Filed 9/18/14 P. v. Miller CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR



THE PEOPLE,                                                          B254854

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA039926)
v.

LAURENCE LORENZO MILLER,

         Defendant and Appellant.




         APPEAL from order of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Affirmed.
         Suzan E. Hier, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Noah Hill and Jessica C. Owen, Deputy Attorneys General, for Plaintiff and
Respondent.




                                    ______________________________
       Laurence Lorenzo Miller appeals from an order denying his petition to recall his
                                                                                 1
sentence under the Three Strikes Reform Act of 2012 (Pen. Code, § 1170.126). His
petition was denied on the ground that his current conviction, though not classified as a
serious felony at the time of conviction, is now a serious felony rendering him ineligible
for resentencing. We affirm the order.
                    FACTUAL AND PROCEDURAL SUMMARY
       On February 25, 2000, appellant was convicted by a jury of making criminal
threats (then-termed “terrorist threats”), a violation of section 422. Under the Three
Strikes law as it existed at that time, a defendant who had suffered two or more prior
serious or violent felony convictions would receive a mandatory sentence of 25 years to
life for any felony conviction, even if the current crime was not a serious or violent
felony under sections 1192.7, subdivision (c) and 667.5, subdivision (c). Because
appellant was found to have had at least two prior strike convictions, he was given a
mandatory sentence of 25 years to life following his section 422 conviction. We affirmed
the judgment. (People v. Miller (Aug. 2, 2001, B139900) [nonpub. opn.].)
       In 1999, when appellant committed his current offense, a violation of section 422
was not classified as a serious or violent felony. Proposition 21 was approved by the
California voters and became effective on March 8, 2000, adding section 422 to the list of
“serious” felonies. (§ 1192.7, subd. (c)(38); Manduley v. Superior Court (2002)
27 Cal.4th 537, 577.)
       On November 6, 2012, California voters approved Proposition 36, the Three
Strikes Reform Act of 2012 (the Act). Relevant to our inquiry, the Act amended sections
667 and 1170.12 to require courts to impose a mandatory 25 years to life sentence on
defendants with two strike priors only if the defendant’s current offense constituted a
violent or serious felony. A defendant with two strike priors but whose current offense
did not constitute a violent or serious felony would be sentenced as a second strike
offender. The Act also added section 1170.126, a resentencing provision providing an
1
       Subsequent statutory references are to the Penal Code.

                                             2
opportunity for resentencing to inmates serving an indeterminate life sentence but whose
third strike is not a violent or serious felony. Section 1170.126 gives the court discretion,
upon petition, to resentence an eligible inmate as a second striker or deny resentencing if
it determines that the inmate poses an “unreasonable risk of danger to public safety.”
(§ 1170.126, subd. (f).)
       In 2014, appellant filed a petition to recall his sentence pursuant to the Act. The
trial court denied the petition with prejudice, stating that “Defendant’s current conviction
is for criminal threats (Penal Code section 422), which is a serious felony pursuant to
Penal Code section 1192.7(c)(38), making Defendant ineligible for resentencing.”
                                     2
       This timely appeal followed.
                                         DISCUSSION
                                                 I
       This case presents an issue of statutory interpretation: whether, for purposes of
determining an inmate’s eligibility for recall of his sentence under section 1170.126, the
trial court must use the list of serious or violent felonies in effect on November 7, 2012
(the date the Act went into effect) or the list of violent and serious felonies existing at the
                                             3
time the third strike crime was committed.
       Voter initiatives are interpreted according to the same principles used in statutory
construction. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900.) The
“fundamental purpose” of this interpretation is to determine the intent of the voters “as to
effectuate the purpose of the law.” (People v. Pieters (1991) 52 Cal.3d 894, 898.) To do
so, we first look to the plain language of the statute and give it its literal meaning, so long

