Filed 10/24/14

                           CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                     E058264

v.                                                    (Super.Ct.No. FVI08164)

STEVEN VAUGHN ANTHONY,                                OPINION

        Defendant and Appellant.




        APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. Affirmed.

        Howard C. Cohen, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Warren Williams

and Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.

        Defendant appeals from the superior court’s order denying his petition for

resentencing under the Three Strikes Reform Act of 2012. As discussed below, we
affirm the court’s order denying resentencing on both of defendant’s Three Strikes

sentences because one of them was imposed for a serious or violent felony.

                                   PROCEDURAL BACKGROUND

       On August 10, 2000, a jury convicted defendant of first degree burglary (Pen.

Code, § 459)1 and second degree burglary (§ 459), along with several other counts, and

found true that he had two prior strike convictions (§§ 1170.12, subds. (a)-(d) & 667,

subd. (b)-(i)).

       On April 11, 2001, the trial court sentenced defendant as a third-striker to 25 years

to life for the first degree burglary and a consecutive term of 25 years to life for the

second degree burglary, for a total indeterminate sentence of 50 years to life.

       On appeal, this court upheld defendant’s conviction and sentence but modified the

judgment to reflect additional days of custody credits. (People v. Anthony (May 31,

2002, E029408) [nonpub. opn.].)

       On February 4, 2013, defendant filed a petition for recall of sentence under section

1170.126. On February 15, 2013, the superior court denied the petition. The court found

defendant ineligible for resentencing on either of the indeterminate life terms because one

of them, for the first degree burglary, was imposed for a serious and/or violent felony

under section 1170.126, subdivision (e)(1).




       1   All section references are to the Penal Code unless otherwise indicated.



                                              2
       This appeal followed.2

                                           DISCUSSION

       To understand the issue presented in this case, we must first begin with the portion

of the Three Strikes Reform Act that governs the outcome. Section 1170.126,

subdivision (e)(1), provides as follows: “(e) An inmate is eligible for resentencing if: [¶]

(1) The inmate is serving an indeterminate term of life imprisonment imposed pursuant

to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section 1170.12

for a conviction 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.”

       If defendant’s only third-strike commitment offense were first degree burglary,

which is a serious or violent felony under sections 667.5, subdivision (c)(21) and 1192.7,

subdivision (c)(18), this would be an easy case—he would not be eligible for

resentencing on that conviction. Similarly, if defendant’s only third-strike commitment

       2  We note that the California Supreme Court has granted review in cases that have
found that the trial court’s order on a postjudgment petition pursuant to section 1170.126
is a nonappealable order. (See, e.g., Teal v. Superior Court (2013) 217 Cal.App.4th 308,
review granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941,
review granted July 31, 2013, S212017, briefing deferred pursuant to rule 8.512(d)(2),
Cal. Rules of Court.) Even if we were to conclude it was a nonappealable order, we
could consider, in the interest of judicial economy and because of uncertainty in the law,
that defendant’s appeal is a petition for writ of habeas corpus or petition for writ of
mandate. (See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4 [treating appeal from
nonappealable order as petition for writ of habeas corpus]; Drum v. Superior Court
(2006) 139 Cal.App.4th 845, 853 [Fourth Dist., Div. Two] [treating appeal as petition for
writ of mandate due to uncertainty in the law].) In People v. Leggett (2013) 219
Cal.App.4th 846, 854, the appellate court expressed that when a trial court must
determine whether the prior convictions qualify under the resentencing provision, such
issue is appealable. We will review defendant’s appeal.


                                              3
offense were second degree burglary, which is neither a serious nor a violent felony

under sections 667.5 and 1192.7, this would also be an easy case—he would be eligible

for discretionary resentencing on that conviction. The problem arises here because

defendant is serving consecutive 25-years-to life terms for two different commitment

offenses—one a serious or violent felony, and the other not. Defendant is obviously not

eligible for discretionary resentencing on the first degree burglary. What we must decide

here is whether he is eligible for resentencing on the second degree burglary only, given

that his other commitment offense is a serious or violent felony.3

       On November 6, 2012, the electorate passed Proposition 36, also known as the

Three Strikes Reform Act. Among other things, this ballot measure enacted section

1170.126, which permits persons currently serving an indeterminate life term under the

“Three Strikes” law to file a petition in the sentencing court, seeking to be resentenced to

a determinate term as a second striker. (§ 1170.126, subd. (f).) If the trial court

determines, in its discretion, that the defendant meets the criteria of section 1170.126,

subdivision (e), the court may choose to resentence the defendant. (§ 1170.126, subds.

(f) & (g).)

       The eligibility criteria provided in section 1170.126, subdivision (e), are as

follows: (1) the inmate is serving a third-strike life term for a felony that is not serious or


       3  This issue is pending before the California Supreme Court. (Braziel v. Superior
Court, review granted July 30, 2014, S218503; People v Machado, review granted July
30, 2014, S219819; In re Martinez, review granted May 14, 2014, S216922.) We publish
this opinion to provide guidance to our trial courts in the interim.


