Filed 5/30/14
                          CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                     DIVISION ONE


THE PEOPLE,                                        B249557

        Plaintiff and Respondent,                  (Los Angeles County
                                                   Super. Ct. No. YA036692)
        v.

OSCAR MACHADO,

        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Los Angeles County. William
C. Ryan, Judge. Reversed with directions.
        Larry Pizarro, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Shawn McGahey Webb,
Supervising Deputy Attorney General, Noah P. Hill and Jonathan Kline, Deputy
Attorneys General, for Plaintiff and Respondent.
                         _________________________________
       Defendant Oscar Machado appeals from an order denying his petition for
Proposition 36 resentencing pursuant to Penal Code section 1170.1261 with respect to one
of the two 1998 commitment offenses for which he received consecutive third-strike
terms of 25 years to life.
       Although defendant recognizes he is ineligible for resentencing with respect to his
first degree burglary conviction because it was a “serious” offense, he contends the trial
court erred by concluding he was ineligible with respect to his second degree burglary
conviction. We agree. Although section 1170.126 does not address eligibility for
resentencing where a petitioner’s commitment offenses include both a felony categorized
as serious or violent and a felony that is not so categorized, a conclusion that
nonserious/nonviolent offenses are eligible for resentencing (absent other disqualifying
factors) is consistent with the language of the statute and would advance the voters’ intent
in enacting Proposition 36.
                                      BACKGROUND
       According to defendant’s petition for resentencing, a jury convicted him in 1998 of
one count of first degree burglary and one count of second degree burglary. Defendant
waived a jury trial on two strike allegations, both robberies, and the court found these
allegations true. The court sentenced defendant to consecutive third-strike terms of 25
years to life.
       Defendant filed a petition for resentencing, listing his current and prior offenses,
and requesting resentencing on both of his commitment offenses. The trial court denied
the petition, stating defendant’s first degree burglary conviction rendered him ineligible
for resentencing.




       1   Undesignated statutory references pertain to the Penal Code.



                                              2
                                       DISCUSSION
A.     Appealability
       The Attorney General contends the trial court’s order was not appealable. The
appellate courts have reached conflicting conclusions on this issue, which is pending
before the California Supreme Court in Teal v. Superior Court (2013) 217 Cal.App.4th
308, review granted July 31, 2013, S211708, and In re Martinez (2014) 223 Cal.App.4th
610, review granted May 14, 2014, S216922. This division concluded in People v.
Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, S212017, an order
denying a petition for resentencing was appealable. We decline to revisit this issue, and
instead proceed to the merits because if the trial court’s order were not appealable, it
would be reviewable by a petition for a writ of habeas corpus. No purpose would be
served by requiring defendant to refile this matter as a writ petition. Because the issue
remains open, we treat the instant appeal as a petition for a writ of habeas corpus.
B.     Eligibility for resentencing under the Three Strikes Reform Act of 2012
       On appeal, defendant concedes he is not eligible for resentencing on his first
degree burglary conviction, which is categorized as a “serious” felony. (§ 1192.7,
subd. (c)(18).) The sole issue is whether he is nonetheless eligible for resentencing with
respect to his other commitment offense, the second degree burglary, which is neither
“serious” nor “violent.”
       Proposition 36, also known as the Three Strikes Reform Act of 2012, was
approved by the voters on November 6, 2012, and went into effect the next day. It
amended sections 667 and 1170.12 so that an indeterminate term of 25 years to life in
prison is applied only where the “third strike” offense is a serious or violent felony or the
prosecution pleads and proves an enumerated triggering factor. (§§ 667, subd. (e)(2)(A),
(C), 1170.12, subd. (c)(2)(C).)
       Proposition 36 also created section 1170.126, which provides a procedure for
resentencing “persons presently serving an indeterminate term of imprisonment” under
the Three Strikes law “whose sentence under this act would not have been an


