Filed 12/12/13 P. v. James CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E054590
v. (Super.Ct.No. SWF10000828)
SHEON LORENZO JAMES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Eric G. Helgesen Judge.
(Retired judge of the Tulare Super. Ct., assigned by the Chief Justice pursuant to art. VI,
§ 6 of the Cal. Const.) Affirmed.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and Heather F.
Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
1 Defendant and appellant Sheon Lorenzo James appeals after he was convicted by a
jury of five counts of burglary and five counts of petty theft with theft priors. Defendant
was sentenced as a third-striker. On appeal, he raises claims that the trial court erred in
instructing the jury about the elements of aiding and abetting, and in sentencing
defendant as a third-striker. We affirm.
FACTS AND PROCEDURAL HISTORY
On a series of dates between September 2009 and February 2010, defendant and
his wife stole many bottles of liquor with a total value over $1,300 from several
Albertson’s supermarkets in Riverside County. After each theft, the couple left the scene
in a white Lincoln SUV, which was eventually found to be registered to defendant’s wife,
Lola James. Jared Long was an Albertson’s loss prevention agent. He prepared the
reports for the first four (2009) thefts. He reviewed video footage as to several of the
thefts, and on one occasion he had personally observed defendant and his wife leaving
the store. He picked out defendant and defendant’s wife from photographic lineup cards.
Another loss prevention agent, Carl Bonomo, prepared a report about the theft in
February 2010. He positively identified defendant at the preliminary hearing, based on
his review of surveillance video footage of the theft.
After law enforcement investigation identified the car involved as belonging to
defendant’s wife, both defendant and his wife were eventually taken into custody.
Defendant’s wife ultimately pled guilty for her role in the thefts. Defendant was charged
with five counts of burglary and five counts of petty theft with a prior. The information
also alleged that defendant had suffered two prior strike convictions (for robbery), and
2 that he had served five prior prison terms (including the two robbery priors, one petty
theft with a prior, one receiving stolen property, and one unlawful taking or driving a
vehicle).
On June 22, 2011, a jury convicted defendant as charged on all counts. Defendant
waived his right to a jury trial on the priors, and the trial court found true all five prison
term priors, as well as both prior strike allegations. At sentencing on August 26, 2011,
defendant asked the trial court to exercise its discretion under People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, to dismiss one of the strike prior allegations. The trial
court adverted to a previous in-chambers discussion with the parties, and stated that it had
considered the probation report, as well as the prosecution’s sentencing brief. Defendant
had several prior convictions, and a history of poor choices. Although the expected term
of 125 years to life for a series of what were essentially petty thefts with priors seemed
“outrageous” to the court, it could not find that defendant fell outside the spirit of the
three strikes law. The court declined to strike either of the strike priors, and sentenced
defendant to five consecutive terms of 25 years to life, for a total of 125 years to life on
the primary offenses (burglary counts). The court imposed sentence on the remaining
five petty-theft-with-a-prior counts, as well as the prison term prior enhancements, and
stayed those sentences pursuant to Penal Code section 654.
Defendant filed a timely notice of appeal.
3 ANALYSIS
I. Any Error in the Aiding and Abetting Instructions Was Harmless Beyond a
Reasonable Doubt
Defendant first contends that the trial court erred in its instructions on aiding and
abetting. Defendant points to a portion of the prosecutor’s closing argument in which he
discussed aiding and abetting: “So you have an instruction in there talking about aiding
and abetting and principals. And those are legal terms, but basically it tells you . . . even
if I don’t go in and actually take the alcohol off the shelf and put it on my person and
walk out, if I somehow facilitate, encourage, or aid in any way another person doing that
—so, for example, as we see on the videos where the defendant can be seen blocking the
camera angle, clearly looking at what Lola James is doing and what she is doing with her
purse . . . or where you can clearly see he is handing her bottles—right?—that’s still a
principal, as well as it’s aiding and abetting.”
