People v. Superior Court of Tulare Cnty.

• Decision Date: 24 April 2014
• Docket Number: F066969
• Citation: People v. Superior Court , 225 Cal.App.4th 1007, 171 Cal.Rptr.3d 86 (Cal. App. 2014)
• Court: California Court of Appeals
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT of Tulare County, Respondent; Alfredo Cervantes, Real Party in Interest.

225 Cal.App.4th 1007

171 Cal.Rptr.3d 86

The PEOPLE, Petitioner,

v. The SUPERIOR COURT of Tulare County, Respondent;Alfredo Cervantes, Real Party in Interest.

F066969

Court of Appeal, Fifth District, California.

Filed April 24, 2014

Certified for Partial Publication.^*

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. VCF036841–95)

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.

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 Alfredo Cervantes, an inmate serving a 50–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 Cervantes qualified (was eligible) for resentencing and set the matter for further hearing on the issue of whether resentencing Cervantes would pose an unreasonable risk of danger to public safety. The People now seek review of the trial court's eligibility determination.

In the published portion of this opinion, we hold that an inmate serving an indeterminate 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(s), so as to be disqualified from resentencing under the Act, even if he or she did not carry the firearm on his or her person. In the unpublished portion, we 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 September 11, 1995, Cervantes sold one ounce of heroin to an undercover narcotics officer. The sale took place in front of Cervantes's home. Cervantes also negotiated to sell the officer 10 pounds of methamphetamine and another four ounces of heroin. On September 21, 1995, a search warrant was executed at Cervantes's residence. When officers entered, they found Cervantes standing inside the doorway. Heroin, methamphetamine, marijuana, and scales were found in the kitchen. A loaded semiautomatic handgun was found in the adjacent bedroom, in a purse belonging to Cervantes's wife. The gun was about eight feet from the heroin. Cervantes admitted the firearm and some of the drugs were his.

In March 1996, a jury convicted Cervantes of selling heroin (Health & Saf.Code, § 11352, subd. (a); count 1), possessing heroin for sale ( id., § 11351; count 2), being a felon in possession of a firearm (former § 12021, subd. (a)(1), see now § 29800, subd. (a); count 3), and making a building available for preparing or storing heroin (Health & Saf.Code, § 11366.5, subd. (a); count 5). Jurors found Cervantes was personally armed with a firearm in the commission of count 2. (§ 12022, subd. (c).) Cervantes was further found to have suffered two prior “strike” convictions. (§ 1170.12, subd. (c)(2)(A).) On April 25, 1996, he was sentenced to prison for a total unstayed term of 50 years to life plus four years.

On November 7, 2012, Cervantes petitioned the trial court for a recall of sentence and a new sentencing hearing pursuant to section 1170.126. The People opposed the petition on the ground Cervantes did not qualify because, in connection with his current offenses, the prosecution pled and proved Cervantes was armed with a firearm. Cervantes 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) Since the firearm was not in the same room as the heroin Cervantes was convicted of possessing, the jury necessarily relied on constructive possession in order to find the section 12022, subdivision (c) allegation to be true; and (3) Since the “armed” exclusion included in Proposition 36 was narrower than the “armed” element of the enhancement, the jury's finding under section 12022, subdivision (c) did not disqualify Cervantes 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. Cervantes ... [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.^**II. Cervantes was “armed with a firearm” within the meaning of the Act, and so was disqualified from resentencing.

Insofar as we are concerned, Cervantes's current conviction was for a violation of Health and Safety Code section 11351, during the commission of which he was “personally armed with a firearm” in violation of section 12022, subdivision (c).⁶ A person is “armed with a firearm” within the meaning of section 12022 if he or she “has the specified weapon available for use, either offensively or defensively. [Citations.]” ( People v. Bland (1995) 10 Cal.4th 991, 997, 43 Cal.Rptr.2d 77, 898 P.2d 391.) Although section 12022, subdivision (c)'s requirement that the defendant be “personally armed” limits liability to one who actually commits the prohibited conduct, as opposed to imposing vicarious liability ( People v. Bland, supra, at p. 998, fn. 3, 43 Cal.Rptr.2d 77, 898 P.2d 391; contrast § 12022, subd. (a)(1)), it does not require that the defendant physically carry the firearm on his or her person ( People v. Smith (1992) 9 Cal.App.4th 196, 204, 11 Cal.Rptr.2d 645; People v. Gonzales (1992) 8 Cal.App.4th 1658, 1661–1663, 11 Cal.Rptr.2d 267; People v. Mendival (1992) 2 Cal.App.4th 562, 573–574, 3 Cal.Rptr.2d 566; People v. Superior Court ( Pomilia ) (1991) 235 Cal.App.3d 1464, 1471–1472, 1 Cal.Rptr.2d 386).⁷

The question before us is whether, having been “personally armed with a firearm” in the commission of his current offense within the meaning of section 12022, subdivision (c), Cervantes “was armed with a firearm” within the meaning of sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii). If he was not, then he is qualified for resentencing under the Act. (§ 1170.126, subd. (e)(2).) As previously described, the trial court ruled that “armed with a firearm” for purposes of the Act means actual possession, i.e., carrying the firearm on one's person. The issue is one of the interpretation of a statute and its applicability to a given situation, a question of law we review independently. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332, 104 Cal.Rptr.3d 219, 223 P.3d 77; Southern California Edison Co. v. State Board of Equalization (1972) 7 Cal.3d 652, 659, fn. 8, 102 Cal.Rptr. 766, 498 P.2d 1014; see People v. Cromer (2001) 24 Cal.4th 889, 894, 103 Cal.Rptr.2d 23, 15 P.3d 243.) ⁸

“In interpreting a voter initiative like [the Act], we apply the same principles that govern statutory construction. [Citation.]” (People v. Rizo (2000) 22 Cal.4th 681, 685, 94 Cal.Rptr.2d 375, 996 P.2d 27.) “ ‘The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.]’ ” (Horwich v. Superior Court (1999) 21 Cal.4th 272, 276, 87 Cal.Rptr.2d 222, 980 P.2d 927.) “In determining intent, we look first to the words themselves. [Citations.] When the language is clear and unambiguous, there is no need for construction. [Citations.] When the language is susceptible of more than one reasonable interpretation, however, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative...