Filed 4/9/14 Modified and certified for publication 4/23/14 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                             DIVISION SEVEN


HOMER RAY BRAZIEL,                                              B249830

        Petitioner,                                             (Los Angeles County
                                                                 Super. Ct. No. BA183095)
        v.

THE SUPERIOR COURT OF LOS
ANGELES COUNTY,

        Respondent;

THE PEOPLE,

        Real Party in Interest.



        ORIGINAL PROCEEDINGS in mandate. William C. Ryan, Judge. Petition
denied.
        Jonathan B. Steiner and Suzan E. Hier for Petitioner.
        No appearance for Respondent.
        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback
II and Steven E. Mercer, Deputy Attorneys General, for Real Party in Interest.


                                        ______________________
                                    INTRODUCTION


       Homer Ray Braziel filed a notice of appeal from an order by the trial court
denying his petition for recall of his sentence under the three strikes law pursuant to
Penal Code section 1170.126.1 We deemed his notice of appeal a petition for writ of
mandate and issued an order to show cause why we should not order the trial court to
vacate its order denying the petition. We now deny his petition.


                  FACTUAL AND PROCEDURAL BACKGROUND


       On May 6, 1999 the People charged Braziel by information with two counts of
assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); counts 1 and
4); assault with a deadly weapon, a knife (ibid.; count 2), a serious felony within the
meaning of section 1192.7, subdivision (c)(23); and making a terrorist threat (now
criminal threat, see People v. Moore (2004) 118 Cal.App.4th 74, 78-79) (§ 422; count 3).
The information alleged that Braziel had two prior strike convictions (§§ 667, subds. (b)-
(i), 1170.12) and five prior convictions for which he had served prison terms (§ 667.5,
subd. (b)). On August 4, 1999 the jury found Braziel guilty on counts 1 through 3 and
found true all prior conviction allegations.
       The trial court imposed three strikes sentences of 25 years to life on all three
counts. The court ordered that Braziel serve the sentences on counts 1 and 3 concurrently




1       All further section references are to the Penal Code.
        Section 1170.126, added by Proposition 36 and effective November 7, 2012,
permits a person serving an indeterminate term of imprisonment under the three strikes
law to file a petition for recall of sentence and to request resentencing. The statute limits
eligibility to those whose current convictions are for felonies that are not defined as
serious or violent felonies under section 667.5, subdivision (c), or 1192.7, subdivision (c).
(§ 1170.126, subd. (e)(1).)


                                               2
and stayed sentence on count 2 pursuant to section 654. The court also imposed four
years under section 667.5, subdivision (b), for a total term of 29 years to life.
       On May 7, 2013 Braziel filed a petition for recall of his sentence pursuant to
section 1170.126. The trial court denied his petition on the ground that one of his current
offenses was a serious felony under section 1192.7, subdivision (c)(38), making him
ineligible for resentencing.


                                       DISCUSSION


       A.     Introduction
       Proposition 36, the Three Strikes Reform Act of 2012 (Act), amended sections 667
and 1170.12 to provide that the court may impose an indeterminate life sentence only
where the current offense, i.e., the third strike, is a serious and/or violent felony. (People
v. Yearwood (2013) 213 Cal.App.4th 161, 167.) If the current offense is not a serious
and/or violent felony, Proposition 36 requires that the trial court sentence the defendant
as a second strike offender. (Id. at pp. 167-168.) Proposition 36 also added section
1170.126, providing that a defendant serving a three strikes term for an offense that is not
a serious and/or violent felony may petition the court for recall of his sentence and for
resentencing. (See People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279,
1292 [“there are two parts to the Act: the first part is prospective only, reducing the
sentence to be imposed in future three strike cases where the third strike is not a serious
or violent felony (. . . §§ 667, 1170.12); the second part is retrospective, providing
similar, but not identical, relief for prisoners already serving third strike sentences in
cases where the third strike was not a serious or violent felony (. . . § 1170.126)”].)
       Subdivision (a) of section 1170.126 provides: “The resentencing provisions under
this section and related statutes are intended to apply exclusively to persons presently
serving an indeterminate term of imprisonment pursuant to paragraph (2) of
subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12,
whose sentence under this act would not have been an indeterminate life sentence.”