Defendant then notes that the trial court’s instructions on aiding and abetting were
incomplete, and therefore erroneous. The court did instruct with CALCRIM No. 400,
which informed the jury that a person who aids and abets an offense is equally guilty of
the charged offense, and CALCRIM No. 1702, describing the intent of an aider and
abettor to burglary, such as knowledge of the perpetrator’s intent, and the intent to aid,
facilitate, promote, instigate or encourage the commission of the burglary before leaving
the burglarized premises. The court did not, however, instruct the jury with CALCRIM
No. 401, which provides in part: “To prove that the defendant is guilty of a crime based
on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator
4 committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit
the crime; [¶] 3. Before or during the commission of the crime, the defendant intended
to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The
defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the
crime.” CALCRIM No. 401 also informs the jury that mere presence at the scene of a
crime is insufficient to constitute aiding and abetting. Defendant urges that the court’s
incomplete instructions omitted an element of the crime, for purposes of a conviction as
an aider and abettor and, thus, violated defendant’s rights under both the United States
and California Constitutions. (See People v. Flood (1998) 18 Cal.4th 470, 479-480.)
Defendant contends that the trial court’s omission of CALCRIM No. 401 failed to define
an actus reus, as required to find defendant guilty on an aiding and abetting theory.
“ ‘The trial court must instruct even without request on the general principles of
law relevant to and governing the case . . . [including] instructions on all of the elements
of a charged offense.’ (People v. Cummings (1993) 4 Cal.4th 1233, 1311 [18 Cal.Rptr.2d
796, 850 P.2d 1].) ‘[A]n instructional error that improperly . . . omits an element of an
offense . . . generally is not a structural defect in the trial mechanism that defies harmless
error review and automatically requires reversal under the federal Constitution.’ (People
v. Flood (1998) 18 Cal.4th 470, 502-503 [76 Cal.Rptr.2d 180, 957 P.2d 869].) Such an
error is reviewed under the harmless error standard announced in Chapman v. California
(1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824]. (Flood, at p. 503.) Under the
Chapman standard, ‘an otherwise valid conviction should not be set aside if the
reviewing court may confidently say, on the whole record, that the constitutional error
5 was harmless beyond a reasonable doubt.’ (Delaware v. Van Arsdall (1986) 475 U.S.
673, 681 [89 L.Ed.2d 674, 106 S.Ct. 1431].)” (People v. Haraszewski (2012) 203
Cal.App.4th 924, 936.)
Upon a thorough examination of the record, we are convinced that the
instructional omission did not contribute to the verdict. Although the prosecutor did
make passing reference to aiding and abetting (such as by defendant blocking the
surveillance camera view of what his wife was doing with the liquor bottles and her
purse), the thrust of the evidence in all five incidents was defendant’s active participation
in the thefts.
On September 13, 2009, the surveillance video showed defendant taking liquor
bottles from the shelf and handing them to his wife, who then concealed them. On
September 22, 2009, the day of the second theft, loss prevention agent Long saw
defendant and his wife in the store and recognized them, based on his review of the
surveillance tape of the first theft. The builds of both people were the same, the way the
woman held her purse was the same, and defendant’s gait was the same as the man Long
had seen in the earlier video. Long went quickly to the liquor aisle and verified a gap on
the shelf; he ran back to the parking lot in time to see defendant and his wife drive away
in the white Lincoln SUV. He identified a dealer sticker on the car; there was no license
plate. As a result of Long’s observations, the SUV was eventually traced to defendant’s
wife. From his observations that day, and of the video recording, the loss prevention
agent testified that defendant and his wife both came into the store, and “they” concealed
four bottles in defendant’s wife’s purse. On October 12, 2009, defendant and his wife
6 each took bottles from the shelf of the liquor department. Defendant put a bottle in his
waistband, while his wife put bottles in her purse. On November 1, 2009, defendant’s
wife took bottles from the store shelf, and defendant concealed them. The fifth theft took
place on February 18, 2010. A different loss prevention agent reviewed the video for that
theft. Defendant took liquor bottles from the shelf. He put one in his waistband and gave
others to his wife, who again put them into her purse.
