Opinion
C081204
08-09-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT DUANE DUGGAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM027768)
Defendant Robert Duane Duggan appeals from the trial court's denial of his Penal Code section 1170.18 application to redesignate his grand theft conviction to a misdemeanor. He contends the trial court erred in disqualifying him from relief based on a conviction for a "super strike" offense that happened after he filed his application but before the trial court's ruling. In affirming the trial court, we conclude the reference to "prior conviction" in section 1170.18, subdivision (i), refers to a conviction that occurred at any time before the trial court's ruling on the application.
Undesignated statutory references are to the Penal Code. --------
BACKGROUND
On February 5, 2008, defendant pleaded guilty to grand theft (§ 487) in a case involving the theft of property valued at $179. He was sentenced to serve a two-year state prison term.
Defendant filed a section 1170.18 application to redesignate the grand theft conviction to a misdemeanor on April 28, 2015. He filed a second application seeking the same relief on August 3, 2015, and a third on October 7, 2015.
On April 30, 2015, a jury found defendant guilty of attempted murder (§ 664/187, subd. (a)), aggravated mayhem (§ 205), felon in possession of a firearm (§ 29800, subd. (a)(1)), and possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), and sustained enhancements for personally discharging a firearm resulting in great bodily injury (§ 12022.53, subd. (d)) on the attempted murder and mayhem counts. On July 15, 2015, the trial court sentenced him to serve 32 years to life plus four years.
The trial court denied the application on November 20, 2015, on the ground his convictions for attempted murder and aggravated mayhem barred relief.
DISCUSSION
Enacted as part of Proposition 47 (as approved by voters Gen. Elec., Nov. 4, 2014, eff. Nov. 5, 2014 (Proposition 47)), the Safe Neighborhoods and Schools Act (the Act), section 1170.18 allows defendants who have completed their sentences on certain felonies that are now misdemeanors under the Act, to have the crime designated as a misdemeanor. Subdivision (i) of section 1170.18 states in pertinent part: "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 . . . ." Among the offenses listed in this so-called "super strike" provision are any "attempted homicide offense" such as attempted murder, and "[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death," such as aggravated mayhem. (See §§ 667, subd. (e)(2)(C)(iv), 205.)
Whether defendant's convictions for attempted murder and aggravated mayhem prevent the trial court from granting relief on his section 1170.18 application depends upon the meaning of the term "prior conviction" in subdivision (i). Defendant argues the term should mean the conviction precedes the offense on which redesignation is sought, or, at the very least, precedes the section 1170.18 application. We disagree.
In interpreting a voter initiative, "we apply the same principles that govern statutory construction" (People v. Rizo (2000) 22 Cal.4th 681, 685), and "our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure. [Citation.]" (In re Littlefield (1993) 5 Cal.4th 122, 130.) " 'In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose.' [Citation.] At the same time, 'we do not consider . . . statutory language in isolation.' [Citation.] Instead, we 'examine the entire substance of the statute in order to determine the scope and purpose of the provision, construing its words in context and harmonizing its various parts.' [Citation.] Moreover, we ' "read every statute 'with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.' " ' [Citation.]" (State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1043.)
To date, three published cases have addressed the meaning of the term "prior conviction" in section 1170.18, subdivision (i). Two of the cases held the term "prior conviction" meant a conviction that occurred at any time before the filing of the section 1170.18 application. (People v. Montgomery (2016) 247 Cal.App.4th 1385 (Montgomery) and People v. Zamarripa (2016) 247 Cal.App.4th 1179 (Zamarripa).) Consistent with the analysis in these two cases, a third case held the term "prior conviction" refers to a conviction that occurred at any time before the trial court's ruling on a section 1170.18 application. (People v. Walker (2016) 5 Cal.App.5th 872 (Walker).)
In Montgomery, supra, 247 Cal.App.4th 1385, the defendant was convicted of possession of cocaine and then attempted murder in two contemporaneous cases. (Id. at pp. 1387-1388.) His subsequent section 1170.18 application to redesignate the drug conviction was denied due to the attempted murder conviction. (Montgomery, at p. 1388.) On appeal, defendant argued the attempted murder conviction did not disqualify him because it did not precede the drug conviction. (Id. at p. 1389.)
In light of the differing positions on this issue in materials prepared for judges and practitioners, the Montgomery court found the statutory language ambiguous and looked to the ballot materials to interpret the term. (Montgomery, supra, 247 Cal.App.4th at pp. 1389-1390.)
