People v. Florez

had an expert testify that

b. Scope of the Court's Discretion

On appeal, defendant argues that the court erred when it denied his petition for resentencing, because it failed to understand that section 1170.126creates a presumption in favor of reducing an eligible petitioner's sentence. Defendant also claims that the court erred when it failed to consider the limits on its discretion imposed by the Reform Act, which he argues created a new sentencing norm.

Section 1170.126, subdivision (f)states in pertinent part that "the petitioner shall be resentenced pursuant to [a second-strike term] unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (Italics added.) Defendant maintains that "[s]ome statutes contain express qualifications delineating, and thereby restricting, the particular exercise of discretion" ( People v. Superior Court ( Alvarez ) (1997) 14 Cal.4th 968 , 977, 60 Cal.Rptr.2d 93 , 928 P.2d 1171 ); therefore, the "shall/unless" language establishes a presumption in favor of resentencing a petitioner that can only be overcome if the court finds the petitioner would present an unreasonable risk of danger to public safety.

In part, defendant cites to statutes relating to the grant or denial of parole. He argues that In re Rosenkrantz (2002) 29 Cal.4th 616 , 654, 128 Cal.Rptr.2d 104 , 59 P.3d 174held that there was a statutory presumption in favor of parole based on the "shall/unless" language in section 3041. Section 3041 states that the board "shall set a release date [for the inmate] unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting." (§ 3041, subd. (b).)

But it is equally reasonable to read the text to mean that a court may select one of the two penalties in the exercise of its discretion, with no presumption in favor of one or the other. The latter reading accords with common usage. For example, if a teacher informed her students that 'you must take a final exam or, at your discretion, write a term paper,' it would be reasonable for the students to believe they were equally free to pursue either option. The text of section 190.5 [, subdivision] (b) does not clearly indicate whether the statute was intended to make life without parole the presumptive sentence." ( Id. at p. 1371, 171 Cal.Rptr.3d 421 , 324 P.3d 245 .)

We find that Gutierrez 's interpretation of section 190.5's syntax is equally applicable to section 1170.126, subdivision (f)'s syntax. We therefore disagree with defendant's interpretation that the "shall/unless" construction used in section 1170.126, subdivision (f)creates a presumption in favor of resentencing. It is true that a court faced with an eligible petition for resentencing is required to resentence the petitioner unless it finds doing so would pose an unreasonable risk of danger to public safety. However, the inclusion of the word "shall" and "unless" in the statute in no way means that a trial court's discretion to find that a petitioner would be dangerous to public safety is somehow circumscribed so that it can only find dangerousness in

public safety was a key purpose of the [Reform] Act.' " ( Id. at p. 1054, 171 Cal.Rptr.3d 70 .)

Since public safety remains the key focus of the Reform Act, we disagree with defendant's assertion that a decision on a section 1170.126petition must be subjected to the same scrutiny as a Romero hearing. A section 1170.126petition is not the converse of a Romero hearing since section 1170.126does not establish a new sentencing norm.

Additionally, we reject defendant's claim that the trial court should deny an eligible petition for resentencing only in extraordinary cases. This would

believed were some of the most troubling areas of concern in defendant's case.

"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ( Shamblin v. Brattain (1988) 44 Cal.3d 474 , 478-479, 243 Cal.Rptr. 902 , 749 P.2d 339 .) The court made its determination that resentencing defendant would pose an unreasonable risk of danger to public safety based on appropriate factors that are supported by substantial evidence. Accordingly, we find that it did not abuse its discretion in coming to this conclusion.

Essentially, defendant argues that the court erred because it did not accord certain factors the weight he believes they deserve, such as the remoteness of his prior crimes, his participation in education classes, and the fact that some of his prior altercations in prison involved self defense. We disagree. Simply because defendant does not agree with the court's conclusion does not mean the court abused its discretion. And, since the court's decision is rationally supported by factual findings that are in turn supported by sufficient evidence, our inquiry must end. Even though there were factors that tended to weigh in favor of resentencing defendant, it was ultimately up to the trial court to determine whether defendant would pose an unreasonable risk of danger to public safety if resentenced. Defendant essentially urges us to reweigh the evidence, which is not our role as the appellate court.

We also disagree with defendant's assertion that the court must take into consideration the fiscal drain on the state's resources that will be incurred due to his continuing incarceration. We fail to see how monetary considerations should factor into a court's determination that resentencing an inmate will pose an unreasonable risk of danger to public safety. Saving money is one of the Reform Act's stated goals. However, the primary purpose of both the three strikes law and Reform Act is to protect public safety. ( People v. Osuna (2014) 225 Cal.App.4th 1020 , 1036-1037, 171 Cal.Rptr.3d 55 .) Therefore, the trial court was not required to weigh the potential to reduce costs by releasing inmates like defendant. In essence, the electorate already conducted its own cost-benefit analysis by determining that those inmates whose resentencing would pose an unreasonable risk of danger to public safety should not be released, even if resentencing may provide some savings to the state.

We agree with the reasoning set forth in Kaulick. The United States Supreme Court has held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." ( Apprendi v. New Jersey (2000) 530 U.S. 466 , 490, 120 S.Ct. 2348 , 147 L.Ed.2d 435 .)

In Kaulick, the appellate court noted that the maximum sentence that Kaulick was subject to was, and will always be, an indeterminate life term. ( Kaulick, supra, 215 Cal.App.4th at p. 1303, 155 Cal.Rptr.3d 856 .) And, although the Reform Act "presents [Kaulick] with an opportunity to be resentenced to a lesser term, unless certain facts are established, he is nonetheless still subject to the third strike sentence based on the facts established at the time he was originally sentenced. As such, a court's discretionary decision to decline to modify the sentence in his favor can be based on any otherwise appropriate factor (i.e., dangerousness), and such factor need not be established by proof beyond a reasonable doubt to a jury." ( Ibid. )

Kaulick relied on Dillon v. United States (2010) 560 U.S. 817 , 130 S.Ct. 2683 , 177 L.Ed.2d 271 . In Dillon, the court considered whether a two-step sentence modification procedure implicated the Sixth Amendment. ( Id. at pp. 826-829, 130 S.Ct. 2683 .) If eligible for a sentence modification, a reduction in the defendant's sentence could be ordered. ( Id. at pp. 826-827, 130 S.Ct. 2683 .) Dillon concluded that "a defendant's Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt do not apply to limits on downward sentence modifications due to intervening laws." ( Kaulick, supra, 215 Cal.App.4th at p. 1304, 155 Cal.Rptr.3d 856 .) Kaulick found Dillon 's rationale to be equally applicable to the Reform Act, since "[t]he retrospective part of the [Reform] Act is not constitutionally required, but an act of lenity on the part

attorneys did not waive or stipulate to proceed without the probation report, the Dobbins defendant did not forfeit his claim of error even though he failed to object below. ( Dobbins,supra, at p. 182, 24 Cal.Rptr.3d 882 .)

Unlike Dobbins, defendant would not have been eligible for probation as a second-strike offender. (§§ 667, subd. (c)(2), 1170.12, subd. (a)(2); People v. Johnson (1999) 70 Cal.App.4th 1429 , 1431-1432, 83 Cal.Rptr.2d 423 .) Therefore, a waiver or stipulation to proceed without a probation report was not required below. Accordingly, defendant's failure to request a supplemental probation report or object to its omission forfeits his claim on appeal. ( People v. Murray (2012) 203 Cal.App.4th 277 , 289, fn. 12, 136 Cal.Rptr.3d 820 , overruled on another point in People v. Gutierrez,supra, 58 Cal.4th 1354 , 171 Cal.Rptr.3d 421 , 324 P.3d 245 ; People v. Johnson, supra, at pp. 1431-1432, 83 Cal.Rptr.2d 423 .)