Defendant stresses that loss prevention agent Long had testified that the video
surveillance footage, and some digital still photographs made from the videos, were not
alone enough to clearly identify defendant as the male perpetrator. However, whether the
jury convicted defendant as a direct perpetrator or as an aider and abettor, it could not
have done so under the instructions given unless it were satisfied beyond a reasonable
doubt that defendant was in fact the man shown participating in the five thefts. If the jury
did not believe that defendant was the person shown in the video or photographs, then it
could not have convicted him, whether it relied on a theory of aiding and abetting, or
whether it relied on a direct perpetrator theory. Therefore, the inability to identify
defendant solely from the video or photos is irrelevant to the question presented by the
instructional error. In addition, even though the video pictures and still photograph
images may have been somewhat unclear, loss prevention agent Long did personally
observe defendant while defendant and his wife were in the store. The video footage of
the first theft provided sufficient clarity for loss prevention agent Long to recognize the
general characteristics of defendant and his wife as matching the characteristics of the
thieves from the first theft. If the jury believed in any manner that defendant was the
7 male person with defendant’s wife—as the verdicts plainly show—then manifestly
defendant was the person seen on the videos participating directly in each of the thefts.
Although defendant asserts that “[a] reasonable juror could have found that the
prosecution did not prove [defendant] committed an act to facilitate his wife’s crimes,”
the record belies this statement. The defense was not that defendant had merely stood by
or been present (i.e., not doing anything to aid and abet) while his wife committed the
thefts; rather, the defense was that someone else committed the thefts with defendant’s
wife. The man shown on the videos with defendant’s wife was uncontrovertedly shown
to be an active participant in all the thefts; the jury had every reason to believe that
defendant was that man. The failure to instruct the jury fully on the elements of aiding
and abetting was harmless beyond a reasonable doubt. (Chapman v. California, supra,
386 U.S. at p. 24.)
II. The Trial Court Properly Understood and Exercised Its Discretion in Declining to
Dismiss Defendant’s Strike Priors
At sentencing, defendant requested the court to exercise its discretion under Penal
Code section 1385 to dismiss one of his strike priors (Pen. Code, § 667, subds. (b)-(i)), so
that he could be sentenced as a second-striker (double the base term) rather than a third-
striker (25 years to life) on what he characterizes as “a string of low grade commercial
burglaries.”
The trial court declined to dismiss a strike prior. The court proffered the following
statement: “I’ll be up front with you. I think that 125 years for what amounts to five
petty theft shoplifts with priors [or commercial burglaries] is an outrageous amount of
8 time to give him.” The court frankly stated, if it were to dismiss a strike, it would do so
“just because I think [the sentence] is too high. I don’t like that much time for the acts
that were committed here.” However, the court recognized that the harshness of the
penalty “is not a reason to strike a strike, and I don’t believe I have the authority to do it
under the law if [disproportionality] is my reasoning.” The court stated, “I need to find
the defendant comes outside the scope of the intention of the Three Strikes Law, not just
that I think it’s a very harsh sentence for the acts that were committed here.”
Defendant argues that the court misunderstood the scope of its discretion, and that
“[d]isproportionality, properly understood, remained a proper ground under the Three
Strikes Law to sentence [defendant] as a second striker on one or more of his current
convictions.”
We conclude that the trial court did properly understand and exercise its discretion
under Penal Code section 1385. Penal Code section 1385 permits a trial court to dismiss
a strike prior allegation, under the three strikes law, “in the interests of justice.” The
three strikes law is a scheme intended to restrict the trial court’s discretion with respect to
the sentencing of repeat offenders. (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Application of the sentencing scheme is mandatory, and the trial court’s discretion to do
otherwise is closely circumscribed. If a defendant comes within the three strikes law, the
presumption is raised that the sentence prescribed is both reasonable and proper. (Id. at
pp. 377-378.)