                                              3
indeterminate life sentence.” (§ 1170.126, subd. (a).) Such a person may file a petition to
recall his or her sentence and be resentenced as a second-strike offender. (§ 1170.126,
subd. (b).)
       Essentially, an inmate is eligible for such resentencing if his or her commitment
offense is not a serious or violent felony and none of the factors that would trigger a third-
strike sentence under the Three Strikes law as reformed by Proposition 36 apply.
(§ 1170.126, subd. (e).) Resentencing of qualified inmates may nonetheless be refused if
the trial court, “in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) Subdivision (g) of
section 1170.126 sets forth several factors that a trial court may consider in exercising
that discretion.
       Section 1170.126 does not address what a trial court should do in the more
complex circumstances of a petitioner with multiple third-strike sentences, some of which
would fall within the statute’s resentencing eligibility provisions if considered
independently and others that do not. Accordingly, we must interpret the statute.
C.     Statutory interpretation principles
       In construing a statute enacted by voter initiative, we apply the same rules of
statutory construction that apply to legislative enactments to attempt to determine the
intent of the electorate. (People v. Park (2013) 56 Cal.4th 782, 796.) In determining that
intent, we first examine the words of the statute, viewing them in their statutory context
and giving them their ordinary and usual meaning, because the language of a statute is
usually the most reliable indicator of legislative intent. (People v. Albillar (2010) 51
Cal.4th 47, 55 (Albillar); People v. Wright (2006) 40 Cal.4th 81, 92.) We interpret a
statute “‘“‘with reference to the entire scheme of law of which it is 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.) “Once the electorate’s intent has been
ascertained, the provisions must be construed to conform to that intent. [Citation.] ‘[W]e




                                              4
may not properly interpret the measure in a way that the electorate did not contemplate:
the voters should get what they enacted, not more and not less.’” (Park, at p. 796.)
       Where the language of a statute is unambiguous, the plain meaning controls and
we have no occasion to resort to principles of statutory construction or extrinsic sources.
(Albillar, supra, 51 Cal.4th at p. 55.) Where the language is ambiguous, we examine
other indicators of the voters’ intent, particularly the analyses and arguments in the
official ballot pamphlet. (People v. Briceno (2004) 34 Cal.4th 451, 459.)
D.     Interpretation in light of the language of section 1170.126 and the ballot
pamphlet
       Defendant relies almost exclusively on the language of section 1170.126 to support
his interpretation, while the Attorney General relies solely upon ballot pamphlet
materials. We necessarily consider both.
1.     Interpreting the statutory language
       The pertinent portions of section 1170.126 are the following:
       “(a) 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.
       “(b) Any person serving an indeterminate term of life imprisonment imposed
pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of
subdivision (c) of Section 1170.12 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 . . . to request resentencing in accordance with the provisions of subdivision (e)
of Section 667, and subdivision (c) of Section 1170.12, as those statutes have been
amended by the act that added this section. [¶] . . . [¶]




                                              5
       “(d) The petition for a recall of sentence described in subdivision (b) shall 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, and shall also specify all of the prior convictions alleged and proved under
subdivision (d) of Section 667 and subdivision (b) of Section 1170.12.
       “(e) An inmate is eligible for resentencing if:
       “(1) The 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.
       “(2) The inmate’s 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.
       “(3) The inmate has no prior convictions for any of the offenses appearing in
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or
clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.
       “(f) Upon receiving a petition for recall of sentence under this section, the court
shall determine whether the petitioner satisfies the criteria in subdivision (e). If the
petitioner satisfies the criteria in subdivision (e), the petitioner shall be resentenced
pursuant to paragraph (1) of subdivision (e) of Section 667 and paragraph (1) of
subdivision (c) of Section 1170.12 unless the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public safety.
       “(g) In exercising its discretion in subdivision (f), the court may consider:
       “(1) The petitioner’s criminal conviction history, including the type of crimes
committed, the extent of injury to victims, the length of prior prison commitments, and
the remoteness of the crimes;




                                               6
       “(2) The petitioner’s disciplinary record and record of rehabilitation while
incarcerated; and
       “(3) Any other evidence the court, within its discretion, determines to be relevant
in deciding whether a new sentence would result in an unreasonable risk of danger to
public safety.”
       The language of the statute is consistent with a conclusion that a petitioner is
eligible for resentencing on a third-strike term that was imposed for a nonserious,
nonviolent commitment offense, notwithstanding ineligibility on other third-strike terms,
provided, of course, that the factors set forth in section 1170.126, subdivision (e)(2) and
(e)(3) are satisfied. Such a petitioner falls within the scope of section 1170.126,
subdivision (a) because he or she is “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,” even though he or she is also serving a term that would
have been an indeterminate life sentence under the Three Strikes Reform Act of 2012.
       Such a petitioner also belongs to the class of persons set forth in section 1170.126,
subdivision (b) who are allowed to petition for resentencing because he or she is “serving
an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of
subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12
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,” even though he or she is also serving a third-strike term for a
commitment offense that is defined as a serious or violent felony. Notwithstanding his or
her other indeterminate life term for a conviction of a serious or violent felony, such a
petitioner also satisfies the eligibility description set forth in section 1170.126,
subdivision (e)(1), which uses language virtually identical to that in section 1170.126,
subdivision (b).




