drunk-driving conviction, receiving an indeterminate sentence of 25 years to life.

         In 2013, Chaney unsuccessfully sought resentencing under the Three Strikes Reform Act. The resentencing court stated that it was unconvinced “that [Chaney] would not re-engage in alcohol use and place the public at risk.” Accordingly, the court concluded that Chaney posed an “unreasonable risk of danger to public safety” (§ 1170.126, subd. (f)) and denied his petition.

         On appeal, Chaney argued that Proposition 47's narrower definition of “unreasonable risk of danger to public safety” (§ 1170.18, subd. (c)) applied retroactively to resentencing proceedings under the Three Strikes Reform Act. (§ 1170.126.) The Court of Appeal rejected Chaney's argument and concluded that Proposition 47's definition of “unreasonable risk of danger to public safety” did not apply retroactively to him because his resentencing petition was decided before the effective date of Proposition 47.

         II. DISCUSSION

         A. The Three Strikes Reform Act (Proposition 36) and the Safe Neighborhoods and Schools Act (Proposition 47)

         1. Proposition 36: The Three Strikes Reform Act

         We recently summarized the Three Strikes Reform Act in Johnson, supra, 61 Cal.4th 674. As we noted, “[p]rior to its amendment by the [Three Strikes Reform] Act, the Three Strikes law required that a defendant who had two or more prior convictions of violent or serious felonies receive a third strike sentence of a minimum of 25 years to life for any current felony conviction, even if the current offense was neither serious nor violent. (Former §§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A).)” (Id. at p. 680-681.) We explained that Proposition 36 “amended the Three Strikes law with respect to defendants whose current conviction is for a felony that is neither serious nor violent. In that circumstance, unless an exception applies, the defendant is to receive a second strike sentence of twice the term otherwise provided for the current felony, pursuant to the provisions that apply when a defendant has one prior conviction for a serious or violent felony.” (Id. at p. 681.) As noted above, Proposition 36 excluded from its reforms third strikes involving large quantities of controlled substances, specified sex offenses, and offenses committed when the defendant was armed or intended to cause great bodily harm. It also excluded defendants with prior convictions for super strikes. (See ante, fns. 3 & 1.)

         Most pertinent here is Proposition 36's resentencing provision, which “provides a procedure by which some prisoners already serving third strike sentences may seek resentencing in accordance with the new sentencing rules. (§ 1170.126.)” (Johnson, supra, 61 Cal.4th at p. 682.) An inmate who is serving a third strike sentence that would have yielded a second strike sentence under Proposition 36's new sentencing rules “shall be resentenced” as second strike offender “unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)

         In exercising its discretion to deny resentencing, the court has broad discretion to consider: (1) the inmate'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) his or her “disciplinary record and record of rehabilitation while incarcerated”; and (3) “[a]ny 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.” (§ 1170.126, subd. (g)(1)-(3).) Thus, as the Legislative Analyst explained in the Voter Information Guide, “[i]n determining whether an offender poses [an unreasonable risk of danger to public safety], the court could consider any evidence it determines is relevant, such as the offender's criminal history, behavior in prison, and participation in rehabilitation programs.” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) analysis of Prop. 36, p. 50, italics added.)

         Following the enactment of Proposition 36, Courts of Appeal have rejected arguments that the phrase “unreasonable risk of danger to public safety, ” as used in section 1170.126, subdivision (f), is unconstitutionally vague. (See, e.g., People v. Garcia (2014) 230 Cal.App.4th 763, 769-770; People v. Flores (2014) 227 Cal.App.4th 1070, 1075 [“Surely a superior court judge is capable of exercising discretion, justly applying the public safety exception, and determining whether a lesser sentence would pose an unreasonable risk of harm to the public safety”].)

         2. Proposition 47: The Safe Neighborhoods and Schools Act

         Proposition 47 reclassified as misdemeanors certain drug- and theft-related offenses that previously were felonies or wobblers. (§ 1170.18, subds. (a), (b); see Health & Saf. Code §§ 11350 [possession of a controlled substance], 11357 [same], 11377 [possession of concentrated cannabis]; Pen. Code §§ 459.5 [shoplifting], 473 [forgery], 476a [writing bad checks], 490.2 [grand theft], 496 [receiving stolen property], and 666 [petty theft with a prior conviction].) Proposition 47 also added a provision allowing felony offenders “serving a sentence for a conviction” for offenses now reclassified as misdemeanors to petition to have their sentences recalled and to be resentenced. (§ 1170.18, subd. (a); see also People v. Morales (2016) 63 Cal.4th 399, 404.)

         The resentencing procedure provides that if an inmate “would have been guilty of a misdemeanor” had Proposition 47 been in effect at the time of the offense, and he or she has no prior convictions for super strikes or any offense that requires registration as a sex offender, the inmate may petition for a recall of his or her sentence and resentencing in accordance with Proposition 47's reclassification of certain offenses as misdemeanors. (§ 1170.18, subds. (a) - (i).) If the court determines that the petitioner meets these criteria, it must recall the felony sentence and resentence the petitioner based on the new classification of the offense as a misdemeanor, “unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).)

