Filed 7/21/14 P. v. Lewis 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E058862
v. (Super.Ct.No. FSB027043)
CHARLES LEMON LEWIS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. Affirmed.
Cindi B. Mishkin, 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, Barry Carlton and Warren
Williams, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Charles Lewis is serving 25 years to life in prison after being sentenced
under the Three Strikes law in 2001 for assault with a deadly weapon. Defendant appeals
1 from the superior court’s order denying his petition for recall of sentence under Penal
Code section 1170.126.1 Defendant contends that he is eligible for discretionary
resentencing because his third strike—assault with a deadly weapon—was not on the list
of serious or violent felony on the date he committed the crime, although it was added to
the list shortly thereafter. As discussed below, we affirm the superior court’s ruling
finding defendant ineligible for resentencing under section 1170.126.
FACTS AND PROCEDURE
On January 6, 2000, defendant supplied a shotgun to two men and accompanied
them to a residence. They knocked on the front door, argued with the drug dealer who
answered, and then, as planned shot and robbed him. The victim died less than one
month later from his wounds. Defendant went to the home with the two men, but did not
shoot the victim.
On March 7, 2000 the voters adopted Proposition 21. “ . . . Proposition 21
amended section 1192.7 subdivision (c), by adding 14 felonies to the statutory ‘serious
felony’ list.” (People v. Winters (2001) 93 Cal.App.4th 273.) This included assault with
a deadly weapon and was effective March 8, 2000. (§ 1192.7, subd. (c)(31).)
On March 28, 2001, a jury found defendant guilty of assault with a firearm (§ 245,
subd. (a)(2)) as an aider and abettor, but acquitted defendant of murder. (§ 187, subd.
(a).) On June 27, 2001, the trial court found that defendant had two prior strike
1 All section references are to the Penal Code unless otherwise indicated.
2 convictions—robbery from 1992 and assault with a firearm from 1995. On August 3,
2001, the court sentenced defendant to 25 years to life.
On November 6, 2012, the electorate passed Proposition 36, also known as the
Three Strikes Reform Act (“Reform Act”). Among other things, this ballot measure
enacted section 1170.126, which permits persons currently serving an indeterminate life
term under the Three Strikes law to file a petition in the sentencing court, seeking to be
resentenced to a determinate term as a second striker. (§ 1170.126, subd. (f).) If the trial
court determines that the defendant meets the criteria of section 1170.126, subdivision
(e), the court may resentence the defendant. (§ 1170.126, subds. (f) & (g).)
Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is
eligible for resentencing if he or she is serving an indeterminate term of life
imprisonment imposed pursuant to paragraph (2) of subdivision (e) of section 667 or
subdivision (c) of section 1170.12 “for a conviction of a felony or felonies that are not
defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or
subdivision (c) of Section 1192.7.” (§ 1170.126, subd. (e)(1).)
On December 17, 2012, defendant filed in pro per a petition for resentencing
under section 1170.126. On December 31, 2012, the superior court appointed the public
defender to represent defendant. On May 17, 2013, the court found defendant ineligible
3 for resentencing under section 1170.126 because his current commitment offense is a
serious and violent felony. Defendant filed a timely notice of appeal.2
DISCUSSION
Defendant nicely frames the issue to be considered here: “[H]ow the serious (§
1192.7, subd. (c)) and/or violent (§ 667.5, subd. (c)) nature of the current felony
conviction is to be determined when considering resentencing under section 1170.126—
under the statutes in effect at the time the current crime was committed or under the
statutes in effect at the time of the resentencing consideration.” The People argue that the
Reform Act bases eligibility on whether the current felony conviction is considered
serious or violent as the Reform Act is currently drafted, not whether it was considered
serious or violent when defendant committed the offense.
We agree with the People that the plain and most common-sense meaning of
section 1170.126 requires that the current felony not be on the serious or violent felony
list as it is currently drafted. Similar operative language is found in subdivisions (b) and
(e)(1). Subdivision (b) provides: “(b) Any person serving an indeterminate term of life
2 We note that the California Supreme Court has granted review in cases that have found that the trial court’s order on a postjudgment petition pursuant to section 1170.126 is a nonappealable order. (See, e.g., Teal v. Superior Court (2013) 217 Cal.App.4th 308, review granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, S212017, briefing deferred pursuant to rule 8.512(d)(2), Cal. Rules of Court.) Even if we were to conclude it was a nonappealable order, we could consider, in the interest of judicial economy and because of uncertainty in the law, that defendant’s appeal is a petition for writ of habeas corpus or petition for writ of mandate. (See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4 [treating appeal from nonappealable order as petition for writ of habeas corpus]; Drum v. Superior Court (2006) 139 Cal.App.4th 845, 853 [Fourth Dist., Div. Two] [treating appeal as petition for writ of mandate due to uncertainty in the law].) We will review defendant’s appeal.