Regardless, we would reject defendant's contention even if we were to consider it on the merits. The Fifth Appellate District considered and rejected

penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes, allowing certain offenders previously convicted of such crimes to apply for reduced sentences, and requiring state savings resulting from the measure be

of danger to public safety to the Reform Act. Furthermore, when Proposition 47 was enacted, the only other instance in the Penal Code where the phrase "unreasonable risk of danger to public safety" was used was in the Reform Act.

We find defendant's arguments unpersuasive. None of the materials accompanying Proposition 47 contain any reference to the Reform Act. For example, the Voter Information Guide to Proposition 47 states that "[t]his measure reduces penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes. The measure also allows certain offenders who have been previously convicted of such crimes to apply for reduced sentences. In addition, the measure requires any state savings that result from the measure be spent to support truancy (unexcused absences) prevention, mental health and substance abuse treatment, and victim services." (Voter Information Guide, Gen. Elec., supra, analysis of Prop. 47 by Legis. Analyst, p. 35.) The Legislative Analyst then detailed the changes that would be made if Proposition 47 was passed. None of these changes included redefining the meaning of the phrase "unreasonable risk of danger to public safety" in the Reform Act.

In fact, there was no mention of reforming the three strikes law in any of the official ballot materials accompanying Proposition 47. Nothing in the official ballot materials reflects that Proposition 47 was intended to have an impact on offenders who did not commit the specified nonserious, nonviolent property or drug crimes described in Proposition 47. The ballot materials indicate that the thrust of the initiative was to reduce these less serious felonies to misdemeanors. Further, the ballot materials emphasize that the resentencing provisions set forth in Proposition 47 were limited to those individuals serving sentences for the specified nonserious, nonviolent drug or property crimes.

The dissent takes the position that we should not confine ourselves to the official ballot materials when ascertaining the voter's intent. In his reply brief, defendant cites to several different Web sites where opponents of Proposition 47 authored written arguments against passing Proposition 47. (See, e.g.,

Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220 , 237, 45 Cal.Rptr.2d 207 , 902 P.2d 225 .) Further, the official summary prepared by the Legislative Analyst need not describe every way the enacted measure may change the law. "The analysis may contain background information, including the effect of the measure on existing law and the effect of enacted legislation which will become effective if the measure is adopted, and shall generally set forth in an impartial manner the information the average voter needs to adequately understand the measure." (Elec.Code, § 9087.)

Here, the ballot summary is completely devoid of any mention of the Reform Act or the three strikes law. We cannot take the dissent's position that the Legislative Analyst likely failed to mention Proposition 47's purported effect on the Reform Act because it believed it was likely to matter less to voters, or that it was an auxiliary issue. If in fact one of the purposes of Proposition 47 was to provide a new definition of an "unreasonable risk of danger to public safety" in the Reform Act-essentially rewriting the standard by which three strikes resentencing petitions are heard and decided by the trial court-that should certainly be "information the average voter needs to adequately understand the measure." (Elec.Code, § 9087.)

Defendant argues that Proposition 47 is merely a continuation of the sentencing reform initiated by the electorate, which includes the reforms

liberally construed to effectuate those purposes." (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36 proposed law, § 7, p. 110.) Proposition 47, on the other hand, emphasized the potential for fiscal savings if passed. In its findings and declarations, it states: "The people of the State of California find and declare as follows: [¶] The people enact the Safe Neighborhoods and Schools Act to ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K-12 schools, victim services, and mental health and drug treatment." (Voter Information Guide, Gen. Elec., supra, text of Prop. 47 proposed law, § 2, p. 70.) These two acts are not in pari materi.

People v. Overstreet (1986) 42 Cal.3d 891 , 895, 231 Cal.Rptr. 213 , 726 P.2d 1288 ; see Robert B. v. Susan B. (2003) 109 Cal.App.4th 1109 , 1113, 135 Cal.Rptr.2d 785 [where language "is clear, we will not engage in statutory construction to determine [its] intended purpose and scope"].)

The

re are of course some well-recognized exceptions to the plain meaning rule. Foremost among them is that where statutory language is ambiguous, courts may consult various constructional aids to determine its intended meaning. ( Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094 , 1103, 56 Cal.Rptr.3d 880 , 155 P.3d 284 .) This is not a true exception to the plain meaning rule, but a limitation implicit in the rule itself: if statutory language is ambiguous, it has no plain meaning and a court has no choice but to go beyond the language in hopes of ascertaining its intended meaning and effect. This limitation cannot come into operation, however, unless the language at issue is "susceptible of more than one reasonable interpretation." ( Ibid .) "If there is no ambiguity in the language of the statute, then the plain meaning of the language governs." ( Cypress Semiconductor Corp. v. Superior Court (2008) 163 Cal.App.4th 575 , 581, 77 Cal.Rptr.3d 685 ; see Bonnell v. Medical Bd. of California (2003) 31 Cal.4th 1255 , 1261, 8 Cal.Rptr.3d 532 , 82 P.3d 740 .)

The majority does not suggest that there is anything ambiguous about the language here under examination. Section 1170.18(c)declares that the definition of dangerousness set forth there applies "throughout this Code." This can only refer to the Penal Code. (See Marshall v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th 1241 , 1255, 15 Cal.Rptr.3d 344 [finding "nothing ambiguous about the phrase 'as used in this code' " to define " 'emergency' "

Sterling Park, L.P. v. City of Palo Alto (2013) 57 Cal.4th 1193 , 1203, 163 Cal.Rptr.3d 2 , 310 P.3d 925 [proposed interpretation "would lead to absurd results the Legislature cannot have intended"]; Fireman's Fund Ins. Co. v. Superior Court (2011) 196 Cal.App.4th 1263 , 1281, 127 Cal.Rptr.3d 768 , fn. omitted ["We cannot conclude that our Legislature intended such absurd results."]; Simmons v. Ghaderi (2008) 44 Cal.4th 570 , 586, 80 Cal.Rptr.3d 83 , 187 P.3d 934 ["Because the language of section 1122 unambiguously requires express waiver, judicial construction is not permitted unless the statutes cannot be applied according to their terms or doing so would lead to absurd results, thereby violating the presumed intent of the Legislature."].)

I see nothing even remotely "absurd" about giving effect to the definition in section 1170.18(c)according to its plain meaning. On the contrary, by adopting a narrowed definition of "unreasonable risk of danger to public safety," the voters impliedly found that courts had interpreted that phrase too broadly in denying relief under Proposition 36. Given that implied finding, there was nothing unreasonable, let alone absurd, in extending the benefits of the narrowed definition to defendants whose Proposition 36 applications remained unresolved.

disregard unambiguous language 'only in " extreme cases "-those in which, as a matter of law, the Legislature did not intend the statute to have its literal effect '." ( California Highway Patrol v. Superior Court,supra, 158 Cal.App.4th at p. 739, 70 Cal.Rptr.3d 280 , italics added, quoting Gorham Co., Inc. v. First Financial Ins. Co. (2006) 139 Cal.App.4th 1532 , 1544, 44 Cal.Rptr.3d 197 .) Here there is no manifestation of intent by the voters that section 1170.18(c)should not "have its literal effect"-let alone grounds to find such an intent "as a matter of law," meaning one on which reasonable minds cannot differ. At the same

and accepted as fact in one of the now-uncitable decisions whose analysis the majority otherwise embraces. The majority then declares the assertion "irrelevant" because " '[i]n construing a statute we do not consider the objective of an authoring legislator when there is no reliable indication that the Legislature as a whole was aware of that objective and believed the language of the proposal would accomplish it.' " (Lead opn. at p. 20, quoting Calvillo-Silva v. Home Grocery, supra, 19 Cal.4th 714 , 726-727, 80 Cal.Rptr.2d 506 , 968 P.2d 65 .) This may be conceded as a general matter where enactments of the Legislature are concerned; but there is ample authority to contrary effect with respect to voter-adopted measures. (See Carman v. Alvord (1982) 31 Cal.3d 318 , 331, fn. 10, 182 Cal.Rptr. 506 , 644 P.2d 192 [while not dispositive of the meaning of an initiative amendment, "an after-the-fact declaration of intent by a drafter ... may deserve some consideration"]; Stanton v. Panish (1980) 28 Cal.3d 107 , 114, 167 Cal.Rptr. 584 , 615 P.2d 1372 [drafter's declaration "may be considered in the absence of evidence that the electorate may have had reason to understand the provision differently"].)

