Filed 4/15/15 P. v. Turnage CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----



THE PEOPLE,                                                                                  C075153

                   Plaintiff and Appellant,                                    (Super. Ct. Nos. CRF041665,
                                                                                       CRF065019)
         v.

BARRY TURNAGE,

                   Defendant and Respondent.



         This is an appeal by the People. The sole issue is whether a defendant who was
originally sentenced to an indeterminate term under the “three strikes” law as it stood
prior to November 7, 2012, the operative date of the Three Strikes Reform Act of 2012
(the Act), and whose sentence is vacated on appeal and the matter remanded for
resentencing after November 7, is entitled to be resentenced to a determinate term as
provided by the Act’s amendment to the three strikes law. The trial court herein
concluded defendant was so entitled because this court’s having vacated his sentence
rendered him an unsentenced defendant within the meaning of the Act and therefore
imposed a determinate sentence.


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        For reasons we explain, we conclude that, consistent with the intent of the Act, it
is the date upon which the defendant’s sentence was originally imposed that determines
whether the defendant is entitled to be sentenced under the Act. Because defendant
herein was originally sentenced prior to November 7, he was not entitled to be sentenced
under the Act. Accordingly, we shall vacate defendant’s sentence and remand the matter
for resentencing.
                                         THE ACT
        On November 6, 2012, the voters passed the Act and it became operative on
November 7, 2012. The Act consisted of two parts, one prospective and the other
retrospective. The prospective part amended the three strikes law (Pen. Code, §§ 667,
subds. (b)-(i), 1170.12)1 to provide second-strike sentencing to defendants who were to
be sentenced on or after November 7, who had two or more prior serious or violent
felony convictions but whose present felony was neither serious nor violent nor were the
defendants excluded because they came within the scope of other specified circumstances
(§ 667, subd. (e)).2
        The retrospective part of the Act added section 1170.126 to the Penal Code. This
section permitted defendants who were serving indeterminate three-strike sentences
imposed prior to November 7, 2012, to petition the trial court for resentencing as second-
strike offenders if the felony for which they were serving the indeterminate term was not
a serious or violent felony and they were not excluded from such sentencing because they
came within the scope of other specified circumstances. Defendants meeting these


1   References to undesignated statutes are to the Penal Code.
2 Section 667, subdivisions (b)-(i) is the Legislature’s version of the three strikes law,
and section 1170.12 is the voter initiative version of the three strikes law. The two
versions are almost identical. (See People v. Hazelton (1996) 14 Cal.4th 101, 103-109.)
While our analysis herein is made with reference to the Legislature’s version of the law,
our analysis is equally applicable to the voter initiative version.

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threshold conditions were entitled to be resentenced as second-strike defendants unless
the trial court found that they posed an unreasonable risk of danger to the public.
(§ 1170.126, subds. (b)-(f).)
                                PROCEDURAL HISTORY3
       In August 2008 defendant Barry Turnage, who had two prior serious felony
convictions, was sentenced to an indeterminate term of imprisonment under the three
strikes law (§ 667, subds. (b)-(i)) based upon his being convicted by a jury of maliciously
placing a false bomb (§ 148.1, subd. (d)), a felony. Defendant appealed, and in a decision
filed in 2010 we affirmed his conviction but held that the false bomb offense was not
punishable as a felony. We vacated defendant’s sentence and remanded the matter for
resentencing as a misdemeanor. Because defendant was no longer eligible for sentencing
under the three strikes law, we did not address his additional contention that the evidence
was insufficient to support one of his prior strike convictions.
       In 2010 the California Supreme Court granted the People’s petition for review.
(People v. Turnage (2012) 55 Cal.4th 62, 67.) In August 2012 the Supreme Court
affirmed defendant’s conviction but reversed our holding that the offense was not
punishable as a felony, and remanded the matter to us for further proceedings. (Id. at
pp. 80-81.) We ordered supplemental briefing, and in May 2013 we filed our opinion,
vacating defendant’s sentence and remanding to the trial court for a retrial on the
allegation that defendant had suffered a 1985 conviction for assault with a deadly
weapon. The remittitur issued in July 2013.
       In September 2013 a jury found defendant’s prior strike conviction allegation true,
and in October 2013 the matter came before the trial court for resentencing. After
hearing arguments the trial court concluded defendant was entitled to be sentenced