         In exercising this discretion, the resentencing 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) his or her “disciplinary record and record of rehabilitation while incarcerated”; and (3) “[a]ny other evidence” the court deems relevant. (§ 1170.18, subd. (b)(1)-(3).)

         Significantly, however, in contrast to Proposition 36, Proposition 47 limits the trial court's discretion to deny resentencing by defining the phrase “unreasonable risk of danger to public safety” narrowly. In connection with resentencing under Proposition 47, “ ‘unreasonable risk of danger to public safety' means an unreasonable risk that the petitioner will commit a [super strike].” (§ 1170.18, subd. (c); see ante, fn. 3.) Thus, under Proposition 47 a resentencing court may not deny a petition for reclassification and resentencing for certain theft and drug possession felonies to misdemeanors for an otherwise eligible petitioner unless it finds that the resentencing would pose an unreasonable risk that the petitioner will commit a super strike.

         Of most significance to the present matter, Proposition 47 also provides that its definition of “unreasonable risk of danger to public safety” is effective “[a]s used throughout this Code.” (§ 1170.18, subd. (c).) Because section 1170.126, subdivision (g)(3), added by Proposition 36, the Three Strikes Reform Act, also requires the court to assess whether the petitioner's resentencing would pose “an unreasonable risk of danger to public safety, ” this raises the question of whether Proposition 47 amended the resentencing criteria for eligible third strike offenders under the previously enacted measure, Proposition 36. The parties do not contest that such an amendment would be more favorable to three strike inmates and result in the release of more recidivist serious and/or violent offenders than had been originally contemplated under Proposition 36.

         B. Proposition 47's Definition of “Unreasonable Risk of Danger to Public Safety” Does Not Apply to the Three Strikes Reform Act

         Viewed in isolation, Proposition 47's statement that its definition of “ ‘unreasonable risk of danger to public safety' ” is to be “used throughout this Code” (§ 1170.18, subd. (c)) would be understood to result in the amendment of the entire Penal Code, which of course includes the resentencing criteria for the Three Strikes Reform Act. But our courts have recognized that the meaning of isolated statutory language can be informed by and indeed must be consistent with the provisions of the relevant statute as whole. In the present matter, there are several reasons why the meaning of the phrase “[a]s used throughout this Code” in section 1170.18, subdivision (c) should be subject to careful scrutiny.

         First, the phrase “[a]s used throughout this Code” in section 1170.18, subdivision (c), when considered in the context of both section 1170.18 and other provisions of Proposition 47 as a whole, renders the entirety of section 1170.18, subdivision (c) ambiguous as to its potential application to the resentencing criteria for the Three Strikes Reform Act. Second, the ballot materials for Proposition 47 supplied no notice to voters that the measure intended to amend the resentencing criteria of the Three Strikes Reform Act and that three strike inmates previously convicted of serious or violent felonies could be released as a consequence. Third, despite creating detailed procedures for the resentencing of low-level felons to misdemeanants, Proposition 47 provided no similar procedural guidance for the resentencing of three strike inmates under its definition of “unreasonable risk of danger to public safety, ” which further detached any perceived connection with the Three Strikes Reform Act.

         Finally, under the circumstances of this matter, it is unreasonable to assign dispositive significance to the legal presumptions we normally apply to voters who approve an initiative in order to interpret the phrase “[a]s used throughout this Code.” Those presumptions, even if applicable, would not alter our conclusion that the statutory language is ambiguous and that this ambiguity should be resolved by construing section 1170.18, subdivision (c) not to apply to petitioners under other provisions of the Penal Code such as the Three Strikes Reform Act. Furthermore, as we will explain, neither the initiative's text nor its supporting materials describe any intention to amend the criteria for the resentencing of recidivist serious or violent felons, and both the Attorney General, who is required by law to summarize ballot measures, and the Legislative Analyst, who is required by law to provide and explain to voters a measure's potential impacts, did not interpret the phrase “[a]s used throughout this Code” as referring to the sentencing criteria for the Three Strikes Reform Act. Given these circumstances, it is unreasonable to assume or presume that voters, with greater acumen than the legal professionals of the offices of the Attorney General and Legislative Analyst, somehow discerned a connection with the Three Strikes Reform Act. Thus, those legal presumptions provide no assistance in determining whether such a connection existed.

         1. The Rules of Statutory Interpretation

         We have long recognized that the language used in a statute or constitutional provision should be given its ordinary meaning, and “[i]f the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) To that end, we generally must “accord[] significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose, ” and have warned that “[a] construction making some words surplusage is to be avoided.” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.)

         But “[t]he words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.” (Dyna-Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at p. 1387.) “Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation.” (Ibid.)