Here in particular, where the plain meaning of the measure is dismissed as the product of a "drafting error," I find it highly relevant that an author of the statute flatly contradicted the claim-and did so at a time when, apparently, no dispute had yet arisen on the subject. After all, a mistake by the legislation's author (or a "scrivener," i.e., a transcriber of the author's intent) is precisely what a claim of "drafting error" posits. A statement by an author that the statute says exactly what he or she meant it to say, and has the effect he or she meant it to have, should utterly dispel any claim of a "drafting error" subject to judicial correction.

B. Narrowness of Exception

The judicial power to correct legislative drafting errors is to be employed only with "great restraint." ( Bonner v. County of San Diego (2006) 139 Cal.App.4th 1336 , 1346, fn. 9, 44 Cal.Rptr.3d 116 ;

Another illustration of a legislative drafting error is provided by this court's decision in In re Chavez (2004) 114 Cal.App.4th 989 , 998, 8 Cal.Rptr.3d 395 ( Chavez ). The question there was whether a change in the sentence for tax fraud was intended to apply retroactively so as to abate the defendant's sentence under prior law. We concluded that the purpose of the change was to correct an anomaly introduced by an earlier amendment, which had been in effect when the defendant was sentenced. That amendment had been part of "voluminous" 1983 legislation that was largely concerned with public education and its funding, but that also included provisions conforming state tax law to certain changes in federal law. ( Id. at p. 994, 8 Cal.Rptr.3d 395 .) One of the conforming changes echoed the federal tax fraud statute, with the result that the California statute now imposed an indeterminate sentence despite this state's broad abandonment of indeterminate sentencing six years earlier. ( Id. at p. 995, 8 Cal.Rptr.3d 395 .) The bill correcting this anomaly was described in its legislative history as a "cleanup bill" needed " 'to correct technical and grammatical errors in penal provisions in various codes.' " ( Id. at p. 995, 8 Cal.Rptr.3d 395 .) The

to the language on that occasion militated against the hypothesis that the amending language was itself the product of inadvertence.

Similarly, in People v. Garcia (1999) 21 Cal.4th 1 , 4, 6, 87 Cal.Rptr.2d 114 , 980 P.2d 829 , the Supreme Court refused to base its construction of a provision of the "Three Strikes" law on a posited " 'drafting oversight' " or " 'drafting error' " as manifested in a supposed discrepancy between two otherwise redundant provisions of the Three Strikes law. The court found such an approach untenable because it would "require the court to disregard

section 1170.18, including in subdivision (b), which contains the phrase defined in the next subdivision "[a]s used throughout this Code." (§ 1170.18(c).) It strains credulity to suppose that they slipped into using a gross misnomer when they really meant to use "this act" for an eighth time.

The majority's construction of section 1170.18(c)is also at odds with the use of the term "throughout" in the phrase "as used throughout this Code." It is not enough to simply substitute "act" for "Code," because in the majority's reading the definition does not apply "throughout" anything, even the act. The defined phrase appears only in one place: Penal Code section 1170.18, subdivision (b). If the intent was only to define that phrase as used in that subdivision, it would have been more felicitously expressed by saying "as used in this section" or at most, "in this act." "Throughout," in other words, implies that the defined phrase appears in more than one place. In fact, the phrase appears in two-Penal Code section 1170.18, subdivision (b), and section 1170.126(f). "Throughout" is consistent with an intent to refer to both of them. It is not consistent with an intent to refer to only one.

The text of Penal Code section 1170.18reinforces the plain meaning of subdivision (c) for a subtler, but I think even more compelling, reason: in the absence of an intent to benefit Proposition 36 petitioners, there was no reason to write Penal Code section 1170.18the way it is written; it could have been drawn in a significantly simpler and more straightforward manner. Recall that Proposition 36 requires resentencing unless the court determines that resentencing would pose "an unreasonable risk of danger to public safety." (§ 1170.126(f).) The drafters of Proposition 47 copied the quoted phrase into Penal Code section 1170.18, subdivision (b), although it was already in use and its meaning and effect had been extensively litigated under Proposition 36. Had the drafters simply borrowed that phrase, it would suggest that they expected and intended courts to possess the same broad discretion under Proposition 47 they had been held to have under Proposition 36. Instead, the drafters redefined the borrowed phrase to mean something new: "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(c).) This had the effect of sharply restricting the latitude courts had been allowed, or found themselves to be allowed, under Proposition 36. But if the intent was to restrict judicial discretion only for purposes of Proposition 47, there was no reason to introduce the earlier phrase from Proposition 36 . Penal Code section 1170.18, subdivision (b)could simply have been drafted to say that resentencing would be required unless the court found an unreasonable risk that the petitioner would "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(c).) The drafters could, in short, have stricken the phrase they

Another very familiar rule of statutory construction-repeatedly acknowledged by us-is that " '[w]e must ...' 'if possible, ... give effect and significance to every word and phrase of a statute.' [Citation.] When two provisions touch upon a common subject, 'we must construe them "in reference to each other, so as to 'harmonize the two in such a way that no part of either becomes surplusage.' " ' [Citations.] 'We must presume that the Legislature intended "every word, phrase and provision ... in a statute ... to have meaning and to perform a useful function." ' [Citations.]" ( Meyers v. Retirement Fund of Fed. City Employees (2014) 223 Cal.App.4th 1201 , 1206, 167 Cal.Rptr.3d 725 ; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261 , 283-284, 167 Cal.Rptr.3d 173 [" 'The rules of statutory construction direct us to avoid, if possible, interpretations that render a part of a statute surplusage.' [Citations.] [Citation.] Courts 'must strive to give meaning to every word in a statute and to avoid constructions that render words, phrases, or clauses superfluous.' [Citations.] [Citation.] The well-established principles of statutory construction "preclude judicial construction that renders part of the statute 'meaningless or inoperative.'."]; People v. Scott (2012) 203 Cal.App.4th 1303 , 1313, 138 Cal.Rptr.3d 236 ["We also attempt to give effect to every word in a statute and avoid constructions that render statutory terms superfluous or meaningless."]; Murray's Iron Works, Inc. v. Boyce (2008) 158 Cal.App.4th 1279 , 1296, 71 Cal.Rptr.3d 317 ["A construction making some words surplusage is to be avoided."]; Toshiba America Electronic Components, Inc. v. Superior Court (2004) 124 Cal.App.4th 762 , 769, 21 Cal.Rptr.3d 532 [same]; People v. Superior Court (2003) 114 Cal.App.4th 102 , 104, 7 Cal.Rptr.3d 440 [" 'Where reasonably possible, we avoid statutory constructions that render particular provisions superfluous or unnecessary.' "].)

The majority's treatment renders superfluous Proposition 47's use of the phrase "unreasonable risk of danger to public safety." Under the majority's view, that phrase has no effect in Proposition 47 other than to complicate and lengthen the statute. Under a correct view, as I see it, that phrase can readily be understood, in support rather than derogation of the measure's plain meaning, to serve the very purpose of correcting the courts' unduly parsimonious approach to petitions under Proposition 36.

acknowledged as much in In re Gabriel G.,supra, 134 Cal.App.4th 1428 , 1436, 36 Cal.Rptr.3d 847 , where the plain meaning of a statute was challenged on the ground that it produced unintended consequences: "[W]e must recall that in construing a statute, 'that which is construed is the statutory text.' [Citation.] Evidence of legislative inadvertence would have to be quite compelling before we would ignore the plain language of the law. [Citation.] The only evidence of inadvertence the Department offers is its assessment of the unintended consequences the change will have. Legislation often has unintended consequences. But we cannot construe the amendment in a manner wholly unsupported by its text merely to avoid the purported unintended consequences. [Citation.]" ( Id. at pp. 1436-1437, 36 Cal.Rptr.3d 847 , italics added.)

