Filed 9/20/13 P. v. Zapata CA4/3




                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047277

                v.                                                     (Super. Ct. No. 05WF0647)

JESUS DAMIAN ZAPATA,                                                   OPINION

     Defendant and Appellant.


                     Appeal from a judgment of the Superior Court of Orange County, W.
Michael Hayes, Judge. Affirmed in part and reversed in part with directions.
                     Edward J. Haggarty, 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 and
Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.


                                             *               *               *
              A jury convicted defendant Jesus Damian Zapata of felony false
impersonation (Pen. Code, § 529, subd. (a)(3) (formerly § 529, subd. 3, hereafter former
section 529(3); all further statutory references are to this code unless otherwise
indicated), but found him not guilty of carrying a concealed weapon in a vehicle, and
street terrorism. The trial court thereafter found true allegations defendant had 11 prior
serious or violent felony convictions (§§ 667, subds. (d), (e)(2), 1170.12, subds. (b),
(c)(2)(A)) and had served a prior prison term (§ 667.5, subd. (b)). It dismissed the
allegations of two prior serious felonies (§ 667, subd. (a)(1)) and sentenced defendant to
an indeterminate term of 25 years to life, plus a one-year term under section 667.5,
subdivision (b).
              Defendant contends his false impersonation conviction should be reversed
because substantial evidence does not support it; section 148.9 is a more specific statute
that precludes conviction under former section 529(3); the court erred in failing to
instruct sua sponte on the lesser included offense of attempted false impersonation and
refusing to reduce the offense to a misdemeanor; and that the prosecution of this case,
along with the case against him in Los Angeles County for attempted murder, violated
section 654. He further argues he is entitled to automatic resentencing under the recently
passed Proposition 36 and principles set forth in In re Estrada (1965) 63 Cal.2d 740
(Estrada). We agree with defendant’s last contention and remand the matter for
resentencing but in all other respects affirm the judgment.


                                          FACTS


              In March 2005, defendant was driving his vehicle when he was stopped by
police officer Ramiro Vergara for not wearing a seat belt and failing to signal before
turning. A DMV check revealed the vehicle was registered to Juan Zapata, defendant’s
brother, and that the registration was expired. Defendant identified himself as Juan

                                              2
Zapata, with a birth date of December 18, 1984, and told Vergara the vehicle belonged to
his girlfriend. A records check showed Juan Zapata did not have a driver’s license.
              After backup arrived, Vergara found a pipe in defendant’s pocket, plus
bullets and a loaded gun in the vehicle. Defendant was arrested and taken to the police
station, where he maintained his name was Juan Zapata.
              Vergara completed a prebooking form with the information defendant
provided. He collected evidence from defendant’s hands to test for gunshot residue
(GSR) under the name of Juan Zapata and sent it to the lab for testing under that name. A
DNA sample was also taken from defendant and booked under the name Juan Zapata.
Fingerprints later revealed defendant was actually Jesus Zapata with a birth date in 1978.
Upon being confronted with the information, defendant pleaded the Fifth Amendment.


                                          DISCUSSION
1. Sufficiency of the Evidence
              Former section 529(3) provides, in relevant part: “Every person who
falsely personates another in either his private or official capacity, and in such assumed
character . . . [¶] . . . [¶] 3. Does any other act whereby, if done by the person falsely
personated, he might, in any event, become liable to any suit or prosecution, or to pay any
sum of money, or to incur any charge, forfeiture, or penalty, or whereby any benefit
might accrue to the party personating, or to any other person[.]” The offense may be
“either a misdemeanor or a felony” (People v. Casarez (2012) 203 Cal.App.4th 1173,
1179) and the terms “personate” and “impersonate” are synonymous (id. at p. 1179, fn.
3). Defendant argues his conviction should be reversed because no substantial evidence
exists that he “committed the additional act necessary for a [former] section
529[(3)] . . . violation.” We disagree.
              The extent of the “additional act” has been the subject of considerable case
law. The statute does not require the additional act be intended by the impersonator to