         2. Prior Cases Involving Ambiguous Statutory Language

         A reason to further explore the meaning of statutory language and to consider extrinsic evidence of legislative intent is where statutory language is ambiguous when considered “in the context of the statute and initiative as a whole.” (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.) This is because an initiative's “ ‘language must also be construed in the context of the statute as a whole' ” and its “ ‘overall … scheme.' ” (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1037, quoting People v. Rizo (2000) 22 Cal.4th 681, 685.)

         In Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, this court interpreted the meaning of the phrase “governing body, ” as used in Evidence Code former section 669.5, subdivision (a), a statute that sought to limit growth control legislation “enacted by the governing body of a city, county, or city and county.” Opponents of a local growth control ordinance, adopted by city voters as a local initiative, claimed the ordinance was invalid because it did not comply with the requirements of Evidence Code section 669.5. This court acknowledged that, under its plain meaning, “[t]he term ‘governing body' excludes the electorate.” (Building Industry Assn., supra, 41 Cal.3d at p. 818.) But the court further noted that “the words ‘governing body' cannot be considered by themselves, but must be analyzed within the context of the entire statute, ” which also included an exception for certain voter-approved initiatives, and when so read, “[a]mbiguity does exist within [Evidence Code] section 669.5.” (Id. at pp. 818-819, italics omitted.) This court then reviewed the legislative history of Evidence Code section 669.5 in order to reach the conclusion that it does apply to growth control legislation enacted by local initiatives. (Id. at pp. 819-820.)

         In Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal.3d 245, this court interpreted a provision of article XIII A, section 3 of the California Constitution (hereafter, article XIII A, section 3) that stated that any changes in state taxes collected for increasing revenue “ ‘mustbe imposed by an Act passed by no less than two-thirds of all members elected to each of the two houses of the Legislature....' ” (Id. at p. 248, quoting Cal. Const., art. XIII A, § 3.) Opponents of Proposition 99, a measure passed by the voters in 1988 that increased the tax on tobacco products, contended that article XIII A, section 3 rendered the measure void because only a supermajority of the Legislature may impose such taxes. This court acknowledged that, considered in isolation, the plain meaning of article XIII A, section 3 would have such an effect. (Kennedy Wholesale, supra, 53 Cal.3d at p. 249.) Instead, however, the court found section 3 “ambiguous when read in the context of the whole Constitution.” (Ibid.) We construed section 3 in light of article IV, section 1 of the state Constitution, through which “the people expressly ‘reserve to themselves the powers of initiative and referendum.' ” (Kennedy Wholesale, at p. 249, quoting Cal. Const., art. IV, § 1.) Accordingly, we concluded that “[t]o interpret section 3 as giving the Legislature exclusive power to raise taxes would implicitly repeal article IV, section 1, pro tanto” even though article XIII A, section 3 “does not even mention the initiative power, let alone purport to restrict it.” (Kennedy Wholesale, at p. 249.) This court then turned to the ballot materials of the measure that enacted article XIII A, section 3 and found “[n]othing in the official ballot pamphlet supports the inference that the voters intended to limit their own power to raise taxes in the future by statutory initiative.” (Kennedy Wholesale, at p. 250.)

         In People v. Hazelton (1996) 14 Cal.4th 101, we interpreted a provision enacted in 1994 by Proposition 184, the initiative version of the Three Strikes law that mandated life sentences as the third strike penalty for those who have “ ‘two or more prior felony convictions, as defined in paragraph (1) of subdivision (b)' ” of former section 1170.12. (Hazelton, supra, 14 Cal.4th at p. 105, quoting former § 1170.12, subd. (c)(2)(A).) At issue was whether former section 1170.12 permitted third strike penalties for similar out-of-state prior felony convictions, which were defined not in paragraph (1) but in paragraph (2) of subdivision (b) in section 1170.12. Instead, paragraph (1) defined an eligible prior felony conviction as “[a]ny offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state.” (Former § 1170.12, subd. (b)(1), as added by Prop. 184, Gen. Elec. (Nov. 8, 1994).) The defendant in Hazelton contended that the life sentence required by former section 1170.12, subdivision (c)(2)(A), should not apply to him because his prior out-of-state conviction was not included in “paragraph (1) of subdivision (b), ” and the life sentence provision did not expressly refer to out-of-state felony convictions described in paragraph (2) of subdivision (b) in former section 1170.12.

         We rejected this argument by concluding that “[r]ead in the context of section 1170.12 as a whole, the language of subdivision (c)(2)(A) is ambiguous regarding the inclusion of out-of-state convictions....” (Hazelton, supra, 14 Cal.4th at p. 105.) This court observed that introductory language in section 1170.12, subdivision (b) stated: “ ‘Notwithstanding any other provision of law and for the purposes of this section, a prior conviction of a felony shall be defined as:' ” followed by the list of subparts that included both paragraph (1) and paragraph (2) of subdivision (b). (Hazelton, at p. 106, quoting former § 1170.12, subd. (b).) When read in light of this introductory language, we concluded that “[s]ubdivision (c)(2)(A), therefore, arguably proffers a different and inconsistent definition to the extent it limits the definition of a prior felony for purposes of the three strikes provision to only adult California convictions.” (Hazelton, at p. 106.) As a result, we turned to the ballot materials of the initiative that enacted section 1170.12 and found “no evidence in the legislative history that the voters intended to exclude out-of-state convictions from the purview of the initiative's third strike penalty.” (Hazelton, at p. 108.)