                                               3
Subdivision (e)(1) of section 1170.126 provides: “An inmate is eligible for resentencing
if . . . [t]he inmate is serving an indeterminate term of life imprisonment imposed
pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section
1170.12 for a conviction 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.”
       Braziel was convicted on count 2 of assault with a deadly weapon, which was and
is a serious felony under section 1192.7, subdivision (c)(23), when the defendant
personally uses a deadly weapon in the commission of the offense.2 The trial court
imposed and stayed the sentence on that count pursuant to section 654. Count 3, making
a terrorist/criminal threat, was not a serious or violent felony at the time of Braziel’s
conviction, but it is now (§ 1192.7, subd. (c)(38)), because Proposition 21, effective
March 8, 2000, added it to the list of serious felonies. (See Manduley v. Superior Court



2      Section 1192.7, subdivision (c)(23), lists as a serious felony “any felony in which
the defendant personally used a dangerous or deadly weapon.” The jury did not make a
finding that Braziel personally used a weapon, but the record shows that Braziel
personally used a knife in the commission of assault with a deadly weapon. Braziel’s
personal use of a knife is also reflected in our previous opinion in this case. (See People
v. Braziel (Jul. 18, 2000, B136493) [nonpub. opn.]). Because we conclude that Braziel
was not eligible for recall of his sentence based on his conviction of terrorist/criminal
threats, we need not decide whether we can look beyond the judgment to the record in
determining whether a prior offense was a serious and/or violent felony. We note,
however, that at least one court, as well as commentators, have concluded that it is
appropriate to do so. (See People v. White (2014) 223 Cal.App.4th 512, 525, petn. for
review pending, petn. filed Mar. 10, 2014 [“[a]lthough the information did not allege that
[the defendant] was armed with a firearm when he committed [the] offense, and it
contained no sentence enhancement allegation that he was armed with a firearm, the
record shows the prosecution’s case was based on evidence that” the defendant “was
armed with the firearm during the commission of the current offense”]; Couzens &
Bigelow, The Amendment of the Three Strikes Sentencing Law (Nov. 2013) p. 30 [“[i]t
seems likely that if the entire record of conviction can be used in determining the
existence of a strike for an original sentencing proceeding, the same record can be used in
determining whether a person qualifies for second strike sentencing under Proposition
36”], <www.courts.ca.gov/documents/Three-Strikes-Amendment-Couzens-Bigelow.pdf>
[as of Apr. 9, 2014].)


                                              4
(2002) 27 Cal.4th 537, 577). The issues in this proceeding are (1) whether, in
determining if Braziel is eligible for recall of his three strikes sentence under Proposition
36, the court should consider the nature of his crimes (i.e., whether they are serious
and/or violent) at the time of commission or under current law, and (2) whether Braziel is
eligible for recall of a three strikes sentence on an individual count that is not a serious
and/or violent felony, even if he is ineligible for recall of his three strikes sentences on
other counts.
       The People argue that the present-tense language of section 1170.126,
subdivision (e)(1), evidences an intent that the court should use the current definitions of
serious and/or violent felonies in determining whether a defendant is eligible for recall of
his three strikes sentence, and that, if any of the felonies for which a defendant is serving
a three strikes sentence is a serious and/or violent felony, then the defendant is not
eligible for recall of his sentence. Braziel relies on section 1170.1253 in support of his
contention that the court should look to the definitions of serious and violent felonies at
the time of commission in order to make that determination. He also asserts that, even if
one of the felonies for which he is serving a three strikes sentence is a serious and/or
violent felony, he is eligible for recall of his sentence on the other felonies.


       B.       General Rules of Statutory Interpretation
       “‘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


3       Proposition 21 also added section 1170.125, which specified that the new
definitions of serious and violent crimes applied to crimes committed on or after its
effective date. Proposition 36 amended section 1170.125 to provide that “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 sections as they existed on November 7, 2012.”


