People v. Curry

So it may seem odd in a case presenting a novel issue under Proposition 47 to invoke the canon of statutory construction that “Words used in a statute or constitutional provision should be given the meaning they bear in ordinary use. . . . [And] [i]f the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).” (Lungren v. Deukmejian (1988) 45 Cal.3d 727 , 735 [ 248 Cal.Rptr. 115 , 755 P.2d 299 ].) Yet this is one of the rare Proposition 47 cases when all we need is the plain statutory language, specifically, the language in the proposition that a “petition for a recall of sentence” by a probationer, or a former probationer, is to be filed with the “trial court that entered the judgment of conviction.” (Pen. Code, § 1170.18, subds. (a), (1).)^[1]

BACKGROUND

On July 27, 2012, in the Napa County Superior Court and pursuant to a negotiated disposition, defendant Latisha Curry entered a plea of no contest to a charge of second degree burglary, in exchange for which the other count, a felony charge of petty theft with a prior (§ 666, subd. (a)), was dismissed.^[2] The court suspended imposition of sentence and admitted defendant to three years’ probation upon specified conditions, one of which was that she spend 60 days in the Napa County jail. At the time of sentencing, the Napa probation officer advised the court that by reason of a felony conviction in Alameda County, “defendant is currently on Post Release Community Supervision (PRCS) in Alameda County .... [A]nd the term is set to expire on January 27, 2015.” For this reason, and because defendant was a resident of Alameda County, the Napa probation officer moved to have supervision of her probation transferred to Alameda County in accordance with section 1203.9. The Napa County Superior Court granted the motion on February 26, 2013, and Alameda County accepted the transfer on March 6, 2013.

On July 2, 2015, almost eight months after passage of Proposition 47 in November 2014—and the same day the Alameda County Superior Court

summarily revoked her probation—defendant filed a petition in that court seeking to have her Napa burglary conviction reduced to a misdemeanor “pursuant to ... § 1170.18.”^[3] The petition was on Judicial Council form CRM-050, adopted by the Alameda County Superior Court for “mandatory use,” which was captioned “Petition for Resentencing/Reduction to Misdemeanor—Response and Order (Penal Code § 1170.18).” (Some capitalization omitted.) That same day the Alameda court conducted a brief hearing on the petition, and denied it on the ground that defendant had to seek relief in Napa County because that was where she received the sentence she was now petitioning to have reduced.^[4] That ruling was reiterated when defendant made an oral motion for reconsideration on July 15, claiming she was entitled to resentencing under the rule of leniency from In re Estrada (1965) 63 Cal.2d 740 [ 48 Cal.Rptr. 172 , 408 P.2d 948 ] (Estrada) without reference to Proposition 47, because it “does not apply to probationers in the first place.”^[5] On this timely appeal from both denials, defendant contends in effect that she is entitled to the benefit of Proposition 47 without complying with any of its burdens.

DISCUSSION

Proposition 47 specified a number of theft- and drug-related felonies that would be reclassified as misdemeanors. As relevant here, it restricted the scope of second degree burglary by creating the new crime of shoplifting, which was defined as “entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars .... Shoplifting shall be punished as a misdemeanor .... [¶] ... No person who is charged with shoplifting may also be charged with burglary or theft of the same property.” (Prop. 47, § 5, italics omitted, adding § 459.5, subds. (a)-(b).)

Proposition 47 also established a procedure for persons convicted of the former felonies to obtain relief: “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’)

(§ 1170.18, subds. (a), (b), (d) & (1).) And, because she was never sentenced and there is no judgment, much less a final judgment, defendant concludes the Estrada leniency principle applies to her.

Next, and in a related argument, defendant argues she need not conform to any substantive or procedural restrictions of Proposition 47 because that measure does not apply to her as a probationer, who was never sentenced to state prison or actually served time in a state prison pursuant to such a sentence. As she summarizes: “Penal Code section 1170.18 clearly contemplates application of its resentencing provisions only to persons who are currently serving a sentence, or have served a sentence, in prison for conviction of a felony that may be reduced to a misdemeanor pursuant to Proposition 47. The statute does not contemplate application to persons who currently are, or have been, on probation for such a conviction.”