4 imprisonment . . . of a felony or felonies that are not defined as serious and/or violent
felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, may file
a petition for a recall of sentence . . . .” Subdivision (e)(1) similarly provides that an
inmate is eligible for discretionary resentencing if he or she is serving an indeterminate
life term “for a conviction of a felony or felonies that are not defined as serious and/or
violent felonies . . . .” As the People point out, this provision is in the present tense in
both subdivisions. Defendant’s urged interpretation of this statute would have been very
easy to express—the drafters/voters could have used the past tense, granting the right to
file a petition to any person serving a life sentence under the Three Strikes law upon
conviction “of a felony or felonies that were not defined as serious and/or violent felonies
a the time the person committed the offense or offenses.” However, the statute is not so
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Filed 7/21/14 P. v. Lewis 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, E058862
v. (Super.Ct.No. FSB027043)
CHARLES LEMON LEWIS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. Affirmed.
Cindi B. Mishkin, 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, Barry Carlton and Warren
Williams, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Charles Lewis is serving 25 years to life in prison after being sentenced
under the Three Strikes law in 2001 for assault with a deadly weapon. Defendant appeals
1 from the superior court’s order denying his petition for recall of sentence under Penal
Code section 1170.126.1 Defendant contends that he is eligible for discretionary
resentencing because his third strike—assault with a deadly weapon—was not on the list
of serious or violent felony on the date he committed the crime, although it was added to
the list shortly thereafter. As discussed below, we affirm the superior court’s ruling
finding defendant ineligible for resentencing under section 1170.126.
FACTS AND PROCEDURE
On January 6, 2000, defendant supplied a shotgun to two men and accompanied
them to a residence. They knocked on the front door, argued with the drug dealer who
answered, and then, as planned shot and robbed him. The victim died less than one
month later from his wounds. Defendant went to the home with the two men, but did not
shoot the victim.
On March 7, 2000 the voters adopted Proposition 21. “ . . . Proposition 21
amended section 1192.7 subdivision (c), by adding 14 felonies to the statutory ‘serious
felony’ list.” (People v. Winters (2001) 93 Cal.App.4th 273.) This included assault with
a deadly weapon and was effective March 8, 2000. (§ 1192.7, subd. (c)(31).)
On March 28, 2001, a jury found defendant guilty of assault with a firearm (§ 245,
subd. (a)(2)) as an aider and abettor, but acquitted defendant of murder. (§ 187, subd.
(a).) On June 27, 2001, the trial court found that defendant had two prior strike
1 All section references are to the Penal Code unless otherwise indicated.
2 convictions—robbery from 1992 and assault with a firearm from 1995. On August 3,
2001, the court sentenced defendant to 25 years to life.
On November 6, 2012, the electorate passed Proposition 36, also known as the
Three Strikes Reform Act (“Reform Act”). Among other things, this ballot measure
enacted section 1170.126, which permits persons currently serving an indeterminate life
term under the Three Strikes law to file a petition in the sentencing court, seeking to be
resentenced to a determinate term as a second striker. (§ 1170.126, subd. (f).) If the trial
court determines that the defendant meets the criteria of section 1170.126, subdivision
(e), the court may resentence the defendant. (§ 1170.126, subds. (f) & (g).)
Section 1170.126, subdivision (e), provides, as pertinent here, that a defendant is
eligible for resentencing if he or she is serving an indeterminate term of life
imprisonment imposed pursuant to paragraph (2) of subdivision (e) of section 667 or
subdivision (c) of section 1170.12 “for a conviction of a felony or felonies that are not
defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or
subdivision (c) of Section 1192.7.” (§ 1170.126, subd. (e)(1).)
On December 17, 2012, defendant filed in pro per a petition for resentencing
under section 1170.126. On December 31, 2012, the superior court appointed the public
defender to represent defendant. On May 17, 2013, the court found defendant ineligible
3 for resentencing under section 1170.126 because his current commitment offense is a
serious and violent felony. Defendant filed a timely notice of appeal.2
DISCUSSION
Defendant nicely frames the issue to be considered here: “[H]ow the serious (§
1192.7, subd. (c)) and/or violent (§ 667.5, subd. (c)) nature of the current felony
conviction is to be determined when considering resentencing under section 1170.126—
under the statutes in effect at the time the current crime was committed or under the
statutes in effect at the time of the resentencing consideration.” The People argue that the
Reform Act bases eligibility on whether the current felony conviction is considered
serious or violent as the Reform Act is currently drafted, not whether it was considered
serious or violent when defendant committed the offense.