                                               5
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; accord, People v.
Park (2013) 56 Cal.4th 782, 796.)
       We do not interpret statutory language in isolation but interpret it “‘in the context
of the entire statute of which it is a part, in order to achieve harmony among the parts.’”
(People v. Briceno, supra, 34 Cal.4th at p. 460; Robert L. v. Superior Court (2003) 30
Cal.4th 894, 903.) In addition, we interpret a statute “‘“‘with reference to the entire
scheme of law of which it is a part so that the whole may be harmonized and retain
effectiveness.’”’” (State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32
Cal.4th 1029, 1043; see Kalpoe v. Superior Court (2013) 222 Cal.App.4th 206, 211.)


       C.     Whether Under Section 1170.126 the Court Should Use the Definitions of
              Serious and/or Violent Felonies at the Time of the Commission of the
              Crime or at the Time of the Petition for Recall of Sentence
              1.     Language of the Statute
       Subdivision (a) of section 1170.126 states that it applies to those “whose sentence
under this act would not have been an indeterminate life sentence.” A defendant
sentenced under the Act would be sentenced according to the current definitions of
serious and/or violent felonies. Subdivision (e)(1) of section 1170.126 states that “[a]n
inmate is eligible for resentencing if . . . [t]he inmate is serving an indeterminate term of
life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or
subdivision (c) of Section 1170.12 for a conviction 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.” (Italics added.) The use of the present tense “are” in
subdivision (e)(1) supports the People’s position that in determining whether an inmate is
eligible for resentencing, the court should use the current, post-Proposition 36 definitions
of serious and violent felonies. “In construing statutes, the use of verb tense by the

                                              6
Legislature is considered significant.” (Hughes v. Board of Architectural Examiners
(1998) 17 Cal.4th 763, 776; accord, People v. Loeun (1997) 17 Cal.4th 1, 11; Matus v.
Board of Administration (2009) 177 Cal.App.4th 597, 607.) This interpretation of
subdivision (e)(1) is in harmony with subdivision (a) of section 1170.126.
        Subdivision (e)(2) of section 1170.126 further demonstrates the significance of the
use of the present tense in the statute. It provides that an inmate is eligible for
resentencing if his “current sentence was not imposed for any of the offenses appearing
in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of
Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of
subdivision (c) of Section 1170.12.” (§ 1170.126, subd. (e)(2), italics added.)
Subdivision (e)(2) uses the term “appearing,” rather than “then-appearing” or “appearing
at the time” of sentencing. The use of the past tense with respect to sentencing and the
present participle with respect to the offenses again supports the conclusion that current
definitions of the offenses are determinative. (See U.S. v. Hull (3d Cir. 2006) 456 F.3d
133, 145 [“Congress’s use of the present participle [in the statute] connotes present,
continuing action”]; but see In re Mortgages Ltd. (Bankr. D. Ariz. 2013) 2013 WL
1309028, p. 1 [“a precise tense cannot be ascertained solely from the use of a so-called
‘present participle’ as compared to a ‘past participle’”].)
        Although we perceive no ambiguity in the language of section 1170.126, this does
not end our inquiry. “A court must refer to the entire initiative to determine its purpose
and intent, even when there is no ambiguity in the statutory provisions. [Citation.] ‘“The
[initiative’s] language must . . . be construed in the context of the statute as a whole and
the [initiative’s] overall . . . scheme.”’ [Citation.]” (Yes on 25, Citizens for an On-Time
Budget v. Superior Court (2010) 189 Cal.App.4th 1445, 1455-1456, quoting Professional
Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1037, 1039.)
Thus we examine section 1170.126 in the context of the statutory scheme of which it is a
part.




