Opinion
C073949
2014-12-1
The PEOPLE, Plaintiff and Respondent, v. Clifford Paul CHANEY, Defendant and Appellant.
See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 421B. APPEAL from a judgment of the Superior Court of Amador County, J.S. Hermanson, Judge. Affirmed. (Super. Ct. No. 05CR08104)
See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 421B.APPEAL from a judgment of the Superior Court of Amador County, J.S. Hermanson, Judge. Affirmed. (Super. Ct. No. 05CR08104) Michael Satris, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputies Attorney General, for Plaintiff and Respondent.
, J.
Defendant Clifford Paul Chaney has eight strikes: six robberies with arming enhancements and two first degree burglaries. These eight strikes arose from two separate incidents in which defendant and two others robbed the same chemical laboratory and imprisoned 20 employees.
Defendant's current offense for which he was sentenced to prison for 25 years to life in 2005 was driving under the influence of alcohol (DUI) with prior convictions for three other DUI's, two of which resulted in injuries. When he committed the current DUI, he was on two grants of probation. Following his current DUI conviction, defendant explained he “drinks too much” and is “emotionally weak.”
In this appeal, defendant challenges the trial court's May 2013 denial of his petition for resentencing under the Three Strikes Reform Act of 2012 (the Act). Under the Act, “prisoners currently serving sentences of 25 years to life for a third felony conviction which was not a serious or violent felony may seek court review of their indeterminate sentences and, under certain circumstances, obtain resentencing as if they had only one prior serious or violent felony conviction.” (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1286, 155 Cal.Rptr.3d 856 (Kaulick ).) If a defendant such as the one here satisfies certain criteria, “the petitioner shall be resentenced ... unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (Pen.Code,
§ 1170.126, subd. (f).) “In exercising its discretion in subdivision (f), the court may consider: [¶] (1) The petitioner's criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes; [¶] (2) The petitioner's disciplinary record and record of rehabilitation while incarcerated; and [¶] (3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (g)).
All further section references are to the Penal Code.
The court based the denial on its finding that “[t]he [c]ourt cannot in good conscience say that you do not pose an unreasonable risk to the public safety if released. The [c]ourt is not convinced that you would not re-engage in alcohol use and place the public at risk.” The court cited defendant's numerous DUI's that caused injuries, stating drinking was the root of his criminality.
In a petition for rehearing, defendant challenges the trial court's denial of his petition for resentencing under the Act, which he bases on Proposition 47, passed by California voters on November 4, 2014, effective November 5, 2014. (See Cal. Const., art. II, § 10, subd. (a) [“An initiative statute or referendum approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise”].)
The stated “[p]urpose and [i]ntent” of Proposition 47 include, among other things, “[r]equir[ing] misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes”; “[a]uthoriz [ing] consideration of resentencing for anyone who is currently serving a sentence for any of the offenses listed herein that are now misdemeanors”; and “[r]equir[ing] a thorough review of criminal history and risk assessment of any individuals before resentencing to ensure that they do not pose a risk to public safety.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, subds. (3), (4) & (5), p. 70.)
Proposition 47 created a new resentencing provision, section 1170.18, under which “[a] person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (“this act”) had this act been in effect at the time of the offense may petition for a recall of sentence” and request resentencing. (§ 1170.18, subd. (a).)
“If the petitioner satisfies the criteria in subdivision (a), the petitioner's felony sentence shall be recalled and the petitioner resentenced to a misdemeanor ... unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. In exercising its discretion, the court may consider all of the following: [¶] (1) The petitioner's criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes. [¶] (2) The petitioner's disciplinary record and record of rehabilitation while incarcerated. [¶] (3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).)
