Braziel v. Superior Court of L. A. Cnty.

• Decision Date: 09 April 2014
• Docket Number: B249830
• Citation: 170 Cal.Rptr.3d 529
• Court: California Court of Appeals Court of Appeals
• Parties: Homer Ray BRAZIEL, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; The People, Real Party in Interest.

170 Cal.Rptr.3d 529

Homer Ray BRAZIEL, Petitioner,

v. The SUPERIOR COURT of Los Angeles County, Respondent;The People, Real Party in Interest.

B249830

Court of Appeal, Second District, Division 7, California.

Filed April 9, 2014

As Modified April 23, 2014

Review Granted July 30, 2014

Jonathan B. Steiner and Suzan E. Hier, California Appellate Project, Los Angeles, for Petitioner.

No appearance for Respondent.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback II and Steven E. Mercer, Deputy Attorneys General, for Real Party in Interest.

SEGAL, J.^*

INTRODUCTION

Homer Ray Braziel filed a notice of appeal from an order by the trial court denying his petition for recall of his sentence under the three strikes law pursuant to Penal Code section 1170.126.¹ We deemed his notice of appeal a petition for writ of mandate and issued an order to show cause why we should not order the trial court to vacate its order denying the petition. We now deny his petition.

FACTUAL AND PROCEDURAL BACKGROUND

On May 6, 1999 the People charged Braziel by information with two counts of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); counts 1 and 4); assault with a deadly weapon, a knife (ibid .; count 2), a serious felony within the meaning of section 1192.7, subdivision (c)(23); and making a terrorist threat (now criminal threat; see People v. Moore (2004) 118 Cal.App.4th 74, 78–79, 12 Cal.Rptr.3d 649 ) (§ 422; count 3). The information alleged that Braziel had two prior strike convictions (§§ 667, subds.(b)-(i), 1170.12) and five prior convictions for which he had served prison terms (§ 667.5, subd. (b)). On August 4, 1999 the jury found Braziel guilty on counts 1 through 3 and found true all prior conviction allegations.

The trial court imposed three strikes sentences of 25 years to life on all three counts. The court ordered that Braziel serve the sentences on counts 1 and 3 concurrently and stayed sentence on count 2 pursuant to section 654. The court also imposed four years under section 667.5, subdivision (b), for a total term of 29 years to life.

On May 7, 2013 Braziel filed a petition for recall of his sentence pursuant to section 1170.126. The trial court denied his petition on the ground that one of his current offenses was a serious felony under section 1192.7, subdivision (c)(38), making him ineligible for resentencing.

DISCUSSION

A. Introduction

Proposition 36, the Three Strikes Reform Act of 2012(Act), amended sections 667 and 1170.12 to provide that the court may impose an indeterminate life sentence only where the current offense, i.e., the third strike, is a serious and/or violent felony. ( People v. Yearwood (2013) 213 Cal.App.4th 161, 167, 151 Cal.Rptr.3d 901.) If the current offense is not a serious and/or violent felony, Proposition 36 requires that the trial court sentence the defendant as a second strike offender. ( Id . at pp. 167–168, 151 Cal.Rptr.3d 901.) Proposition 36 also added section 1170.126, providing that a defendant serving a three strikes term for an offense that is not a serious and/or violent felony may petition the court for recall of his sentence and for resentencing. (See People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1292, 155 Cal.Rptr.3d 856 ["there are two parts to the Act: the first part is prospective only, reducing the sentence to be imposed in future three strike cases where the third strike is not a serious or violent felony (... §§ 667, 1170.12); the second part is retrospective, providing similar, but not identical, relief for prisoners already serving third strike sentences in cases where the third strike was not a serious or violent felony (... § 1170.126 )"].)

Subdivision (a) of section 1170.126 provides: "The resentencing provisions under this section and related statutes are intended to apply exclusively to persons presently serving an indeterminate term of imprisonment pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, whose sentence under this act would not have been an indeterminate life sentence." Subdivision (e)(1) of section 1170.126 provides: "An inmate is eligible for resentencing if ... [¶] ... [t]he inmate 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."