                                               7
              2.     Context and Overall Statutory Scheme
       Section 1170.125 was amended by Proposition 36 and is part of the same statutory
scheme as section 1170.126. It provides that “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 sections as they existed November 7, 2012.” (§ 1170.125.) Braziel argues
that “the plain language” of section 1170.125 is that whether his “current conviction was
a serious felony turns on the definition of it at the time of its commission.” Relying on
the history of section 1170.125, Braziel argues that “[t]he clear language of [the section]
from its inception has required that new designations of serious and violent felonies are to
be applied going forward, to offenses committed ‘after’ the effective date of the
amendments to the lists of serious or violent felonies.” Because changes to the
designations of serious or violent felonies apply prospectively, the argument goes, they
cannot be applied retrospectively to his offenses. Braziel argues that because his
terrorist/criminal threats offense was not a serious or violent felony at the time of his
conviction, the post-Proposition 36 designations of serious and/or violent felonies do not
apply in determining whether he is eligible for recall of his sentence under
section 1170.126.
       Section 1170.125 does not aid Braziel. Section 1170.125 states that it applies to
“all offenses committed on or after November 7, 2012.” Braziel committed his offenses
long before November 7, 2012. Therefore, section 1170.125 by its terms does not apply
to his offenses.
       Moreover, even if (contrary to the express terms of the statute) section 1170.125
applied to Braziel’s offenses, 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.” Thus, the references in section 1170.126, subdivision (e)(1), to
serious and/or violent felonies as defined by section 667.5, subdivision (c), and
section 1192.7, subdivision (c), would be to those statutes as they currently exist. This
language directly contradicts the position taken by Braziel, who argues that the references



                                              8
to the statutes defining serious and/or violent felonies in section 1170.126 should be to
those statutes as they existed in 1999.4
       A recent commentary on Proposition 36 agrees with our conclusion that an inmate
convicted of making a terrorist/criminal threat prior to the enactment of Proposition 21 in
March 2000 is not eligible for resentencing under the Act. In discussing the effect of
section 1170.125 on 1170.126, Couzens and Bigelow state that “Proposition 21, enacted
March 7, 2000, added section 422, making criminal threats, to the list of serious felonies
in section 1192.7[, subdivision ](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. Based on the objective intent of the amendment to section 1170.125
and the opening paragraph of section 1170.126[, subdivision ](a), eligibility for
resentencing must be based on the interpretation of statutes as they exist on or after
November 7, 2012. In the case of a person convicted of a violation of section 422 prior
to March 7, 2000, he or she would not be eligible for resentencing because section
1192.7[, subdivision ](c)(38), as it read on November 7, 2012, lists section 422 as a
serious felony.” (Couzens & Bigelow, The Amendment of the Three Strikes Sentencing
Law, supra, pp. 25-26.)


4       We acknowledge that section 1170.125 contains an interpretive challenge. It is
logically impossible for section 1170.125, which applies to “all offenses committed on or
after November 7, 2012,” to control section 1170.126, which by definition applies only to
offenses committed prior to November 7, 2012 by defendants serving indeterminate
prison terms. The reference in section 1170.125 to section 1170.126, after the reference
to section 1170.12, does not appear to have any purpose. (See Couzens & Bigelow, The
Amendment of the Three Strikes Sentencing Law, supra, p. 25 [“[o]n its face, the
amendment with respect to section 1170.126 makes no sense — section 1170.126 only
applies to crimes committed prior to November 7, 2012”]; see also People v. Hudson
(2006) 38 Cal.4th 1002, 1010 [“interpretations that render statutory terms meaningless as
surplusage are to be avoided”]; People v. Loeun, supra, 17 Cal.4th at p. 9 [“‘“statutes
must be harmonized, both internally and with each other, to the extent possible,”’” and
“‘[i]nterpretations that lead to absurd results or render words surplusage are to be
avoided’”].) We do not need to resolve this interpretive issue because either way we
might resolve the ambiguity, section 1170.125 does not assist Braziel.