Again I must observe that a due regard for the separation of powers requires that when the legislative will is expressed in clear language which does not frustrate other manifestations of legislative intent and does not produce absurd results, lawmakers must be deemed to have intended the effect of their enactments, whether or not we find it likely that they actually did so. The tacit premise of the majority's treatment is that where an effect may have been inobvious to voters, the absence of extrinsic corroboration of their intent is by itself sufficient ground for courts to deny the enactment that effect, no matter how inexorably it may flow from the words they have adopted. That premise turns the "manifest purpose" exception on its head by authorizing courts to disregard clear statutory language unless it is affirmatively ratified by other evidence of legislative intent. This reverses the proper burden of proof, which should rest on those who seek to deny effect to plain

minimizing the extent and tenor of these materials, the majority suggests that we can assign

it does, we may anticipate that the opponents of numerous past ballot measures-including some of far greater moment than Propositions 36 and 47-will soon be filing new challenges to their more obscure provisions. Perhaps there could arise an extreme case where a challenged effect was so obscure, unheralded, and momentous as to make a truly compelling case for judicial intervention. But surely this is not such a case. As the above materials demonstrate, the meaning and effect of "throughout this Code" were neither obscure nor unheralded. All the majority can say is that they were not specifically mentioned in the ballot pamphlet. That is not nearly enough, in my view, to justify judicial abrogation of plain statutory language.

Confining the inquiry into voter intent to the four corners of the ballot pamphlet is particularly objectionable because the contents of that document

adopted measures reflects the actual will of the voters. Here the evidence suggests that at least two of the official opponents of Proposition 47 were entirely aware of its effect on Proposition 36 petitions but elected not to cite that effect in the ballot pamphlet as a reason to vote no, relying instead

they could not, and knew they could not, win at the ballot box.

I simply do not believe it is the office of the courts to protect voters, if that is what they think they are doing, from the legal consequences of their votes. Such an approach is doubly objectionable where, as here, it appears that voters had knowledge, or at least notice, of those consequences. In the absence of absurdity, constitutional infirmity, or frustration of an affirmatively manifested purpose, a voter-adopted statute must be given effect according to its plain meaning. I therefore can no longer join in the chorus of judicial voices that have sought to frustrate the intent of the 2014 electorate as manifested by them in the only way that matters.

T

he majority also concludes that "practical reasons" weigh against applying "throughout this Code" literally because "[i]t is illogical to conclude that Proposition 47 was meant to modify the Reform Act when most of the three strike resentencing petitions were already adjudicated and decided by that time." (Lead opn. at p. 21.) The basis for this assertion is not clear. One possible argument is that (1) the time to file Proposition petitions would have nearly expired when Proposition 47 took effect; (2) because of this, few if any such petitions were likely to remain "[un]adjudicated and [un]decided" at that time; (3) the new definition could only apply to petitions that remained unadjudicated and undecided; (4) extending the new definition to Proposition 36 petitions would therefore be futile; therefore (5) voters could not have intended a futile act.

If this is the underlying reasoning, I find it badly flawed. The first premise fails because Penal Code section 1170.126, subdivision (b), permits an eligible prisoner to "file a petition for a recall of sentence, within two years after the effective date of the act that added this section or at a later date upon a showing of good cause ." Voters could well anticipate, and I would be inclined to hold, that a change in law requiring the petitioner's more-or-less immediate release from prison constitutes "good cause" to entertain a petition beyond the two-year deadline.

The second premise fails because there are many cases like this one in which the defendant's Proposition 36 petition remains pending on appeal and

36 denials still pending on appeal would be subject to correction based on the change in law effected by section 1170.18(c). If that is true, the fourth premise also collapses and the fifth with it.

Whatever the logical underpinnings of the majority's treatment on this point, I cannot accede to any suggestion that the number of persons to be affected by a statute can justify abrogation of its unambiguous terms. Even if only a handful of cases were likely to be affected, it would furnish no occasion to disregard the plain meaning of the statute. To posit a regime in which courts are empowered to disregard legislative directives on the ground that their effects are too insignificant to have been intended is, yet again, obnoxious to the proper separation of powers. It is not for the courts to decide what objectives are sufficiently weighty to merit legislative attention. Least of all does it fall to the courts to decide when a court may abrogate legislation touching on a fundamental right such as physical liberty because it finds the number of citizens benefiting from it too small to bother with.

Here, as already noted, it can be readily inferred from the very existence of section 1170.18(c)that its purpose was to correct what the drafters saw as an undesirable judicial interpretation and application of Proposition 36. Once the prior regime was perceived as unsatisfactory, it was entirely logical not only to create a new regime but to extend its benefit to anyone still seeking relief under its predecessor. The logic of doing so is the same whatever the size of the class so benefited. Lawmakers are under no obligation to count heads before deciding whether to remedy perceived defects in existing law. They

application of section 1170.18(c)"throughout this Code" in accordance with its terms. Indeed, insofar as section 1170.18(c)applies to Proposition 36 cases, those cases "fall [ ] within the purview of this act" and are thus exempt from the operation of section 1170.18(n).

Neither the intent nor the letter of section 1170.18(n)is frustrated by applying section 1170.18(c)to Proposition 36 cases, at least where the judgment in those cases has not passed beyond the power of the courts to modify. The plain meaning and manifest purpose of the quoted provision is to prevent a construction of Proposition 47 that operates to reopen proceedings in matters falling outside section 1170.18. Here, the proceeding has been reopened, and is still open, but not by virtue of Proposition 47. It is Proposition 36 that, by authorizing resentencing in cases like this one, has

People v. Ramirez (2014) 224 Cal.App.4th 1078 , 1085, 169 Cal.Rptr.3d 260 ["The rule of lenity applies as a tie-breaking principle where ' " 'two reasonable interpretations of the statute

recidivism reduces with age, and the recidivism rate of a third strike inmate of defendant's age was about 1 percent. Defendant had not abused substances since his incarceration. He had also been accepted into a transitional program. One of defendant's relatives spoke during the hearing, describing that defendant would receive support if resentenced and released.

Afterwards, the court denied defendant's petition, finding that resentencing him would pose an unreasonable risk of danger to public safety. The court noted that defendant had broken rules in prison and had been involved in fights and altercations, even after he was considered elderly. Further, the court asserted that it was especially troubling that it appeared that defendant had not participated in programming to address his problem areas, such as anger management or substance abuse. Defendant appealed.

DISCUSSION

1. Petition for Resentencing

a. Statutory Background

In November 2012, California voters approved Proposition 36, the Three Strikes Reform Act of 2012 (hereafter the Reform Act). Prior to the passage of Proposition 36, the former Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) mandated that a defendant who is convicted of two prior serious or violent felonies would be subject to a sentence of 25 years to life upon conviction of a third felony. The Reform Act amended the three strikes law. Now, section 1170.12, subdivision (c)(2)(C) and section 667, subdivision (e)(2)(C) provide that a defendant with two or more strikes who is convicted of a felony that is neither serious nor violent be sentenced as a second strike offender, unless certain exceptions apply.

The Reform Act also added section 1170.126, which allows eligible inmates who are currently subject to 25-years-to-life sentences under the former three strikes law to petition the court for resentencing. "Section 1170.126, subdivisions (a)and (b), broadly describe who is eligible to file a petition and to be resentenced. Subdivision (a) of section 1170.126states: 'The resentencing provisions under this section and related statutes are intended to apply exclusively to persons presently serving an indeterminate term of imprisonment pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, whose sentence under this act would not have been an indeterminate life sentence. ' " ( Teal v. Superior Court (2014) 60 Cal.4th 595 , 598, 179 Cal.Rptr.3d 365 , 336 P.3d 686 .) "Subdivision (b) of section 1170.126states: 'Any person serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of

subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12 upon conviction, whether by trial or plea, of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, may file a petition for a recall of sentence ....' " ( Id. at p. 599, 179 Cal.Rptr.3d 365 , 336 P.3d 686 .)