Dismissing a strike prior is reserved for extraordinary circumstances. The court
must “consider whether, in light of the nature and circumstances of [the defendant’s]
9 present felonies and prior serious and/or violent felony convictions, and the particulars of
his [or her] background, character, and prospects, the defendant may be deemed outside
the scheme’s spirit, in whole or in part, and hence should be treated as though he [or she]
had not previously been convicted of one or more serious and/or violent felonies.”
(People v. Williams (1998) 17 Cal.4th 148, 161.)
As the trial court here clearly recognized, it could not justifiably find that
defendant fell outside the spirit of the three strikes scheme. Defendant was a career
criminal, who had already served five prior prison terms, as well as suffering two prior
serious or violent felony strike convictions. The information alleged as strike priors
defendant’s convictions for robbery in 2002 and 1997. The first strike prior, the 2002
robbery, was based on defendant’s participation in an armed robbery in which $17,000 in
cash and merchandise was stolen. In 1997, defendant and the victim argued over the
impending breakup of their relationship. When the victim tried to leave, defendant took a
chain and earrings off of her body and attempted to steal her purse. This resulted in the
second alleged strike conviction for robbery. Defendant had not reformed his conduct in
any manner, but committed a string of burglaries over a period of several months. He
showed no signs of reformation, remorse, moral development, character improvement, or
any other traits that would militate in favor of an exercise of leniency, and certainly no
extraordinary circumstances that would justify treating him as someone outside the scope
of the recidivist sentencing scheme. He continued to harm others without regard for the
law. He was precisely the kind of career criminal at whom the three strikes law was
directed. The trial court did not abuse its discretion in declining to dismiss one of
10 defendant’s strike priors; it also understood the limits of that discretion and acted
properly within those limits.
III. Defendant Is Not Eligible for Mandatory Resentencing Under Penal Code Sections
667, Subdivision (e)(2)(C) and 1170.12, Subdivision (c)(2)(C)
Defendant has raised, by supplemental briefing, an additional issue with respect to
his three strikes law sentence: that is, in November 2012, the three strikes law was
amended by initiative statute to provide that, when a third strike offense is a nonserious,
nonviolent felony, the sentence imposed shall be twice the ordinary sentence for the
offense, rather than an indeterminate term of 25 years to life. (Proposition 36, the Three
Strikes Reform Act of 2012 [hereafter the Reform Act or the Act]. The Reform Act
became effective on Nov. 7, 2012.) Defendant urges that the Reform Act applies to him,
as his case was not yet final at the time of the amendment. He therefore requests this
court to remand the matter for resentencing under the amended provisions of the three
strikes law.
The People respond that the Reform Act provides a distinct mechanism for
affording relief to persons sentenced as third strikers under the old law, if the third strike
felony is a nonviolent, nonserious offense. The People contend that where, as here, a
defendant has been sentenced to an indeterminate term of imprisonment before
November 7, 2012, the defendant must “petition for a recall of sentence, 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, before the trial court that entered the judgment of conviction in his or her
11 case, to request resentencing in accordance with [Proposition 36].” (Pen. Code,
§ 1170.126, subd. (b).)
As the contentions of the parties highlight, the Reform Act contains two different
avenues of relief.
First, a defendant who is “presently serving” a three strikes sentence under the
former version of the three strikes law may (within certain time requirements) petition to
have his or her sentence recalled and to be sentenced as a second strike offender, if the
current offense is not a serious or violent felony and the person is not otherwise
disqualified. The trial court may deny the petition, even if those criteria are met, if the
court determines that resentencing would pose an unreasonable risk of danger to public
safety. (Pen. Code, § 1170.126, subds. (a)–(g).) Accordingly, under Penal Code section
1170.126, resentencing of defendants “presently serving” a three strikes sentence under
the old law is discretionary, even if the defendant meets the objective criteria to qualify
for the ameliorated treatment under the Reform Act. (Pen. Code, § 1170.126, subds. (f),
(g).)