                                              9
       Braziel’s argument regarding prospective application of section 1170.126 is also
inconsistent with the law governing prospective and retrospective application of criminal
statutes. As noted above, section 1170.125 was added by Proposition 21. It provided
that “for all offenses committed on or after the effective date of this act, all references to
existing statutes in Section 1170.12 are to those statutes as they existed on the effective
date of this act, including amendments made to those statutes by this act.” The section
was amended in 2006 to provide that “for all offenses committed on or after the effective
date of this act, all references to existing statutes in Section 1170.12 are to those statutes
as they existed on the effective date of this act, including amendments made to those
statutes by the act enacted during the 2005-06 Regular Session that amended this
section.” (§ 1170.125, amended by Stats. 2006, ch. 337, § 36.) As the Legislature or the
voters changed the designations of serious and/or violent felonies, section 1170.125
provided that those changes applied prospectively only, to offenses committed on or after
the effective date of the changes. (See Manduley v. Superior Court, supra, 27 Cal.4th at
pp. 574-575.)
       Although Braziel does not explicitly argue that the trial court’s denial of his
petition to recall his sentence violated his constitutional right against ex post facto laws,
that appears to be the theory behind his argument. There is, however, no ex post facto
violation here. Where a new law increases the punishment for an offense previously
committed, the law must be applied prospectively in order to avoid violation of the ex
post facto clause of the Constitution. (John L. v. Superior Court (2004) 33 Cal.4th 158,
172-173; Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1286-1287.)
Section 1170.125 in essence codifies this principle. Section 1170.126, however, does not
increase the punishment for a previously committed offense. It makes certain defendants
eligible for a decreased punishment. (See Peugh v. United States (2013) ___ U.S. ___,
___ [133 S.Ct. 2072, 2081, 186 L.Ed.2d 84] [ex post facto laws include those that
“‘chang[e] the punishment, and inflic[t] a greater punishment, than the law annexed to
the crime, when committed’”]; California Dept. of Corrections v. Morales (1995) 514
U.S. 499, 509 [115 S.Ct. 1597, 131 L.Ed.2d 588] [in evaluating whether a new law that

                                              10
decreased the frequency of parole suitability hearings violated the ex post facto clause,
the court “must determine whether it produces a sufficient risk of increasing the measure
of punishment attached to the covered crimes”]; John L., supra, at p. 181 [“laws inflicting
‘greater punishment’ than what was authorized when the crime occurred” are ex post
facto laws].) Therefore, the rule of prospective application does not require that the
references in section 1170.126 to serious and/or violent felonies be as of the date of
commission of the offense—if the offense became a serious or violent felony subsequent
to that time—in order to avoid the prohibition on ex post facto laws.
       Moreover, courts have consistently determined whether a prior offense was a
serious and/or violent felony using the current definitions of serious and/or violent
felonies, not the definitions in place at the commission of the prior offense. For example,
in People v. James (2001) 91 Cal.App.4th 1147, the 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 definition of serious felonies in
. . . section 1192.7, subdivision (c) in effect on March 8, 2000,” the effective date of
Proposition 21. (Id. at p. 1150; see John L. v. Superior Court, supra, 33 Cal.4th at
pp. 174-175; People v. Ringo (2005) 134 Cal.App.4th 870, 884.) The court found that
this holding was consistent with previous cases that had held that, for purposes of the
three strikes law, the court determines whether a prior offense constitutes a strike as of
the date of the enactment of the three strikes law, not the date the defendant committed
the offense. (James, supra, at pp. 1150-1151; see, e.g., People v. O’Roark (1998) 63
Cal.App.4th 872, 875-876; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1631; Gonzales
v. Superior Court (1995) 37 Cal.App.4th 1302, 1311.)
       Examining section 1170.126 in the context of the statutory scheme of which it is a
part confirms our conclusion that in determining whether an inmate is eligible for
resentencing under subdivision (e)(1), the court should use the current, post-Proposition
36 definitions of serious and violent felonies. Section 1170.125 does not compel a
different conclusion.