                                               4
violent; (2) the inmate has no specified “disqualifying factors” for any current offenses,

such as certain sex offenses, drug charges, use of firearms and great bodily injury; and (3)

prior offenses do not include specified crimes such as certain sex offenses, homicide

crimes, certain assaults on peace officers, and felonies punishable by life imprisonment or

death.

         Defendant argues that he is eligible under section 1170.126, subdivision (e)(1),

because he is serving an indeterminate term of life imprisonment imposed under the

Three Strikes law for a felony that was and is not defined as serious or violent, namely,

second degree burglary. Defendant asserts that “Nowhere does subdivision (e)(1) suggest

that an accompanying serious or violent felony (for which the inmate will be ineligible to

seek resentencing) renders the inmate also ineligible to seek resentencing on the non-

serious Three Strike felony.”

         Defendant compares this with the language of section 1170.126, subdivision

(e)(2), which makes it very clear that an inmate is made ineligible for resentencing on an

otherwise eligible offense if his aggregate sentence also includes the specified

disqualifying offenses.

         To summarize, then, defendant contends the difference in language between

section 1170.126, subdivisions (e)(1) and (e)(2) is purposeful, that is, (e)(2) is meant to

completely disqualify an offender whose aggregate sentence includes the disqualifying

offenses, whereas (e)(1) focuses only on the offense for which the inmate seeks to be

resentenced.



                                              5
       The People counter that “an inmate serving an indeterminate term of life

imprisonment” for a felony that is not serious or violent does not include an inmate who

is serving two life terms—one for a serious/violent felony and another for a non-

serious/violent felony. We agree, based on both the language of the statute and the

evidence of voter intent.

       We first look to section 1170.126, subdivision (a), which sets forth the objective of

the statute. “The resentencing provisions under this section and related statutes are

intended to apply exclusively to persons presently serving an indeterminate term of

imprisonment [for a non-violent and non-serious felony], whose sentence under this act

would not have been an indeterminate life sentence” under the Three Strikes law as

amended by the 2012 Act. (Italics added.) The use of the terms “exclusively” and

“persons” directly supports the People’s position that the overall intent of the statute is to

exclude from its benefits any persons whose current commitment offenses include a

serious or violent felony. This language also contradicts appellant’s argument that

portions of the act, specifically section 1170.126, subdivision (e)(1), focus only on the

offense for which an inmate seeks resentencing, rather than on the offender as a whole,

specifically an offender whose current commitment offenses include a serious or violent

felony. A “person whose sentence under this act would not have been an indeterminate

life sentence” cannot, by definition, include an inmate, one of whose commitment

offenses is a serious or violent felony. In other words, an inmate, like defendant, who is

serving life terms for one offense not violent or serious and one offense that is violent or



                                              6
serious is not “a person whose sentence under this act would not have been an

indeterminate life sentence” under the amended Act.

       Second, section 1170.126, subdivision (d) requires the petition for recall of

sentence to “specify all of the currently charged felonies, which resulted in the

sentence . . . .” This requirement that an inmate list all of his commitment felonies

indicates that each of the currently charged felonies affects the inmate’s eligibility for

resentencing, that the sentencing court must consider all of the inmate’s current felonies

in making its eligibility determination, not just the felony for which the inmate requests

resentencing. In addition, this subdivision clearly uses the term “sentence” to mean the

combination of all terms resulting from all of the felonies of which defendant was

convicted in the latest proceedings. Viewed in this light, the use of the word “sentence”

in section 1170.126, subdivision (a), even more clearly indicates that having a serious or

violent felony as one of his commitment offenses disqualifies an inmate from being

resentenced on any of his or her indeterminate life sentences.

       Third, as set forth by our colleagues in the Fifth District in People v. Yearwood

(2013) 213 Cal.App.4th 161, the ballot arguments in favor of Proposition 36, which such

arguments “have been recognized as a proper extrinsic aid in construing voter initiatives

adopted by popular vote,” (Yearwood, at p. 171) repeatedly and plainly stressed that truly

dangerous criminals, namely those convicted of a serious or violent felony, would not

receive any benefit whatsoever from the proposed amendments to the Three Strikes law.

Examples of such language in the ballot arguments are: “‘Prop. 36 prevents dangerous



                                              7
criminals from being released early’”; “‘Prop. 36 will keep dangerous criminals off the

streets’”; and “‘truly dangerous criminals will receive no benefits whatsoever from the

reform.’” (Yearwood, at p. 171, citing the Voter Information Guide, Gen. Elec. (Nov. 6,

2012), pp. 52-53.) These arguments indicate an intent by the voters that an inmate

convicted of a serious or violent felony in the latest proceedings will not benefit, at all,

from the reduced sentencing of the 2012 Act.

       As described above, we conclude that both the language of section 1170.126 and

the evidence of voter intent support the conclusion that an inmate is not eligible for

resentencing under the Three Strikes Reform Act when any of the offenses for which he

or she is serving a Three Strikes sentence is a serious or violent felony. For this reason,

we affirm the superior court’s order in this case denying defendant’s petition for

resentencing.

                                            DISPOSITION

       The court’s ruling is affirmed.

       CERTIFIED FOR PUBLICATION
                                                                         RAMIREZ
                                                                                           P. J.


We concur:

RICHLI
                           J.

MILLER
                           J.




                                               8