                                               3
subject another person to liability or to create a benefit to himself; it only requires that an
additional act might result in that liability or benefit. (People v. Rathert (2000) 24
Cal.4th 200, 205-206 [“paragraph 3 is framed in language reasonably susceptible of only
one interpretation: that the Legislature sought to deter and to punish all acts by an
impersonator that might result in a liability or a benefit, whether or not such a
consequence was intended or even foreseen. No fewer than seven times does the word
‘any’ appear in the statute . . . . The impersonator’s act, moreover, is criminal provided it
might result in any such consequence; no higher degree of probability is required”].)
               In People v. Cole (1994) 23 Cal.App.4th 1672, the court held that the
defendant’s act of providing a false middle name and birth date to the arresting officer
did not qualify as additional acts under the statute. (Id. at p. 1676.) By contrast, the
defendant in People v. Robertson (1990) 223 Cal.App.3d 1277 (Robertson), abrogated on
another ground in People v. Rathert, supra, 24 Cal.4th at pp. 205-208, falsely
impersonated his brother upon being arrested for stealing a truck and continued to do so
at arraignment by signing his brother’s name on the booking and release forms, resulting
in his brother’s incarceration when the defendant failed to appear at the scheduled
hearing. Robertson upheld the defendant’s conviction, finding the additional acts beyond
the initial impersonation were sufficient to satisfy the statute. (Robertson, at pp. 1282-
1283.)
               Similarly, in People v. Chardon (1999) 77 Cal.App.4th 205, the court held
that by signing her sister’s name on a traffic citation, the defendant “exposed her sister
not only to liability for the citation but also to potential criminal liability for failing to
appear at the scheduled hearing.” (Id. at p. 212.) More recently, in People v. Stacy
(2010) 183 Cal.App.4th 1229, the defendant, who used her cousin’s name when stopped
by the police, refused to take a second mandatory breathalyzer test or provide a blood
sample. The court held the defendant’s refusal to complete the mandatory testing put the
impersonated individual “at risk of liability for refusing to submit to and/or complete the

                                                4
chemical testing requirements under Vehicle Code sections 23612 and 23577. Indeed,
such charges were ultimately levied against [the] defendant when her true identity was
learned.” (Id. at pp. 1235-1236, fn. omitted; but see People v. Guion (2013) 213
Cal.App.4th 1426, 1435 [providing driver’s license in name of impersonated person did
not qualify as “other act” under former section 529(3)]; People v. Casarez, supra, 203
Cal.App.4th at p. 1190 [offering brother’s birth certificate did not satisfy former section
529(3)’s requirement of another act].)
              Here, the uncontroverted evidence shows defendant not only fraudulently
misidentified himself to Vergara, but that he continued the fraud during the post-arrest
process. He allowed GSR to be taken from his hands, then be booked and sent to the
crime lab for testing under his brother’s name. Like the act of signing the citation in
Chardon, this was sufficient to place his brother in significant legal jeopardy because, as
the trial court found, he could have been subjected to criminal prosecution for the crimes
charged in this case, i.e., possession of a concealed firearm in a vehicle, if defendant had
been released without his true identity having been established.
              Defendant maintains he committed no affirmative act and merely
“acquiesce[d] in the booking process and the collection of evidence instigated by law
enforcement” and had he not done so, he would “have committed ‘additional acts’
exposing his brother to potential criminal liability” for resisting an officer in the
performance of his duties (§ 148) as shown by People v. Stacy. Former section 529(3),
however, does not require an “affirmative” act but only an act that might subject the
person falsely personated to “become liable to any . . . prosecution . . . or to incur any
charge, forfeiture, or penalty, or whereby any benefit might accrue to the party
personating . . . .” Defendant’s act of consenting to have GSR be taken from him, be
booked into evidence and submitted for testing in his brother’s name while masquerading
as his brother satisfies the requirement as it subjected his brother to possible criminal
liability.

                                               5
              As for defendant’s claim that he was required to comply with the collection
of evidence, it could be argued the defendants in Robertson and Chardon had to perform
the additional acts of signing a booking form and a release form, or a traffic citation. But
that misses the point, which is that these acts were performed while under the guise of
another person who would be responsible for their consequences. Defendant was not
required to impersonate his brother, and choosing to do so while performing an act of
legal significance placed his brother at risk. This act was not merely part of defendant’s
initial impersonation of his brother, it was an additional act that heightened his brother’s
criminal liability by making him potentially responsible not only for failing to wear a seat
belt and signaling before turning, but also for possessing a concealed firearm in a vehicle.
Under these facts, defendant was not, as he asserts, passively maintaining his false
identity, he was providing further evidence incriminating his brother. What defendant
describes as a lack of affirmative representation was in fact a purposeful failure to correct
the fallacy he had intentionally created.
              By permitting GSR taken from him be booked into evidence under his
brother’s name, defendant exposed his brother to significant criminal liability. Because
this act satisfied the statute and provided substantial evidence to support defendant’s
conviction, we need not discuss his additional claim that his act of allowing his DNA be
taken did not qualify as the required act because it would have “positively identif[ied]
him contrary to his assertion that he was Juan Zapata.”