                                             11
              3.      The Voters’ Intent
       Braziel also relies on the Official Voter Guide for Proposition 36, which states that
the initiative “[r]evises law to impose life sentence only when new felony conviction is
serious or violent. May authorize re-sentencing if third strike conviction was not serious
or violent.” (<http://voterguide.sos.ca.gov/past/2012/general/quick-reference-guide/prop-
36.htm> [as of Apr. 9, 2014].) The summary of the “pro” argument states that the
proposition “[r]estores the original intent of the Three Strikes law by focusing on violent
criminals.” (Ibid.) Based on these two passages and subdivision (a) of section 1170.126,
Braziel argues that the “stated goals and statutory terms together demonstrate that section
1170.126 [was] designed to permit defendants who are serving an indeterminate term for
a crime that was not serious or violent when committed to have their sentences recalled
and determinate ‘two strikes’ sentences imposed as would occur for anyone with a non-
serious, non-violent current offense today.”
       In general, “we may resort to extrinsic sources, including the analyses and
arguments contained in the official ballot pamphlet, and the ostensible objects to be
achieved” where the statutory language is unclear or ambiguous. (People v. Lopez (2005)
34 Cal.4th 1002, 1006; Taxpayers for Accountable School Bond Spending v. San Diego
Unified School Dist. (2013) 215 Cal.App.4th 1013, 1026; see, e.g. People v. Johnson
(2013) 57 Cal.4th 250, 261; People v. Park, supra, 56 Cal.4th at pp. 797-798.) We may
also analyze such “extrinsic indicia of voter intent” to confirm our interpretation of the
plain meaning of the statute. (Silicon Valley Taxpayers’ Assn. v. Garner (2013) 216
Cal.App.4th 402, 407, 408; see Goodman v. Lozano (2010) 47 Cal.4th 1327, 1335
[although the meaning of words in a statute “is plain, it is helpful to look at [the statute’s]
legislative history”]; People v. Floyd (2003) 31 Cal.4th 179, 187 [“plain-language
construction” of initiative was “also supported by the ballot argument distributed to
voters”]; Jenkins v. County of Los Angeles (1999) 74 Cal.App.4th 524, 530 [“we may
consider legislative history where it buttresses our interpretation of the plain meaning of a
statute” enacted by initiative], citing Briggs v. Eden Council for Hope & Opportunity
(1999) 19 Cal.4th 1106, 1120.) To the extent there is any ambiguity in section 1170.125

                                               12
and section 1170.126, or any need to confirm our interpretation of section 1170.126, our
review of the Proposition 36 ballot materials has not revealed any support for Braziel’s
argument or any basis for ignoring the clear language of section 1170.126.
       Nothing in the analysis of, or the arguments for and against, Proposition 36
specifies that the court determines whether an offense is serious or violent as of the date
of commission of the offense rather than the effective date of the proposition. The
Analysis by the Legislative Analyst simply states: “This measure allows certain third
strikers to apply to be resentenced by the courts. The measure limits eligibility for
resentencing 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.” (<http://vig.cdn.sos.ca.gov/2012/general/pdf/36-title-summ-
analysis.pdf> [as of Apr. 9, 2014].) If anything, the use of the present tense in reference
to the current offense suggests that the current designations of serious and/or violent
felonies are the applicable ones. In addition, nothing in the arguments in favor of or
against Proposition 36 addresses the determination whether the current offense is serious
and/or violent. The arguments merely use such terms as “violent repeat offenders,”
“dangerous felons,” and “dangerous criminals.” (See
<http://voterguide.sos.ca.gov/past/2012/general/propositions/36/arguments-
rebuttals.htm> [as of Apr. 9, 2014].)
       “[T]he ostensible objects to be achieved” (People v. Lopez, supra, 34 Cal.4th at
p. 1006; Taxpayers for Accountable School Bond Spending v. San Diego Unified School
Dist., supra, 215 Cal.App.4th at p. 1026) by Proposition 36 were to reduce prison
overcrowding while keeping dangerous criminals behind bars by allowing to resentence
“third strikers whose current offense is nonserious, non-violent.” Determining eligibility
based on the current definitions of serious and/or violent felonies is fully consistent with
that goal.
       The language of section 1170.126, considered in the context of the overall three
strikes sentencing scheme, and the evidence of the voters’ intent in enacting the section,
support the conclusion that in determining whether an inmate is eligible for recall of his

                                             13
sentence under section 1170.126, the court must use the current, post-Proposition 36
definitions of serious and/or violent felonies, not those definitions in effect at the time of
commission of the crimes. Therefore, Braziel’s conviction of making a terrorist/criminal
threat under section 422 is a conviction of a serious and/or violent felony, and he is
ineligible for recall of his sentence for that offense.