Defendant's petition for rehearing concerns the language that follows next in Proposition 47: “ As used throughout this Code, ‘unreasonable risk of danger to public safety’ means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 .” (§ 1170.18, subd. (c), italics added.) Section 667, subdivision (e)(2)(C)(iv) lists the following felonies: “(I) A ‘sexually violent offense’.... [¶] (II) Oral copulation ... as defined by Section 288a, sodomy ... as defined by Section 286, or sexual penetration ... as defined by Section 289. [¶] (III) A lewd or lascivious act ... in violation of Section 288. [¶] (IV) Any homicide offense, including any attempted homicide offense .... [¶] (V) Solicitation to commit murder .... [¶] (VI) Assault with a machine gun on a peace officer or firefighter .... [¶] (VII) Possession of a weapon of mass destruction .... [¶] (VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.”
We partially publish this decision to address the potentially retroactive application of the definition of “unreasonable risk of danger to public safety” in Proposition 47 to defendant. We hold that the definition of “unreasonable risk to public safety” in Proposition 47 does not apply retroactively to a defendant such as the one here whose petition for resentencing under the Act was decided before the effective date of Proposition 47.
In the unpublished portion of the opinion, we reject the remainder of defendant's contentions on appeal.
DISCUSSION
I
Proposition 47's Definition of “Unreasonable Risk Of Danger To Public Safety” Does Not Apply Retroactively
Defendant contends that because his case is a nonfinal judgment pending in this court, he is entitled to a new resentencing hearing under the Act in which the trial court should apply the definition of “unreasonable risk to public safety” contained in Proposition 47.
“ ‘[A] judgment is not final so long as the courts may provide a remedy on direct review. That includes the time within which to petition to the United States Supreme Court for writ of certiorari.’ [Citation.] ‘Cases in which judgment is not yet final include those in which a conviction has been entered and sentence imposed but an appeal is pending when the amendment becomes effective.’ ” (People v. Yearwood (2013) 213 Cal.App.4th 161, 171-172, 151 Cal.Rptr.3d 901.)
“No part of [the Penal Code] is retroactive, unless expressly so declared.” (§ 3.) The California Supreme Court “ha[s] described section 3, and its identical counterparts in other codes (e.g., Civ. Code, § 3; Code Civ. Proc., § 3), as codifying ‘the time-honored principle ... that in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature ... must have intended a retroactive application.’ ” (People v. Brown (2012) 54 Cal.4th 314, 319, 142 Cal.Rptr.3d 824, 278 P.3d 1182 (Brown).) “In interpreting a voter initiative, we apply the same principles that govern our construction of a statute.” (People v. Lopez (2005) 34 Cal.4th 1002, 1006, 22 Cal.Rptr.3d 869, 103 P.3d 270.)
Proposition 47 is silent as to its retroactive application to proceedings under the Act. Similarly, the analysis of Proposition 47 by the legislative analyst, the arguments in favor of Proposition 47, and the arguments against Proposition 47 are silent as to the retroactive application to proceedings under the Act. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), pp. 34-39.) Thus, there is “no clear and unavoidable implication” of retroactivity that “arises from the relevant extrinsic sources.” (Brown, supra, 54 Cal.4th at p. 320, 142 Cal.Rptr.3d 824, 278 P.3d 1182.)
Nevertheless, defendant contends that the principle enunciated in In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 (Estrada) compels a finding of retroactivity here. As we explain, Estrada does not apply.
In Estrada, the California Supreme Court stated: “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It 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.” (Estrada, supra, 63 Cal.2d at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948.) This includes “acts committed before its passage provided the judgment convicting the defendant of the act is not final.” (Ibid.) Accordingly, a statute lessening punishment is presumed to apply to all cases not yet reduced to final judgment on the statute's effective date, unless there is a “saving clause” providing for prospective application. (Id. at pp. 744–745, 747–748, 48 Cal.Rptr. 172, 408 P.2d 948.)