                                               7
       Although a trial court might, as an exercise of discretion pursuant to section
1170.126, subdivision (f), conclude that such a petitioner “would pose an unreasonable
risk of danger to public safety,” nothing in section 1170.126 precludes resentencing with
respect to a nonserious, nonviolent felony where the petitioner is also serving an
indeterminate third-strike life term for a serious or violent felony.
       In fact, the use of the word “any” to modify “person” in the first sentence of
subdivision (b) suggests that the statute was intended to be construed broadly to allow
anyone not expressly excluded to file a petition requesting resentencing pursuant to the
statute. (E.g., Ennabe v. Manosa (2014) 58 Cal.4th 697, 714 [“Use of the term ‘any’ to
modify the words ‘transaction’ and ‘consideration’ demonstrates the Legislature intended
the law to have a broad sweep and thus include both indirect as well as direct
transactions”]; Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 533
[Legislature’s use of the word “any” suggested it intended a broad construction]; Ladd v.
County of San Mateo (1996) 12 Cal.4th 913, 920 [same].) Defendant falls within the
term “Any person,” indicating he is within the class of persons eligible for resentencing
under section 1170.126.
       Similarly, subdivision (e) of section 1170.126 starts with the phrase “[a]n inmate is
eligible for resentencing if . . . .” This appears equivalent to a statement that “any” inmate
is eligible only if he or she meets the criteria set forth in the statute. This, too, may be
read to imply that the statute was intended to be given a broad construction with respect
to any inmate who met the statutory prerequisites. Again, defendant would be eligible for
resentencing under the wording of the statute.
       If Proposition 36 had been intended to preclude resentencing for a third-strike
inmate such as defendant, the drafters easily could have so stated, for example, by adding
a fourth paragraph to section 1170.126, subdivision (e) that provided an inmate is eligible
for resentencing if no portion of his or her current indeterminate life sentence was
imposed for any felony defined as a serious and/or violent felony. They did not do so.




                                               8
       Considering the statute as a whole, it also should be noted that subdivision (f)
provides a fail-safe device that insures that dangerous offenders will not be resentenced
automatically, even if they meet the express criteria of the statute. The trial court has
discretion to reject their requests for resentencing if it “determines that resentencing the
petitioner would pose an unreasonable risk of danger to public safety.”
       An important role also is played by the portion of subdivision (d) that requires the
petitioner 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.” The presence of this provision insures that, in exercising its
discretion under subdivision (f), the trial court will have before it a significant body of
relevant information as to other convictions. The court may place weight on concurrent
convictions for nonserious, nonviolent felonies if they appear to deserve weight, or
discount their importance if they do not. In light of the role subdivision (d) plays in
facilitating the trial court’s exercise of its discretion under subdivision (f), we do not
detect in it any implied requirement that the court decline to exercise discretion and
instead deny a petition automatically because of the presence of a nonserious, nonviolent
commitment offense that accompanies a serious, violent one. Quite to the contrary, the
statute contemplates that the court will exercise its discretion as opposed to following any
blanket rule.
       To the extent a petitioner like the defendant here may be considered a danger to
public safety because he or she has been convicted of a third strike that is both serious
and violent and one that is not, the trial court has a mechanism created by subdivision (f)
that allows it to exercise its discretion to protect the public from the inmate’s release if it
deems it necessary. Thus, there is no need for a blanket rule that any petitioner who has
been convicted of a third strike that is a serious or violent crime must be disqualified
automatically from obtaining resentencing on an additional third strike offense that is
neither serious nor violent.