       D.      Whether Under Section 1170.126 the Court Should Determine Whether
               an Inmate Is Eligible For Resentencing on Individual Counts That Were
               Not Serious and/or Violent Felonies
       The language of section 1170.126 suggests that a defendant inmate is not eligible
for recall of his sentence if any of the offenses for which he is serving a three strikes
sentence is a serious and/or violent felony, even if one or more of those sentences are not
serious and/or violent felonies. As noted above, subdivision (a) of section 1170.126
provides that the resentencing provisions “apply exclusively to persons presently serving
an indeterminate term of imprisonment . . . whose sentence under this act would not have
been an indeterminate life sentence.” A person sentenced under the Act who committed
at least one serious and/or violent felony would receive an indeterminate term of
imprisonment. In addition, subdivision (e)(2) of section 1170.126 provides that an
inmate is eligible for resentencing if his “current sentence was not imposed for any of the
offenses” specified. (Italics added.) The term “any” is all-inclusive. (Quarry v. Doe I
(2012) 53 Cal.4th 945, 970; Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010)
185 Cal.App.4th 1050, 1064; People v. Gandotra (1992) 11 Cal.App.4th 1355, 1365.)
Finally, subdivision (d) of section 1170.126 requires the petition for recall of sentence to
“specify all of the currently charged felonies, which resulted in the sentence under
paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of
Section 1170.12, or both . . . .” The fact that the statute requires the petition to list all
current felonies resulting in an indeterminate life sentence supports the conclusion that
the court must consider all current felonies in determining eligibility for recall of
sentence.

                                               14
       The evidence of voter intent supports this conclusion. As noted above, the
Legislative Analyst’s Analysis of Proposition 36 states that the proposition “limits
eligibility for resentencing 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.” (<http://vig.cdn.sos.ca.gov/2012/general/pdf/36-
title-summ-analysis.pdf> [as of Apr. 9, 2014].) An inmate who is serving an
indeterminate term for multiple offenses, including some that are serious and/or violent,
does not fall into the category of those “who have not committed” the offenses specified
in section 1170.126, subdivisions (e)(1) and (e)(2). Thus, neither the language of
section 1170.126 nor the ballot pamphlet arguments support Braziel’s position that he is
eligible for recall of his sentence on those counts that are not serious and or violent
felonies, even if another count for which he is serving his indeterminate term is a serious
and/or violent felony.
       Another court recently reached the same conclusion. In In re Martinez (2014) 223
Cal.App.4th 610, petn. for review pending, petn. filed Mar. 5, 2014, the court rejected the
argument that courts should consider the counts individually in determining eligibility for
recall of sentence. The court in Martinez observed that an inmate serving an
indeterminate term for a serious and/or violent offense, even if he or she committed other
offenses that were not serious or violent, is still, in the words of the Voter Information
Guide, a “‘truly dangerous criminal[] [who] will receive no benefits whatsoever’” from
the Act and will be kept “‘off the streets.’” (Id. at p. 618.) “[I]t would be inconsistent
with the Act’s intent for the superior court to simply ignore” an inmate’s conviction of a
serious and/or violent felony “in determining his eligibility for resentencing under section
1170.26.” (Id. at p. 619.) Based on the purpose and language of the statute, the court
“interpret[ed] section 1170.126 as requiring the superior court to consider all felonies that
led to any indeterminate life sentence under the previous version of the three strikes law.




                                             15
If one of those felonies is a serious or violent felony or is otherwise disqualifying under
the Act, section 1170.126 does not apply.” (Id. at p. 620.)5
       As discussed above, Braziel’s conviction for making a terrorist/criminal threat was
a conviction of a serious and/or violent felony. Because Braziel’s current sentence was
imposed for one of the offenses specified (§ 1170.126, subd. (e)(2)), his “sentence under
this act would . . . have been an indeterminate life sentence” (id., subd. (a)). Therefore,
he is not eligible for recall of his sentence and resentencing under section 1170.126, even
though at least one of the offenses for which he is currently serving an indeterminate life
sentence, count 1, is not a serious and/or violent felony.6


