Filed 4/24/14




                       CERTIFIED FOR PARTIAL PUBLICATION*


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                   F066969
        Petitioner,
                                                       (Super. Ct. No. VCF036841-95)
                  v.

THE SUPERIOR COURT OF TULARE                                     OPINION
COUNTY,

        Respondent;

ALFREDO CERVANTES,

        Real Party in Interest.



        APPEAL from a judgment of the Superior Court of Tulare County. Joseph A.
Kalashian, Judge.
        Tim Ward, District Attorney, Anthony Fultz, Assistant District Attorney, Jill
Icenhower, Douglas Rodgers, and Samantha Arnerich, Deputy District Attorneys, for
Petitioner.
        No appearance for Respondent.



*       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part I. of the Discussion.
       Michael B. Sheltzer, Public Defender, Lisa Bertolino, Assistant Public Defender,
and Angela Marie Krueger, Deputy Public Defender, for Real Party in Interest.
                                          -ooOoo-
                                    INTRODUCTION
       “On November 6, 2012, the voters approved Proposition 36, the Three Strikes
Reform Act of 2012, which amended [Penal Code] sections 667 and 1170.12 and added
[Penal Code] section 1170.126 (hereafter the Act [or Proposition 36]).[1] The Act
changes the requirements for sentencing a third strike offender to an indeterminate term
of 25 years to life imprisonment. Under the original version of the three strikes law a
recidivist with two or more prior strikes who is convicted of any new felony is subject to
an indeterminate life sentence. The Act diluted the three strikes law by reserving the life
sentence for cases where the current crime is a serious or violent felony or the
prosecution has pled and proved an enumerated disqualifying factor. In all other cases,
the recidivist will be sentenced as a second strike offender. (§§ 667, 1170.12.) The Act
also created a postconviction release proceeding whereby a prisoner who is serving an
indeterminate life sentence imposed pursuant to the three strikes law for a crime that is
not a serious or violent felony and who is not disqualified, may have his or her sentence
recalled and be sentenced as a second strike offender unless the court determines that
resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126.)”
(People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168.)
       Shortly after the Act went into effect, real party in interest Alfredo Cervantes, an
inmate serving a 50-years-to-life term following conviction of felonies that were not
violent (as defined by § 667.5, subd. (c)) or serious (as defined by § 1192.7, subd. (c)),
filed a petition for recall of sentence, seeking resentencing under the Act. The trial court
determined Cervantes qualified (was eligible) for resentencing and set the matter for
1      Further statutory references are to the Penal Code unless otherwise stated.



                                             2.
further hearing on the issue of whether resentencing Cervantes would pose an
unreasonable risk of danger to public safety. The People now seek review of the trial
court’s eligibility determination.
       In the published portion of this opinion, we hold that an inmate serving an
indeterminate life term under the three strikes law may be found to have been “armed
with a firearm” in the commission of his or her current offense(s), so as to be disqualified
from resentencing under the Act, even if he or she did not carry the firearm on his or her
person. In the unpublished portion, we hold the People are entitled to writ review of the
trial court’s contrary conclusion. Accordingly, we grant the People’s petition for a writ
of prohibition and/or mandate.
                       FACTS AND PROCEDURAL HISTORY
       On September 11, 1995, Cervantes sold one ounce of heroin to an undercover
narcotics officer. The sale took place in front of Cervantes’s home. Cervantes also
negotiated to sell the officer 10 pounds of methamphetamine and another four ounces of
heroin. On September 21, 1995, a search warrant was executed at Cervantes’s residence.
When officers entered, they found Cervantes standing inside the doorway. Heroin,
methamphetamine, marijuana, and scales were found in the kitchen. A loaded
semiautomatic handgun was found in the adjacent bedroom, in a purse belonging to
Cervantes’s wife. The gun was about eight feet from the heroin. Cervantes admitted the
firearm and some of the drugs were his.
       In March 1996, a jury convicted Cervantes of selling heroin (Health & Saf. Code,
§ 11352, subd. (a); count 1), possessing heroin for sale (id., § 11351; count 2), being a
felon in possession of a firearm (former § 12021, subd. (a)(1), see now § 29800,
subd. (a); count 3), and making a building available for preparing or storing heroin
(Health & Saf. Code, § 11366.5, subd. (a); count 5). Jurors found Cervantes was
personally armed with a firearm in the commission of count 2. (§ 12022, subd. (c).)
Cervantes was further found to have suffered two prior “strike” convictions. (§ 1170.12,

