People v. Lewis

Decision Date26 April 2013
Docket NumberE055569
Citation156 Cal.Rptr.3d 747
CourtCalifornia Court of Appeals Court of Appeals
Parties The PEOPLE, Plaintiff and Respondent, v. Michael LEWIS, Defendant and Appellant.

Certified for Partial Publication.*

Jean Ballantine, 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, Steven T. Oetting, Tami Falkenstein Hennick, and Ifeolu E. Hassan, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

McKINSTER, J.

INTRODUCTION

This is an appeal from the sentence imposed on remand for resentencing following our opinion in People v. Lewis (Aug. 23, 2011, E051058, 2011 WL 3672058) (nonpub. opn.) (Lewis I ).

During the pendency of this appeal, the California Supreme Court issued its opinion in People v. Jones (2012) 54 Cal.4th 350, 142 Cal.Rptr.3d 561, 278 P.3d 821 (Jones ). Pursuant to that opinion, we conclude that Penal Code section 6541 bars imposition of unstayed sentences on both count 1 and count 4, for possession of a firearm by a convicted felon and for receiving stolen property, consisting solely of the same firearm.

Also during the pendency of this appeal, the electorate amended the three strikes law by passing Proposition 36, the Three Strikes Reform Act of 2012, effective November 7, 2012. Defendant contends that the amendment to sections 667 and 1170.12, which would reduce his sentence from 25 years to life to a far lesser determinate term, applies to him under the doctrine of In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 (Estrada ), i.e., that an amendatory statute which reduces punishment applies in all cases not yet final on appeal, unless there is a clear indication that the enacting body did not so intend. As we discuss below, we agree.

BACKGROUND

In Lewis I, we reversed the conviction on count 3, possession of ammunition by a convicted felon (§ 12316, subd. (b)(1)), and remanded for further proceedings on count 3 and for resentencing on counts 1 and 4. In count 1, defendant was convicted of being a convicted felon in possession of a firearm (former § 12021, subd. (a)); in count 4, defendant was convicted of receiving or possessing stolen property (§ 496, subd. (a)). (Lewis I, supra, E051058 [at p. 2].) The trial court had sentenced defendant, under the three strikes law (§§ 667, subd. (c)(6), 1170.12, subd. (a)(6)), to consecutive terms of 25 years to life on counts 1 and 4, believing that it had no discretion to do otherwise. We held that the court did have the discretion to impose either concurrent or consecutive terms. (Lewis I, supra, E051058 [at pp. 22–23].)

Our remand order directed the district attorney to determine, within 30 days after the opinion became final, whether to retry defendant on that count. The remand order further stated, "If the district attorney elects not to retry defendant on count 3, the court shall dismiss count 3 and hold a new sentencing hearing within 30 days following the district attorney's election, to determine whether to impose consecutive or concurrent sentences on counts 1 and 4." (Lewis I, supra, E051058 [at p. 26].)

The district attorney elected not to retry defendant, and the court dismissed count 3. At the resentencing hearing, the court again imposed consecutive sentences of 25 years to life on counts 1 and 4.

Defendant filed a timely notice of appeal.

DISCUSSION
I**
II

DEFENDANT MUST BE SENTENCED UNDER SECTION 667(e)(2)(C)

1. Proposition 36

While this appeal was pending, voters passed Proposition 36, the Three Strikes Reform Act of 2012 (hereafter the Reform Act or the act). The Reform Act became effective on November 7, 2012. (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C), 1170.126.)3 We granted defendant's request for supplemental briefing on the effect of the Reform Act.

Under the three strikes law as it existed before the passage of the Reform Act, a defendant with two or more strike priors who is convicted of any new felony would receive a sentence of 25 years to life. (Former § 667(e)(2)(A).) As amended, section 667 provides that a defendant who has two or more strike priors is to be sentenced pursuant to paragraph 1 of section 667(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

section 667.5(c) or section 1192.7(c), unless certain disqualifying factors are pleaded and proven.4 (§§ 667(d)(1), (e)(2)(C).)¿ The Reform Act also provides a procedure which allows a person who is "presently serving" an indeterminate life sentence imposed pursuant to the three strikes law to 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. (§ 1170.126(a)-(g).) Accordingly, under section 1170.126, resentencing is discretionary even if the defendant meets the objective criteria (§ 1170.126(f), (g)), while sentencing under section 667(e)(2)(C) is mandatory, if the defendant meets the objective criteria.

Neither defendant's current offenses nor his strike priors disqualify him for resentencing pursuant to section 667(e)(2)(C). Defendant contends, therefore, that upon remand for resentencing, the trial court must sentence him pursuant to section 667(e)(2)(C). He contends that section 667(e)(2)(C) is an ameliorative sentencing statute which presumptively applies to all criminal judgments which were not yet final as of its effective date, and that there is nothing in the language of the Reform Act which overcomes the presumption. The Attorney General contends that section 667(e)(2)(C) applies, prospectively only, to defendants who are first sentenced on or after November 7, 2012. She contends that it does not apply to defendant because he is "presently serving a third-strike sentence" within the meaning of section 1170.126(a), and that his only remedy is to petition for relief under that statute.

2. Section 667(e)(2)(C) Applies to Defendants Whose Judgments Were Not Yet Final on the Effective Date of the Reform Act.

There is a general rule of statutory construction, embodied in section 3 of the Penal Code, that " ‘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, 1 Cal.Rptr.3d 885, 72 P.3d 820 (Floyd ).) In Estrada, supra, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, the California Supreme Court created a limited exception to that presumption. In that case, the 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, 48 Cal.Rptr. 172, 408 P.2d 948.) The court held, " ‘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 745, 48 Cal.Rptr. 172, 408 P.2d 948.) 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, 50 Cal.Rptr.2d 88, 910 P.2d 1380 (Nasalga ).) The rule and its continued vitality were most recently discussed by the California Supreme Court in People v. Brown (2012) 54 Cal.4th 314, 142 Cal.Rptr.3d 824, 278 P.3d 1182 (Brown ).) In Brown, the court reiterated that Estrada "is today properly understood, not as weakening or modifying the default rule of prospective operation codified in section 3, but rather as informing 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, 142 Cal.Rptr.3d 824, 278 P.3d 1182, italics added.)

Despite the Estrada presumption, however, a court interpreting a statute which ameliorates punishment must nevertheless determine the intent of the Legislature or of the electorate in enacting the statute. ( Floyd, supra, 31 Cal.4th at p. 184, 1 Cal.Rptr.3d 885, 72 P.3d 820.) To determine intent, courts look first to the language of the provision, giving its words their ordinary meaning. If that language is clear in relation to the problem at hand, there is no need to go further. (Ibid. ) If the language is not clear, the tools of statutory construction must be applied, including but not limited to the Estrada rule. If necessary, the court must also look to other extrinsic indicators of intention. ( Nasalga, supra, 12 Cal.4th at p. 794, 50 Cal.Rptr.2d 88, 910 P.2d 1380.)

There is no question that section 667(e)(2)(C) is an amendment which ameliorates punishment under the three strikes law for those defendants who meet its criteria. However, the Reform Act does not contain any explicit provision for retroactive or prospective application, and it does not explicitly state what remedy—i.e., section 667(e)(2)(C) or section 1170.126—applies to a person in defendant's position. Consequently, we must "look for...

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