       E.     Conclusion
       We conclude that for purposes of determining whether an inmate is eligible for
recall of his sentence and for resentencing under section 1170.126, subdivision (e)(1), the
court determines whether “[t]he inmate is serving an indeterminate term of life
imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or
subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not


5      In Couzens & Bigelow, The Amendment of the Three Strikes Sentencing Law,
supra, the authors recognize that there is support for both interpretations. They state that
nothing in section 1170.126 suggests that an inmate serving indeterminate sentences for
serious and/or violent felonies “would be prohibited from requesting relief for the other
non‐serious and non‐violent crimes. Section 1170.126[, subdivision ](e)(1) is not limited
in any way to exclude inmates who are serving life terms for serious or violent felonies
and other life terms for non-serious or non‐violent felonies. Such an interpretation is
consistent with the intent of Proposition 36 to eliminate indeterminate sentences for
non‐serious and non‐violent crimes. However, such an interpretation may be inconsistent
with the intent of the initiative to maintain long sentences for people who have committed
serious or violent offenses.” (Couzens & Bigelow, The Amendment of the Three Strikes
Sentencing Law, supra, at p. 27; see also id. at pp. 32-33.)
6       It is undisputed that count 1, assault by means likely to produce great bodily
injury, was not a serious and/or violent felony. The information did not allege, and the
jury did not find, that Braziel actually inflicted great bodily injury on his victim. (See
§§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8).)


                                             16
defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or
subdivision (c) of Section 1192.7” based on the current versions of section 667.5,
subdivision (c), and section 1192.7, if they are different from the versions in effect at the
time of commission of or conviction for the felony. In addition, in determining eligibility
for recall of sentence, the court must look at all of the felonies for which an inmate is
serving the current term, and if any of those felonies is serious and/or violent, the inmate
is ineligible for recall of sentence. Because Braziel is serving an indeterminate three
strikes term for a serious and/or violent felony, making a terrorist/criminal threat, he is
not eligible for recall of his sentence under section 1170.126. The trial court did not err
in denying his petition.


                                      DISPOSITION


       The petition for writ of mandate is denied.



                                                  SEGAL, J.*


We concur:



              PERLUSS, P. J.



              WOODS, J.




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                             17
Filed 4/23/14
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                     DIVISION SEVEN


HOMER RAY BRAZIEL,                                  B249830

        Petitioner,                                 (Los Angeles County
                                                     Super. Ct. No. BA183095)
        v.
                                                    ORDER MODIFYING OPINION
THE SUPERIOR COURT OF LOS                           AND CERTIFYING FOR
ANGELES COUNTY,                                     PUBLICATION
                                                    [NO CHANGE IN JUDGMENT]
        Respondent;

THE PEOPLE,

        Real Party in Interest.




THE COURT:
        It is ordered that the opinion filed herein on April 9, 2014, be modified as follows:
        1. On page 4, line 6 of footnote 2, add the words “making a” between the words
“of” and “terrorist/criminal,” and on line 7 change the first word “threats” to “threat” so
that the sentence reads:
               Because we conclude that Braziel was not eligible for recall of his sentence
        based on his conviction of making a terrorist/criminal threat, we need not decide
        whether we can look beyond the judgment to the record in determining whether a
        prior offense was a serious and/or violent felony.
         2. On page 8, first full paragraph under subsection 2, at the end of line 12 after the
word “his” add “offense of making a,” and on line 13 change “threats” to “threat” and
delete the comma and the word “offense” so that the sentence reads:
               Braziel argues that because his offense of making a terrorist/criminal threat
         was not a serious or violent felony at the time of his conviction, the post-
         Proposition 36 designations of serious and/or violent felonies do not apply in
         determining whether he is eligible for recall of his sentence under section
         1170.126.

         3. On page 13, line 4 of the second full paragraph, add the word “courts” between
the words “allowing” and “to.”
         4. On page 15, line 11 of the first full paragraph, add a slash (“/”) between the
words “and or.”
         There is no change in the judgment.
         The opinion in the above-entitled matter filed on April 9, 2014, was not certified
for publication in the Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.




__________________                     ___________________                       ___________________
PERLUSS, P. J.                          WOODS, J.                                SEGAL, J.*




*        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.


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