Filed 4/14/15 P. v. Israel CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039971
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC440664)

             v.

MAX LEE ISRAEL,

         Defendant and Appellant.



         Defendant Max Lee Israel appeals from an order reducing his sentence pursuant to
Penal Code section 1170.126,1 the resentencing provision of the Three Strikes Reform
Act of 2012. On appeal, defendant contends that the trial court erred in refusing to
consider a Romero2 motion to vacate his prior strike convictions. As set forth below, we
will affirm.




         1
             Subsequent unspecified statutory references are to the Penal Code.
         2
             People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
                                      BACKGROUND3
       On April 6, 2005, a jury convicted defendant of one count of carjacking (§ 215),
one count of vehicle theft with a prior conviction (Veh. Code, § 10851, subd. (a);
§ 666.5), and one count of evading an officer with reckless driving (Veh.Code, § 2800.2,
subd. (a)). The jury found true an allegation that defendant was armed with a firearm
when he committed the carjacking (§ 12022, subd. (a)(1)). In a bifurcated proceeding,
the trial court found true allegations that defendant had three prior strike convictions (§§
667, subds. (b)-(i); 1170.12), two prior serious felony convictions (§ 667, subd. (a)), and
four prior prison terms (§ 667.5, subd. (b)).
       On August 26, 2005, the trial court denied a Romero motion brought by defendant.
That same day, the trial court sentenced defendant to a total prison term of 75 years to life
consecutive to 10 years, as follows: a term of 25 years to life for the carjacking, a
consecutive term of 25 years to life for the vehicle theft, a consecutive term of 25 years to
life for the reckless evasion, and a consecutive term of 10 years for the two prior serious
felony convictions.
       Defendant appealed from the judgment of conviction, making claims of
insufficient evidence, evidentiary error, and improper imposition of consecutive
sentences. In an unpublished opinion, this court affirmed the judgment of conviction.
       On November 20, 2012, defendant filed a pro se “Request for New Sentencing
Under Proposition 36.” The trial court appointed the public defender to represent
defendant on the resentencing matter. The district attorney opposed resentencing,
arguing that defendant was ineligible for resentencing due to his carjacking conviction.




       3
         The facts underlying the crimes of conviction and the prior strike convictions are
not relevant to the issue presented on appeal. We therefore will not summarize those
facts.
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The trial court ruled that defendant was eligible for resentencing, pursuant to
section 1170.126, on the vehicle theft and reckless evasion counts.
       On July 18, 2013, defendant filed a motion to represent himself. At a hearing that
same day, defendant stated that he was ready to immediately proceed on the resentencing,
and the trial court granted defendant’s self-representation motion. Upon the grant of self-
representation, defendant stated his desire to file “motions to strike [his] prior strike
allegations,” and he requested “a 30-day continuance to prepare [himself] for the Romero
hearing.” The trial court stated that defendant had a Romero hearing when he was
originally sentenced in 2005, and that Romero relief was denied at that time. The trial
court ruled that it would not consider a new Romero motion, explaining: “I know of
nothing under the law that would allow a re-litigation of a Romero hearing which was
initially heard by the trial court after the verdict prior to sentencing. . . . [¶] There is
nothing in the law under section 1170.126 or Prop. 36 which says at a resentencing
hearing that the Court will re-litigate a Romero hearing.”
       Immediately after denying defendant’s Romero request, the trial court resentenced
defendant. The trial court found that defendant did not pose an “unreasonable risk of
danger to the public safety if he were resentenced,” and it stated that it would resentence
defendant “as a two-strike offender” on the vehicle theft and reckless evasion counts.
The trial court sentenced defendant to a consecutive term of two years for the vehicle
theft and a consecutive term of one year four months for the reckless evasion. The trial
court noted that defendant’s total sentence was now 25 years to life consecutive to
13 years four months.
                                          DISCUSSION
       Defendant asserts that the “plain language” of the Three Strikes Reform Act of
2012 “makes it clear” that a trial court has authority to “entertain any request pursuant to
Romero to vacate one or more strike priors at the resentencing hearing.” He contends

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that if the trial court here had been aware it possessed such authority, it could have
vacated all of his prior strikes and imposed sentences on the vehicle theft and reckless
evasion counts “as if there were no strikes.” (Italics in original.) He accordingly requests
that we reverse the trial court’s resentencing order, remand the matter for a new
resentencing hearing, and direct the trial court to consider a Romero motion to vacate his
prior strike convictions.
       Defendant’s argument largely ignores the circumstance that he brought a Romero
motion when he was originally sentenced in 2005, and that his Romero motion was
denied at that time. As explained below, defendant has failed to show that he was
entitled to relitigate his Romero motion as part of his resentencing, and we therefore will
affirm the resentencing order.
The Three Strikes Reform Act of 2012
       On November 6, 2012, the voters approved Proposition 36, the Three Strikes
Reform Act of 2012 (hereafter “the Act”), which amended sections 667 and 1170.12 and
added section 1170.126. “The Act changes the requirements for sentencing a third strike
offender to an indeterminate term of 25 years to life imprisonment. Under the original
version of the “Three Strikes” law a recidivist with two or more prior strikes who is
convicted of any new felony is subject to an indeterminate life sentence. The Act dilutes
the Three Strikes law by reserving the life sentence for cases where the current crime is a
serious or violent felony or the prosecution has pled and proved an enumerated
disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike
offender. (§§ 667, 1170.12.) The Act also created a postconviction release proceeding
whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the
Three Strikes law for a crime that is not a serious or violent felony and who is not
disqualified, may have his or her sentence recalled and be sentenced as a second strike
offender unless the court determines that resentencing would pose an unreasonable risk of