         Consequently, Building Industry Assn., Kennedy Wholesale, and Hazelton all established that statutory language, even if it appears to have a clear and plain meaning when considered in isolation, may nonetheless be rendered ambiguous when the language is read in light of the statute as a whole or in light of the overall legislative scheme.

         3. Ambiguity of Section 1170.18's Application to the Three Strikes Reform Act

         Section 1170.18, subdivision (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” section 667, subdivision (e)(2)(C)(iv). The dissents argue this language should have made it plain to voters that only offenders at risk of committing a super strike could be denied resentencing under either Proposition 47 or the Three Strikes Reform Act. But the initiative's language is ambiguous when viewed in the context of the subject matter of Proposition 47 as a whole and, in particular, in the context of section 1170.18 in which subdivision (c) is located. The ambiguity is compounded because the alleged effect on the Three Strikes Reform Act is not reflected in the uncodified provisions of Proposition 47 that set forth the purposes of the measure.

         First, although the words “as used throughout this code” in section 1170.18, subdivision (c) may appear clear and unambiguous when viewed in isolation, the ambiguity regarding the intended meaning and scope of subdivision (c) becomes apparent when this language is viewed in context. To begin with, the subdivision was enacted as part of an initiative measure - Proposition 47 - whose primary focus was reducing the punishment for a specifically designated category of low-level felonies from felony to misdemeanor sentences. The measure did not purport to alter the sentences for felonies other than those that the measure reduced to misdemeanors.

         Moreover, section 1170.18, subdivision (c) itself contains language that reasonably supports the conclusion that it was intended to apply only to persons who are eligible for resentencing to misdemeanors under the provisions of Proposition 47. To reiterate, section 1170.18, subdivision (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....” (Italics added.) As the Attorney General contends, the use of the phrase “the petitioner” in section 1170.18, subdivision (c) is significant because section 1170.18, subdivision (a), provides that an eligible person may file a petition for a recall of sentence in order to reduce the conviction to a misdemeanor, and, thereafter, the statute repeatedly refers to such a person as “the petitioner.” (§§ 1170.18, subds. (b), (c), (l), (m).) For the reasons described in Justice Kruger's concurring opinion, it is unclear whether the petitioners referred to in section 1170.18, subdivision (c) include “any petitioner in any proceeding governed by any provision of the Penal Code, including Proposition 36” or whether it refers “only to the lower-level offenders who have petitioned for relief under Penal Code section 1170.18, subdivision (a).” (Conc. opn. of Kruger, J., post, at p. 9.) Moreover, the use of the definite article “the, ” instead of “a” petitioner, is an indication that Proposition 47's definition of “unreasonable risk of danger to public safety” applies only to those individuals applying for relief under Proposition 47.

         If Proposition 47's definition of “unreasonable risk of danger to public safety” was intended to apply to petitioners both under Proposition 36 and Proposition 47, then section 1170.18, subdivision (c), should have referred to “a petitioner” or otherwise made clear that it applied both to individuals seeking relief under section 1170.18, subdivision (a), and to those seeking relief under section 1170.126, subdivision (b), part of the Three Strikes Reform Act. To read the statute as applying to the latter individuals would transform the meaning of the phrase “the petitioner.”

         Additionally, the location of the provision in question within section 1170.18 is informative. As noted, section 1170.18 creates the procedure through which those persons who, having been previously convicted and sentenced for those low-level felonies now reducible to misdemeanors, may petition to have their convictions resentenced as misdemeanors.

         Section 1170.18 begins by listing the previously designated low-level felony convictions that are eligible for relief under Proposition 47 in subdivision (a). This is followed by subdivision (b), which describes the criteria a resentencing court may apply in granting or denying relief to Proposition 47 eligible offenders. (§ 1170.18, subd. (b).) The next subdivision of section 1170.18 is subdivision (c), and it defines the phrase “unreasonable risk of danger to public safety, ” which is one of the resentencing criteria listed in subdivision (b) for the resentencing of the low-level felonies described in subdivision (a). Thus, the placement of subdivision (c) tends to reinforce its application to crimes that had previously been low-level felonies. Given that nothing in the subject matter of section 1170.18 as a whole suggests a connection to the Three Strikes Reform Act or serious and violent felonies, the placement of subdivision (c) in section 1170.18 obscures any indication that the subdivision was intended to amend the resentencing criteria for the Three Strikes Reform Act. (See, e.g., Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 210-211 [relying upon the location of statutory provision in ascertaining its meaning and scope].)