Based on the ballot materials, the Court of Appeal concluded, "as applied to redesignation of completed sentences," the term "prior conviction" meant "a conviction that occurred at any time before filing the redesignation application." (Montgomery, supra, 247 Cal.App.4th at p. 1391.) Since the Act was not intended to benefit "dangerous criminals," the Montgomery court "cannot see that it would have made a difference to the voters when that dangerousness became apparent." (Ibid.) This was also consistent with the Act's mandate requiring "a liberal construction" to advance its purposes. (See Prop. 47, § 18, see also Montgomery, at p. 1391.) "To our minds, that mandates a reading of its ambiguities to assure that only persons whose criminal record indicates a reasonable balance between the seriousness of their crimes and the relief provided by the section should fall within its terms. And we cannot see that timing plays any role in striking that balance." (Montgomery, at pp. 1391-1392.)
In Zamarripa, supra, 247 Cal.App.4th 1179, the Court of Appeal reached the same conclusion. The defendant in Zamarripa was convicted of a super strike offense after he was convicted of the crime he sought to redesignate but before he filed his section 1170.18 application. (Zamarripa, at p. 1182.) The trial court denied the application based on the super strike conviction. (Ibid.) The Court of Appeal found the term "prior conviction" meant "a disqualifying conviction that occurred any time before the filing of the application for Proposition 47 relief. It would make no sense, and would disserve the stated purposes of Proposition 47, for us to construe the phrase 'prior conviction' as limited only to those convictions that preceded the crime defendant seeks to reclassify as a misdemeanor. Nothing in section 1170.18, subdivision (i) limits its application to time periods prior to the commission of the offense for which reclassification is sought. The plain language of the statute suggests a general disqualification regardless of when a defendant was convicted of the disqualifying offense." (Zamarripa, at p. 1184.)
In Walker, supra, 5 Cal.App.5th 872, the defendant's section 1170.18 application to reduce 1988 and 1989 drug possession convictions was denied because of his 1992 conviction for first degree murder. (Walker, at p. 875.) Finding the relevant statutory language "somewhat ambiguous in this context," the Court of Appeal examined the relevant ballot materials and concluded, " 'prior conviction[],' as used in section 1170.18, subdivision (i), refers to a conviction suffered any time before the court's ruling on an application to have a felony conviction reclassified as a misdemeanor." (Walker, at p. 876.) Applying Montgomery and Zamora, the Walker court found this interpretation consistent with the Act's intent not to apply its benefits to the most serious criminals as well as its directive for liberal construction. (Walker, at p. 877.) While Montgomery and Zamarripa held a "prior conviction" meant a conviction that took place before the section 1170.18 application was filed, those cases do not preclude disqualification based on a super strike conviction that took place after the application was filed but before the trial court's ruling. Neither decision addressed the facts present here. However, the reasoning of both decisions, that the term "prior conviction" must be construed in light of the Act's purpose and mandate for liberal application, supports the trial court's ruling here. Walker took that reasoning to its logical conclusion and held a "prior conviction" meant any conviction that occurred at any time before the trial court's ruling on a section 1170.18 application. So do we.
Defendant relies on People v. Spiller (2016) 2 Cal.App.5th 1014 (Spiller) to support his position the prior conviction must occur prior to the conviction upon which Proposition 47 relief is sought. Walker distinguished Spiller because Propositions 36 and 47 "reflect profound differences in purpose and intent." (Walker, supra, 5 Cal.App.5th at p. 878.) Spiller interpreted the term "prior conviction" in the context how that term was defined in the three strikes law, while the interpretation adopted in Walker reflected the Act's intent that it not benefit those convicted of super strikes. (Walker, at pp. 878-879.)
We also conclude Spiller, supra, 2 Cal.App.5th 1014 is inapposite. As correctly noted in Walker, Propositions 36 and 47 have different purposes, and different statutory contexts. The Spiller court recognized this as well, and distinguished Proposition 47. "While both initiatives are acts of lenity, we do not consider our colleagues' interpretation of what constitutes a prior conviction under Proposition 47 relevant to Proposition 36. As noted, Proposition 36 amended the three strikes law and was designed to deal with inmates currently serving indeterminate life sentences for nonserious and nonviolent offenses. On the other hand, Proposition 47, enacted two years after Proposition 36 [citation], was designed to deal with individuals sentenced as felons for low-level felony crimes now rendered misdemeanors [citation]. Offenses reduced to misdemeanors under Proposition 47 involve crimes of theft and drug use for personal consumption. The initiatives deal with a different class of offenders, and the resentencing of petitioners under both initiatives results in entirely different consequences." (Spiller, supra, 2 Cal.App.5th at p. 1026, fn. 3.)
We agree with the reasoning of Montgomery, Zamarripa, and Walker, and conclude those cases support the trial court's ruling. Given the mandate to construe the Act liberally to effect its purposes, we interpret the term "prior conviction" in the context of section 1170.18, subdivision (i), to mean any conviction that occurred at any time before the trial court rules on a section 1170.18 application.
DISPOSITION
The judgment (order) is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
BUTZ, Acting P. J. /s/_________
MURRAY, J.