People v. Superior Court of Tulare Cnty.

• Decision Date: 24 April 2014
• Docket Number: F066967
• Citation: 170 Cal.Rptr.3d 763,225 Cal.App.4th 979
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT of Tulare County, Respondent; Jose Angel Martinez, Real Party in Interest.

225 Cal.App.4th 979
170 Cal.Rptr.3d 763

The PEOPLE, Petitioner,
v.
The SUPERIOR COURT of Tulare County, Respondent;
Jose Angel Martinez, Real Party in Interest.

F066967

Court of Appeal,
Fifth District, California.

Filed April 24, 2014

See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 421B.

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. (Super. Ct. No. VCF035601–94)

Tim Ward, District Attorney, Anthony Fultz, Assistant District Attorney, Jill Icenhower, Douglas Rodgers, and Samantha Arnerich, Deputy District Attorneys, for Petitioner.

No appearance for Respondent.

Michael B. Sheltzer, Public Defender, Lisa Bertolino, Assistant Public Defender, and Angela Marie Krueger, Deputy Public Defender, for Real Party in Interest.

OPINION
DETJEN, J.

[225 Cal.App.4th 984]

INTRODUCTION

“On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012, which amended [Penal Code] sections 667 and 1170.12 and added [Penal Code] section 1170.126 (hereafter the Act [or Proposition 36] ).¹ The Act changes the requirements for sentencing a third strike offender to an indeterminate term of 25 years to life imprisonment. Under the original version of the three strikes law a recidivist with two or more prior strikes who is convicted of any new felony is subject to an indeterminate life sentence. The Act diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike offender. ( §§ 667, 1170.12.) The Act also created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126.)” ( People v. Yearwood (2013) 213 Cal.App.4th 161, 167–168, 151 Cal.Rptr.3d 901.)

Shortly after the Act went into effect, real party in interest Jose Angel Martinez, an inmate serving a 25–years–to–life term following conviction of felonies that were not violent (as defined by § 667.5, subd. (c)) or serious (as defined by § 1192.7, subd. (c)), filed a petition for recall of sentence, seeking resentencing under the Act. The trial court determined Martinez qualified (was eligible) for resentencing and set the matter for further hearing on the issue of whether resentencing Martinez would pose an unreasonable risk of danger to public safety. The People now seek review of the trial court's eligibility determination.

In this opinion, we hold that an inmate serving a 25–years–to–life term under the three strikes law may be found to have been “armed with a firearm” in the commission of his or her current offense, so as to be disqualified from

[225 Cal.App.4th 985]

resentencing under the Act, even if he or she did not carry the firearm on his or her person. We further hold the People are entitled to writ review of the trial court's contrary conclusion. Accordingly, we grant the People's petition for a writ of prohibition and/or mandate.

FACTS AND PROCEDURAL HISTORY

On December 2, 1994, a parole agent and sheriff's deputy went to Martinez's residence to perform a parole search of the premises. Upon arrival, they found Martinez in the kitchen, displaying symptoms of being under the influence of a controlled substance. Drug paraphernalia was found on Martinez's person, a bindle of heroin was found lying on a table in front of Martinez, a sawed-off shotgun and marijuana were found either in the same room as Martinez or in one of the bedrooms, and another sawed-off shotgun and a hunting rifle were found in a closet of the residence.²

In June 1997, a jury convicted Martinez of possession of two deadly weapons, both sawed-off shotguns (former § 12020, subd. (a), see now § 33215; counts 1–2); possession of heroin (Health & Saf.Code, § 11350, subd. (a); count 3); possession of a controlled substance while armed with a loaded, operable firearm ( id., § 11370.1, subd. (a); count 4); possession of a firearm by a felon (former § 12021, subd. (a)(1), see now § 29800, subd. (a); count 5); and three misdemeanors. Martinez was found to have suffered either two or three prior “strike” convictions (§ 667, subds.(d) & (e)) and to have served three prior prison terms (§ 667.5, subd. (b)).³ On July 28, 1997, he was sentenced to 25 years to life plus three years in prison.