         It is true that the use of the phrase “[a]s used throughout this Code” in section 1170.18, subdivision (c) could support an alternative interpretation of its intended scope, under which the limiting definition it sets forth would apply to persons seeking resentencing under other statutory provisions in addition to section 1170.18. For this reason, these two opposing interpretations render section 1170.18, subdivision (c) ambiguous. But, as further explained below, the interpretation that takes into account both the meaning of the phrase “the petitioner” and the location of subdivision (c) itself within section 1170.18 appears more consistent with the express purpose and intended scope of Proposition 47, as stated in its uncodified sections, which we describe below.

         Second, another indication that section 1170.18, subdivision (c) is ambiguous rests on the fact that the subdivision, as construed by defendant and the dissenting opinions, is difficult to reconcile with Proposition 47's uncodified preamble, which was presented to the electorate. The preamble, which describes Proposition 47 to the voters, contains uncodified sections expressing the measure's “Findings and Declarations” and its “Purpose and Intent.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) (Voter Information Guide) text of Prop. 47, §§ 2, 3, p. 70.) “In considering the purpose of legislation, statements of the intent of the enacting body contained in a preamble, while not conclusive, are entitled to consideration.” (People v. Canty (2004) 32 Cal.4th 1266, 1280.) As we explain, these uncodified provisions are inconsistent with and beyond the scope of any intention to amend the resentencing criteria for the Three Strikes Reform Act or to release additional three strike inmates.

         The initiative's Findings and Declarations state that the “act ensures that sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed.” (Voter Information Guide, supra, text of Prop. 47, § 2, p. 70.) Similarly, Proposition 47 reiterates its Purpose and Intent as being to “[e]nsure that people convicted of murder, rape, and child molestation will not benefit from this act, ” and to “[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes.” (Id., § 3, p. 70.) The Purpose and Intent of the initiative is also to “[a]uthorize consideration of resentencing for anyone who is currently serving a sentence for any of the offenses listed herein that are now misdemeanors.” (Ibid.)

         Thus, the expressly stated central objectives of Proposition 47 were to redesignate specified minor felony offenses as misdemeanors and to permit those persons previously convicted of these same low-level felonies to seek resentencing as misdemeanors. Proposition 47 further assured voters that persons convicted of murder, rape, and child molestation would not benefit from Proposition 47 and specifically declared that the “act ensures that sentences for people convicted of dangerous crimes... are not changed.” (Voter Information Guide, supra, text of Prop. 47, § 2, p. 70, italics added.)

         It is not unreasonable to view the term “dangerous crimes” as encompassing the serious and violent felonies addressed by both the Three Strikes law and the Three Strikes Reform Act. The uncodified introductory provisions of Proposition 47 further assured voters that the measure would reduce low-level felony convictions to misdemeanors, “unless the defendant has prior convictions for specified violent or serious crimes.” (Voter Information Guide, supra, text of Prop. 47, § 3, p. 70.) By design, those convicted under either the former Three Strikes law or the amended version enacted by Proposition 36 are persons convicted of dangerous crimes and have prior convictions for various violent or serious crimes. These uncodified introductory provisions, therefore, are inconsistent with any intention to make the resentencing provisions of the Three Strikes Reform Act more favorable to the resentencing and release of three strike inmates, who are felons with recidivist convictions for serious or violent felonies.

         Also, an extension of Proposition 47's definition of “an unreasonable risk of danger to public safety” to the previously enacted Three Strikes Reform Act would conflict with the measure's stated purpose to “[e]nsure that people convicted of murder, rape, and child molestation will not benefit from this act.” (Voter Information Guide, supra, text of Prop. 47, § 3, p. 70.)

         As previously discussed, the list of super strike offenses is limited to a set of eight categories of serious or violent felonies. (See, ante, p. 3, fn. 3.) The only sexual offenses included in that set are specific sexually violent offenses involving threats, force, violence, duress, menace, or fear of immediate and unlawful bodily injury and specific sexual offenses involving minors under the age of 14. (See § 667, subd. (e)(2)(C)(iv)(I-VIII).) Thus, contrary to Proposition 47's Purpose and Intent, three strike inmates previously convicted of nonforcible rape or molestation of a child over the age of 14 would stand to benefit under Proposition 47's definition of “an unreasonable risk of danger to public safety.” Proposition 47's uncodified Purpose and Intent, therefore, appears inconsistent with the application of the phrase “[a]s used throughout this Code, ” under its section 1170.18, subdivision (c), which would have the effect of extending possible sentencing relief to convicted rapists and child molesters.

         Construing the phrase “[a]s used throughout this Code” as a more expansive standard to permit the resentencing of three strikes offenders would thus be inconsistent with Proposition 47's uncodified findings, declarations, purpose, and intent. This stark inconsistency reinforces the conclusion that the meaning of section 1170.18, subdivision (c) is ambiguous.

         4. The Voter Information Materials Concerning Proposition 47

         Accordingly, we turn to evidence, outside the measure's express provisions, to ascertain the voter's intent in approving the initiative. Specifically, we examine the materials that were before the voters.[1] (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 905 (Robert L.) [in order resolve questions of purpose and ambiguity, “we look to the materials that were before the voters”].)