Second, by contrast, a defendant who is sentenced under the Reform Act’s new
version of the three strikes law must be sentenced pursuant to paragraph 1 of Penal Code
section 667, subdivision (e)—i.e., as though the defendant had only one strike prior—if
the current offense is not a serious or violent felony as defined in Penal Code sections
667.5, subdivision (c), or 1192.7, subdivision (c), unless certain disqualifying factors are
12 pleaded and proven.1 That is, it is mandatory in new cases to impose the ameliorated
sentence to third strikers whose third strike qualifies as a nonserious and nonviolent
1 Penal Code section 667, subdivision (e)(2)(C), provides that second strike sentencing does not apply if the prosecution pleads and proves any of the following:
“(i) The current offense is a controlled substance charge, in which an allegation under Section 11370.4 or 11379.8 of the Health and Safety Code was admitted or found true.
“(ii) The current offense is a felony sex offense, defined in subdivision (d) of Section 261.5 or Section 262, or any felony offense that results in mandatory registration as a sex offender pursuant to subdivision (c) of Section 290 except for violations of Sections 266 and 285, paragraph (1) of subdivision (b) and subdivision (e) of Section 286, paragraph (1) of subdivision (b) and subdivision (e) of Section 288a, Section 311.11, and Section 314.
“(iii) During the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.
“(iv) The defendant suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of this section, for any of the following felonies:
“(I) A ‘sexually violent offense’ as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.
“(II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289.
13 “(III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.
“(IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.
“(V) Solicitation to commit murder as defined in Section 653f.
“(VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245.
“(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418.
“(VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.”
Penal Code section 1170.12, subdivision (c)(2)(C), is substantially to the same effect:
“(C) If a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and the current offense is not a felony described in paragraph (1) of subdivision (b) of this section, the defendant shall be sentenced pursuant to paragraph (1) of subdivision (c) of this section, unless the prosecution pleads and proves any of the following:
“(i) The current offense is a controlled substance charge, in which an allegation under Section 11370.4 or 11379.8 of the Health and Safety Code was admitted or found true.
“(ii) The current offense is a felony sex offense, defined in subdivision (d) of Section 261.5 or Section 262, or any felony offense that results in mandatory registration as a sex offender pursuant to subdivision (c) of Section 290 except for violations of Sections 266 and 14 285, paragraph (1) of subdivision (b) and subdivision (e) of Section 286, paragraph (1) of subdivision (b) and subdivision (e) of Section 288a, Section 314, and Section 311.11.
“(iii) During the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.
“(iv) The defendant suffered a prior conviction, as defined in subdivision (b) of this section, for any of the following serious and/or violent felonies:
“(I) A ‘sexually violent offense’ as defined by subdivision (b) of Section 6600 of the Welfare and Institutions Code.
“(II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286 or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289.
“(III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.
“(IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.
“(V) Solicitation to commit murder as defined in Section 653f.
“(VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245.
15 felony. The issue is, which avenue of relief is open to those defendants who were
initially charged and sentenced under the old three strikes law, but whose convictions
were not yet final at the time the Reform Act became effective? Do such defendants
qualify for mandatory sentencing under the Reform Act, or are they relegated to
petitioning for discretionary resentencing?
We conclude that Penal Code sections 667, subdivision (e)(2)(C), and 1170.126,
subdivision (c)(2)(C)—the mandatory ameliorated sentence provisions of the Reform
Act—do not apply prospectively. We note that defendant’s current offenses—
commercial burglaries—do not disqualify him from discretionary second strike treatment
under the Reform Act. In the 2002 strike offense (robbery), one of the participants used a
gun to order a store clerk into the back, while others absconded with money and
merchandise. The record before us does not show any enhancement to the 2002 robbery
conviction. Similarly, the record before us does not disclose any enhancement to the
1997 robbery strike conviction. At least on the surface, defendant’s strike priors do not
appear to disqualify him from discretionary second strike treatment under the Reform
Act.
