People v. Superior Court

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).[^[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 Three Strikes Reform Act of 2012 (the Act or Proposition 36) went into effect, real party in interest Jose Angel Martinez, an inmate serving a 25-year-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-year-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

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 (Pen. Code, former § 12020, subd. (a), now see Pen. Code, § 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 (Pen. Code, former § 12021, subd. (a)(1), now see Pen. Code, § 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 section 1170.126. 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,

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 also applies 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, 215 Cal.App.4th at p. 1301 & fn. 25) and, if the prosecution does not carry its burden, resentencing the inmate as a second strike offender necessarily follows (§ 1170.126, subd. (f); Kaulick, supra, at p. 1299). Thus, an initial finding of eligibility affects enforcement of the judgment (in which the People clearly have a substantial interest), and it affects the inmate’s status with relation to the judgment already imposed. (See People v. Benavides (2002) 99 Cal.App.4th 100 , 104, 105 [ 120 Cal.Rptr.2d 755 ].)

Even if we were to conclude the People had no right of appeal at this juncture of the proceedings, we would still find writ review appropriate. “If the prosecution has not been granted by statute a right to appeal, review of any alleged error may be sought by a petition for writ of mandate only when a trial court has acted in excess of its jurisdiction and the need for such review outweighs the risk of harassment of the accused. [Citations.]. Mandate is not available to the prosecution for review of ‘ordinary judicial error’ [citation] or even ‘egregiously erroneous’ orders [citations] . . . .” (People v. Superior Court (Stanley) (1979) 24 Cal.3d 622 , 625-626 [ 156 Cal.Rptr. 626 , 596 P.2d 691 ], fn. omitted.)

“Some courts have taken an expansive view of the phrase ‘excess of jurisdiction,’ holding that where the law allows a court to act in only one way, the court exceeds its jurisdiction by doing anything else and the error can be corrected through writ review. [Citations.] Other courts have taken a restrictive stance, holding that there is no basis for writ review unless the trial court acts without subject matter or personal jurisdiction. [Citations.]” (People v. Superior Court (Mitchell) (2010) 184 Cal.App.4th 451 , 456 [ 109 Cal.Rptr.3d 207 ].) “An act that exceeds a grant of statutory power qualifies under both lines of cases for writ review.” (Id. at p. 458.)

Section 1170.126 grants the trial court the power to determine that an inmate serving 25 years to life as a third strike offender is eligible for resentencing as a second strike offender only if, as an initial matter, the

II. Martinez was “armed with a firearm” within the meaning of the Act, and so was disqualified from resentencing.

Insofar as we are concerned, Martinez’s current conviction was for a violation of Health and Safety Code section 11370.1, subdivision (a).^[9] This statute proscribes the unlawful possession of any amount of a substance containing specified controlled substances “while armed with a loaded, operable firearm,” and defines “armed with” as meaning “having available for immediate offensive or defensive use.” (Ibid.) This definition is consistent with the well-established construction of “armed” given to firearm enhancements such as section 12022. (See, e.g., People v. Pitto (2008) 43 Cal.4th 228 , 236 [ 74 Cal.Rptr.3d 590 , 180 P.3d 338 ]; People v. Bland (1995) 10 Cal.4th 991 , 995, 997 [ 43 Cal.Rptr.2d 77 , 898 P.2d 391 ]; People v. Mendival (1992) 2 Cal.App.4th 562 , 573-574 [ 3 Cal.Rptr.2d 566 ]; cf. People v. Singh (2004) 119

The question before us is whether, during the commission of his violation of subdivision (a) of Health and Safety Code section 11370.1, Martinez “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 ].)^[11]

“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.]’ ”

For the most part, however, the dictionary definitions are not so limited.^[12] For instance, the first definition of “armed” given by Webster’s Third New International Dictionary (1986) at page 119 is “furnished with weapons of offense or defense.” The American Heritage Dictionary (2d college ed. 1985) at page 128 defines “armed” as “[e]quipped with weapons.” As commonly understood, the state of being furnished or equipped with weapons is broader than carrying a weapon on one’s person.

Moreover, Martinez’s argument ignores the fact it has long been settled that “[t]he enacting body is deemed to be aware of existing laws and judicial constructions in effect at the time legislation is enacted” (People v. Weidert (1985) 39 Cal.3d 836 , 844 [ 218 Cal.Rptr. 57 , 705 P.2d 380 ]), “and to have enacted or amended a statute in light thereof’ (People v. Harrison (1989) 48 Cal.3d 321 , 329 [ 256 Cal.Rptr. 401 , 768 P.2d 1078 ]). “This principle applies to legislation enacted by initiative. [Citation.]” (People v. Weidert, supra, at p. 844.) Indeed, where, as here, “the language of a statute uses terms that have been judicially construed, ‘ “the presumption is almost irresistible” ’ that the terms have been used ‘ “in the precise and technical sense which had been placed upon them by the courts.” ’ [Citations.] This principle [likewise] applies to legislation adopted through the initiative process. [Citation.]” (Id. at pp. 845-846.)

In enacting Proposition 36, the voters are thus deemed to have been aware of the long-standing statutory and judicially construed definitions of “armed with a firearm.” Yet they failed to expressly limit the term when amending sections 667, subdivision (e) and 1170.12, subdivision (c) and enacting section 1170.126. This strongly suggests they intended to disqualify from resentencing those inmates who had a firearm available for immediate offensive or defensive use, and not merely those who carried a firearm on their person. (See Robert S. v. Superior Court (1992) 9 Cal.App.4th 1417 , 1421-1422 [ 12 Cal.Rptr.2d 489 ].)

A conclusion “armed with a firearm,” as used in sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii), and as disqualifies an inmate from resentencing pursuant to section 1170.126,

Levy, Acting P. J„ and LaPorte, J.,^[13] concurred.

The petition of real party in interest for review by the Supreme Court was denied July 9, 2014, S218975.