                                             3.
subd. (c)(2)(A).) On April 25, 1996, he was sentenced to prison for a total unstayed term
of 50 years to life plus four years.
       On November 7, 2012, Cervantes petitioned the trial court for a recall of sentence
and a new sentencing hearing pursuant to section 1170.126. The People opposed the
petition on the ground Cervantes did not qualify because, in connection with his current
offenses, the prosecution pled and proved Cervantes was armed with a firearm.
Cervantes argued: (1) The electorate — most of whom were lay persons — would have
understood the phrase “armed with a firearm” to refer to a crime in which the offender
was carrying a firearm, not one in which the firearm was in a separate room; (2) Since the
firearm was not in the same room as the heroin Cervantes was convicted of possessing,
the jury necessarily relied on constructive possession in order to find the section 12022,
subdivision (c) allegation to be true; and (3) Since the “armed” exclusion included in
Proposition 36 was narrower than the “armed” element of the enhancement, the jury’s
finding under section 12022, subdivision (c) did not disqualify Cervantes from relief
under section 1170.126.
       On March 21, 2013, a hearing was held on the petition. After argument on the
issue, the court stated: “I’m going to accept the defendant’s position … and find that
armed for purposes of Prop 36 means actual possession rather than constructive
possession of the firearm .… So I’m going to find that Mr. Cervantes … [is] not
excluded.” The matter was then set for a resentencing hearing.
       The People petitioned this court for a writ of prohibition and/or mandate
overturning the trial court’s ruling. They further requested that we stay the resentencing
hearing. On April 9, 2013, we issued an order to show cause why the relief prayed for
should not be granted, and stayed proceedings in the trial court pending our further order.




                                             4.
                                       DISCUSSION
I.     The People are entitled to writ review of the trial court’s ruling.
       Cervantes contends the People should be barred from seeking writ relief and their
petition dismissed. “As a general rule, the People may not seek an extraordinary writ in
circumstances where the Legislature has not provided for an appeal. [Citations.]”
(People v. Superior Court (Vidal) (2007) 40 Cal.4th 999, 1008 (Vidal).) “[T]he People
have no right of appeal in criminal cases except as granted by statute. [Citations.]
Statutory restriction of the People’s right to appeal in criminal cases does not merely
establish a procedural limitation to allocate appellate review between direct appeals and
extraordinary writs. It substantively limits review of trial court determinations in
criminal trials. [Citation.]” (People v. Kirk (1992) 7 Cal.App.4th 855, 859-860.)
       As Cervantes notes, the Act itself does not provide the People with a right of
appeal. If section 1238 gives them such a right, though, the Act need not expressly do so.
(See Vidal, supra, 40 Cal.4th at p. 1009.) Section 1238 provides, in relevant part:
“(a) An appeal may be taken by the people from any of the following: [¶] … [¶] (5) An
order made after judgment, affecting the substantial rights of the people.”
       Had the trial court proceeded to sentence Cervantes as a second strike offender,
section 1238, subdivision (a)(5), would apply. (See People v. Superior Court (Kaulick)
(2013) 215 Cal.App.4th 1279, 1294-1295 & fn. 14 (Kaulick).) We conclude this
provision applies also to the eligibility finding.
       The trial court’s consideration of a petition under the Act is a two-step process.
First, the court determines whether the petitioner is eligible for resentencing. If the
petitioner is eligible, the court proceeds to the second step, and resentences the petitioner
under the Act unless it determines that to do so would pose “an unreasonable risk of
danger to public safety.” (§ 1170.126, subd. (f).)
       Here, we are concerned with the first step of the process — the initial eligibility
determination. A trial court’s ruling at this step does not change a petitioner’s sentence,