         Nothing in the materials accompanying the text of Proposition 47 suggested that the initiative would alter the resentencing criteria under the previously enacted Three Strikes Reform Act, resulting in the potential release of additional recidivist serious or violent felony offenders. “We cannot presume that... the voters intended the initiative to effect a change in law that was not expressed or strongly implied in either the text of the initiative or the analyses and arguments in the official ballot pamphlet.” (Farmers Ins. Exchange v. Superior Court, supra, 137 Cal.App.4th at pp. 857-858.)[2]

         Proposition 47 voter information materials focused on describing the reclassification of certain theft- and drug-related felonies to misdemeanors and did not make any reference to three strike inmates. For instance, the “Official Title and Summary, ” which was prepared by the Attorney General, states that the measure “[r]equires [a] misdemeanor sentence instead of [a] felony for certain drug possession offenses, ” as well as “petty theft, receiving stolen property, and forging/writing bad checks.” (Voter Information Guide, supra, Summary of Prop. 47, p. 34.) The Official Title and Summary further clarifies that a “felony sentence for these offenses” would remain intact if the person “has [a] previous conviction for crimes such as rape, murder, or child molestation or is [a] registered sex offender” or unless the court “finds [an] unreasonable public safety risk.” (Ibid., italics added.) The Official Title and Summary makes no mention of the Three Strikes Law, the Three Strikes Reform Act, three strike inmates, or life sentences for recidivist serious or violent felons.

         Nor does the Legislative Analyst's Analysis of Proposition 47 included in the Voter Information Guide make any reference to the Three Strikes Law, the Three Strikes Reform Act, three strike inmates, or life sentences for recidivist serious or violent felons. Under the Elections Code, the Legislative Analyst must “prepare an impartial analysis of the measure describing the measure and including a fiscal analysis of the measure showing the amount of any increase or decrease in revenue or cost to state or local government.” (Elec. Code, § 9087, subd. (a).) Accordingly, if the Legislative Analyst had recognized that Proposition 47 would have also negated life sentences and facilitated the resentencing and release of third strike inmates under the more restrictive definition of an “unreasonable risk of danger to public safety, ” the Analyst would have been required to provide the voters with an estimate of the fiscal scope of such an application. Yet the analysis provides no estimate of any effect on third strike offenders and their crimes nor any discussion of the fiscal effects on the state prison system from the invalidation of life sentences for recidivist serious or violent felons or on the parole system in handling the release of inmates caused by a resentencing of third strike inmates under a standard that would be more favorable to them.

         In addition, the Legislative Analyst must provide an analysis that is “easily understood by the average voter” and it “may contain background information, including the effect of the measure on existing law and the effect of enacted legislation which will become effective if the measure is adopted, and shall generally set forth in an impartial manner the information the average voter needs to adequately understand the measure.” (Elec. Code, § 9087, subd. (b).)

         However, the analysis mentions no “effect” on the “existing” Three Strikes Reform Act. Instead, it focuses on Proposition 47's proposal to reduce punishment for nonserious and nonviolent felony crimes. In explaining what Proposition 47 proposed, the Legislative Analyst declared: “This measure reduces penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes, ” and would allow “certain offenders who have been previously convicted of such crimes to apply for reduced sentences.” (Voter Information Guide, supra, analysis of Prop. 47, p. 35, italics added.) The analysis then lists the offenses for which the measure would reduce punishment - grand theft, shoplifting, receiving stolen property, writing bad checks, check forgery, and drug possession. (Id. at pp. 35-36.) Thus, the Legislative Analyst discerned that Proposition 47 would provide reduced punishment for only nonserious and nonviolent property and drug offenses.[3]

         Turning to the assessments of Proposition 47's impacts, the Legislative Analyst again focused solely on the effect of the reduction of certain crimes from felonies to misdemeanors: “We estimate that about 40, 000 offenders annually are convicted of the above crimes [grand theft, shoplifting, receiving stolen property, writing bad checks, check forgery, and drug possession] and would be affected by the measure.” (Voter Information Guide, supra, analysis of Prop. 47, at p. 36.) Furthermore, the Legislative Analyst expressed uncertainty regarding the measure's fiscal impact, noting that “[i]n particular, it would depend on the way individuals are currently being sentenced for the felony crimes changed by this measure.” (Ibid.) There was no discussion of the probable fiscal effects related to the resentencing of third strike inmates, especially notable considering the significant costs associated with life sentences for recidivist serious or violent felons.

         Finally, the arguments in favor of and opposed to Proposition 47 discussed only the reductions of certain felonies to misdemeanors and did not mention the previously enacted Three Strikes Reform Act.[4] (Voter Information Guide, supra, arguments regarding Prop. 47, at pp. 38-39.)