On or about December 20, 2012, Martinez petitioned the trial court for a recall of sentence and a new sentencing hearing pursuant to section 1170.126. Martinez alleged that he qualified to have his sentence recalled because he met all three eligibility criteria set out in subdivision (e) of that statute. The People opposed the petition on the ground Martinez did not qualify because, in connection with his current offenses, the prosecution pled and proved Martinez was armed with a firearm or deadly weapon. ⁴ In response,

[225 Cal.App.4th 986]

Martinez argued: (1) The electorate—most of whom were lay persons—would have understood the phrase “armed with a firearm” to refer to a crime in which the offender was carrying a firearm, not one in which the firearm was in a separate room; (2) Because Martinez's conviction for violating Health and Safety Code section 11370.1, subdivision (a) could only have been based on the heroin found in the kitchen and not the marijuana found in the bedroom, the jury necessarily viewed arming as including constructive possession of the firearm; and (3) Since the “armed” exclusion included in Proposition 36 was narrower than the “armed” element of the statute Martinez violated, the conviction under Health and Safety Code section 11370.1, subdivision (a) did not disqualify him from relief under section 1170.126.

On March 21, 2013, a hearing was held on the petition. After argument on the issue, the court stated: “I'm going to accept the defendant's position ... and find that armed for purposes of Prop 36 means actual possession rather than constructive possession of the firearm.... So I'm going to find that ... Mr. Martinez [is] not excluded.” The matter was then set for a resentencing hearing.

The People petitioned this court for a writ of prohibition and/or mandate overturning the trial court's ruling. They further requested that we stay the resentencing hearing. On April 9, 2013, we issued an order to show cause why the relief prayed for should not be granted, and stayed proceedings in the trial court pending our further order.

DISCUSSION I. The People are entitled to writ review of the trial court's ruling.

Martinez contends the People should be barred from seeking writ relief and their petition dismissed. “As a general rule, the People may not seek an extraordinary writ in circumstances where the Legislature has not provided for an appeal. [Citations.]” (People v. Superior Court ( Vidal ) (2007) 40 Cal.4th 999, 1008, 56 Cal.Rptr.3d 851, 155 P.3d 259 (Vidal ).) “[T]he People have no right of appeal in criminal cases except as granted by statute. [Citations.] Statutory restriction of the People's right to appeal in criminal cases does not merely establish a procedural limitation to allocate appellate review between direct appeals and extraordinary writs. It substantively limits review of trial court determinations in criminal trials. [Citation.]” (People v. Kirk (1992) 7 Cal.App.4th 855, 859–860, 9 Cal.Rptr.2d 270.)

[225 Cal.App.4th 987]

As Martinez notes, the Act itself does not provide the People with a right of appeal. If section 1238 gives them such a right, though, the Act need not expressly do so. (See Vidal, supra, 40 Cal.4th at p. 1009, 56 Cal.Rptr.3d 851, 155 P.3d 259.) Section 1238 provides, in relevant part: “(a) An appeal may be taken by the people from any of the following: [¶] ... [¶] (5) An order made after judgment, affecting the substantial rights of the people.”

Had the trial court proceeded to sentence Martinez as a second strike offender, section 1238, subdivision (a)(5), would apply. (See People v. Superior Court ( Kaulick ) (2013) 215 Cal.App.4th 1279, 1294–1295 & fn. 14, 155 Cal.Rptr.3d 856 (Kaulick ).) We conclude this provision applies also to the eligibility finding.

The trial court's consideration of a petition under the Act is a two-step process. First, the court determines whether the petitioner is eligible for resentencing. If the petitioner is eligible, the court proceeds to the second step, and resentences the petitioner under the Act unless it determines that to do so would pose “an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)

Here, we are concerned with the first step of the process—the initial eligibility determination. A trial court's ruling at this step does not change a petitioner's sentence, and so is not appealable by the People under subdivision (a)(10) of section 1238.⁵ Nevertheless, we conclude it constitutes “[a]n order made after judgment, affecting the substantial rights of the people.” (§ 1238, subd. (a)(5).) It is an order made after judgment, since, in a criminal case, judgment is synonymous with the imposition of sentence. ( Fadelli Concrete Pumping, Inc. v. Appellate Department (1995) 34 Cal.App.4th 1194, 1200, 40 Cal.Rptr.2d 757.) Sentence was imposed for Martinez's current offenses in 1997. We believe it also affects the People's substantial rights: An initial eligibility determination affects whether the trial court will exercise resentencing discretion. This is not an idle exercise as far as the People are concerned; where, as here, the trial court determines the inmate is eligible, the burden shifts to the prosecution to establish dangerousness ( Kaulick, supra,...