3 We take judicial notice of our records in defendant’s prior appeal in case C059887.
(Evid. Code, § 452, subd. (d).)

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pursuant to the Act, reasoning as follows: “The defendant is presently unsentenced. The
true finding as to his second strike occurred after the amendment to Penal Code
Section 667. The Court finds that under the facts of this case the amended Penal Code
Section 667 applies. The defendant’s conviction of Penal Code Section 148.1 is not a
serious or violent felony. None of the exclusions under [section] 667 apply. Therefore,
an indeterminate sentence may not be imposed.” The court then imposed a determinate
term of six years (the upper term of three years, doubled because of the strike) plus an
effective consecutive term of one year four months for a separate case for which
defendant was on probation.
                                        ANALYSIS
       “In interpreting a voter initiative, we apply the same principles that govern our
construction of a statute. [Citation.] We turn first to the statutory language, giving the
words their ordinary meaning. [Citation.] If the statutory language is not ambiguous,
then the plain meaning of the language governs. [Citation.] If, however, the statutory
language lacks clarity, we may resort to extrinsic sources, including the analyses and
arguments contained in the official ballot pamphlet, and the ostensible objects to be
achieved. [Citations.].” (People v. Lopez (2005) 34 Cal.4th 1002, 1006.)
       The Act makes clear that a defendant whose original sentence is to be imposed on
or after November 7, 2012, and who qualifies for sentencing under amended section 667,
subdivision (e) must be sentenced under that section. However, the Act does not address
whether, as here, a defendant originally sentenced before November 7, but whose
sentence was vacated on appeal and the matter remanded for resentencing after
November 7, is in the same unsentenced position as he or she was when originally
sentenced. Thus, in such circumstances the Act is ambiguous, and therefore it is
appropriate to look to extrinsic evidence, such as the argument contained in the
Amendment’s ballot pamphlet, to determine voter intent. (People v. Yearwood (2013)
213 Cal.App.4th 161, 171 (Yearwood).)

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       According to the Act’s proponents, one of the primary purposes of the Act was to
make the punishment fit the crime while guarding public safety. (Yearwood, supra,
213 Cal.App.4th at p. 171.) As to making the punishment fit the crime, proponents of the
Act argued that people who were convicted of such crimes as “ ‘shoplifting a pair of
socks, stealing bread or baby formula don’t deserve life sentences.’ ” (Ibid.) Public
safety was addressed by limiting application of the Act to defendants whose crimes for
which they were to be sentenced or had been sentenced were neither serious nor violent
felonies, nor did they come within the scope of other specified offenses or circumstances.
(§ 667, subd. (e).) Indeed, the voters were expressly assured that dangerous persons
would not be released under the Act: “Criminal justice experts and law enforcement
leaders carefully crafted [the Act] so that truly dangerous criminals will receive no
benefits whatsoever from the reform. Repeat criminals will get life in prison for serious
or violent third strike crimes.” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012)
argument in favor of Prop. 36 [(the Act)], p. 52.)
       “The main difference between the prospective and the retrospective parts of the
Act is that the retrospective part of the Act contains an ‘escape valve.’ ” (People v.
Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1293 (Kaulick).) The escape
valve provides that even if a defendant meets the threshold requirements for resentencing,
namely, that the sentence he was now serving was not for a serious or violent felony and
that he did not come within any other of the disqualifying conditions, the court is still
authorized to deny resentencing if the court determines that “ ‘resentencing the
[defendant] would pose an unreasonable risk of danger to public safety.’ ” (Ibid.)
       The circumstances of Kaulick, which we discuss in detail, post, demonstrate the
need for such an escape valve. (Kaulick, supra, 215 Cal.App.4th at p. 1293.) In 1999,
after violently assaulting his neighbor, Barbara S., Kaulick was charged with false
imprisonment by violence (§ 236), assault with intent to commit rape (§ 220), and
making criminal threats (§ 422), the latter two offenses being violent or serious felonies.