An eligible prisoner "shall be resentenced" as a second strike offender unless the court determines that resentencing him or her "would pose an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).) In exercising its discretion under section 1170.126, subdivision (f), the trial court may consider various factors including the petitioner's criminal conviction history, disciplinary record and record of rehabilitation while incarcerated, and "[a]ny other evidence the court ... determines to be relevant...." (Id. subd. (g)(3).)

To an extent, we disagree with defendant's interpretation of Rosenkrantz and section 3041. The statutes and regulations governing parole create a presumption in favor of parole in part because of the Legislature's conclusion that those prisoners who have served their minimum parole eligibility terms are "normally" entitled to a parole date unless parole poses an unreasonable risk to public safety. (§ 3041, subd. (a).) Therefore, we disagree with defendant's interpretation that Rosenkrantz concluded that, by itself, the "shall/unless" construction used in section 3041 created a presumption in favor of parole.

Additionally, we find that defendant's interpretation of the "shall/unless" statutory construction was recently rejected by our Supreme Court in People v. Gutierrez (2014) 58 Cal.4th 1354 , 171 Cal.Rptr.3d 421 , 324 P.3d 245 , which analyzed similar language located in section 190.5, the juvenile life without parole statute. The Gutierrez court stated: "Contrary to [ People v. Guinn (1994) 28 Cal.App.4th 1130 , 33 Cal.Rptr.2d 791 ], ... our review of the text and history of section 190.5[, subdivision] (b) does not lead us to conclude that the statute establishes a presumption in favor of life without parole. The text of the statute appears ambiguous on this point. As noted, section 190.5[, subdivision] (b) says the penalty for special circumstance murder committed by a 16- or 17-year-old offender 'shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.' It is not unreasonable to read this text, as Guinn did, to mean that a court 'shall' impose life without parole unless 'at the discretion of the court' a sentence of 25 years to life appears more appropriate. [Citation.]

undermine the intent of the voters in passing the Reform Act-to preserve public safety. The trial court was not required to find that defendant was "outside the spirit" of the Reform Act before it could find that resentencing him would pose an unreasonable risk of danger to public safety.

c. Abuse of Discretion to Deny Petition

Next, we address defendant's claim that the trial court erred when it denied his petition.

Whether a defendant poses an unreasonable risk of danger to public safety is a discretionary decision made by the trial court based on the facts presented in the case. However, the facts considered by the trial court must be established by the People by a preponderance of the evidence.

On appeal, we review the court's finding of an unreasonable risk of danger for an abuse of discretion. However, we apply a substantial evidence standard of review to the facts supporting the court's finding. In other words, a factor relied on by the court that is not supported by a preponderance of the evidence cannot form the basis of the court's determination. ( People v. Cluff (2001) 87 Cal.App.4th 991 , 998, 105 Cal.Rptr.2d 80 [holding that a trial court abuses its discretion when its factual findings are not supported in the record].) With this framework in mind, we do not believe the trial court abused its discretion when it declined to resentence defendant.

When making its dangerousness determination, the court focused on defendant's history of violence, which included the incidents of violence that had occurred while defendant was incarcerated. During the hearing, Danielle Arlanda Harris testified as an expert on criminology and recidivism. Harris stated that a recent study had concluded that inmates who were 55 years of age were considered elderly and recidivism reduces with age. The court, taking Harris' testimony into account, noted that defendant's age may reduce his risk of violence. However, the court was concerned with defendant's history of violent altercations while incarcerated. In 2004, he struck another inmate with a broomstick and was found guilty of battery on an inmate with a weapon. In 2007, he was found guilty of mutual combat. In 2009, he was found guilty of fighting resulting in the use of force. All of these incidents occurred when defendant was already considered elderly according to Harris' testimony, since he was almost 55 years old at the time of the incident in 2004. Yet, the court noted that defendant's age had not eliminated his problem with violence.

Further, the court was concerned with the lack of information regarding the programming defendant participated in while in prison. Earlier, the People

had raised concerns with the lack of information regarding defendant's participation in programs to gain insight into substance abuse or anger management, which the court

of the electorate." ( Ibid. ) The resentencing scheme is not plenary; it provides for a proceeding where the original indeterminate life term can be modified downward. Kaulick concluded that this did not implicate any Sixth Amendment rights.

We follow Kaulick and find that there is no requirement that the dangerousness finding be established beyond a reasonable doubt. Accordingly, we conclude the trial court did not err in denying defendant's motion for a jury trial, because a Sixth Amendment right to a jury trial does not arise in a petition for resentencing under section 1170.126, subdivision (f).

3. Supplemental Probation Report

Defendant claims the court should have obtained a supplemental probation report prior to denying his petition for resentencing. Defendant argues that a supplemental probation report was necessary, because the decision to resentence him is functionally the equivalent of a decision to place him on probation. Defendant has forfeited this argument. He did not request a supplemental probation report below, nor did he object to proceeding without one.

Defendant claims his lack of objection does not waive or forfeit his claim, citing to People v. Dobbins (2005) 127 Cal.App.4th 176 , 178, 24 Cal.Rptr.3d 882 ( Dobbins ). However, Dobbins is inapplicable, because the defendant there remained eligible for probation upon remand. ( Id . at pp. 181-182, 24 Cal.Rptr.3d 882 .) Therefore, a probation report was mandated by law, unless a written or oral stipulation was entered by the prosecuting and defense attorneys. (§ 1203, subd. (b)(4).) Since the

refer to the Safe Neighborhoods and Schools Act. There is nothing to indicate that in passing Proposition 47 the electorate intended to modify or change the Reform Act in any way.

Defendant disagrees and argues that it is clear from the language of sections 1170.18and 1170.126that the electorate intended to modify section 1170.126. Defendant opines that both propositions sought to improve public safety. And, defendant claims that the plain language of Proposition 47 unambiguously applies the definition of an unreasonable risk

initiated by the Reform Act. Further, defendant explains that the drafters and electorate who endorsed Proposition 47 may have reasonably determined that the strict definition of an "unreasonable risk of danger to public safety" was a necessary correction to the Reform Act. He claims the lack of a restrictive definition in the Reform Act led to trial courts resentencing petitions under section 1170.126too cautiously based on the "natural human tendency to over predict violence and err on the side of further imprisonment."

Defendant's arguments on this point are purely based on conjecture. Despite his claim that Proposition 47 can logically be seen as a way to correct the restrictive use of resentencing employed by the trial courts under the Reform Act, there is actually no evidence that this was conceived or even considered by the electorate. Proposition 47's ballot materials discuss reforming current sentencing laws by reducing certain nonserious, nonviolent felonies to misdemeanors, not by reforming the three strikes law which had already been reformed just a few years earlier.

We are also unconvinced with defendant's claim that the Reform Act and Proposition 47 are in pari materi (on the same subject or relating to the same matter), rendering it so that similar phrases should be given the same meaning. (See People v. Caudillo (1978) 21 Cal.3d 562 , 585, 146 Cal.Rptr. 859 , 580 P.2d 274 , overruled on another point in People v. Martinez (1999) 20 Cal.4th 225 , 229, 237, fn. 6, 83 Cal.Rptr.2d 533 , 973 P.2d 512and disapproved of on another ground in People v. Escobar (1992) 3 Cal.4th 740 , 749-751, fn. 5, 12 Cal.Rptr.2d 586 , 837 P.2d 1100 .) Proposition 47 and the Reform Act had different overarching goals, despite their shared effect of reforming criminal sentencing laws.