                                              5.
and so is not appealable by the People under subdivision (a)(10) of section 1238.2
Nevertheless, we conclude it constitutes “[a]n order made after judgment, affecting the
substantial rights of the people.” (§ 1238, subd. (a)(5).) It is an order made after
judgment, since, in a criminal case, judgment is synonymous with the imposition of
sentence. (Fadelli Concrete Pumping, Inc. v. Appellate Department (1995) 34
Cal.App.4th 1194, 1200.) Sentence was imposed for Cervantes’s current offenses in
1996. We believe it also affects the People’s substantial rights: An initial eligibility
determination affects whether the trial court will exercise resentencing discretion. This is
not an idle exercise as far as the People are concerned; where, as here, the trial court
determines the inmate is eligible, the burden shifts to the prosecution to establish
dangerousness (Kaulick, supra, 215 Cal.App.4th at p. 1301 & fn. 25) and, if the
prosecution does not carry its burden, resentencing the inmate as a second strike offender
necessarily follows (§ 1170.126, subd. (f); Kaulick, supra, at p. 1299). Thus, an initial
finding of eligibility affects enforcement of the judgment (in which the People clearly
have a substantial interest), and it affects the inmate’s status with relation to the judgment
already imposed. (See People v. Benavides (2002) 99 Cal.App.4th 100, 104, 105.)
       Accordingly, we conclude the People have the right to appeal the eligibility
finding under section 1238, subdivision (a)(5).3 We further conclude the trial court’s

2      That subdivision permits the People to appeal from “[t]he imposition of an
unlawful sentence,” and defines “unlawful sentence” as “the imposition of a sentence not
authorized by law or the imposition of a sentence based upon an unlawful order of the
court which strikes or otherwise modifies the effect of an enhancement or prior
conviction.” (§ 1238, subd. (a)(10).)
3      The issue whether denial of a petition for recall of sentence, based on a finding the
inmate does not meet threshold eligibility requirements, is appealable by the inmate is
currently pending before the state Supreme Court. (E.g., Teal v. Superior Court (2013)
217 Cal.App.4th 308, review granted July 31, 2013, S211708 [concluding denial is
nonappealable because Act confers no substantial rights on eligibility issue]; People v.
Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, S212017
[concluding denial is appealable because Act confers a “substantial right”].)


                                              6.
order is properly challenged by writ petition. (See Kaulick, supra, 215 Cal.App.4th at
pp. 1295-1296.) Significantly, an appeal is not a plain, speedy, or adequate remedy under
the circumstances. The People and Cervantes both have a substantial interest in prompt
resolution of the matter, and this is best accomplished by the more expedited writ
review.4
       Even if we were to conclude the People had no right of appeal at this juncture of
the proceedings, we would still find writ review appropriate. “If the prosecution has not
been granted by statute a right to appeal, review of any alleged error may be sought by a
petition for writ of mandate only when a trial court has acted in excess of its jurisdiction
and the need for such review outweighs the risk of harassment of the accused.
[Citations.] Mandate is not available to the prosecution for review of ‘ordinary judicial
error’ [citation] or even ‘egregiously erroneous’ orders [citations] .…” (People v.
Superior Court (Stanley) (1979) 24 Cal.3d 622, 625-626, fn. omitted.)
       “Some courts have taken an expansive view of the phrase ‘excess of jurisdiction,’
holding that where the law allows a court to act in only one way, the court exceeds its
jurisdiction by doing anything else and the error can be corrected through writ review.
[Citations.] Other courts have taken a restrictive stance, holding that there is no basis for
writ review unless the trial court acts without subject matter or personal jurisdiction.
[Citations.]” (People v. Superior Court (Mitchell) (2010) 184 Cal.App.4th 451, 456.)
“An act that exceeds a grant of statutory power qualifies under both lines of cases for writ
review.” (Id. at p. 458.)


4       Allowing proceedings to run their course and having the People appeal if
Cervantes is resentenced as a second strike offender is particularly inadequate: Cervantes
would almost certainly be released from custody before an appeal could be decided. It is
not in the People’s interest (or that of society) to have an ineligible person out of custody,
and it is not in Cervantes’s interest to be allowed to start rebuilding his life, only to be
returned to prison if the appeal goes against him.