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(Kaulick, at pp. 1286-1287.) It was also alleged that he had two prior serious or violent
felony convictions. (Id. at p. 1287.) In 2000 a jury convicted him of false imprisonment,
which is not a serious or violent felony, but deadlocked on the remaining charges, which
were ultimately dismissed at the prosecution’s request. (Id. at pp. 1287-1288.) The court
found the alleged prior serious or violent felony allegations true and sentenced Kaulick to
25 years to life in state prison. (Ibid.)
       In December 2012, around 12 years after his sentencing, Kaulick filed a petition
for resentencing under section 1170.126. (Kaulick, supra, 215 Cal.App.4th at p. 1289.)
Kaulick asserted he was entitled to resentencing because his conviction was for false
imprisonment, which was neither a serious nor violent felony. He minimized his
dangerousness by claiming that his present conviction arose from his effort to retrieve a
gold necklace Barbara S. had purportedly stolen from him, and he claimed that his prior
convictions arose from a family dispute gone awry for which he had naively accepted a
plea bargain. (Ibid.) He submitted no evidence whatsoever regarding his behavior while
in prison or his current risk of dangerousness. (Ibid.) On December 31, 2012, the trial
court, without giving notice or opportunity to be heard to the district attorney, granted the
petition and resentenced Kaulick to seven years. (Id. at pp. 1289-1290, 1296.) Because
Kaulick had served more than seven years, he was entitled to immediate release from
prison. (Id. at p. 1290.)
       The district attorney sought and obtained an immediate 30-day stay. (Kaulick,
supra, 215 Cal.App.4th at p. 1290.) A review of Kaulick’s prison records disclosed that
he had been found guilty of serious rules violations—twice for battery on a peace officer
(2002, 2005); six times for fighting (2001, 2003, 2007, 2010, 2011, 2012); and once for
disrespecting staff (2011), possession of alcohol (2009), being under the influence of
alcohol (2008), and destruction of property (2002). (Ibid.)
       The district attorney also reviewed the facts of Kaulick’s present and past
convictions, which the defendant had minimized in his petition. (Kaulick, supra,

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215 Cal.App.4th at p. 1290.) As to Kaulick’s claim that his false imprisonment
conviction arose out of his efforts to recover a necklace Barbara S. had purportedly stolen
from him, he neglected to include evidence from the trial that Barbara S. was helping
defendant move out of his apartment when he closed the door, tore her blouse, choked
her, threatened to kill her, threw her on his bed, ordered her to remove her clothes, and
unbuckled his belt. (Id. at pp. 1286-1287.) Barbara S. managed to escape by kicking
defendant between his legs and fleeing. (Id. at p. 1287.) As to prior strike convictions
purportedly having arisen from a family dispute gone awry, evidence from the
preliminary hearing showed that Kaulick arrived at his parents’ motor home drunk and
demanded a gun from his father. When his father refused, Kaulick repeatedly punched,
strangled, and threatened to kill him. Kaulick eventually got the gun and kidnapped his
parents in their motor home. After consuming more alcohol, defendant drove back to
where the motor home had been parked, released his parents, and drove off in their motor
home, leaving them abandoned. (Id. at p. 1287, fn. 3.)
       A writ of mandate directed the trial court to vacate its resentencing of Kaulick
under the Act and to conduct a new hearing wherein the prosecution was afforded the
opportunity to challenge Kaulick’s qualification for resentencing under section 1170.126.
(Kaulick, supra, 215 Cal.App.4th at pp. 1306-1307.)
       In the present case, by sentencing defendant pursuant to the prospective part of the
Act the trial court permitted defendant to bypass having the trial court determine whether,
as in Kaulick, facts existed that established he posed an unreasonable risk of danger to
public safety based upon any evidence relevant on the issue. As in Kaulick, such a
bypass was clearly contrary to the intent of the voters in passing the Act.
                                      DISPOSITION
       Defendant’s sentence is vacated and the matter is remanded to the superior court
with directions to resentence defendant under the three strikes law as it stood at the time
of his original sentencing, which includes the trial court’s discretion to strike one or more

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of his prior strikes if the court determines that he so qualifies. The judgment is otherwise
affirmed.



                                                            RAYE              , P. J.



We concur:



        BUTZ                , J.



        MURRAY              , J.




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