Filed 10/2/14 P. v. Joaquin CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139543
v.
FERNANDO D. JOAQUIN,                                                 (Mendocino County Super. Ct.
                                                                     No. MCUKCR1270703)
         Defendant and Appellant.


         The trial court desired to permit appellant to serve his sentence in local custody
rather than in state prison, believing that doing so was consistent with the purpose of the
Criminal Justice and Realignment Act (Pen. Code, § 1170, subd. (h) (the Realignment
Act)). 1 Acknowledging that such a ruling was inconsistent with the recent opinion in
People v. Delgado (2013) 214 Cal.App.4th 914 (Delgado), the court initially ordered
appellant to be confined in local custody rather than state prison because it believed this
served the interests of justice and Delgado was wrongly decided. Several weeks later,
after the California Supreme Court denied a petition for review in Delgado, the court
recalled the sentence and ordered appellant to serve his sentence in state prison,
reluctantly adopting the conclusion of the Delgado court.
         Appellant claims that Delgado was wrongly decided and the trial court’s initial
ruling was correct, and that recalling his sentence and resentencing him to state prison
was an abuse of discretion because denial of the petition for review in Delgado was “not


         1
             All subsequent statutory references are to the Penal Code.


                                                             1
an expression of opinion of the Supreme Court on the merits of the case.” (Camper v.
Workers’ Compensation Appeals Bd. (1992) 3 Cal.4th 679, 689, fn. 8.)
                                     BACKGROUND
       Appellant, Fernando D. Joaquin, who was 18 years of age at the time, was charged
by the Mendocino County District Attorney with robbery (Pen. Code, § 211), a serious
felony within the meaning of section 1192.7, subdivision (c). The information also
alleged appellant had suffered prior juvenile adjudications for preventing report of a
crime (§ 136.1, subd. (b)(1)), and assault with a deadly weapon (§ 245, subd. (a)(1)), both
of which are “serious” felonies within the meaning of sections 667 and 1170.12. Under
the Three Strikes law, a person convicted of a felony with such a prior juvenile
adjudication must be sentenced to state prison. (§ 667, subd. (c)(4).)
       The robbery charge was on March 30, 2013, amended to grand theft from a person
on the basis of a negotiated plea. (§ 487, subd. (c).) Appellant pled guilty to the
amended charge and admitted the prior strike for a stipulated 16-month low-term
sentence doubled to 32 months. Prior to sentencing, defense counsel contended in her
Sentencing Memorandum that “the stipulated prison commitment, housing [appellant] at
our local county jail ‘prison’ does not contradict the mandates of the Three Strike
initiatives treatment of felons with juvenile strike adjudications.”
       The trial court initially agreed. At the sentencing hearing on May 17, 2013, the
court ordered confinement in the Mendocino County jail. On June 26, 2013, roughly one
month later, the trial court recalled the sentence (§ 1170, subd. (d)) based on the decision
of the California Supreme Court to deny the petition for review in Delgado, supra, 214
Cal.App.4th 914.
       The issue before us here is simply whether, as appellant claims, Delgado was
incorrectly decided.
       As the underlying facts pertinent to appellant’s offense are not relevant to this
legal issue, we deem it appropriate to simply reiterate the People’s concise
summarization: “appellant stole a 15-year-old girl’s cell phone. Appellant’s cousin beat
the girl, and appellant video-recorded the assault on the stolen phone.”


                                              2
                                       DISCUSSION
                                              I.
       The Relationship Between the Realignment Act and the Three Strikes Law
       Under the Three Strikes law, which was enacted by the voters in 1994 as
Proposition 184, felons previously convicted of serious or violent felonies “shall not be
committed to any other facility other than state prison” (§ 667, subd. (c)(4)), and “[a]
prior juvenile adjudication shall constitute a prior . . . felony conviction for purposes of
sentence enhancement . . . .” (Id., subd. (d)(3).) The juvenile adjudication must meet the
criteria specified in section 667, subdivision (d)(3)(A), one of which is that, as here,
“[t]he juvenile was 16 years of age or older at the time he or she committed the prior
offense.”
       Because the Three Strikes law was enacted by initiative, it may not be amended
without voter approval unless the initiative statute explicitly provides otherwise. (Cal.
Const., art. II., § 10, subd. (c).) As noted by the Delgado court, “[t]he Three Strikes law
provides for amendment, but only by supermajority legislation, in other words, by statute
passed in each house with two-thirds of the membership concurring.” (Delgado, supra,
214 Cal.App.4th at p. 918, citing § 667, subd. (j); Prop. 184. Gen. Elec. (Nov. 8, 1994)
§ 4.) The Legislature passed the Realignment Act without voter approval or a two-thirds
supermajority vote. The Realignment Act “requires that most felons be committed to
county jail,” and, like the Three Strikes law, “excludes from its provisions felons who
have prior convictions for serious or violent felonies.” The Realignment Act “is silent,
however, about prior juvenile adjudications.” (Delgado, at p. 918.)
                                              II.
                            The Analysis in People v. Delgado
       The Delgado court acknowledged that the Realignment Act “may reasonably be
interpreted to exclude from a prison sentence those felons whose prior strikes were the
result of juvenile adjudications. The final version of the Act omitted an earlier provision
explicitly requiring such offenders to be housed in prison. [Citation.] When the
Legislature chooses to omit a provision from the final version of a statute which was