Defendant’s reasoning supporting these two contentions is subtle, wide-ranging—and, at points, intriguing. One of the intriguing points is that defendant originally applied for resentencing on the express authority of Proposition 47, and used a Judicial Council form plainly basing her “Petition for Resentencing/Reduction to Misdemeanor” on section 1170.18, yet she now insists in her brief and at oral argument that she is not obliged to comply with any part of Proposition 47. (Cf. People v. Conley (2016) 63 Cal.4th 646 , 652, 655-656, 661 [ 203 Cal.Rptr.3d 622 , 373 P.3d 435 ] [“defendants who were sentenced under the Three Strikes law” “are not entitled to automatic resentencing, but instead may seek resentencing by petitioning for recall of sentence under section 1170.126” of Three Strikes Reform Act of 2012; rejecting argument that defendants who were sentenced under the Three Strikes law “are entitled to automatic resentencing . . . without the need to file a recall petition”; “voters intended for previously sentenced defendants to seek relief under section 1170.126”].) In that petition defendant expressly conceded: “By signing below, defendant acknowledges that s/he understands that s/he may not use, own or possess firearms, even if this Petition is granted.”^[6] Another mystifying feature is how one can petition for resentenc-ing while denying there was ever a sentence in the first place. Similarly, by filing her petition, was not defendant implicitly conceding that there was in fact a “judgment of conviction”?

Logically, however, defendant appears to have talked herself out of court. If it is Estrada, not Proposition 47, that defendant views as delivering her from status as a convicted felon, why did she not employ the mechanism employed in Estrada, namely a petition for relief in habeas corpus? The superior court cannot be expected, on its own initiative, to comb through its

files to discover all convictions for the former felonies reclassified by Proposition 47. Far more sensible to make it the burden of each defendant who might be benefited by Proposition 47 to petition the superior court for relief. In short, defendant used a mechanism she says has no application to her, and yet has never used the mechanism she tacitly acknowledges is the appropriate one. We note this inconsistency, but do not base our decision on it.

We also note, for present purposes, that we would have a hard time accepting defendant’s position that the ameliorative procedures of Proposition 47 have absolutely nothing to do with persons in her situation, that is, persons on probation for whom sentence was never imposed, if for no other reason than it is the source of the reduced sentence she so desires.^[7] And we would have an even harder time accepting the categorical exclusion of such a large number of persons for whom the benefits of Proposition 47 would appear so obviously intended.

Defendant’s final contention is based on language in section 1203.9, which says that subject to specified exceptions, once a probation case is transferred ‘“[i]n all other aspects, ... the court of the receiving county shall have full jurisdiction over the matter upon transfer.” {Id., subd. (a)(3).) Based on this, defendant argues that her petitions were erroneously denied for improper venue, and she is not to be required to return to Napa County for resentencing. What she desires from this appeal is that ‘“this Court should reverse the orders denying [her] request for reduction of her felony conviction . . . , and should remand the cause with directions [to the Alameda court] to consider that request on the merits.”

Although the issue appears to be one of first impression, it is not difficult to resolve.

The references in subdivisions (a) and (1) of section 1170.18, as added by section 14 of Proposition 47 to resentencing petitions being presented to ‘“the trial court that entered the judgment of conviction in his or her case” have the obvious purpose of having the petitions decided by the

judge with a presumed knowledge of the underlying circumstances.^[8] (Cf. People v. Contreras (2015) 237 Cal.App.4th 868 , 892 [ 188 Cal.Rptr.3d 698 ] [“The trial court’s decision on a section 1170.18 petition is inherently factual.”] Clearly, the judge who presided over a petitioner’s trial, or who took the guilty plea found to have a factual basis, would be best placed to decide whether “resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b); see People v. Contreras, supra, at p. 892 [risk “determination must be made in the first instance by the trial court”].) At two points the electorate decreed that Proposition 47 was to be “broadly” and “liberally” construed to accomplish and effectuate its purposes. (Prop. 47, §§ 15, 18.) There is nothing in the ballot summaries or arguments suggesting that the voters did not intend that the plain language of subdivisions (a) and (f) of section 1170.18, as added by section 14 of Proposition 47 subject to the qualification now claimed by defendant. This undoubtedly accounts for the obligatory references in the reported decisions. (See People v. Marks (2015) 243 Cal.App.4th 331 , 335 [ 196 Cal.Rptr.3d 415 ] [defendant sentenced in Los Angeles County not entitled to relief in Riverside County; “defendant was required to file his petition ‘before the trial court that entered the judgment of conviction,’ the Superior Court of Los Angeles County” (italics added)]; People v. Shabazz (2015) 237 Cal.App.4th 303 , 314 [ 187 Cal.Rptr.3d 828 ] [“Defendant is limited to the statutory remedy set forth in section 1170.18 . . . . He must file an application in the trial court” (italics added)].) Just as a defendant cannot get resentencing from an appellate court (e.g., People v. Awad (2015) 238 Cal.App.4th 215 , 221-222 [ 189 Cal.Rptr.3d 404 ]; People v. Shabazz, supra, 237 Cal.App.4th at p. 311), relief under Proposition 47 must be sought in the correct trial court.