         Accordingly, nothing in the voter information pamphlet for Proposition 47 informed the electorate that the definition of “unreasonable risk of danger to public safety, ” contained in section 14 of the measure, proposed section 1170.18, subdivision (c), was intended to amend and narrow the resentencing criteria under Proposition 36, the Three Strikes Reform Act. The materials for Proposition 47 signaled no relationship at all with that prior initiative. In fact, based on the analysis and summary they prepared, there is no indication that the Legislative Analyst or the Attorney General were even aware that the measure might amend the resentencing criteria governing the Three Strikes Reform Act.

         5. The Absence of Procedures for Resentencing Third Strike Offenders under the New Definition

         Further weighing against the defendants' proposed interpretation of the phrase “[a]s used throughout this Code” is the fact that Proposition 47 provides no guidance whatsoever concerning how to implement the resentencing of three strike inmates under the new definition of “unreasonable risk of danger to public safety.” (§ 1170.18, subd. (c).) Given the effective date of Proposition 47 in 2014, any amendatory effect on the previously enacted 2012 Three Strikes Reform Act raises serious procedural questions that the measure does not address. This circumstance further widens the gap concerning the voters' understanding of whether Proposition 47 would amend the resentencing criteria for three strike inmates.

         As previously described, Proposition 36, the Three Strikes Reform Act, took effect on November 7, 2012, and it gave inmates “two years after the effective date of the act” or “at a later date upon a showing of good cause” to file any petition for resentencing. (§ 1170.126, subd. (b).) Proposition 47 took effect on November 5, 2014, two days short of the two-year window enacted by the Three Strikes Reform Act to file a resentencing petition. Assuming Proposition 47 were construed to amend the Three Strikes Reform Act, its provisions are silent with respect to whether its definition of “an unreasonable risk of danger to public safety” in section 1170.18, subdivision (c), would apply only to inmates who had not yet sought resentencing, or whether it would also apply to inmates whose resentencing petitions had already been filed but not acted upon, and to those whose petitions had already been denied.

         An application only to inmates who had not yet sought resentencing would mean that such inmates would have only two days to seek resentencing under the new definition, unless the passage of Proposition 47 could constitute “good cause” for an untimely resentencing petition under section 1170.126, subdivision (b). In any event, it is reasonable to infer that, by November 5, 2014, most of the three strike inmates eligible for resentencing under the Three Strikes Reform Act would have already petitioned for resentencing.

         Even if we were to assume without deciding that the new definition may apply to any inmate who had filed a resentencing petition, but the proceedings on that petition were not yet final (see In re Estrada (1965) 63 Cal.2d 740, 744 [without legislative guidance to the contrary, courts ordinarily presume that newly enacted legislation ameliorating criminal punishment is intended to apply to all cases not yet reduced to final judgment on the statute's effective date]), such an application would serve, only a subset of third strike inmates - those who had unsuccessfully petitioned for resentencing and whose judgments on those petitions were not final as of November 5, 2014. Although Proposition 47 created new procedures for the resentencing of felons as misdemeanants, it created no similar procedural mechanism enabling previously unsuccessful third strike petitioners to seek a second opportunity for resentencing using the new definition of “an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (c).)

         If one of the purposes of Proposition 47 was to narrow the criteria applicable to resentencing third strike offenders, one would expect the drafters to have addressed at least some of the above described problems. Instead, the measure was silent on these matters.[5] This further exacerbated the unlikelihood that the Attorney General, the Legislative Analyst, and the voters understood that the measure would potentially release not just low-level, nonviolent offenders, but also three strike inmates with repeat convictions for serious and violent felonies. In fact, had Proposition 47 tried to answer the questions surrounding its procedural applicability to the Three Strikes Reform Act, it would have alerted the public to its proposed direct applicability to that prior measure.[6]

         6. The Presumptions Concerning an Initiative Adopted by Voters

         In favor of applying the defendants' proposed interpretation, defendants and the dissents rely heavily on two presumptions we generally apply to measures approved by the initiative process. The first is the assumption that voters who approve an initiative are presumed to “ ‘have voted intelligently upon an amendment to their organic law, the whole text of which was supplied [to] each of them prior to the election and which they must be assumed to have duly considered....' ” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 243-244, quoting Wright v. Jordan (1923) 192 Cal. 704, 713.) The second is a presumption, which we also apply to the Legislature, that the voters, in adopting an initiative, did so being “aware of existing laws at the time the initiative was enacted.” (Professional Engineers in California Government v. Kempton, supra, 40 Cal.4th at p. 1048; see also In re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11.)