2. Preclusion of Former Section 529(3) Conviction by Section 148.9
              Defendant contends his conviction is barred by section 148.9, which makes
it a misdemeanor for anyone to falsely represent or identify themselves as someone else
to a police officer “upon a lawful detention or arrest of the person, either to evade the
process of the court, or to evade the proper identification of the person by the



                                              6
investigating officer” (§ 148.9, subd. (a)), because it is a more specific statute than former
section 529(3). We are not persuaded.
              Under the rule set forth in In re Williamson (1954) 43 Cal.2d 651
(Williamson), “if a general statute includes the same conduct as a special statute, the court
infers that the Legislature intended that conduct to be prosecuted exclusively under the
special statute. In effect, the special statute is interpreted as creating an exception to the
general statute for conduct that otherwise could be prosecuted under either statute.
[Citation.] . . . ‘The doctrine that a specific statute precludes any prosecution under a
general statute is a rule designed to ascertain and carry out legislative intent. The fact
that the Legislature has enacted a specific statute covering much the same ground as a
more general law is a powerful indication that the Legislature intended the specific
provision alone to apply. Indeed, in most instances, an overlap of provisions is
determinative of the issue of legislative intent and “requires us to give effect to the
special provision alone in the face of the dual applicability of the general
provision . . . and the special provision . . . .”’” (People v. Murphy (2011) 52 Cal.4th 81,
86.)
              “Absent some indication of legislative intent to the contrary, the
Williamson rule applies when (1) ‘each element of the general statute corresponds to an
element on the face of the special statute’ or (2) when ‘it appears from the statutory
context that a violation of the special statute will necessarily or commonly result in a
violation of the general statute.’” (People v. Murphy, supra, 52 Cal.4th at p. 86.) Even if
the general statute contains an element not within the special statute, “‘[i]t is not correct
to assume that the [Williamson] rule is inapplicable . . . . Rather, the courts must consider
the context in which the statutes are placed. If it appears from the entire context that a
violation of the “special” statute will necessarily or commonly result in a violation of the
“general” statute, the Williamson rule may apply even though the elements of the general
statute are not mirrored on the face of the special statute.’” (Id. at p. 87.)

                                               7
              Defendant acknowledges former section 529(3) contains elements not
included in section 148.9. (See People v. Guion, supra, 213 Cal.App.4th at p. 1436
[“statutory elements of former section 529(3)—false personation and the commission of
an additional act that might expose the person who is falsely impersonated to liability or
benefit the defendant—do not include all of the elements of section 148.9”]; Robertson,
223 Cal.App.3d at p. 1281 [section 148.9 did not bar former section 529(3) prosecution
where section 529 had numerous elements not in section 148.9, including “other act”
element, while section 148.9 requires only “the act of impersonation before a peace
officer upon a lawful detention or arrest, for the purpose of evading the process of the
court or proper identification”].) Yet he argues Robertson’s analysis as to the first test is
not “convincing” and urges us not to follow it. His failure to provide any reasoned legal
argument or citation of authorities forfeits the issue. (People v. Stanley (1995) 10 Cal.4th
764, 793.)
              Defendant’s primary argument is he satisfied the second Williamson test
because “violation of section 148.9 will commonly result in a violation of [former]
section 529[(3)].” Not so because former section 529(3) requires the performance of an
additional act not contained in section 148.9, i.e., an act that might subject the person
impersonated to liability. “[I]f the more general statute contains an element that is not
contained in the special statute and that element would not commonly occur in the
context of a violation of the special statute, we do not assume that the Legislature
intended to preclude prosecution under the general statute. In such situations, because
the general statute contemplates more culpable conduct, it is reasonable to infer that the
Legislature intended to punish such conduct more severely.” (People v. Murphy, 52
Cal.4th at p. 87.)
              According to defendant, “[i]t is a reasonably common occurrence for
people who wrongly choose to give a false name to a peace officer to engage in some
other act that could potentially lead to civil or criminal liability to the person falsely

                                               8
impersonated.” That may be true but it does not follow that such an act commonly
occurs “in the context of a violation of” section 148.9 (People v. Murphy, supra, 52
Cal.4th at p. 87), which is complete once a lawfully detained or arrested defendant falsely
represents or identifies himself to a peace officer to evade the court’s process or proper
identification.
               The contexts of the two statutes are also different. In determining section
148.9 did not bar application of former section 529(3) under the Williamson rule,
Robertson examined the statutory schemes of the two statutes and determined the essence
of former section 529(3) “is to punish the type of fraud perpetrated by means of
impersonation of another person,” while that of section 148.9 “is to punish wrongful
interference with the administration of justice.” (Robertson, 223 Cal.App.3d at p. 1282.)
               Defendant maintains “the nature of these offenses remains very similar.”
He cites the observation in Lee v. Superior Court (2000) 22 Cal.4th 41, that “statutes
prohibiting impersonation have two purposes. One is to prevent harm to the person
falsely represented; the second is to ensure the integrity of judicial and governmental
processes.” (Id. at p. 45.) According to defendant, the second purpose “clearly overlaps”
with section 148.9’s “purpose” to “punish wrongful interference with the administration
of justice.” But Robertson did not say that was section 148.9’s purpose; it merely said
that was its “essence.” (Robertson, 223 Cal.App.3d at p. 1282.) In actuality, “‘[t]he
purpose of [section 148.9] is to require the defendant to give “sufficient information to
allow law enforcement to locate the person if he or she does not appear in court.”’”
(People v. Christopher (2006) 137 Cal.App.4th 418, 429.) The purposes of the two
statutes are thus distinct.
               Because a violation of section 148.9 would not necessarily or commonly
result in a violation of former section 529(3), the Williamson rule does not apply.




