People v. Montgomery

• Decision Date: 08 June 2016
• Docket Number: G051812
• Citation: 203 Cal.Rptr.3d 228,247 Cal.App.4th 1385
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Adrian Antwon MONTGOMERY, Defendant and Appellant.

247 Cal.App.4th 1385

203 Cal.Rptr.3d 228

The PEOPLE, Plaintiff and Respondent,

v.Adrian Antwon MONTGOMERY, Defendant and Appellant.

G051812

Court of Appeal, Fourth District, Division 3, California.

Filed June 8, 2016

As Modified on Denial of Rehearing June 30, 2016

Review Denied September 21, 2016

Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

BEDSWORTH, J.

INTRODUCTION

Penal Code section 1170.18 allows redesignation of certain enumerated felony drug crimes as misdemeanors. The section includes a proviso that its amelioration is not available to those who have suffered a "prior conviction" for, inter alia, violent felonies. The question presented by this case is, "Prior to what?"

Adrian Antwon Montgomery appeals from a postjudgment order denying his application to have a felony conviction for cocaine possession redesignated under Penal Code section 1170.18, subdivision (f),¹ the portion of Proposition 47 that permits a person who has completed a sentence for a felony conviction to have it changed to a misdemeanor. Montgomery pleaded guilty to the drug charge in 1989; at the same time, he was convicted on a separate charge (in another case) of attempted murder.

The trial court denied his application for redesignation of his cocaine conviction under Proposition 47 because the attempted murder conviction was a "prior conviction," rendering Montgomery ineligible for redesignation. For his part, Montgomery argued that his attempted murder conviction was a contemporaneous conviction, not a prior one, and therefore was not a disqualifying conviction.

Although the resolution is not free from doubt, we conclude the trial court correctly denied Montgomery's application. "Prior conviction" as used in the statute is ambiguous, and we have therefore consulted the materials presented to the voters when Proposition 47 was on the ballot in 2014. Based on these materials—and our respect for the voters—we have concluded they did not intend people convicted of violent crimes to benefit from the new law, regardless of when they were convicted of disqualifying crimes.

FACTS

Montgomery was arrested in 1988 and charged with four felonies and a misdemeanor (Super. Ct. Orange County Superior Court, case No. C–69440). In 1989, Montgomery was arrested on a separate charge of attempted murder (People v. Montgomery (Super. Ct. Orange County Superior Court case, 2013, No. C–71750).²

As part of his plea bargain in the attempted murder case, Montgomery pled guilty to the earlier cocaine possession charge and was sentenced to a two-year term of imprisonment, to run concurrent to his sentence for the attempted murder. All other charges in the cocaine case were dropped.

In December 2014, Montgomery applied to have his cocaine felony conviction redesignated as a misdemeanor conviction. The trial court denied the petition on the ground the attempted murder conviction was a prior conviction rendering Montgomery ineligible for relief under section 1170.18.

DISCUSSION

The sole issue in this appeal is one of statutory construction, which we review de novo. ( People v. Tran (2015) 61 Cal.4th 1160, 1166, 191 Cal.Rptr.3d 251, 354 P.3d 148.) Our goal is to " ‘to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’ [Citations.]" ( Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 321, 74 Cal.Rptr.3d 891, 180 P.3d 935.)

Section 1170.18, subdivision (f), provides: "A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." Section 1170.18, subdivision (i), provides, "The provisions of this section shall not apply to persons who have one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290." (Italics added.) Section 667, subdivision (e)(2) (C)(iv), includes "[a]ny homicide offense, including any attempted homicide offense...." (§ 667, subd. (e)(2)(C)(iv)(IV)) as being among the disqualifying convictions." Thus, a "prior" conviction for attempted murder renders an applicant ineligible for redesignation under section 1170.18, subdivision (f).