                                               9
       Accordingly, the language of the statute supports defendant’s eligibility for
resentencing with respect to his second degree burglary conviction.
2. Interpretation in light of the statements in the in ballot pamphlet
       Nothing in the ballot pamphlet addressed the issue in this case. The Official Title
and Summary section stated the following regarding resentencing: “Authorizes re-
sentencing for offenders currently serving life sentences if third strike conviction was not
serious or violent and judge determines sentence does not pose unreasonable risk to
public safety.” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) Official Title and
Summary of Prop. 36, p. 48.)
       The section of the ballot pamphlet setting forth the Legislative Analyst’s analysis
stated the following regarding resentencing: “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. Courts conducting these resentencing hearings would first determine
whether the offender’s criminal offense history makes them eligible for resentencing.
The court would be required to resentence eligible offenders unless it determines that
resentencing the offenders would pose an unreasonable risk to public safety. In
determining whether an offender poses such a risk, the court could consider any evidence
it determines is relevant, such as the offender’s criminal history, behavior in prison, and
participation in rehabilitation programs.” (Voter Information Guide, supra, Analysis by
the Legislative Analyst of Prop. 36, p. 50.)
       Nothing in the arguments in favor of Proposition 36 in the Voter Information
Guide addressed eligibility for resentencing, but they are nonetheless instructive. The
first argument urged, “MAKE THE PUNISHMENT FIT THE CRIME [¶] Precious
financial and law enforcement resources should not be improperly diverted to impose life
sentences for some non-violent offenses. Prop. 36 will assure that violent repeat




                                               10
offenders are punished and not released early.” (Voter Information Guide, supra,
Argument in Favor of Prop. 36, p. 52.)
       The second stated, “SAVE CALIFORNIA OVER $100 MILLION EVERY
YEAR [¶] Taxpayers could save over $100 million per year—money that can be used to
fund schools, fight crime and reduce the state’s deficit. The Three Strikes law will
continue to punish dangerous career criminals who commit serious violent crimes—
keeping them off the streets for 25 years to life.” (Voter Information Guide, supra,
Argument in Favor of Prop. 36, p. 52.)
       The third argument urged, “MAKE ROOM IN PRISON FOR DANGEROUS
FELONS [¶] Prop. 36 will help stop clogging overcrowded prisons with non-violent
offenders, so we have room to keep violent felons off the streets.” (Voter Information
Guide, supra, Argument in Favor of Prop. 36, p. 52.)
       The fourth argument was, “LAW ENFORCEMENT SUPPORT [¶] Prosecutors,
judges and police officers support Prop. 36 because Prop. 36 helps ensure that prisons can
keep dangerous criminals behind bars for life. Prop. 36 will keep dangerous criminals off
the streets.” (Voter Information Guide, supra, Argument in Favor of Prop. 36, p. 52.)
       The fifth argument said, “TAXPAYER SUPPORT [¶] Prop. 36 could save $100
million every year. Grover Norquist, President of Americans for Tax Reform says, ‘The
Three Strikes Reform Act is tough on crime without being tough on taxpayers. It will put
a stop to needlessly wasting hundreds of millions in taxpayers’ hard-earned money, while
protecting people from violent crime.’ The California State Auditor projects that
taxpayers will pay millions to house and pay health care costs for non-violent Three
Strikes inmates if the law is not changed. Prop. 36 will save taxpayers’ money.” (Voter
Information Guide, supra, Argument in Favor of Prop. 36, p. 52.)
       The final argument stated, “TOUGH AND SMART ON CRIME [¶] Criminal
justice experts and law enforcement leaders carefully crafted Prop. 36 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. Repeat offenders