                                              9
3. Failure to Sua Sponte Instruct on Attempted False Impersonation
              Defendant asserts the court prejudicially erred in failing to instruct the jury
sua sponte on the lesser included offense of attempted false personation because Vergara
suspected defendant was not who he claimed to be and ran his fingerprints, which
established his true identity. The contention lacks merit.
              A trial court must instruct on its own motion on any necessarily included or
attempted offense when there is evidence sufficient to support a conviction on such an
offense as opposed to the charged offense; in other words, when there is evidence from
which a reasonable jury could conclude that the lesser offense, but not the greater, was
committed. (People v. Breverman (1998) 19 Cal.4th 142, 177.) Attempted false
personation is not a lesser included offense of false personation because the attempted
crime requires specific intent (People v. Bailey (2012) 54 Cal.4th 740, 752-753; People v.
Jones (1999) 75 Cal.App.4th 616, 627; People v. Strunk (1995) 31 Cal.App.4th 265,
271), whereas false personation does not (People v. Rathert, supra, 24 Cal.4th at pp. 205-
208).
              Moreover, the evidence does not show defendant was guilty only of the
lesser and not the greater offense. We have concluded substantial evidence supports
defendant’s conviction for false personation because he falsely identified himself to the
officer and allowed GSR evidence to be taken, booked, and processed under his brother’s
name. “‘An attempt to commit a crime consists of a specific intent to commit the crime,
and a direct but ineffectual act done towards its commission.’” (People v. Jones, supra,
75 Cal.App.4th at p. 627.) Here, neither act was ineffective. The fact Vergara suspected
defendant had falsely identified himself does not show defendant committed an
ineffectual act and does not absolve him of the greater offense. Accordingly, the court
did not have to instruct supa sponte on attempted false personation.




                                             10
4. Denial of Motion to Reduce Conviction to a Misdemeanor
              The court denied defendant’s motion to reduce his false personation
conviction from a felony to a misdemeanor under section 17, subdivision (b), stating it
had “carefully weighed the intent of [former section] 529(3)” to determine whether “this
[was] the type of conduct that should be [reduced to a misdemeanor under 17[, subd.]
(b)[.] [¶] And in my humble opinion, the answer to that question is a sharp no. That if he
had gotten away with the false personation . . . he would have subjected his brother to
liability for the guns in the car, because everybody would have thought it was his brother
driving the car. Whether or not the brother knew the guns were in the car or not, or,
frankly, whether or not the brother put the guns in the car, his conduct would have
subjected him to that for the defendant being in the car.”
              Defendant contends the court erred in so ruling because (1) the jury’s not
guilty verdict on the gun possession charge suggested it did not believe he knew a gun
was in the vehicle, and (2) the evidence shows there was only one gun, not multiples ones
as indicated by the court’s comments. We review the court’s denial of defendant’s
motion for abuse of discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th
968, 977-978.) In exercising its discretion, a court must consider, among other things,
“‘the nature and circumstances of the offense’” (id. at p. 978), as well as general
sentencing objectives such as “[p]rotecting society” and “[p]unishing the defendant” (id.
at p. 978, fn. 5). “‘The burden is on the party attacking the sentence to clearly show that
the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a
showing, the trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
set aside on review.’” (Id. at pp. 977-978.) Defendant failed to make the requisite
showing.
              The record shows the court considered both the nature and circumstances of
defendant’s false personation conviction, which defendant acknowledges was “serious[],”

                                             11
and the general objectives of sentencing, including protecting defendant’s brother and
punishing defendant. In particular, it found defendant’s brother could have been
subjected to prosecution had defendant succeeded in impersonating him. Neither the
circumstance that the jury found defendant not guilty of the possession of a firearm
charge, possibly reflecting its belief he was unaware a gun was in the car, nor the court’s
references “to guns in plural,” negate the fact defendant’s false impersonation of his
brother could have subjected his brother to prosecution for that offense.
              Defendant maintains the denial of his motion was “arbitrary and
capricious” given Vergara’s suspicions regarding defendant’s identity. He states he was
unlikely “to . . . injure[] anyone or impede[] law enforcement” because his attempt to
impersonate his “much younger brother was almost certain to fail . . . .” We decline
defendant’s invitation to reweigh the evidence and substitute our judgment for that of the
trial court. Defendant failed to show the court’s decision to deny his motion was
irrational or arbitrary. Absent such a showing, we presume the court acted to achieve
legitimate sentencing objectives. (People v. Alvarez, supra, 14 Cal.4th at pp. 977-978.)