The Estrada rule (In re Estrada (1965) 63 Cal.2d 740) is that a statute amended to
lessen the punishment for an offense is generally presumed intended by the Legislature to
“(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418.
“(VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.”
16 apply to all judgments not yet final as of the statute’s effective date, unless the
Legislature clearly indicates the intent that the amendment apply prospectively only.
Defendant here was more than 14 months into serving his prison sentence when the
Reform Act went into effect. Thus, at that time he was “presently serving” his life
sentence. In People v. Lester (2013) 220 Cal.App.4th 291 (Lester) [Fourth Dist., Div.
Two], this court held that, under the rule set forth in Estrada, the intent of the voters in
passing Proposition 36 was to reserve the mandatory reduction in sentence to future
felony offenders, but to allow existing inmates whose most recent offense was not a
serious or violent felony to apply for discretionary resentencing. This is because the
voter information guide for the initiative “could not have been more clear in its
distinction between the two and nowhere is there a reference to the possibility that some
existing inmates would automatically receive a twice-the-base-term sentence merely
because their judgments are not yet final.” (Lester at p. 302) Further, we concluded:
“Given the information supplied to the voters, we view Penal Code section 1170.126 as
the functional equivalent of a saving clause. ‘The rule in Estrada is not implicated where
the Legislature clearly signals its intent to make an amendment prospective, by the
inclusion of either an express saving clause or its equivalent . . . .’ [Citation.]” (Lester at
p. 303, italics added and omitted.)
17 We also note that in People v. Yearwood (2013) 213 Cal.App.4th 161, 172, 175-
176, the first published opinion to consider this question, the Fifth District reached the
same conclusion. Defendant does not benefit from the mandatory provisions of the
Reform Act.
DISPOSITION
The judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
I concur:
MILLER J.
18 McKINSTER, J., Concurring and Dissenting
I respectfully concur in part, and dissent in part. I concur with the majority’s
discussion of the aiding and abetting instructions and the propriety of the trial court’s
refusal to dismiss defendant’s strike priors. However, I disagree with the discussion of
the “Three Strikes Reform Act of 2012,” section 10 (Prop. 36, as approved by voters,
Gen. Elec. (Nov. 6, 2012)) (hereafter the Reform Act or the act). The Reform Act
became effective on November 7, 2012. (Pen. Code, §§ 667, subd. (e)(2)(C), 1170.12,
subd. (c)(2)(C), 1170.126.)1
I. Section 667, Subdivision (e)(2)(C), Applies to Defendants Whose Judgments Were
Not Yet Final on the Effective Date of the Reform Act
I agree that the majority has correctly highlighted the proper questions with
respect to applicability of the Reform Act to defendants whose third strike convictions
were not yet final when the Reform Act became effective:
“The issue is, which avenue of relief is open to those defendants who were
initially charged and sentenced under the old three strikes law, but whose convictions
were not yet final at the time the Reform Act became effective? Do such defendants
qualify for mandatory sentencing under the Reform Act, or are they relegated to
petitioning for discretionary resentencing?” (Maj. opn. ante, at p. 15.)
This court has issued conflicting opinions on the same issue: People v. Lewis
(2013) 216 Cal.App.4th 468 [Fourth Dist. Div. Two], review granted August 14, 2013,
1 All further statutory references are to the Penal Code unless otherwise indicated. 1 S211494, holding that third strikers whose convictions were not yet final were eligible for
mandatory resentencing, as well as People v. Lester (2013) 220 Cal.App.4th 291 [Fourth
Dist., Div. Two], holding that third strikers whose convictions were not yet final were not
so eligible, but must petition for recall of their sentences under the alternative remedy.
The majority here relies on Lester, but I adhere to the view that sections 667, subdivision
(e)(2)(C), and 1170.12, subdivision (c)(2)(C)—the mandatory ameliorated sentence
provisions—properly does apply to qualifying three strike defendants whose judgments
were not yet final on the effective date of the Reform Act.