                                              7.
       Section 1170.126 grants the trial court the power to determine an inmate serving
an indeterminate life term as a third strike offender is eligible for resentencing as a
second strike offender only if, as an initial matter, the inmate satisfies the three criteria set
out in subdivision (e) of the statute. Those criteria are: (1) The inmate is serving an
indeterminate term of life imprisonment imposed under the three strikes law for a
conviction of a felony or felonies that are not defined as serious and/or violent under
section 667.5, subdivision (c) or section 1192.7, subdivision (c); (2) The inmate’s current
sentence was not imposed for a controlled substance offense with a specified weight
enhancement, an enumerated sex offense, or an offense during the commission of which
“the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to
cause great bodily injury to another person”; and (3) The inmate has no prior convictions
for certain specified offenses. (§ 1170.126, subd. (e); see §§ 667, subd. (e)(2)(C),
1170.12, subd. (c)(2)(C).) If the inmate does not satisfy one or more of the criteria,
section 1170.126 grants the trial court no power to do anything but deny the petition for
recall of sentence. In the present case, as we shall explain, Cervantes was “armed with a
firearm” during commission of one of his current offenses. Accordingly, by finding him
qualified for resentencing, the trial court exceeded its grant of statutory power.5




5       Cervantes points to subdivision (f) of section 1170.126, which states in part:
“Upon receiving a petition for recall of sentence under this section, the court shall
determine whether the petitioner satisfies the criteria in subdivision (e).” Cervantes
suggests this language gives the trial court specific authority to decide whether an inmate
is qualified, so that, having done so, the court cannot then be found to have exceeded the
authority it was directly granted by statute. We do not read the language as giving the
trial court authority to decide an inmate is qualified when that inmate does not meet all
the eligibility criteria specified in subdivision (e) of section 1170.126. Rather,
subdivision (f) of the statute sets out the procedure a trial court is to follow upon receipt
of a petition under section 1170.126.



                                               8.
II.    Cervantes was “armed with a firearm” within the meaning of the Act, and so
       was disqualified from resentencing.
       Insofar as we are concerned, Cervantes’s current conviction was for a violation of
Health and Safety Code section 11351, during the commission of which he was
“personally armed with a firearm” in violation of section 12022, subdivision (c).6 A
person is “armed with a firearm” within the meaning of section 12022 if he or she “has
the specified weapon available for use, either offensively or defensively. [Citations.]”
(People v. Bland (1995) 10 Cal.4th 991, 997.) Although section 12022, subdivision (c)’s
requirement that the defendant be “personally armed” limits liability to one who actually
commits the prohibited conduct, as opposed to imposing vicarious liability (People v.
Bland, supra, at p. 998, fn. 3; contrast § 12022, subd. (a)(1)), it does not require that the
defendant physically carry the firearm on his or her person (People v. Smith (1992) 9
Cal.App.4th 196, 204; People v. Gonzales (1992) 8 Cal.App.4th 1658, 1661-1663;
People v. Mendival (1992) 2 Cal.App.4th 562, 573-574; People v. Superior Court
(Pomilia) (1991) 235 Cal.App.3d 1464, 1471-1472).7



6      The People have not, either here or in the trial court, contended Cervantes is
disqualified from resentencing by any of his other current convictions. Accordingly, we
have no occasion to (and do not) decide whether possession of a firearm by a felon
constitutes a disqualifying conviction.
7      The People assert, in their supplemental letter brief, that People v. White (2014)
223 Cal.App.4th 512, petition for review pending, petition filed March 10, 2014, could be
read to limit exclusion from resentencing to those defendants who physically possessed a
firearm during the commission of their commitment offense. We do not read White so
narrowly. White was convicted of possession of a firearm by a felon and the issue was
whether he fell within the exclusion of having been “armed with a firearm.” (Id. at
pp. 519, 520.) The White court found the “armed-with-a-firearm exclusion” applied
because the record showed the defendant “was in physical possession of a firearm” and,
therefore, had “ready access” to it. (Id. at pp. 523-524.) The White court did not hold
physical possession was the only circumstance in which a defendant could be found to be
armed with a firearm within the meaning of section 667, subdivision (e)(2)(C)(iii), and
section 1170.12, subdivision (c)(2)(C)(iii).