5. Impermissible Multiple Prosecution Under Section 654
              During trial in this action, defendant moved to dismiss the information on
the ground it violated section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822
(Kellett). He noted that after he was arrested and charged in this case, he was charged in
Los Angeles County with attempted murder with a firearm use enhancement for an
incident occurring in January 2005. He was subsequently convicted of attempted murder
and second degree robbery in the Los Angeles case. In his motion, defendant asserted
that during the Los Angeles trial, Vergara testified about the traffic stop and the recovery
of the gun in the present case and Edward Buse, a forensic scientist with the Orange
County crime lab, testified about the results of DNA analysis performed on the gun,
which was significant because defendant’s DNA profile was apparently recovered from a

                                             12
wig and beanie cap worn by the shooter in the Los Angeles case. Other than confirming
these two witnesses testified in the Los Angeles action, the record contains no evidence
as to what Vergara and Buse testified to. The court denied the motion, finding the
Orange County and Los Angeles County crimes were not connected in their act or
commission within the meaning of section 954 and that joinder was not required although
it was permissible.
              Defendant contends this was error because the gun found in the vehicle he
“was driving, and for which he was charged with possession as a felon, was the same one
used in the attempted murder” prosecution in Los Angeles County, plus Vergara and
Buse testified at both trials. We disagree.
              Section 654, subdivision (a) prohibits both multiple punishment and
multiple prosecution. In Kellett, supra, 63 Cal.2d 822, the Supreme Court, construing
section 654 in the context of the legislative policy of section 954, explained multiple
prosecution is prohibited to avoid “needless harassment and the waste of public
funds . . . .” (Kellett, at p. 827.) Where “the prosecution is or should be aware of more
than one offense in which the same act or course of conduct plays a significant part, all
such offenses must be prosecuted in a single proceeding unless joinder is prohibited or
severance permitted for good cause. Failure to unite all such offenses will result in a bar
to subsequent prosecution of any offense omitted if the initial proceedings culminate in
either acquittal or conviction and sentence.” (Ibid., fn. omitted.) Nevertheless, “the
offenses must be transactionally related, and not just joinable, before the Kellett rule
applies.” (People v. Valli (2010) 187 Cal.App.4th 786, 796 (Valli).)
              Whether the Kellett rule applies “must be determined on a case-by-case
basis.” (Valli, supra, 187 Cal.App.4th at p. 797.) “Appellate courts have adopted two
different tests to determine a course of conduct for purposes of multiple prosecution.”
(Ibid.) “One line of cases finds Kellett not applicable where the offenses are committed
at separate times and locations.” (Ibid.) The other line of cases applies an “evidentiary

                                              13
test” requiring consideration of “the totality of the facts and whether separate proofs were
required for the different offenses.” (Id. at pp. 798, 799.) We review de novo the legal
question of whether section 654 applies. (Id. at p. 794.)
                Defendant’s multiple-prosecution claim fails both tests. Because the
robbery and attempted murder in Los Angeles occurred at a different time and place
(January 2005 in Los Angeles) than the charges in the present case (March 2005 in
Orange County) and were committed against different victims, his claim fails the
“‘different time/different place’” test. (Valli, supra, 187 Cal.App.4th at p. 798.) Nor did
defendant satisfy the evidentiary test, given the absence of any transcript or other
competent evidence to establish what Vergara and Buse testified about in the Los
Angeles case.
                Even if there was such evidence, “[s]imply using facts from the first
prosecution in the subsequent prosecution” is not enough to pass the evidentiary test.
(Valli, supra, 187 Cal.App.4th at p. 799.) Instead, “[d]ifferent evidentiary pictures are
required . . . .” (Ibid.) The evidentiary picture in Valli was “one [prosecution for] a
shooting at night and the other of police pursuits in the following days.” (Ibid.) The
evidentiary picture in the case before us is one prosecution for robbery and attempted
murder at one time and place with one victim and a second for false personation of a
different victim, gun possession by a felon, and street terrorism at a different time and at
a different place. Aside from Vergara and Buse, “[d]ifferent witnesses would testify to
the events,” as in Valli. (Ibid.) Nor did the evidence needed to prove robbery and
murder—that defendant was the robber and shooter—supply proof defendant committed
false personation, possession of a gun by a felon, or street terrorism. (See id. at p. 800.)
                In re Grossi (1967) 248 Cal.App.2d 315, on which defendant relies, does
not persuade us otherwise. Grossi used a revolver to rob a gas station attendant and was
apprehended with the revolver four hours later after he committed a traffic violation and
attempted to elude police. He was charged with armed robbery and being a felon in

                                              14
possession of a firearm; the robbery charge was dismissed for lack of prosecution; and he
pled guilty to and was sentenced for the other offense. After Grossi was recharged with
and convicted of armed robbery, he sought a writ of habeas corpus. The Court of Appeal
held the second prosecution for robbery was barred because the record “fairly reek[ed] of
a single course of conduct, indivisible for purpose of section 654,” and “nothing in the
record to support [the People’s] hypothesis” that between the robbery and the arrest
Grossi had “start[ed] a new course of conduct.” (Id. at pp. 321-322.) Unlike Grossi, the
crimes at issue here did not “‘arise out of the same act, incident, or course of conduct’”
for purposes of the section 654 bar to multiple prosecutions. (People v. Turner (1985)
171 Cal.App.3d 116, 129.)