As noted, the question before us is, "Prior to what?" Prior to the conviction for the offense that is the subject of the application or prior to asking for relief under section 1170.18, subdivision (f) ?³ Montgomery argues that because his conviction for attempted murder did not predate the conviction for cocaine possession, he is eligible to have the drug offense reduced to a misdemeanor. He did not have a "prior" conviction for attempted murder, but rather a contemporaneous one. The Attorney General argues that a "prior" conviction is one that happened before the section 1170.18 application. When the conviction happened in relation to the felony conviction for which the applicant seeks relief is irrelevant.

We start with the ordinary meaning of the statutory language, but if that is ambiguous, "we look to other indicia of voter intent." ( People v. Johnson (2015) 61 Cal.4th 674, 682, 189 Cal.Rptr.3d 794, 352 P.3d 366 [interpreting revision to Three Strikes law].) In light of the about-face on this issue in the Proposition 47 materials prepared for judges and practitioners, we think it reasonable to conclude that the term "prior conviction" is ambiguous. Thus, we look to "other indicia" to ascertain voter intent. Because this statute was added to the Penal Code by ballot initiative, we have no legislative history. Instead, we may consult the official ballot materials and the analysis of the Legislative Analyst to assist in interpretation. "In construing statutes adopted by the voters, we apply the same principles of interpretation we apply to statutes enacted by the Legislature." ( Id. at p. 682, 189 Cal.Rptr.3d 794, 352 P.3d 366.) " «¯¨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.]" ( Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901, 135 Cal.Rptr.2d 30, 69 P.3d 951.)

The purpose of Proposition 47 was threefold: "[T]o insure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K–12 schools, victim services, and mental health and drug treatment." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70, reprinted at Historical and Statutory Notes, 32A, pt. 3, West's Ann. Gov.Code (2016 supp.) foll. § 7599, p. 163.) From this statement of purpose, we may infer that the impetus behind Proposition 47 was primarily economic: stop spending tax dollars on prisons for petty criminals and put the money to better use in schools and treatment programs. That being the case, the inclusion of section 1170.18, subdivision (f), is somewhat puzzling. No money for prison is being spent on a person who has already served his or her time. Such a person may benefit, however, if a felony conviction is changed for purposes of strikes or enhancements. Presumably this redesignation could affect prison spending on people convicted of crimes in the future. (Cf. People v. Park (2013) 56 Cal.4th 782, 794, 156 Cal.Rptr.3d 307, 299 P.3d 1263 ["one of the ‘chief’ reasons for reducing a wobbler to a misdemeanor ‘is that under such circumstances the offense is not considered to be serious enough to entitle the court to resort to it as a prior conviction of a felony for the purpose of increasing the penalty for a subsequent crime.’ "] )

Examining the Proposition 47 materials in the 2014 Voter Information Guide reveals that both proponents and opponents focused mainly on the portion aimed at people who were currently incarcerated, by changing the classification of their crimes from felonies to misdemeanors. The proposition's proponents praised this feature as a way of saving money, by releasing petty criminals from prisons (in addition to not putting them there in the first place). Opponents warned that the prison doors would swing open to dangerous criminals, "many of whom have prior convictions for serious crimes, such as assault, robbery, and home burglary."⁴ In these discussions it is clear that both sides used "prior conviction" to mean a conviction preceding the one for which the incarcerated person could seek early release.

The portion of the proposition allowing completed sentences to be redesignated received little attention in the voter information guide. The Legislative Analyst devoted only two sentences to this aspect of the proposed law. "This measure allows offenders currently serving felony sentences for the above crimes to apply to have their felony sentences reduced to misdemeanor sentences. In addition, certain offenders who have already completed a sentence for a felony that the measure changes could apply to the court to have their felony conviction changed to a misdemeanor. However, no offender who has committed a specified severe crime could be resentenced or have their conviction changed. " (Voter Information Guide, Gen. Elec., supra, analysis of Prop. 47 by Legis., Analyst, p. 36, italics added.) The proposition's proponents, in response to the specter of a tsunami of...