                                              3
included in an earlier version, this is strong evidence that the Act as adopted should not
be construed to incorporate the original provision. [Citation.]” (Delgado, supra, 214
Cal.App.4th at p. 918.) Nevertheless, the court concluded that “whatever the
Legislature’s intention when it adopted the Act, it had no power to amend the Three
Strikes law without voter approval or a two-thirds vote of the Legislature. [Citations.]”
(Ibid., italics added.)
       The court rejected Delgado’s argument that the Realignment Act is not subject to
the supermajority restriction “because realignment relates to housing, not determination
of a sentence,” on the ground that one of the unmistakable purposes of the Three Strikes
initiative was “to exclude felons with juvenile strikes from jail,” and “[c]ourts have a
duty to ‘ “ ‘ “jealously guard” ’ ” ’ the people’s initiative power, applying liberal
construction to it wherever it is challenged. [Citation.] The Act does not permit felons
with prior juvenile strike convictions to be housed in any facility other than a state
prison.” (Delgado, supra, 214 Cal.App.4th at pp. 918-919.) Moreover, the court pointed
out, “[w]here justice requires housing such an offender in county jail, the trial court
retains discretion to strike prior juvenile adjudications. [Citation.]” (Id. at p. 919.)
                                             III.
                          The Trial Court’s Reaction to Delgado
       At the initial sentencing hearing on May 17, defense counsel vigorously argued
that appellant should not be sentenced to state prison. Noting that the stipulated sentence
was designed “to avoid another strike,” counsel emphasized that appellant is “essentially
being punished for conduct he committed as a child.” “I think sentencing him to state
prison will subject him to victimization. He’s 5’4”, barely 18 and [prison] will subject
him to violence. He will likely return to the community, you know, in a much more
damaged state. . . . I think the Legislature’s intent was not to house—or not to penalize
juvenile—people with juvenile adjudications, to actually put them in state prison. I don’t
think the Three Strikes law contemplated realignment and the assertion that the sentence
shall be served in state prison.”



                                               4
       The trial court agreed. Indicating that the relevant case law relating to the
distinction between a conviction and a juvenile adjudication was unsettled, and that at the
time the Realignment Act was passed “our county jails were designated as prison
facilities for certain offenses, in fact, most offenses,” the trial judge stated that she did not
believe “that the distinction between a juvenile adjudication and a juvenile conviction in
the area of strikes was properly considered in the Delgado case.”
       The court also felt that appellant’s “participation in this offense was far less in my
view than that of his sister who was the aggressor in the theft from the person. And the
surrounding sort of threatening behavior that went with that offense. He’s 18 years old.
Housing him in state prison, I think, would be against not only the public interest but
certainly Mr. Joaquin’s interest. And I believe that because the Legislature has
designated our county jails to be prison facilities for purpose of prior prison terms, credits
and so forth, that I have the ability under 1170(h) to sentence him to serve his prison
sentence in prison at our local facility.” In making this determination, the court explicitly
recognized that “the People will probably take it up and we’ll see what the Court of
Appeal says.”
       About five weeks later, the court issued an order recalling the sentence pursuant to
section 1170, subdivision (d), stating that it “intends to re-visit whether sentence can be
imposed pursuant to [section] 1170, [subdivision] (h) in light of the Supreme Court’s
denial on June 19, 2013 of the petition for review in [Delgado].”
       At the commencement of the rehearing, the public defender expressed the belief
that “it has to be a prison commitment,” and submitted the issue on the basis of the
understanding that the sentence would be that prescribed by the plea agreement—i.e., “16
months doubled”—with a recalculation of credits for time served and recalculated credits.
The court agreed, stating that “I thought the Supreme Court might take a different view
[than the Delgado court], but once I saw they denied review [in that case], then I felt [it]
incumbent under [section] 1170, [subdivision] (d) [to require that appellant serve his
sentence in state prison].” The court awarded appellant 212 days of credit for work
performance and good behavior time credit (§ 4019), which when doubled resulted in 424