6. Automatic Nondiscretionary Resentencing Under Proposition 36
              Defendant seeks automatic resentencing under Proposition 36, the Three
Strikes Reform Act of 2012 (the Act), a voter initiative that amended sections 667 and
1170.12 and added section 1170.126. The sole published appellate decision addressing
this issue is People v. Yearwood (2013) 213 Cal.App.4th 161 (Yearwood), review denied
May 1, 2013, S209069, review having been recently granted in two other previously
published cases: People v. Conley (2013) 215 Cal.App.4th 1482 [156 Cal.Rptr.3d 508],
review granted August 14, 2013, S211275 and People v. Lewis (2013) 216 Cal.App.4th
468 [156 Cal.Rptr.3d 747], review granted August 14, 2013, S211494.
              Whether the Act applies retroactively is a question of law that we review de
novo. (People v. Failla (2006) 140 Cal.App.4th 1514, 1520.) “‘In interpreting a voter
initiative . . . , we apply the same principles that govern statutory construction.
[Citation.] Thus, [1] “we turn first to the language of the statute, giving the words their
ordinary meaning.” [Citation.] [2] The statutory language must also be construed in the
context of the statute as a whole and the overall statutory scheme [in light of the
electorate’s intent]. [Citation.] [3] When the language is ambiguous, “we refer to other

                                              15
indicia of the voters’ intent, particularly the analyses and arguments contained in the
official ballot pamphlet.” [Citation]’ [Citation.] [¶] In other words, our ‘task is simply
to interpret and apply the initiative’s language so as to effectuate the electorate’s intent.’”
(Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901.)
              Under the Act, a three strikes sentence may only be imposed where the
current offense is a serious or violent felony, or where the prosecution pleads and proves
a listed exception. (See §§ 667, subd. (e)(2)(C); 1170.12, subd. (c)(2)(C); Yearwood,
supra, 213 Cal.App.4th at p. 170.) Although the Attorney General asserts retroactive
application of the Act would deprive the prosecution of the ability to fulfill the
requirement to “‘plead[] and prove[]’” one of these exceptions, she does not identify any
particular exception that would apply to defendant’s case. Nor has our independent
review revealed any relevant exception. Defendant’s current offense of false
impersonation is not a controlled substance or felony sex offense and there is no evidence
he used or armed himself with a firearm or “intended to cause great bodily injury to”
someone. (§§ 667, subd. (e)(2)(C)(i)-(iii), 1170.12, subd. (c)(2)(C)(i)-(iii).) Defendant’s
prior convictions as alleged by the prosecution in the amended information also did not
satisfy any of the exceptions as they did not involve “[a] ‘sexually violent offense,’” a
sexual or lewd and lascivious act involving a child under the age of 14, homicide,
“[s]olicitation to commit murder,” “[a]ssault with a machine gun on a peace officer or
firefighter,” “[p]ossession of a weapon of mass destruction,” or a felony punishable by
life imprisonment or death. (§§ 667, subd. (e)(2)(C)(iv)(I)-(VIII), 1170.12, subd.
(c)(2)(C)(iv)(I)-(VIII).) Thus, because none of the exceptions applied, and defendant’s
current offense was neither serious nor violent, he would not have been sentenced to 25
years to life had he been sentenced after the Act’s effective date of November 7, 2012.
              The Act also added section 1170.126, which creates a procedure for
“persons presently serving an indeterminate term of imprisonment” (id., subd. (a)) under
the “Three Strikes” law to petition to recall their sentence and be sentenced as a second

                                              16
strike offender if the requirements are met. (Yearwood, supra, 213 Cal.App.4th at p.
170.) The trial court has discretion to deny the petition even if the objective criteria is
met (§ 1170.126, subd. (f)), but sentencing under sections 667, subdivision (e)(2)(C) and
1170.12, subdivision (c)(2)(C) is mandatory once a defendant has met the requirements.
(Yearwood, at pp. 170-171, 176.)
               Defendant contends he is not required to petition for a recall of his sentence
under newly enacted section 1170.126 but is instead entitled to mandatory resentencing
under section 667, subdivision (e)(2)(C) given that neither his current offense nor his
strike priors were disqualifying convictions listed in section 667, subdivision (e)(2)(C) or
section 1170.12, subdivision (c)(2)(C). He relies on Estrada, which held if the
Legislature amends a statute to mitigate the punishment for a particular crime, it must be
assumed it intended the statute be retroactively applied to all defendants whose
judgments of conviction were not final at the time of the statute’s operative date if there
is no other evidence to the contrary. (Estrada, supra, 63 Cal.2d at pp. 742-748.) This
holding applies whenever “the amendatory statute mitigates punishment and there is no
saving clause . . . .” (Id. at p. 748.)
               The Attorney General responds that “amended sections 667 and 1170.12
apply only prospectively to persons sentenced on or after November 7, 2012[, as
s]tatutory amendments are not ‘retroactive, unless expressly so declared.’” (Citing § 3;
People v. Brown (2012) 54 Cal.4th 314, 319.) She asserts that because “[t]he only
provision of the Act that provides retroactive relief is section 1170.126[,] . . . it is there—
and only there—that [defendant] must turn.”
               The Attorney General relies on Yearwood. There, as here, the defendant
would have been entitled to second strike sentencing under the Reform Act if he had first
been sentenced in the trial court after the effective date of the Reform Act. But
Yearwood, like defendant, had already been sentenced and his appeal was pending on the
date the act became effective. In deciding whether the Act applied retroactively,