On the one hand, both the Reform Act and Proposition 47 emphasized public safety and are both targeted at changing the way criminal defendants are sentenced. However, the uncodified section 7 of the Reform Act states that the "act is an exercise of the public power of the people of the State of California for the protection of the health, safety, and welfare of the people of the State of California, and shall be

Further, defendant's claim that one of the authors of Proposition 47 has seemingly taken the position that Proposition 47's definition of an "unreasonable risk of danger to public safety" extends to the Reform Act is beside the point. The author's intent is irrelevant. "In construing a statute we do not consider the objective of an authoring legislator when there is no reliable indication that the Legislature as a whole was aware of that objective and believed the language of the proposal would accomplish it." ( Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714 , 726-727, 80 Cal.Rptr.2d 506 , 968 P.2d 65 .) Here, based on the ballot materials there is no indication the electorate was aware, or even considered the possibility, that Proposition 47 would alter the Reform Act. We cannot infer that the electorate somehow had this intent.

There are also practical reasons for us to conclude that Proposition 47 contains a drafting error. For example, the Reform Act requires that petitions for resentencing be brought within two years of its passage unless the trial court concludes the existence of good cause for filing a late petition. (§ 1170.126, subd. (b).) By the time Proposition 47 took effect, the two-year period for filing a petition under section 1170.126was nearly over. It is illogical to conclude that Proposition 47 was meant to modify the Reform Act when most of the three strike resentencing petitions were already adjudicated and decided by that time.

The language of section 1170.18also lends support to our conclusion. Section 1170.18specifically provides that, "Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this act." (§ 1170.18, subd. (n).) Applying the definition of "unreasonable risk of danger to public safety" from section 1170.18to section 1170.126, would undoubtedly diminish the finality of those three strikes judgments that do not involve a nonserious, nonviolent property or drug crime.

Lastly, our conclusion does not render the phrase "[a]s used throughout this Code" in section 1170.18meaningless surplusage. The general rule is that "statutes are to be construed to give meaningful effect to all of their provisions, and to avoid rendering any language superfluous." ( Planned Parenthood Affiliates v. Van de Kamp (1986) 181 Cal.App.3d 245 , 270, 226 Cal.Rptr. 361 .) Based on the foregoing, we conclude that section 1170.18, subdivision (c)contains a drafting error that must be judicially corrected. Under a corrected reading of the statute, we find that the word "Code" must be read as "Act." Therefore, the phrase would read "[a]s used throughout this Act," meaning Proposition 47.

Accordingly, we find no merit in defendant's argument that the order denying his

In

construing a statute adopted by initiative we are bound by the same principles as those governing our construction of statutes enacted by the Legislature. ( People v. Lopez (2005) 34 Cal.4th 1002 , 1006, 22 Cal.Rptr.3d 869 , 103 P.3d 270 ; People v. Elliot (2005) 37 Cal.4th 453 , 478, 35 Cal.Rptr.3d 759 , 122 P.3d 968 ; Robert L. v. Superior Court (2003) 30 Cal.4th 894 , 900, 135 Cal.Rptr.2d 30 , 69 P.3d 951 .) The first and most basic of these principles, often acknowledged by this court, is that " 'if statutory language is "clear and unambiguous there is no need for construction, and courts should not indulge in it." ' " ( Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145 , 1154, 2 Cal.Rptr.3d 396 , quoting Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211 , 218, 188 Cal.Rptr. 115 , 655 P.2d 317 [same]; accord, Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264 , 1285, 31 Cal.Rptr.3d 297 ; Coniglio v. Department of Motor Vehicles (1995) 39 Cal.App.4th 666 , 674, 46 Cal.Rptr.2d 123 , quoting

as used in Public Contract Code]; People v. Bucchierre (1943) 57 Cal.App.2d 153 , 166, 134 P.2d 505 ["The words 'as in this code provided' ... refer to the Penal Code."].) Here this means that section 1170.18(c)'s definition of " 'unreasonable risk of danger to public safety' " applies to that phrase as it appears in Penal Code section 1170.126, subdivision (f)(§ 1170.126(f)), and thus to the question whether, as the trial court found, resentencing defendant would pose "an unreasonable risk of danger to public safety." Since the phrase "throughout this Code," as thus used, is not "susceptible of more than one reasonable interpretation" ( Murphy v. Kenneth Cole Productions, Inc.,supra, 40 Cal.4th at p. 1103, 56 Cal.Rptr.3d 880 , 155 P.3d 284 ), "there is no need for construction and [we] should not indulge in it" ( Cryolife, Inc. v. Superior Court,supra, 110 Cal.App.4th at p. 1154, 2 Cal.Rptr.3d 396 ).

A n

arrower exception to the plain meaning rule permits courts to depart from the meaning of statutory language, even if it is unambiguous, when its literal application would produce " ' " 'absurd consequences.' " ' " ( May v. City of Milpitas (2013) 217 Cal.App.4th 1307 , 1333, 159 Cal.Rptr.3d 310 ; Younger v. Superior Court (1978) 21 Cal.3d 102 , 113, 145 Cal.Rptr. 674 , 577 P.2d 1014 ; see California Highway Patrol v. Superior Court (2008) 158 Cal.App.4th 726 , 736, 70 Cal.Rptr.3d 280 ["The literal meaning of unambiguous statutory language 'may be disregarded to avoid absurd results' "].) The underlying rationale is that the Legislature cannot have intended to bring about absurd consequences, so if the statute has that effect, it must be an incorrect expression of legislative intent. (See

V. The Contrary-to-Manifest-Intent Exception

A somewhat more nebulous rule permits departures from a statute's literal language " 'to give effect to manifest purposes that, in the light of the statute's legislative history, appear from its provisions considered as a whole.' " ( California Highway Patrol v. Superior Court,supra, 158 Cal.App.4th at p. 736, 70 Cal.Rptr.3d 280 , italics added.) Under this exception the question is whether "follow[ing] the plain meaning of a statute ... would ' frustrate [ ] the manifest purposes of the legislation as a whole....' " ( California School Employees Assn. v. Governing Board (1994) 8 Cal.4th 333 , 340, 33 Cal.Rptr.2d 109 , 878 P.2d 1321 , italics added, quoting People v. Belleci (1979) 24 Cal.3d 879 , 884, 157 Cal.Rptr. 503 , 598 P.2d 473 .) Here no conflict between the literal meaning and manifest purpose of section 1170.18(c)appears. The statute can be applied to cases arising under Proposition 36 without impinging in any way upon the purposes or effects of Proposition 47. Indeed, as noted above, extending the benefits of the new definition to persons in defendant's position is fully consistent with the curative purpose readily inferred from its adoption.

The majority points to no evidence of a "manifest purpose" that would be frustrated or impaired by literal application. It does not attempt to demonstrate that the will of the electorate would be thwarted, or the purpose of Proposition 47 frustrated, by applying section 1170.18(c)according to its terms. Instead the majority's treatment rests on the premise that the will of the electorate is not adequately corroborated by extrinsic evidence of legislative intent, which in the majority's treatment consists entirely of the ballot pamphlet. But in the absence of some conflict between the statute's literal meaning and the affirmatively manifested intentions of the electorate, there is no occasion to look for corroboration of the voters' intent. Any inquiry under the "manifest intention" rubric should begin and end with the absence of evidence that voters intended the new definition not to benefit persons in defendant's position.

Unless applied with assiduous judicial restraint, the manifest intention rule becomes a serious threat to the separation of powers. In implicit recognition of this fact, we have stated that "courts should

p. 38.) It also appears that the Stanford Justice Advocacy Project (SJAP)-an officially recognized student organization at Stanford Law School-contributed to the drafting of the measure. (Ho, Prop. 47: Deep split over law reducing 6 felonies to misdemeanors

adopted definition to apply to Proposition 36 applicants. As reported in a Los Angeles Times article published the day after the election, the Director of SJAP stated that Proposition 36 petitioners could "return to court and cite Proposition 47's new definition of an 'unreasonable risk of danger,' which Tuesday's ballot measure defined as likely to commit serious or violent crimes that include homicide, sexual assault and child molestation." ( (as of Mar. 11, 2016).)