2
       The appealability of an order denying a petition for a recall is under review by the
Supreme Court. (See, e.g., Teal v. Superior Court (2013) 217 Cal.App.4th 308, review
granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.App.4th 941, review
granted July 16, 2013, S212017.)
3
       On July 30, 2014, the California Supreme Court granted review in two cases
addressing this issue. (See People v. Johnson (2014) 226 Cal.App.4th 620, review
granted July 30, 2014, S219454; Braziel v. Superior Court (2014) 225 Cal.App.4th 933,
review granted July 30, 2014, S218503.) As of this writing, these cases are still pending.
                                                 3
as doing so does not “‘result in absurd consequences’” that the voters did not intend to
bring about. (Ibid.) “‘[T]he intent prevails over the letter, and the letter will, if possible,
be so read as to conform to the spirit of the act.’” (Id. at p. 899.) “[W]e do not construe
statutes in isolation, but rather read every statute ‘with reference to the entire scheme of
law of which it is part so that the whole may be harmonized and retain effectiveness.’”
(Ibid.) “‘We must also consider “the object to be achieved and the evil to be prevented
by the legislation.”’” (People v. Westbrook (2002) 100 Cal.App.4th 378, 383.)
                                               II
       A. Use of the Present Verb Tense in Section 1170.126
       The retroactive resentencing provisions of the Act are codified in section
1170.126. Specifically, section 1170.126, subdivision (b) states that “[a]ny person
serving an indeterminate term of life imprisonment imposed pursuant to [the Three
Strikes law] upon conviction, whether by trial or plea, of a felony or felonies that are not
defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or
subdivision (c) of Section 1192.7, may file a petition for a recall of sentence.” (Italics
added.) Additionally, section 1170.126, subdivision (e)(1) deems an inmate eligible for
resentencing if “[t]he inmate is serving an indeterminate term of life imprisonment
imposed pursuant to [the Three Strikes law] for a conviction of a felony or felonies that
are not defined as serious and/or violent felonies.” (Italics added.)
       In both instances, section 1170.126 refers to definitions of serious or violent
felonies in the present tense. The plain meaning of this language suggests that courts are
to utilize the definitions of serious or violent felonies as they existed on November 7,
2012 in evaluating an inmate’s eligibility for resentencing under section 1170.126. As
the California Supreme Court has noted, the use of verb tense by the legislature is
considered significant. (People v. Loeun (1997) 17 Cal.4th 1, 11.) Respondent contends,
and we agree, that the trial court properly found that appellant was ineligible for




                                               4
resentencing because his current conviction for a violation of section 422 constituted a
                                                                                 4
serious felony under section 1192.7, subdivision (c) as of November 7, 2012.
       Appellant concedes that the use of present tense in the language of
section 1170.126 is significant. However, appellant urges us to look to the manner in
which courts have interpreted other parts of the Three Strikes law, noting that “from its
inception, the determination of whether a crime was a violent or serious felony for
purposes of the ‘Three Strikes Law’ has been based upon the definition of violent or
serious felony in effect at the time of the commission of the crime being punished.”
Appellant cites People v. James (2001) 91 Cal.App.4th 1147 (James) as support, arguing
that although sections 667.1 and 1170.125 also use the present tense, courts have held
                                                            5
that the date of commission of the current crime controls. James was a Three Strikes
case involving a dispute over the classification of the defendant’s prior convictions for
assault with a firearm (a violation of § 245, subd. (a)(2)) and shooting at an inhabited
dwelling, vehicle, or aircraft (a violation of § 246) as “strike” convictions. Neither crime
was a serious or violent felony at the time of commission. But by the time James
committed his potential third strike, Proposition 21 had amended the Penal Code to
include violations of sections 245, subdivision (a)(2) and 246 as serious felonies under
the meaning of section 1192.7, subdivision (c). (James, supra, at p. 1149.) The James
court held that “if a defendant’s current offense was committed on or after the effective
date of Proposition 21, a determination whether the defendant’s prior conviction was for
a serious felony within the meaning of the three strikes law must be based on the
4
       While not raised by either party, we also note that section 7 provides: “Words
used in this code in the present tense include the future as well as the present.” This does
not aid appellant’s position, as the section does not indicate that the present tense refers to
the past.
5
       Appellant also cites to People v. Ringo (2005) 134 Cal.App.4th 870, 884, People
v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 826-830, and In re Jensen
(2001) 92 Cal.App.4th 262, 266, footnote 3. Like James, these cases hold that, for
sentencing purposes, courts should look to the definition of serious or violent felony on
the date of commission of the crime to determine whether prior convictions should be
counted as strikes.
                                              5
definition of serious felonies in Penal Code section 1192.7, subdivision (c) in effect on
March 8, 2000 [the effective date of Proposition 21].” (Id. at p. 1150, italics added.)
       Based on this holZding appellant argues that courts are required to look to the date
of the commission of the current offense in interpreting any provision within the Three
Strikes law, including the resentencing provision. Extending the James holding in this
manner, however, is inappropriate. James addressed only the classification of prior
felony convictions as strike priors during original sentencing proceedings. Given its
context, the fact that James required sentencing courts to look to the date of the
commission of the current crime makes sense. A contrary result would raise ex post facto
implications, as the defendant must have notice that the conduct he is about to engage in
will result in an enhanced punishment. (See People v. Acosta (2009) 176 Cal.App.4th
472, 476 [central concern to ex post facto prohibition is “‘“‘the lack of fair notice and
governmental restraint when the legislature increases punishment beyond what was
prescribed when the crime was consummated’”’”]; Couzens & Bigelow, The Amendment
of the Three Strikes Sentencing Law (Aug. 2014) p. 27
[http://www.courts.ca.gov/documents/Three-Strikes-Amendment- Couzens-Bigelow.pdf]
[as of Sept. 17, 2014].) There are no ex post facto concerns in deciding whether or not to
resentence an inmate under the Act based on the current definition of serious or violent
felonies. The inmate stands only to potentially benefit from this ameliorative law.
Appellant appropriately does not raise any ex post facto arguments. Thus, we reject his
contention that the use of the present tense in sections 667.1 and 1170.125 requires us to
look to the state of the law at the time the current crime was committed for the purpose of
determining eligibility for resentencing under section 1170.126.
       B. Section 1170.125 and its Reference to Section 1170.126
       Appellant’s second argument is that, since section 1170.125 refers to
section 1170.126, the two sections must be interpreted in the same manner. Section
1170.125 states: “Notwithstanding Section 2 of Proposition 184, as adopted at the
November 8, 1994, General Election, for all offenses committed on or after November 7,
2012, all references to existing statutes in Sections 1170.12 and 1170.126 are to those