                                             11
of non-violent crimes will get more than double the ordinary sentence. Any defendant
who has ever been convicted of an extremely violent crime—such as rape, murder, or
child molestation—will receive a 25 to life sentence, no matter how minor their third
strike offense.” (Voter Information Guide, supra, Argument in Favor of Prop. 36, p. 52.)
       The opponents of the proposition argued that Proposition 36 would allow
dangerous criminals to be released, sometimes without parole or law enforcement
supervision, that the proposed enactment was unnecessary and opposed by law
enforcement, and that it would not reduce taxes.
       In their rebuttal to the arguments against Proposition 36, the proponents stated,
“Today, dangerous criminals are being released early from prison because jails are
overcrowded with nonviolent offenders who pose no risk to the public. Prop. 36 prevents
dangerous criminals from being released early. People convicted of shoplifting a pair of
socks, stealing bread or baby formula don’t deserve life sentences.” (Voter Information
Guide, supra, Rebuttal to Argument Against Prop. 36, p. 53.)
       From these ballot pamphlet arguments, we conclude the intent of the voters in
enacting Proposition 36 was twofold. One objective was to continue to imprison for 25
years to life those inmates convicted of serious and violent offenses falling within the
Three Strikes law. The second was to save state resources—both money and prison
space—without undermining the first objective. The resolution most faithful to the
voters’ intent is a twofold approach, not a blanket endorsement of the first objective that
undercuts the second objective.
       In the present case, resentencing defendant on the nonserious, nonviolent felony
would result in parole eligibility and possible release 19 years earlier than if no
resentencing occurred. The voters’ apparent goal of saving money and prison space by
not incarcerating defendant for an additional 19 years based on his nonserious, nonviolent
crime would be implemented. Such implementation would not thwart the voters’ other
goal of keeping inmates convicted of serious, violent crimes in prison for 25 years to life.
The defendant here still would serve 25 years to life for the serious, violent offense.


                                              12
Moreover, if the trial court were to identify defendant as a criminal whose early release
would pose an unreasonable risk of danger to public safety, the court could refuse to
resentence him on the nonviolent offense pursuant to subdivision (f). In exercising its
discretion to do so, the trial court would be able to consider the nonserious, nonviolent
offense and make an informed determination as to whether that crime should prevent
resentencing. The voters would stand to gain a savings on 19 years of incarceration costs,
while benefiting from the option of keeping the defendant incarcerated for more than 25
years to life if the trial court determined that he posed the danger contemplated by the
statute.
       On the other hand, a blanket rule making this defendant ineligible for resentencing
on the nonserious, nonviolent crime would deprive the voters of the savings they might
realize through a release 19 years earlier and also rob them of the opportunity for the trial
court to make a particularized and informed decision as to whether or not a specific
inmate should be resentenced on his nonserious, nonviolent criminal conviction. Indeed,
a blanket disqualification of defendants serving third-strike terms for both serious or
violent offenses and nonserious, nonviolent offenses would effectively constitute a per se
determination that such defendants pose an unreasonable risk of danger to public safety in
the context of their nonserious, nonviolent commitment offense, without consideration of
any evidence or any of the factors expressly incorporated in the Three Strikes Reform Act
of 2012. Absent an indication that the voters intended such a per se determination, we
conclude an interpretation of the statute automatically excluding such petitioners from
resentencing eligibility is inconsistent with the voters’ intent to save money and prison
space while continuing to incarcerate only third-strike defendants who pose an
unreasonable risk to public safety.
       Finally, to the extent the language of the statute and the ballot pamphlet can be
deemed to equally support defendant’s interpretation and the Attorney General’s
interpretation, the rule of lenity requires that we adopt the interpretation more favorable to




                                             13
defendant. (People v. Nuckles (2013) 56 Cal.4th 601, 611; People v. Arias (2008)
45 Cal.4th 169, 177.)
       Where, as here, a statute has been enacted with two objectives in mind, it is more
consistent with the voters’ two-pronged approach to interpret the statute to accommodate
both prongs rather than to offer a blanket interpretation that favors one objective over the
other. The approach urged by the Attorney General prefers incarceration to saving
resources. The approach we adopt seeks to accommodate both equally.
       Accordingly, we conclude the trial court erred by deeming defendant ineligible for
resentencing on his second degree burglary count because of his conviction of a serious,
violent felony along with the nonserious, nonviolent second degree burglary count. We
direct the trial court to reconsider defendant’s petition with respect to the second degree
burglary count. The trial court retains full discretion pursuant to section 1170.126,
subdivisions (f) and (g), and it may consider all relevant factors, including defendant’s
first degree burglary conviction, in exercising its discretion.




                                              14
                                    DISPOSITION
      The judgment is reversed. The trial court is directed to reconsider defendant’s
eligibility for resentencing under Penal Code section 1170.126 with respect to his second
degree burglary conviction.
      CERTIFIED FOR PUBLICATION.


                                                MILLER J.*
We concur:


      CHANEY, Acting P. J.


      JOHNSON, 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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