The majority describes defendant's assertion of this fact as a "claim," though it was reported by a highly reputable newspaper

attorney general argued to us that the earlier adoption of an indeterminate term had been a deliberate effort to increase deterrence, but we found it "far more likely that SB 813's incongruous and unexplained reversion to indeterminate sentencing was the result of the drafters' attempt to track the federal language as closely as possible." ( Id. at p. 997, 8 Cal.Rptr.3d 395 .) We thus concluded that, "[g]iven the legislative history and the surrounding circumstances ... the 1983 amendment was a drafting error and was not enacted for any deterrent purpose." ( Id. at p. 998, 8 Cal.Rptr.3d 395 .) We noted that a " 'dangerous potential for drafting errors' " had been created by the extreme complexity of the 1983 bill and the fact that it had been focused on educational reforms rather than criminal law. ( Ibid., quoting People v. Alexander,supra, 178 Cal.App.3d 1250 , 1262, 224 Cal.Rptr. 290 .) Because the later amendment was intended to " 'fix a mistake,' " we inferred an intent that it be applied retroactively. ( Id. at p. 998, 8 Cal.Rptr.3d 395 , quoting In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161 , 172, 110 Cal.Rptr.2d 111 .)

None of these factors were present here. There was no necessity, and no apparent attempt, to track laws promulgated by another sovereign. There was no "extreme complexity." Proposition 47 was not focused on some tangentially related subject; both it and Proposition 36 sought to bring about the release of nondangerous prisoners in order to free resources for other purposes. The one similarity between this case and Chavez is that section 1170.18(c)was indeed intended to "fix a mistake" in a sense, and for that reason should be applied retroactively. But its use of the phrase "throughout this Code" bears no resemblance to the drafting error found in Chavez or in any of the other cases I have examined.

More nearly resembling this case is this court's decision in In re Gabriel G. (2005) 134 Cal.App.4th 1428 , 1436, 36 Cal.Rptr.3d 847 , where we rejected an argument by a child welfare agency that a statutory provision governing dependency dispositions "must have been inadvertent" because it would produce consequences the Legislature could not have intended. We noted that the language at issue had been adopted to correct "what was unquestionably a drafting error," i.e., a transposed "or" in the phrase, " 'paragraph (1), (3), or of subdivision (b).' " ( Id. at p. 1437, 36 Cal.Rptr.3d 847 , quoting Stats.2003, ch. 813, § 7, p. 4749.) The Legislature's attention

one of the two assertedly conflicting paragraphs or to rewrite some of their provisions. Although we may properly decide upon such a construction or reformation when compelled by necessity and supported by firm evidence of the drafters' true intent (see, e.g., People v. Skinner (1985) 39 Cal.3d 765 , 775, 217 Cal.Rptr. 685 , 704 P.2d 752 ), we should not do so when the statute is reasonably susceptible to an interpretation that harmonizes all its parts without disregarding or altering any of them ." ( Id. at p. 6, 87 Cal.Rptr.2d 114 , 980 P.2d 829 , italics added.)

Here no "necessity" compels us to disregard the plain meaning and effect of "throughout this Code." Nor is there any "firm evidence," or any evidence, that this language contravenes, subverts, frustrates, impairs, conflicts with, or departs from the "drafters' true intent." On the contrary, the only reliable evidence of that intent is the statutory language itself. The cases concluding otherwise have declined to adhere to the voters' plainly expressed intent not because it is repugnant to anything in the statutory language or history, but because it is not corroborated by some additional evidence assuring us that the voters really meant what they quite clearly said. Such an approach cannot be validated by invoking the concept of a "drafting error."

C. Intrinsic Confirmation of Literal Meaning

If I thought there were sufficient reason to look behind the plain meaning of section 1170.18(c), I would begin with a careful examination of the text of that and related provisions. This is appropriate because " '[i]n interpreting a voter initiative ...', "we turn first to the language of the [initiative], giving the words their ordinary meaning." [Citation.] The [initiative's] language must also be construed in the context of the statute as a whole and the [initiative's] overall ... scheme." ( Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016 , 1037, 56 Cal.Rptr.3d 814 , 155 P.3d 226 , quoting People v. Rizo (2000) 22 Cal.4th 681 , 685, 94 Cal.Rptr.2d 375 , 996 P.2d 27 , bracketed material in original; see People v. Arias (2008) 45 Cal.4th 169 , 177, 85 Cal.Rptr.3d 1 , 195 P.3d 103 ["If the words in the statute do not, by themselves, provide a reliable indicator of legislative intent, '[s]tatutory ambiguities often may be resolved by examining the context in which the language appears and adopting the construction which best serves to harmonize the statute internally and with related statutes.' "].) Such an examination reveals considerable textual evidence that the drafters of Proposition 47 did positively intend to extend Proposition 47's dangerousness standard to Proposition 36 petitions.

First, as pointed out above, shortly before using the phrase "this Code" to describe the reach of the definition in section 1170.18(c), the drafters had deliberately adopted the phrase " 'this act' " as shorthand for Proposition 47. (§ 1170.18, subd. (a).) They proceeded to employ this shorthand

phrase no fewer than seven times in

borrowed from Proposition 36 and incorporated the new test directly into section subdivision (b), eliminating any need for subdivision (c). This would not only shorten and simplify Proposition 47; it would obviate any risk that Proposition 36 petitioners would attempt to take advantage of the new test. That the drafters instead lifted a phrase from Proposition 36, and then redefined it in a substantially narrower way, can only be explained as intended alter the rule of decision in Proposition 36 petitions so as to constrain the broad discretion courts had been exercising to deny relief under that measure.

no significance to them because it is "unclear how widely disseminated these arguments were prior to the election and if the electorate was even aware of these arguments before they voted Proposition 47 into law." (Lead opn. at p. 18, fn. 8.) But this, again, reverses the burden of proof. The burden is not on the proponent of a measure's plain meaning to adduce extrinsic evidence proving that voters were made subjectively aware of a contested effect. The burden is on those who would disregard the plain meaning to adduce affirmative evidence that the effects flowing from the measure's language are contrary to the will of those who adopted it. Evidence that the true meaning and effect of the statute were acknowledged in public debate is relevant to refute claims of voter ignorance, though it is by no means necessary. In any event it cannot be ignored due to mere doubts about "how widely disseminated these arguments were." Where the plain meaning of an enactment is challenged on the ground that voters did not understand its legal effect, it seems to me that any evidence of public awareness has a logical tendency to rebut the factual premise on which the challenge rests.

Evidence that a challenged effect was acknowledged and debated in the public arena also flatly refutes any suggestion that the effect was so subtle as to go entirely unnoticed. Implicit in some of the not-to-be cited decisions is the suggestion that the drafters had essentially duped voters by slipping a redefinition of dangerousness into Proposition 47 without highlighting its effect on Proposition 36 petitions. Again, I do not think such a premise affords any occasion for judicial abrogation of plain statutory language. If

are constrained by considerations of space, time, and comprehensibility, requiring countless judgments by the contributors to the pamphlet as to what effects of a measure are sufficiently material to warrant discussion. The official summary of any ballot measure is authored by the office of the Legislative Analyst. (Elec.Code, §§ 9087, 9086, subd. (b).) The summary is required only to "generally set forth in an impartial manner the information the average voter needs to adequately understand the measure ." (Elec.Code, § 9086, subd. (b), italics added.) The preparer of such a summary must be given considerable latitude in determining what to include. (See Brennan v. Board of Supervisors (1981) 125 Cal.App.3d 87 , 96, 177 Cal.Rptr. 677 ["Faced with the difficult task of simplifying a complex proposal, the Committee drafted a summary which, if not all-encompassing, at least briefly described its major subjects."]; ibid .["[T]he Committee's ballot summary, while technically imprecise, omitted only auxilliary [ sic ] or subsidiary matters, fairly represented the measure and thus was in substantial compliance with the law."].) In particular, there is no requirement that the analysis attempt to describe every way in which a measure may change the law; rather it " may contain background information, including the effect of the measure on existing law ." (Elec.Code, § 9087, subd. (b), italics added.) The Analyst is thus called upon only to make a rational judgment about what effects are most likely to matter to voters, and to describe them in a fair and intelligible way. Given the limited number of persons affected by the use of "this Code" in section 1170.18(c), it seems entirely likely that the Analyst failed to mention it not out of ignorance or neglect but because it was expected to matter less to voters than other features of the measure.