         Even if we assume for the sake of argument that these presumptions apply here, they do not alter our conclusion that the electorate did not intend to apply Proposition 47's definition of “unreasonable risk of danger to public safety” to inmates seeking resentencing under the Three Strikes Reform Act, because the presumptions have no bearing on our determination that the statutory language is ambiguous and that this ambiguity should be resolved by construing the definition as inapplicable to those inmates. In any event, we have found compelling reasons not to apply such presumptions in prior cases, and, to an even greater degree, they are also inapt in the present matter.

         a) The Presumption that Voters Have Considered the Text of the Laws Proposed by an Initiative

         In Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Comm. (1990) 51 Cal.3d 744 (Taxpayers), we declined to credit the presumption that voters had thoroughly studied the probable impact of proposed initiatives. (Id. at pp. 769-770.) There, we considered the voters' simultaneous approval of two overlapping ballot measures regulating campaign contributions and spending. We examined the reach of California Constitution article II, section 10, subdivision (b), which provides: “If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.” In determining the voters' intent, the court had to decide whether this constitutional provision required the measure with the highest votes to prevail entirely or whether the rules of statutory construction required the individual provisions of each measure to be grafted into a hybrid form and put into effect, despite any conflicting provisions. (Taxpayers, supra, 51 Cal.3d at p. 747.) We observed that both a state commission and the Court of Appeal had attempted to reconcile the measures using the latter approach, but noted that each had reached “divergent conclusions” concerning whether various provisions from each measure were irreconcilable and whether the voters would have adopted various parts of the measure that had received fewer votes if they had “not been part of that measure.” (Id. at p. 760.)

         In rejecting the contention that the voters intended a hybrid version of the measures if they were both approved, this court acknowledged the “presumption that the voters thoroughly study and understand the content of complex initiative measures.” (Taxpayers, supra, 51 Cal.3d at p. 768.) But we refused to assume further “that voters not only recognized that they were approving initiatives with fundamentally conflicting provisions intended to regulate the same subject, but also analyzed the remaining provisions in order to predict which would be implemented if either measure received a lesser affirmative vote.” (Ibid.) This court remarked “that even the most conscientious voters may lack the time to study ballot measures with that degree of thoroughness.” (Id. at p. 770.) “ ‘ “We think the assertion may safely be ventured that it is only the few persons who earnestly favor or zealously oppose the passage of a proposed law initiated by petition who have attentively studied its contents and know how it will probably affect their private interests.” ' ” (Ibid., quoting Wallace v. Zinman (1927) 200 Cal. 585, 592-593, quoting in turn State v. Richardson (1906) 48 Or. 309, 319.)

         The present case is similar. In defining the phrase “unreasonable risk of danger to public safety, ” it is peculiar that section 1170.18, subdivision (c), extended that definition to the Three Strikes Reform Act by use of the phrase “[a]s used throughout this Code.” When Proposition 47 was presented to the voters, the phrase “unreasonable risk of danger to public safety” appeared in only oneother section of the Penal Code. (§1170.126, subd. (f).) Given this unique circumstance, it is highly unusual that the drafters of Proposition 47 did not simply make a direct reference to the single relevant provision intended to be amended - section 1170.126, the resentencing statute previously enacted by the Three Strikes Reform Act. Such a direct reference would have expressly disclosed to the voters a connection between Proposition 47 and the Three Strikes Reform Act. Instead, Proposition 47 applied its definition of “unreasonable risk of danger to public safety” to the entire Penal Code, which has thousands of sections encompassing hundreds of thousands of provisions, only one of which was relevant to the proposed new definition.

         Consequently, without an express reference to section 1170.126, part of the Three Strikes Reform Act, the average voter would not have known the impact or import of the phrase “[a]s used throughout this Code” in section 1170.18, subdivision (c), unless they had exhaustively sifted through the voluminous Penal Code in order to find the single other reference to the phrase “unreasonable risk of danger to public safety.” We similarly recognized in Taxpayers that it is unreasonable to presume that the voters had such a “degree of thoroughness” that they “ ‘ “attentively studied” ' ” the measure and analyzed various provisions using the acumen of a legal professional. (Taxpayers, supra, 51 Cal.3d at p. 770.)

         Indeed, in the present matter, even professional bodies charged with the duty of enforcing the law and assessing the effects of proposed legislation did not identify the need to refer to the Three Strikes Reform Act's section 1170.126. First, the Attorney General's Official Title and Summary fails to note or describe any effect Proposition 47 might have in facilitating the release of serious or violent recidivist felons. In general, the Official Title and Summary prepared by the Attorney General plays an important role in preempting voter confusion and manipulation in the initiative process. If the Attorney General had omitted a key provision from Proposition 47's title and summary, the initiative's drafters should have brought this to her attention during the measure's public review period. (See Elec. Code, §§ 9002, subd. (a), 9004, subd. (a).) Their failure to do so suggests no such change was contemplated.[7] Second, the Legislative Analyst's Analysis of Proposition 47, included alongside the Attorney General's Official Title and Summary in the Voter Information Guide, also make no mention of the Three Strikes Law, the Three Strikes Reform Act, three strike inmates, or the life sentences for serious or violent recidivist felons.

         Defendants and our dissenting colleagues find these circumstances unremarkable and engage in the fiction that we should still apply the presumption that the voters thoroughly study and understand the content of complex initiative measures, even though the implications for three strikes resentencing were apparently opaque to the Attorney General and the Legislative Analyst. They were almost certainly opaque to the average voter as well. It is not reasonable to apply a presumption of voter awareness when ...


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