As the majority has acknowledged, defendant’s current offenses would not
disqualify him from second strike treatment under the Reform Act, and his strike priors
similarly do not disqualify him from second strike treatment under the Reform Act. I
conclude that defendant should be eligible for mandatory resentencing (second strike
treatment), under the Estrada rule (In re Estrada (1965) 63 Cal. 2d 740), because the
Reform Act was an ameliorative statute without an express savings clause expressing the
clear intent of the Legislature that the ameliorative treatment should not, and could not
constitutionally, be afforded to three strikes defendants whose convictions were not yet
final.
Normally, “‘when there is nothing to indicate a contrary intent in a statute it will
be presumed that the Legislature intended the statute to operate prospectively and not
retroactively.’ [Citation.]” (People v. Floyd (2003) 31 Cal.4th 179, 184.) However, in
In re Estrada, supra, 63 Cal.2d 740, the California Supreme Court created a limited
2 exception to that presumption. The California Supreme Court held that, where a statute
has been amended to lessen the punishment for an offense and there is no clear indication
of an intent to apply the amendment prospectively only, it must be presumed that the
Legislature intended the mitigated punishment to apply to all judgments not yet final as
of the effective date of the amended statute. (Id. at pp. 744-747.) The court stated, “‘A
legislative mitigation of the penalty for a particular crime represents a legislative
judgment that the lesser penalty or the different treatment is sufficient to meet the
legitimate ends of the criminal law.’” (Id. at p. 745.) From this, “[i]t is an inevitable
inference that the Legislature must have intended that the new statute imposing the new
lighter penalty now deemed to be sufficient should apply to every case to which it
constitutionally could apply,” including those which are not yet final. (Ibid.)
The Legislature has never abrogated the Estrada rule. (See People v. Nasalga
(1996) 12 Cal.4th 784, 792, fn. 7.) Additionally, in People v. Brown (2012) 54 Cal.4th
314 (Brown), the California Supreme Court reiterated the vitality of the Estrada rule,
stating that the Estrada rule does not “weaken[] or modify[] the default rule of
prospective operation codified in section 3, but rather . . . inform[s] the rule’s application
in a specific context by articulating the reasonable presumption that a legislative act
mitigating the punishment for a particular criminal offense is intended to apply to all
nonfinal judgments.” (Id. at p. 324, italics added.)
Unquestionably, section 667, subdivision (e)(2)(C), is an amendment that
ameliorates punishment under the three strikes law for those defendants who meet its
3 criteria. The Reform Act does not contain any explicit provision for retroactive or
prospective application. It also does not explicitly state what remedy—i.e., section 667,
subdivision (e)(2)(C), or section 1170.126—applies to a person in defendant’s position.
A reviewing court must therefore “look for any other indications” to determine and give
effect to the intent of the electorate. (People v. Nasalga, supra, 12 Cal.4th at p. 794.)
Presumably, the electorate that enacted the Reform Act was aware of the Estrada
rule and its presumption that the ameliorative effects of the law would apply to all
judgments not yet final on appeal. (See In re Lance W. (1985) 37 Cal.3d 873, 890,
fn. 11.) The electorate is also presumed to be aware that a saving clause could have been
included to make it explicit, if the intent of the enactment was that its benefits were to be
prospective only. No express saving clause was included in the Reform Act; the absence
of such language is persuasive evidence that the electorate intended the ameliorative
effects of section 667, subdivision (e)(2)(C), to apply to nonfinal judgments.