                                              6
sections as they existed on November 7, 2012.” Appellant notes that Section 1170.125
always has included language limiting its applicability to offenses committed “on or
after” the effective date of its enactment and subsequent amendments. The inclusion of
the “on or after” language in the section makes sense, as it would otherwise raise ex post
facto concerns in cases where the defendant is being sentenced for the first time. It
requires the evaluating court to look at the state of the law at the time the offense was
committed, not at the time of evaluation. Appellant now points to the most recent
amendment to section 1170.125, which makes a reference to section 1170.126. He
argues this reference “makes it clear that the same rule [used in original sentencing
proceedings] applies in cases of petitions for recall.”
       Although it is generally true that language within the same statute must be given
the same meaning, if two provisions of an act have differing purposes, similar language
found in the provisions is not necessarily given the same meaning. (See Smith v. Ben
Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1520.) As mentioned earlier, the purpose of
the prospective sentencing provisions in section 1170.125 is to avoid ex post facto
implications by ensuring individuals have notice that their criminal conduct will be
subject to heightened punishment. The purpose of section 1170.126 is to resentence
inmates serving an indeterminate life sentence based on a nonserious, nonviolent felony
conviction; it does not implicate ex post facto concerns. The two provisions serve
different purposes—one retrospective and the other prospective— and as such, the court
is not required to construe their language in the same manner.
       This, then, raises the question of why the amendment to section 1170.125 contains
a reference to section 1170.126 at all. Couzens and Bigelow state, “The intent of the
amendment to section 1170.125 with . . . respect to the eligibility for resentencing is not
entirely clear. . . . On its face, the amendment makes no sense—section 1170.126 only
applies to crimes committed prior to November 7, 2012. . . . [¶] Likely the intent of the
amendment to section 1170.125, when viewed against the opening paragraph to section
1170.126(a), is to limit the ability to request resentencing to those persons who would be
eligible for a lower sentence had the crime been committed on or after November 7,

                                              7
2012. . . . Based on the objective intent of the amendment to section 1170.125 and the
opening paragraph of section 1170.126(a), eligibility for resentencing must be based on
                                                                             6
the interpretation of statutes as they exist on or after November 7, 2012.” (Couzens &
Bigelow, The Amendment of the Three Strikes Sentencing Law, supra, at p. 28.) We
find this to be a plausible construction, one that seeks to “harmonize[] [the] parts [of the
statute] without disregarding or altering any of them.” (People v. Garcia (1999)
21 Cal.4th 1, 6.)
       A close reading of section 1170.125 suggests an additional explanation. The
language in section 1170.125 states that “all references to existing statutes in Sections
1170.12 and 1170.126 are to those sections as they existed November 7, 2012.”
(§ 1170.125, italics added.) Thus, section 1170.125 refers to the statutes referenced in
section 1170.126, not to the resentencing provision itself. For example, section 1170.126
contains references to sections 667.5, subdivision (c) and 1192.7, subdivision (c)—
provisions defining serious and violent felonies. Given the prospective nature of
section 1170.125 and because sections 667.5, subdivision (c) and 1192.7, subdivision (c)
are not specifically referenced in this section, it is reasonable to conclude that the
Legislature intended to incorporate the current list of serious or violent felonies into
section 1170.125 by referencing section 1170.126. The resentencing provisions of
section 1170.126, then, are irrelevant to the substance of section 1170.125 or how the
section is interpreted.