                                              4
danger to public safety. (§ 1170.126.)” (People v. Yearwood (2013) 213 Cal.App.4th
161, 167-168 (Yearwood).)
Section 1385 and Romero
       Section 1385 authorizes a trial court to dismiss an action “in furtherance of
justice.” (§ 1385, subd. (a).) In Romero, the California Supreme Court held that, in cases
brought under the Three Strikes law, trial courts have authority to strike prior felony
conviction allegations pursuant to section 1385. (Romero, supra, 13 Cal.4th at p. 504.)
“[T]he Romero decision was limited to whether the Legislature had withdrawn the court’s
section 1385 statutory power to strike prior felony conviction allegations under the Three
Strikes law as set out in sections 667, subdivisions (b) through (i), and section 1170.12 in
the furtherance of justice.” (People v. Brown (2014) 230 Cal.App.4th 1502, 1511
(Brown).)
Standard of Review and Principles of Statutory Interpretation
       Defendant’s appeal requires us to interpret the language of the Act. “Issues of
statutory interpretation are questions of law subject to de novo review.” (People v.
Simmons (2012) 210 Cal.App.4th 778, 790.)
       As noted above, the Act was adopted by voter initiative. “ ‘In interpreting a voter
initiative . . . we apply the same principles that govern statutory construction. [Citation.]
Thus, “we turn first to the language of the statute, giving the words their ordinary
meaning.” [Citation.] 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.] When the language is ambiguous, “we refer to other indicia of the voters’
intent, particularly the analyses and arguments contained in the official ballot pamphlet.”
[Citation.]’ [Citation.] In other words, our ‘primary purpose is to ascertain and
effectuate the intent of the voters who passed the initiative measure.’ [Citation.]”
(People v. Briceno (2004) 34 Cal.4th 451, 459.)

                                              5
Defendant was Not Entitled to Relitigate his Romero Motion
       Defendant contends that section 1170.126, subdivision (k) authorized his Romero
motion and empowered the trial court to vacate his prior strike convictions. Section
1170.126, subdivision (k) states: “Nothing in this section is intended to diminish or
abrogate any rights or remedies otherwise available to the defendant.”
       Defendant’s reliance on section 1170.126, subdivision (k) is unavailing. The plain
language of that subdivision in no way suggests that defendant was entitled to relitigate a
Romero motion that was ruled upon at his original sentencing hearing in 2005. We are
aware of no authority, and defendant provides none, that authorizes a trial court to
reconsider a Romero motion that has already been ruled upon. We accordingly cannot
conclude that relitigation of a Romero motion is one of the “rights or remedies”
contemplated by section 1170.126, subdivision (k). Indeed, interpreting section
1170.126, subdivision (k) as authorizing relitigation of a Romero motion would cut
against well-established principles favoring the finality of judgments. (See In re
White (2004) 121 Cal.App.4th 1453, 1456 [“Established rules of law favor the finality of
judgments.”]; People v. Torres (1992) 6 Cal.App.4th 1324, 1329 [“Collateral estoppel
generally precludes relitigation of matters argued and determined in prior
proceedings.”].) Such an interpretation of section 1170.126, subdivision (k) would also
contradict case law interpreting that subdivision. “Section 1170.126(k) protects prisoners
from being forced to choose between filing a petition for a recall of sentence and
pursuing other legal remedies to which they might be entitled (e.g., petition for habeas
corpus).” (Yearwood, supra, 213 Cal.App.4th at p. 178.) We therefore are not persuaded
by defendant’s contention that section 1170.126, subdivision (k) authorized his Romero
motion.
       Permitting defendant to relitigate his Romero motion as part of his resentencing
under the Act would also contravene the intent of the voters. In approving the Act, “the

                                             6
voters found and declared that its purpose was to prevent the early release of dangerous
criminals and relieve prison overcrowding by allowing low-risk, nonviolent inmates
serving life sentences for petty crimes . . . to receive twice the normal sentence instead of
a life sentence.” (Brown, supra, 230 Cal.App.4th at p. 1509.) The ballot materials for
Proposition 36 stated that the Act would “ ‘[m]aintain that repeat offenders convicted of
non-violent, non-serious crimes . . . will receive twice the normal sentence instead of a
life sentence.’ ” (People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007,
1017, citing Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of proposed law,
§ 1, p. 105, italic omitted.) Effectuating this purpose, section 1170.126 states that an
eligible prisoner “shall” be resentenced as a second strike offender, i.e., with a sentence
that is twice the normal sentence. (§ 1170.126 , subd. (f); see also Yearwood, supra, 213
Cal.App.4th at p. 168 [section 1170.126 provides that eligible prisoners will be
resentenced as second strike offenders].) Based on the foregoing, we must conclude that
the electorate intended for repeat offenders like defendant to be resentenced as second
strike offenders and receive twice the normal sentence. Under defendant’s interpretation
of the Act, the trial court had authority to vacate all of his prior strike convictions
pursuant to section 1385 and sentence him as if he were not a repeat offender. Such an
interpretation of the Act runs afoul of the voters’ intent. (See People v. Luckett (1996) 48
Cal.App.4th 1214, 1219 [“clear legislative intent to abrogate trial courts’ authority to
strike under section 1385 exists where there is a statutory scheme designed to effect a
particular result and where the invocation of section 1385 would nullify that result”].)
We therefore must decline to adopt defendant’s interpretation of the Act.
       For the foregoing reasons, we conclude that defendant was not entitled to relitigate
his Romero motion as part of his resentencing under the Act. The trial court thus did not
err in refusing to consider a Romero motion before resentencing defendant. Finding no
error in the resentencing process, we must affirm.

                                               7
                               DISPOSITION
The resentencing order is affirmed.




                                      8
                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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