Construing the Reform Act to apply the Estrada rule is consistent with the
expressed purposes of the Act. The ballot arguments in support of the Reform Act stated
that its purpose was to ensure that “[p]recious financial and law enforcement resources”
were not diverted to impose life sentences for some nonviolent offenses, while assuring
that violent repeat offenders are effectively punished and not released early. The
proponents stated that the act would “help stop clogging overcrowded prisons with non-
violent offenders, so we have room to keep violent felons off the streets” and “help[]
ensure that prisons can keep dangerous criminals behind bars for life.” (Voter
4 Information Guide, Gen. Elect. (Nov. 6, 2012), argument in favor of Prop. 36,
http://voterguide.sos.ca.gov/propositions/36.) An additional purpose was to save
taxpayers “$100 million every year” by ending wasteful spending on housing and health
care costs for “non-violent Three Strikes inmates.” (Ibid.) The Reform Act would still
ensure adequate punishment of nonviolent repeat offenders, however, by doubling their
state prison sentences. Applying section 667, subdivision (e)(2)(C), to nonfinal
judgments is consistent with these objectives (monetary savings, reducing the numbers of
nonviolent offenders in prison, retaining the greatest punishment for recidivists with
current violent and serious felonies, and still maintaining public safety by imposing strict
second strike sentences on less dangerous repeat offenders).
The majority’s reliance on People v. Yearwood (2013) 213 Cal.App.4th 161 is, in
my view, misplaced. In Yearwood, as in this case, the defendant would have been
entitled to second strike sentencing under the Reform Act if he had been sentenced
initially after the effective date of the Reform Act. He had already been sentenced and
his appeal was pending on the date the act became effective. The court held that even
though the judgment was not yet final, Yearwood’s only remedy was to petition for recall
of his sentence and for resentencing pursuant to section 1170.126. (Id. at pp. 167-169.)
The Yearwood court held, correctly, that the Reform Act does not contain a saving clause
or refer to retroactive or prospective application or refer explicitly to persons in
Yearwood’s position. Nevertheless, the Yearwood court considered section 1170.126 to
apply unambiguously to all those “presently serving” a three strikes sentence, including
5 those who were doing so as a result of a judgment which was not yet final. (Yearwood, at
p. 170.)
The Yearwood court’s reasoning was fallacious, however, because it presumed the
answer to the question, which was itself in issue: In light of the Estrada presumption and
the absence of a saving clause in section 667, subdivision (e)(2)(C), the provision that
section 1170.126, subdivision (a), applies “exclusively to persons presently serving” a
third strike sentence is ambiguous—does it refer only to prisoners serving sentences
which are final, or does it include those whose judgments are not final? In my view, it is
not so clear as to qualify as the “functional equivalent” of a saving clause. Rather,
retroactive application of section 667, subdivision (e)(2)(C), is more consistent with the
proponents’ stated objectives of reducing prison overcrowding, reducing the resources
expended on third strike offenders whose current and prior offenses are nonviolent and
less serious, and enhancing public safety by ensuring that the truly dangerous repeat
offenders serve indeterminate life terms. Accordingly, there is a logical basis for
inferring that the electorate intended the amendment to apply to nonfinal judgments. (See
People v. Contreras (Nov. 18, 2013, G047603) Cal.App.4th [2013 Cal.App.
LEXIS 926], criticizing Yearwood and Lester, and finding the new sentencing scheme
applicable to a third striker whose conviction is not final.)
I also find Lester problematic and unpersuasive because it suffers from the same
analytical fallacy. (People v. Lester, supra, 220 Cal.App.4th 291, 303-304.)
CONCLUSION
6 I respectfully part company with the majority’s conclusion that defendant is not
entitled to a reduction in his sentence or resentencing because he retains the ability, under
section 1170.126, to petition the trial court to recall his indeterminate sentence and to
possibly resentence him to a determinate term. I conclude that in passing the Three
Strikes Reform Act of 2012, the electorate intended the mandatory sentencing provisions
of sections 667, subdivision (e)(2)(C), and 1170.12, subdivision (c)(2)(C), to apply to
qualifying defendants whose judgments were not yet final on the effective date of the act.
Hence, I would vacate defendant’s sentence and remand the matter to the trial court for
resentencing.
McKINSTER J.