6
        Couzens and Bigelow also note, “One of the prerequisites to obtaining a
resentencing is that the offense which resulted in the life sentence is not itself a serious or
violent felony. Sections 667.5(c) and 1192.7(c) defining violent and serious felonies, for
the most part, have remained substantially the same since the enactment of the Three
Strikes law in 1994. From time to time, however, the lists have been augmented to
include new offenses. For example, Proposition 21, enacted March 7, 2000, added
section 422, making criminal threats, to the list of serious felonies in section
1192.7(c)(38). It is of no benefit to a defendant sentenced to a 25-life term for a violation
of section 422 prior to 2000 that the crime was not then listed as a serious felony.”
(Couzens & Bigelow, The Amendment of the Three Strikes Sentencing Law, supra, at
p. 28, italics added.)
                                               8
       C. Voters’ Intent
       A reviewing court must seek to “effectuate the electorate’s intent” in interpreting a
ballot initiative. (Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537,
576.) However, the statutory language is sometimes ambiguous. A statute is ambiguous
if it “‘“is amenable to two alternative interpretations.”’” (People v. Arias (2008)
45 Cal.4th 169, 177.) “When an initiative measure’s language is ambiguous, we refer to
other indicia of the voters’ intent, particularly the analyses and arguments contained in
the official ballot pamphlet.” (People v. Birkett (1999) 21 Cal.4th 226, 243.)
       Proposition 36 was enacted for the “protection of the health, safety, and welfare of
the people of the State of California” and it was intended to be “liberally construed to
effectuate those purposes.” (Ballot Pamp., Gen. Elec. (Nov. 6, 2012) text of Prop. 36,
p. 110, italics added.) The resentencing provisions of the initiative were drafted for the
purpose of alleviating California’s overcrowded prisons and saving taxpayers millions of
dollars. (See Ballot Pamp., supra, analysis of Prop. 36 by the Legislative Analyst, p. 50.)
However, the initiative also made clear to voters that this purpose would not be achieved
at the expense of public safety. It thus restricted resentencing eligibility to “third strikers
whose current offense is nonserious, non-violent and who have not committed specified
current and prior offenses, such as certain drug-, sex-, and gun-related felonies,” and gave
the judge further discretion to deny resentencing to an eligible inmate upon an
individualized finding that the inmate posed “an unreasonable risk to public safety.”
(Ibid., italics added.) The arguments in favor of Proposition 36 further assured voters
that “violent repeat offenders [will be] punished and not released early,” that the initiative
is designed to “continue to punish dangerous career criminals,” “keep dangerous
criminals off the streets,” and that “truly dangerous criminals will receive no benefits
whatsoever from the reform.” (Ballot Pamp., supra, argument in favor of Proposition 36,
p. 52.) It is evident that ensuring public safety was a major concern. Allowing
resentencing of inmates who have been thrice convicted of crimes that are currently
considered serious or violent would contradict the aim of the initiative; accepting
appellant’s position would result in the potential release of inmates on the technicality

                                               9
that, many years ago, their current crime was not defined as a serious or violent felony.
This was not the intent of the voters in approving Proposition 36.
       Appellant argues we should seek to determine eligibility for resentencing based on
the definition of violent and serious felonies in effect at the time of commission in order
to increase the number of inmates eligible for resentencing. It would be up to the
discretion of the sentencing judge, then, to determine whether the inmate poses an
unreasonable risk to public safety. Regardless of whether or not this would be an
effective method of ensuring public safety, it was the intent of the voters to disqualify
certain inmates from resentencing altogether, without the benefit of a discretionary
determination by a sentencing judge. If an inmate is serving an indeterminate life
sentence for a felony that is considered violent or serious, he or she is not eligible for
resentencing. Appellant falls within this category.
       Finally, appellant argues that “the intent to protect the public should not override
all other purposes in passing Proposition 36 and mandate that its ameliorative provisions
be as narrowly construed as possible. This is especially so when the public made the
choice to release less dangerous inmates in order to be able to retain the most dangerous.”
While we agree with the general principle of this argument, it does not aid appellant’s
case. Appellant presumably does not deny that had he committed the same act a year
later, after Proposition 21 classified a violation of section 422 as a serious felony, he
would not be eligible for resentencing. It is unclear how appellant would be considered a
“less dangerous” inmate solely because he committed what is now considered a serious
felony before Proposition 21 went into effect. The logical and appropriate inquiry is
whether appellant is now eligible for resentencing, not whether he was when he
committed the current crime.
       Because the intention of the voters in approving Proposition 36 was clear, we
interpret its provisions to find that an inmate serving an indeterminate life sentence under
the Three Strikes law is eligible for resentencing only if his or her current conviction is a
nonserious and nonviolent felony under the versions of sections 1192.7, subdivision (c)
and 667.5, subdivision (c) in effect on November 7, 2012.

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                                   DISPOSITION
     The order denying appellant’s petition to recall his sentence is affirmed.


     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               EPSTEIN, P. J.
We concur:




MANELLA, J.




COLLINS, J.




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