                                              17
Yearwood noted that “[r]eviewing courts have departed from the Estrada standard ‘only
when new legislation has included an express saving clause or its equivalent or when
some other consideration clearly dictated a contrary result.’ [Citations.] Yet, the
Legislature is not ‘always bound to use the same method, or to enact an explicit saving
clause . . . .’” (Yearwood, supra, 213 Cal.App.4th at p. 173.)
              According to Yearwood, “[t]he Act does not contain a saving clause or refer
to retroactivity. It does not contain a provision explicitly referring to persons . . . who
were convicted of a felony and sentenced to an indeterminate life term as a third strike
offender prior to the Act’s effective date but whose judgments are not final because direct
appellate review is pending.” (Yearwood, supra, 213 Cal.App.4th at p. 172.)
Nevertheless, it concluded “[t]he Estrada rule does not apply to the Act because section
1170.126 operates as the functional equivalent of a saving clause. Section 1170.126 is
not ambiguous. The voters intended a petition for recall of sentence to be the sole
remedy available under the Act for prisoners who were serving an indeterminate life
sentence imposed under the former three strikes law on the Act’s effective date without
regard to the finality of the judgment.” (Ibid.)
              While we do not disagree with Yearwood that sections 667 and 1170.12
“must be examined within the context of the entire Act” (Yearwood, supra, 213
Cal.App.4th at p. 175), we disagree that section 1170.126 is unambiguous. Yearwood
based this conclusion on subdivision (b), which provides that “[a]ny person serving an
indeterminate term of life imprisonment” imposed for a third strike conviction “may file
a petition for a recall of sentence.” (§ 1170.126, subd. (b).) But in order for the Estrada
rule not to be implicated, the Legislature must “clearly signal[] its intent to make the
amendment prospective, by the inclusion of either an express saving clause or its
equivalent.” (People v. Nasalga (1996) 12 Cal.4th 784, 793, fn. omitted, italics added.)
              Yearwood acknowledged the Act does not contain an express saving clause.
(Yearwood, supra, 213 Cal.App.4th at p. 172.) And although Nasalga did not explain

                                              18
what constitutes the “equivalent” of an express saving clause, it held that absent such
clause, the “‘quest for legislative intent[]’” requires “‘that the Legislature demonstrate its
intention with sufficient clarity that a reviewing court can discern and effectuate it.’”
(People v. Nasalga, supra, 12 Cal.4th at p. 793.) Section 1170.126, subdivision (b)’s
phrase “person serving an indeterminate term of life imprisonment” fails to satisfy this
standard because it cannot be determined whether it pertains to prisoners serving
judgments not yet final or only to those serving sentences that are final.
              Yearwood cited two cases in which the ballot initiative or statute under
consideration utilized express language to make an ameliorative statute prospective. The
first of these, People v. Floyd (2003) 31 Cal.4th 179 (Floyd), held the prior Proposition
36, approved by voters on November 7, 2000, applied prospectively only despite its
ameliorative effect because it contained the following express saving clause: “‘Except as
otherwise provided, the provisions of this act shall become effective July 1, 2001, and its
provisions shall be applied prospectively.’” (Floyd, at p. 182.) Floyd concluded the plain
language of this saving clause “reveals an intent to avoid the Estrada rule.” (Id. at p.
185.) The second case, People v. Cruz (2012) 207 Cal.App.4th 664, addressed a statutory
amendment containing a similar express saving clause that the changes apply
“‘prospectively to any person sentenced on or after October 1, 2011.’” (Id. at p. 668,
citing § 1170, subd. (h).) Given this explicit language, the court held “even assuming the
Act mitigates punishment, the rule of Estrada does not apply.” (Id. at p. 672, fn.
omitted.) The fact the Act here contains no similar language provides persuasive
evidence the electorate intended section 667, subdivision (e)(2)(C) to apply to nonfinal
judgments.
              Yearwood also observed “[c]ourts have departed from the Estrada
rule . . . where the legislation did not include an express saving clause. Most recently, in
Brown, supra, 54 Cal.4th 314 . . . , the Supreme Court held that the Estrada rule did not
require retroactive application of ‘a statute increasing the rate at which prisoners may