We agree with the People that the plain and most common-sense meaning of
section 1170.126 requires that the current felony not be on the serious or violent felony
list as it is currently drafted. Similar operative language is found in subdivisions (b) and
(e)(1). Subdivision (b) provides: “(b) Any person serving an indeterminate term of life
2 We note that the California Supreme Court has granted review in cases that have found that the trial court’s order on a postjudgment petition pursuant to section 1170.126 is a nonappealable order. (See, e.g., Teal v. Superior Court (2013) 217 Cal.App.4th 308, review granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, S212017, briefing deferred pursuant to rule 8.512(d)(2), Cal. Rules of Court.) Even if we were to conclude it was a nonappealable order, we could consider, in the interest of judicial economy and because of uncertainty in the law, that defendant’s appeal is a petition for writ of habeas corpus or petition for writ of mandate. (See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4 [treating appeal from nonappealable order as petition for writ of habeas corpus]; Drum v. Superior Court (2006) 139 Cal.App.4th 845, 853 [Fourth Dist., Div. Two] [treating appeal as petition for writ of mandate due to uncertainty in the law].) We will review defendant’s appeal.
4 imprisonment . . . of a felony or felonies that are not defined as serious and/or violent
felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, may file
a petition for a recall of sentence . . . .” Subdivision (e)(1) similarly provides that an
inmate is eligible for discretionary resentencing if he or she is serving an indeterminate
life term “for a conviction of a felony or felonies that are not defined as serious and/or
violent felonies . . . .” As the People point out, this provision is in the present tense in
both subdivisions. Defendant’s urged interpretation of this statute would have been very
easy to express—the drafters/voters could have used the past tense, granting the right to
file a petition to any person serving a life sentence under the Three Strikes law upon
conviction “of a felony or felonies that were not defined as serious and/or violent felonies
a the time the person committed the offense or offenses.” However, the statute is not so
worded, and in fact such an interpretation of this straightforward language would be a
strained one.
Our colleagues in the Second District, Division 7, have recently addressed this
issue and we find their reasoning and conclusions on this point to be persuasive. In
People v. Braziel (2014) 225 Cal.App.4th 933 (Braziel), a jury convicted the defendant in
1999 of making a terrorist/criminal threat (§ 422) and other felonies not relevant to this
discussion. The defendant had two prior strike convictions. Although the threats offense
was not at that time considered a serious or violent felony, the defendant received an
indeterminate term of 25 years to life for that offense. Proposition 21 amended section
1192.7 subdivision (c), effective March 8, 2000, to add making a terrorist/criminal threat
to the statutory ‘serious felony’ list (§ 1192.7, subd. (c)(38)).
5 The appellate court in Braziel concludes that the defendant was not eligible for
discretionary resentencing under Proposition 36 because, at the time the Reform Act
became law, and thereafter, the terrorist/criminal threats offense was a serious or violent
felony. The court’s reasoning is as follows. First, as discussed above, the language of
section 1170.126, subdivisions (b) and (e)(1) is in the present tense, with no mention of
whether the current offense was a serious or violent felony on the date the defendant
committed the offense. (Braziel, supra, 225 Cal.App.4th at pp. 940-941.) Second, this
interpretation does not violate a defendant’s “constitutional right against ex post facto
laws.” This is because “Section 1170.126 . . . does not increase the punishment for a
previously committed offense. It makes certain defendants eligible for a decreased
punishment . . . .” (Id. at pp. 943-944) Third, the Braziel court cited to numerous cases
which “have consistently determined whether a prior offense was a serious and/or violent
felony using the current definitions of serious and/or violent felonies, not the definitions
in place at the commission of the prior offense.” (Id. at p. 944) We see no need to
elaborate on the Braziel court’s reasoning on this point, as we concur with it in all
respects.
In conclusion, the relevant language in the Reform Act simply does not support
defendant’s argument that the disqualifying list of serious or violent felonies in section
1192.7, subdivision (c) differs among defendants depending on the state of the list on the
date they committed their commitment offense.
DISPOSITION
The superior court’s ruling is affirmed.
6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
RICHLI J.
MILLER J.