Braziel was convicted on count 2 of assault with a deadly weapon, which was and is a serious felony under section 1192.7, subdivision (c)(23), when the defendant personally uses a deadly weapon in the commission of the offense.² The trial court imposed and stayed the sentence on that count pursuant to section 654. Count 3, making a terrorist/criminal threat, was not a serious or violent felony at the time of Braziel's conviction, but it is now (§ 1192.7, subd. (c)(38)), because Proposition 21, effective March 7, 2000, added it to the list of serious felonies. (See Manduley v. Superior Court (2002) 27 Cal.4th 537, 577, 117 Cal.Rptr.2d 168, 41 P.3d 3 ). The issues in this proceeding are (1) whether, in determining if Braziel is eligible for recall of his three strikes sentence under Proposition 36, the court should consider the nature of his crimes (i.e., whether they are serious and/or violent) at the time of commission or under current law, and (2) whether Braziel is eligible for recall of a three strikes sentence on an individual count that is not a serious and/or violent felony, even if he is ineligible for recall of his three strikes sentences on other counts.

The People argue that the present-tense language of section 1170.126, subdivision (e)(1), evidences an intent that the court should use the current definitions of serious and/or violent felonies in determining whether a defendant is eligible for recall of his three strikes sentence, and that, if any of the felonies for which a defendant is serving a three strikes sentence is a serious and/or violent felony, then the defendant is not eligible for recall of his sentence. Braziel relies on section 1170.125³ in support of his contention that the court should look to the definitions of serious and violent felonies at the time of commission in order to make that determination. He also asserts that, even if one of the felonies for which he is serving a three strikes sentence is a serious and/or violent felony, he is eligible for recall of his sentence on the other felonies.

B. General Rules of Statutory Interpretation

" ‘In interpreting a voter initiative ... we apply the same principles that govern statutory construction. [Citation.] Thus, "we turn first to the language of the statute, giving the words their ordinary meaning." [Citation.] The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme [in light of the electorate's intent]. [Citation.] When the language is ambiguous, "we refer to other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet." [Citation.]’ [Citation.] In other words, our ‘primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure.’ [Citation.]" ( People v. Briceno (2004) 34 Cal.4th 451, 459, 20 Cal.Rptr.3d 418, 99 P.3d 1007 ; accord, People v. Park (2013) 56 Cal.4th 782, 796, 156 Cal.Rptr.3d 307, 299 P.3d 1263.)

We do not interpret statutory language in isolation but interpret it " ‘in the context of the entire statute of which it is a part, in order to achieve harmony among the parts.’ " ( People v. Briceno, supra, 34 Cal.4th at p. 460, 20 Cal.Rptr.3d 418, 99 P.3d 1007 ; Robert L. v. Superior Court (2003) 30 Cal.4th 894, 903, 135 Cal.Rptr.2d 30, 69 P.3d 951.) In addition, we interpret a statute " ‘ " ‘with reference to the entire scheme of law of which it is [a] part so that the whole may be harmonized and retain effectiveness.’ " ' " ( State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1043, 12 Cal.Rptr.3d 343, 88 P.3d 71 ; see Kalpoe v. Superior Court (2013) 222 Cal.App.4th 206, 211, 166 Cal.Rptr.3d 80.)

C. Whether Under Section 1170.126 the Court Should Use the Definitions of Serious and/or Violent Felonies at the Time of the Commission of the Crime or at the Time of the Petition for Recall of Sentence

1. Language of the Statute

Subdivision (a) of section 1170.126 states that it applies to those "whose sentence under this act would not have been an indeterminate life sentence." A defendant sentenced under the Act would be sentenced according to the current definitions of serious and/or violent felonies. Subdivision (e)(1) of section 1170.126 states that "[a]n inmate is eligible for resentencing if ... [¶] ... [t]he inmate 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." (Italics added.) The use of the present tense "are" in subdivision (e)(1) supports the People's position that in determining whether an inmate is eligible for resentencing, the court should use the current, post-Proposition 36 definitions of serious and violent felonies. "In construing statutes, the use of verb tense by the Legislature is considered significant." ( Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 776, 72 Cal.Rptr.2d 624, 952 P.2d 641 ; accord, People v. Loeun (1997) 17 Cal.4th 1, 11, 69 Cal.Rptr.2d 776, 947 P.2d 1313 ; Matus v. Board of Administration (2009) 177 Cal.App.4th 597, 607, 99...