As an initiative, Proposition 47 is to be construed to effectuate its purpose, not to conform to the unwritten intent to exempt section 1203.9 from its operation. (E.g., People v. Arroyo (2016) 62 Cal.4th 589 , 593 [ 197 Cal.Rptr.3d 122 , 364 P.3d 168 ]; People v. Superior Court (Pearson) (2010) 48 Cal.4th 564 , 570 [ 107 Cal.Rptr.3d 265 , 227 P.3d 858 ].) The language used in subdivisions (a) and (f) of section 1170.18, as added by section 14 of Proposition 47 is not ambiguous. It did not employ language of technical or specialized meanings, but used words of common meaning. (See Robert L. v. Superior Court (2003) 30 Cal.4th 894 , 901-902 [ 135 Cal.Rptr.2d 30 , 69 P.3d 951 ].) The construction urged by defendant would have petitions ruled on by judges who have no connection to, or memory of, the details of the underlying conviction. Although such might not be an absurd result (see § 1170.18, subd. (/), quoted at fn. 8, ante), it is one clearly inconsistent with the voters’ plain language and obvious intent. (E.g., People v. Garcia (1999) 21 Cal.4th 1 , 14 [ 87 Cal.Rptr.2d 114 , 980 P.2d 829 ]; People v. Cruz (1996) 13 Cal.4th 764 , 782-783 [ 55 Cal.Rptr.2d

117 , 919 P.2d 731 ].) All doubts must be resolved in favor of the initiative. (See Legislature v. Eu (1991) 54 Cal.3d 492 , 512 [ 286 Cal.Rptr. 283 , 816 P.2d 1309 ].) “ ‘[W]e may not properly interpret [Proposition 47] in a way that the electorate did not contemplate: the voters should get what they enacted, not more and not less.’ ” (People v. Park (2013) 56 Cal.4th 782 , 796 [ 156 Cal.Rptr.3d 307 , 299 P.3d 1263 ].) Defendant’s position that the Alameda court could serve the function intended by subdivisions (a) and (1) cannot be accepted because it would nullify the utility of those provisions with respect to probationers.

Defendant’s counsel has drawn our attention to a publication by the authors of the leading treatise on sentencing, but he erroneously sees it as supporting his position. Judge Couzens and Justice Bigelow draw a crucial distinction between different categories of probation:

“Probation cases and cases where the defendant is serving a period of mandatory supervision under section 1170(h) may be transferred to the defendant’s county of residence under section 1203.9. A defendant whose case has been transferred who requests relief under section 1170.18 likely will be required to file the petition in the receiving county. When a case is transferred, ‘[t]he court of the receiving county shall accept the entire jurisdiction over the case.’ (§ 1203.9(b).) Because the receiving county has exclusive jurisdiction over the case, the original sentencing judge is no longer available as a matter of law. The request for relief may be handled by any judge appointed by the presiding judge. (§ 1170.18(/).)

‘'The rule is different for persons on PRCS [postrelease community supervision] whose supervision is transferred under section 3460. Section 3460(b) provides that ‘[u]pon verification of permanent residency, the receiving supervising agency shall accept jurisdiction and supervision of the person on postrelease supervision.’ There is a qualitative difference between the transfer of the case for purposes of supervision, as in section 3460, and transfer of the ‘entire jurisdiction over the case’ between courts, as in section 1203.9. Likely the petition for resentencing of a person on PRCS must be filed in the original sentencing county.” (Couzens & Bigelow, Proposition 47: “The Safe Neighborhoods and Schools Act” (May 2016), p. 86, italics added, at <http://www.courts.ca.gov/documents/prop-47-Information.pdf> [as of July 28, 2016].)^[9] As noted, defendant was already on PRCS when her case was transferred from Napa County to Alameda County.