Assuming the Legislative Analyst does not find a given effect sufficiently material to warrant mention, the burden then falls to the official proponents and opponents of a measure to highlight any effects that they believe (1) may otherwise escape voters' attention, and (2) may affect the vote of a significant number of electors. To be sure, determining what effects to mention in these arguments may require an even more radical triage than is required of the Legislative Analyst. Official ballot arguments are apparently restricted to 500 words for opening and 250 words for rebuttal. (See Elec.Code, §§ 9062, 9069, cf. id ., § 9041.) This means the advocates must select a limited number of points to include in the official argument, relying on other modes of communication for any other points they believe may induce voters to cast a ballot in their favor.

I believe that courts are constrained by the separation of powers to trust not only the ballot contents, but arguments in the public arena, to ensure that the text of

was president of an organization that contributed to an entity whose website highlighted that effect as a reason to vote no. Their failure to cite this effect in the ballot pamphlet supports an inference, not that the effect was too obscure to be noticed, but that opponents did not think it a powerful enough argument for inclusion in the limited space available to them. This in turn suggests that by invalidating the plainly expressed will of the voters, the courts are handing opponents of the measure a victory

has thus not been finally adjudicated or decided. Voters could well anticipate that at least these petitioners would be able to avail themselves of the change in law occasioned by section 1170.18(c). To suppose otherwise is to assume that they did not intend the measure to have any retroactive effect-a point the majority professes not to address. (See Lead opn., p. 22, fn. 9.)

I will concede the third premise, for present purposes, to this extent: there may indeed be no procedure by which, on November 4, 2014, a prisoner could mount a challenge, based upon the change in law effected by section 1170.18(c), to the denial of a Proposition 36 petition that had been denied in the trial court and had passed beyond the time for appellate review . (See 6 Witkin & Epstein, Cal.Criminal Law (4th ed. 2012) Criminal Judgment, § 193, pp. 238-240[writ of error coram nobis (motion to vacate) ]; 3 Witkin & Epstein, supra, Punishment, § 394, pp. 608-609 [ordinary motion to recall sentence]; 6 Witkin & Epstein, supra, Criminal Writs, § 45-66, pp. 655-684 [grounds for habeas corpus]; cf. In re Estrada (1965) 63 Cal.2d 740 , 744-745, 48 Cal.Rptr. 172 , 408 P.2d 948 [inference that legislative reduction in punishment was intended to benefit all defendants whose convictions were not yet final].) But the argument fails without or without the third premise, so long as Proposition

may act on the basis of one or two cases, or for that matter anecdotes, concerning an undesirable consequence of existing law. They are fully empowered to adopt corrective measures whether the class of those benefited proves to count a million, a hundred, or one. Nor is there anything "illogical" about extending a remedy to less than the entire universe of persons to whom it might have been extended. Logic does not demand that all aboard must drown merely because there are too few life rafts for everyone.

Finally, I find the reasoning under scrutiny to be self-contradictory. It imputes to voters a refined calculus about the effect of their enactment on Proposition 36 petitions, but then supposes that they must have considered that effect too trivial to pursue. Of course, if voters indeed understood the effect of section 1170.18(c)and did not wish to bring that effect about, they would have defeated the measure. To overturn the unambiguous words they enacted on the ground that they understood what the language of the measure would accomplish, but did not intend it, is to adopt a mode of statutory construction I have never seen before and cannot join in introducing to our law.

The majority finds tension between the literal meaning of section 1170.18(c)and a provision in Proposition 47 declaring that "[n]othing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this act." (Pen.Code, § 1170.18, subd. (n)(§ 1170.18(n)).) According to the majority, "Applying the definition of 'unreasonable risk of danger to public safety' from section 1170.18to section 1170.126, would undoubtedly diminish the finality of those three strikes judgments that do not involve a nonserious, nonviolent property or drug crime." (Lead opn. at p. 21, italics added.) I cannot agree. There is no reason to suppose section 1170.18(n)was intended to preclude

"diminish[ed] or abrogate[d] the finality" of the judgment before us. The only effect of Proposition 47 is to provide a rule of decision on a subsidiary issue, i.e., whether to deny relief on grounds of dangerousness. Defendant is not relying on Proposition 47 to attack the judgment. He is invoking section 1170.18(c)to provide the rule of decision for a subsidiary issue because that is what the cited section mandates. Complying with that mandate does not "diminish or abrogate" the original judgment, even if it proves dispositive of the Proposition 36 petition. It is still Proposition 36, not 47, that impairs the finality of defendant's sentence.

Had the drafters and voters intended to achieve the result urged by the majority, they could have simply done what the court has now done on their supposed behalf: replaced "throughout this Code" with "in this act" in section 1170.18(c). I would give effect to all of the language chosen by the voters, including the directive that section 1170.18(c)'s definition of dangerousness govern determinations of that issue in Proposition 36 proceedings.

X. Presumptions Favoring Literal Construction

The majority's construction of section 1170.18(c)runs afoul of at least two familiar presumptions concerning the interpretation of doubtful statutory provisions. One dictates that remedial statutes such as Proposition 47 are to be broadly construed in favor of parties invoking their terms. (See People v. Zeigler (2012) 211 Cal.App.4th 638 , 658, 149 Cal.Rptr.3d 786 ["The Proposition 36 statutory scheme is clearly remedial in nature and ...", " 'under well-settled rules of judicial construction, such a statute is to be liberally construed to promote the objects to be accomplished by it.' "]; People v. Rivas-Colon (2015) 241 Cal.App.4th 444 , 451, 193 Cal.Rptr.3d 651 , quoting People v. Sherow (2015) 239 Cal.App.4th 875 , 880, 191 Cal.Rptr.3d 295 ["Section 1170.18is a 'remedial statute[.]' "].) Indeed, two uncodified sections of Proposition 47, and one of Proposition 36, explicitly dictate such a construction. (See 3 West's Session Laws (2013-2014), pp. A-20 - A-21, §§ 15, 18; 3 West's Session Laws (2011-2012), p. A-53, § 7.)

The other presumption directs that in the absence of more reliable guidance, doubtful provisions of penal statutes are to be construed in favor of the defendant. ( People v. Johnson (2007) 150 Cal.App.4th 1467 , 1481, 59 Cal.Rptr.3d 405 ["Where the statute is susceptible of two reasonable constructions, a defendant is ordinarily entitled to that construction most favorable to him."].) If this rule does not apply here, it is only because section 1170.18(c)contains no ambiguity that the presumption can operate to resolve. (See ibid .;

stand in relative equipoise.' " ' [Citation.] Where that situation exists, the court must 'prefer the interpretation that is more favorable to the defendant.' [Citation.]"].) Here there is just one literal meaning. But if the majority's reading of the statute did stand in "relative equipoise" with the plain meaning of the statute ( People v. Ramirez, supra, 224 Cal.App.4th at p. 1085, 169 Cal.Rptr.3d 260 ), this presumption would militate in favor of the latter.

Conclusion

I see no colorable basis here to depart from the plain terms enacted by the voters. I would reverse the judgment with directions to reevaluate the petition in light of the definition of dangerousness set forth in section 1170.18(c).