                                              19
earn credit for good behavior . . . . [Citation.] It reasoned that this statute ‘does not
represent a judgment about the needs of the criminal law with respect to a particular
criminal offense, and thus does not support an analogous inference of retroactive
intent. . . . Instead of addressing punishment for past criminal conduct, the statute
addresses future conduct in a custodial setting by providing increased incentives for good
behavior.’” (Yearwood, supra, 213 Cal.App.4th at p. 174, citing Brown, at p. 325.)
Because awarding the credit retroactively, for time spent in custody before the effective
date of the amendment, would not further that purpose, Brown held there is no logical
basis for inferring that the Legislature intended the amended statute to apply
retroactively. (Brown, at p. 325 & fn. 15.)
              Here, in contrast, retroactive application of section 667, subdivision
(e)(2)(C) is consistent with the proponents arguments in favor of the Act. As set forth by
Yearwood, the argument included in the Voter Information Guide were: “(1) ‘make the
punishment fit the crime’; (2) ‘save California over $100 million every year’; (3) ‘make
room in prison for dangerous felons’; (4) ‘law enforcement support’; (5) ‘taxpayer
support’; and (6) ‘tough and smart on crime.’” (Yearwood, supra, 213 Cal.App.4th at p.
171 [citing the “Voter Information Guide, Gen. Elec. (Nov. 6, 2012) argument in favor of
Prop. 36, p. 52, capitalization omitted”].) Applying the Act retroactively would “‘make
the punishment fit the crime’” and be “‘tough and smart on crime’” (ibid) by precluding
third strike sentences for offenders whose current and prior offenses are nonviolent and
less serious, which in turn would “‘make room in prison for dangerous felons’” and
support law enforcement, as well as save California and taxpayers money by reducing
prison overcrowding (ibid.). It would also enhance public safety by ensuring that the
truly dangerous repeat offenders serve indeterminate life terms, while still imposing
doubled prison terms on less serious recidivists. A logical basis thus exists from which to
infer the electorate intended the Act to apply to nonfinal judgments.



                                              20
              Yearwood asserts the opposite view, noting the ballot arguments showed
“[e]nhancing public safety was a key purpose of the Act.” (Yearwood, supra, 213
Cal.App.4th at p. 175.) According to Yearwood, “[g]iving . . . section[] 667[, subdivision
(c)(2)(C)] . . . prospective-only application supports [that] . . . purpose by reducing the
likelihood that prisoners who are currently dangerous will be released from prison due to
the Act. . . . [S]ection[] 667[, subdivision (c)(2)(C)] do[es] not provide the trial court
with any discretion to impose a third strike sentence based on a finding of current
dangerousness. In contrast, section 1170.126 entrusts the trial court with discretion that
may be exercised to protect the public. . . . [¶] If . . . section[] 667[, subdivision (c)(2)(C)
is] given retroactive application, prisoners in [Yearwood’s] procedural posture would be
entitled to automatic resentencing as second strike offenders without any judicial review
to ensure they do not currently pose an unreasonable risk of danger to public safety. The
time period between sentencing and finality of the judgment can span years. Prisoners
can substantially increase in dangerousness during this interval. An increase in
dangerousness will not always be reflected in new criminal convictions. Also, prisoners
could have been dangerous when the life sentences were imposed and remained
unreasonable safety risks.” (Id. at p. 176.)
              Yearwood’s concerns about retroactively applying section 667, subdivision
(c)(2)(C) may be valid but they are not reflected in the ballot arguments in favor or the
Act and no authority has been cited that unexpressed concerns, even if valid, clearly
indicates voter intent. Additionally, these same apprehensions apply to a qualifying
defendant sentenced after the Act’s effective date, but as Yearwood notes, the trial court
has no discretion to impose a third strike sentence even if it believes a defendant is or will
be dangerous in the future, based on defendant’s conduct in custody or elsewhere.
              Given the Estrada presumption, the absence of any expressed intent or its
clear “equivalent” that the Act apply prospectively only, and the stated intent underlying



                                               21
the Act, we conclude sections 667, subdivision (e)(2)(C) and 1170.12, subdivision
(c)(2)(C) apply retroactively to judgments not yet final on the Act’s effective date.


                                      DISPOSITION


              The cause is remanded and the trial court is directed to hold a resentencing
hearing within 30 days after this opinion becomes final, to impose a sentence in
accordance with sections 667, subdivision (e)(2)(C) and 1170.12, subdivision (c)(2)(C),
and to forward an amended abstract of judgment reflecting the modified sentence to the
parties and the Department of Corrections and Rehabilitation within 30 days after
resentencing. In all other respects, the judgment is affirmed.




                                                  RYLAARSDAM, ACTING P. J.

WE CONCUR:



BEDSWORTH, J.



ARONSON, J.




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