                                               5
days of credit. The court advised appellant that as a result of his total credits he would
have to spend “a few months” in San Quentin State prison.
                                             IV.
                   The Trial Court Did not Err in Following Delgado
       Appellant’s present challenge to Delgado could be ignored due to his failure to
raise it below; indeed, defense counsel appears to have implicitly conceded in the trial
court that denial of the petition for review in Delgado was the expression of an opinion of
the Supreme Court and therefore binding on the trial court. That is clearly not the case,
however. (Trope v. Katz (1995) 11 Cal.4th 274, 287, fn. 1 [“refusal to grant a hearing in
a particular case is to be given no weight insofar as it might be deemed that we have
acquiesced in the law as enunciated in a published opinion of a Court of Appeal”].) As
Delgado is not binding on us, and the issue it addresses is important, we believe it
appropriate to consider appellant’s present legal arguments and determine for ourselves
the correctness of the Delgado court’s reasoning.
       Preliminarily, we agree with appellant, and it is undisputed, that the Realignment
Act was aimed at significantly reducing the size of our prison population in order to
ameliorate the fact that the number of inmates so far exceeds the capacity of our prison
system as to deny inmates medical and mental health care, resulting in the infliction of
cruel and unusual punishment in violation of the Eighth Amendment to the United States
Constitution. (Brown v. Plata (2011) ___ U.S. ___ [131 S.Ct. 1910].) So too do we
agree with appellant, and the Delgado court, that due to the omission in the final version
of the Realignment Act of an earlier provision expressly requiring felons whose prior
strikes were the result of a juvenile adjudications to be housed in state prison, the Act
may reasonably be interpreted to exclude such felons from a prison sentence. (Delgado,
supra, 214 Cal.App.4th at p. 918.)
       But this is beside the point. The issue in this case, as in Delgado, is not the
purpose of the Realignment Act but the constitutional power of the Legislature to amend
the Three Strikes law by less than a supermajority.



                                              6
       Appellant argues that the Realignment Act does not amend section 677, the
initiative version of the Three Strikes law, but rather section 1170.12, the legislative
version of that law, which he asserts is not subject to the provision of section 667
prohibiting amendment except by rollcall vote of two-thirds of the members of the
Legislature or a statute that becomes effective only when approved by a vote of the
people. (§ 667, subd. (j.)) But the language of subdivision (g) of section 1170.12 is
identical to that of section 667, subdivision (j).2 As Delgado said, the Realignment Act
did not satisfy the requirements for amending the Three Strikes law.
       Additionally, the inference appellant draws from the Realignment Act’s omission
of a requirement for housing felons with juvenile adjudications of serious and/or violent
felonies in state prison, while reasonable, is hardly the only one possible. The inference
most easily drawn from this is that the drafters of the Realignment Act were unwilling to
deal with the fact that the purpose of the Realignment Act conflicted with that of the
Three Strikes law, and wanted to obscure the problem or leave it for the courts to resolve.
In any case, the silence of the Realignment Act as to whether felons with prior juvenile
adjudications of serious felonies may be placed in county jail cannot be a basis upon
which to judicially exempt them from the prohibition mandated by the Three Strikes law,
because that would offend the rule that statutes be construed “ ‘ “with reference to the
entire scheme of law of which it is part so that the whole may be harmonized and retain
effectiveness.” [Citation.]’ ” (In re Marriage of Harris (2004) 34 Cal.4th 210, 222,
quoting People v. Pieters (1991) 52 Cal.3d 894, 899.) It is true, as appellant says, that
ambiguities in penal statutes are ordinarily to be construed “as favorably to the defendant
as its language and the circumstances of its application may reasonably permit” (Keeler
v. Superior Court (1970) 2 Cal.3d 619, 631), but that rule of statutory construction cannot
be applied where, as here, it would not only create disharmony within the State’s




       2
          Subdivision (g) was added to section 1170.12 by amendment in 2012. (Prop.
36, § 4, eff. Nov. 7, 2012.)


                                              7
sentencing scheme, but also undermine the initiative power conferred upon the People by
our Constitution.
       Finally, though Delgado concludes that the Realignment Act “does not permit
felons with prior juvenile strike convictions to be housed in any facility other than state
prison,” it concomitantly points out that “[w]here justice requires housing such an
offender in county jail, the trial court retains discretion to strike prior juvenile
adjudications.”3 (Delgado, supra, 214 Cal.App.4th at p. 919, citing People v. Superior
Court (Romero) (1996) 13 Cal.4th 497, 504.) A leading treatise on the Realignment Act
agrees that “whether a defendant with a juvenile strike must be sentenced to prison or
county jail will depend on the court’s handling of the strike. If the court does not dismiss
the strike under section 1385, the defendant must be sentenced to state prison for the
computed term, not because of the realignment exclusion, but because of the
requirements of the Three Strikes law.” (Couzens & Bigelow, Felony Sentencing After
Realignment (Barrister Press, 2014 ed.) § H:1(c), at p. 31.)4
       At the time of sentencing in this case Delgado was, and remains, precedent
binding upon the trial court. We reject the claim that Delgado was incorrectly decided.
Accordingly, the state prison sentence imposed by the court does not constitute an abuse
of discretion.
                                       DISPOSITION
       The judgment is affirmed.




       3
          Given the expressed view of the trial court that justice would not be achieved in
this case by sentencing appellant to state prison, it is apparent that appellant’s failure to
move to dismiss the prior juvenile adjudication was due to the plea agreement, which
enabled him to avoid a second “strike” by reducing the robbery charge to grand theft
from a person.
       4
           http://www.courts.ca.gov/partners/documents/felony_sentencing.pdf


                                               8
                                _________________________
                                Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Stewart, J.




                            9