Estrada does not apply here because applying the definition of “unreasonable risk to public safety” in Proposition 47 to petitions for resentencing under the Act does not reduce punishment for a particular crime. Rather, it arguably
changes the lens through which the dangerousness determinations under the Act are made. Using the words of Brown, that “does not represent a judgment about the needs of the criminal law with respect to a particular criminal offense, and thus does not support an analogous inference of retroactive intent.” ( Brown, supra, 54 Cal.4th at p. 325, 142 Cal.Rptr.3d 824, 278 P.3d 1182.) As the California Supreme Court explained in Brown, “ Estrada is ... 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.” ( Brown, supra, 54 Cal.4th at p. 324, 142 Cal.Rptr.3d 824, 278 P.3d 1182.)
We say “arguably” because we do not decide whether the definition of “unreasonable risk to public safety” in Proposition 47 applies prospectively to petitions for resentencing under the Act. (The People in their answer to the petition on rehearing argue that the new definition of “unreasonable risk of danger to public safety” in Proposition 47 does not apply at all to proceedings under the Act because the reference in Proposition 47 to “the petitioner” refers only to petitions under Proposition 47 and not petitions under the Act.) Rather, we decide only whether the definition of “unreasonable risk to public safety” in Proposition 47 applies retrospectively to petitions for resentencing under the Act.
Brown illustrates this point. Brown addressed the 2010 amendment to former section 4019 that increased the rate at which eligible prisoners could earn conduct credit for time spent in local custody. (Brown, supra, 54 Cal.4th at pp. 317–318, 142 Cal.Rptr.3d 824, 278 P.3d 1182.) In passing this amendment, the Legislature did not “express[ly] declar[e] that increased conduct credits [we]re to be awarded retroactively, and [there was] no clear and unavoidable implication to that effect... from the relevant extrinsic sources, i.e., the legislative history.” (Id. at p. 320, 142 Cal.Rptr.3d 824, 278 P.3d 1182.) Thus, the California Supreme Court applied the “default rule” in section 3 that “ ‘No part of [the Penal Code] is retroactive, unless expressly so declared.’ ” (Brown, at pp. 319–320, 142 Cal.Rptr.3d 824, 278 P.3d 1182.) In doing so, the California Supreme Court rejected the defendant's argument that Estrada “should be understood to apply more broadly to any statute that reduces punishment in any manner, and that to increase credits is to reduce punishment.” (Brown, at p. 325, 142 Cal.Rptr.3d 824, 278 P.3d 1182.) It rejected defendant's argument for two reasons: “First, the argument would expand the Estrada rule's scope of operation in precisely the manner we forbade .... Second, the argument does not in any event represent a logical extension of Estrada's reasoning. We do not take issue with the proposition that a convicted prisoner who is released a day early is punished a day less. But, as we have explained, the rule and logic of Estrada is specifically directed to a statute that represents ‘ “a legislative mitigation of the penalty for a particular crime” ’ [citation] because such a law supports the inference that the Legislature would prefer to impose the new, shorter penalty rather than to ‘ “satisfy a desire for vengeance” ’ [citation.]. The same logic does not inform our understanding of a law that rewards good behavior in prison.” (Brown, at p. 325, 142 Cal.Rptr.3d 824, 278 P.3d 1182.)
Expanding the Estrada rule's scope of operation here to the definition of “unreasonable risk to public safety” in Proposition 47 in a petition for resentencing under the Act would conflict with “section 3['s] default rule of prospective operation” where there is no evidence in Proposition 47 that this definition was to apply retrospectively to petitions for resentencing under the Act and would be improper given that the definition of “unreasonable risk to public safety” in Proposition 47 does not reduce punishment for a particular crime. For these reasons, we hold that the definition of “unreasonable risk to public safety” in Proposition 47 does not apply retroactively to a defendant such as the one here whose petition for resentencing under the Act was decided before the effective date of Proposition 47.
II–IV
See footnote *, ante.
DISPOSITION
The judgment (the court's order denying defendant's petition for resentencing) is affirmed. We concur: BLEASE, Acting P. J. MAURO, J.