                                              9.
       The question before us is whether, having been “personally armed with a firearm”
in the commission of his current offense within the meaning of section 12022,
subdivision (c), Cervantes “was armed with a firearm” within the meaning of
sections 667, subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii). If he was
not, then he is qualified for resentencing under the Act. (§ 1170.126, subd. (e)(2).) As
previously described, the trial court ruled that “armed with a firearm” for purposes of the
Act means actual possession, i.e., carrying the firearm on one’s person. The issue is one
of the interpretation of a statute and its applicability to a given situation, a question of law
we review independently. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332; Southern
California Edison Co. v. State Board of Equalization (1972) 7 Cal.3d 652, 659, fn. 8; see
People v. Cromer (2001) 24 Cal.4th 889, 894.)8
       “In interpreting a voter initiative like [the Act], we apply the same principles that
govern statutory construction. [Citation.]” (People v. Rizo (2000) 22 Cal.4th 681, 685.)
“‘The fundamental purpose of statutory construction is to ascertain the intent of the
lawmakers so as to effectuate the purpose of the law. [Citations.]’” (Horwich v. Superior
Court (1999) 21 Cal.4th 272, 276.) “In determining intent, we look first to the words
themselves. [Citations.] When the language is clear and unambiguous, there is no need
for construction. [Citations.] When the language is susceptible of more than one
reasonable interpretation, however, we look to a variety of extrinsic aids, including the
ostensible objects to be achieved, the evils to be remedied, the legislative history, public
policy, contemporaneous administrative construction, and the statutory scheme of which

8      Because we are not confronted in this case with vicarious arming, which exists
when a defendant who is not personally armed is a principal in a crime and another
principal is armed, possibly without the defendant’s knowledge (see § 12022,
subd. (a)(1); People v. Paul (1998) 18 Cal.4th 698, 706; People v. Bland, supra, 10
Cal.4th at p. 998, fn. 3; People v. Overten (1994) 28 Cal.App.4th 1497, 1501-1503), we
express no opinion whether vicarious arming disqualifies an inmate from resentencing
under section 1170.126, subdivision (e)(2).



                                              10.
the statute is a part. [Citations.]” (People v. Woodhead (1987) 43 Cal.3d 1002, 1007-
1008.) We also “‘refer to other indicia of the voters’ intent, particularly the analyses and
arguments contained in the official ballot pamphlet.’ [Citation.]” (People v. Rizo, supra,
22 Cal.4th at p. 685.) “Using these extrinsic aids, we ‘select the construction that
comports most closely with the apparent intent of the [electorate], with a view to
promoting rather than defeating the general purpose of the statute, and avoid an
interpretation that would lead to absurd consequences.’ [Citation.]” (People v. Sinohui
(2002) 28 Cal.4th 205, 212.) “‘“The meaning of a statute may not be determined from a
single word or sentence; the words must be construed in context, and provisions relating
to the same subject matter must be harmonized to the extent possible. [Citation.]”’”
(People v. Mohammed (2008) 162 Cal.App.4th 920, 928.) “‘[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.”
[Citation.]’ [Citation.]” (Horwich v. Superior Court, supra, 21 Cal.4th at p. 276.)
       The People contend the language at issue in sections 667, subdivision (e)(2)(C)(iii)
and 1170.12, subdivision (c)(2)(C)(iii) — “During the commission of the current offense,
the defendant … was armed with a firearm” (italics added) — “is clear on its face and
has no ambiguity.” It can be argued, however, that the words are susceptible of two
reasonable interpretations: the broad definition espoused by the People (the defendant
had the firearm available for use, either offensively or defensively) and the narrower one
endorsed by Cervantes (the defendant carried the firearm on his or her person). “The
word ‘[armed]’ conveys no self-evident meaning; its import must be gathered from the
overall context in which it appears. [Citation.]” (People v. Woodhead, supra, 43 Cal.3d
at p. 1008.) When “the words themselves provide no definitive answer, we … look to
extrinsic sources.” (Ibid.)
       Cervantes says that because our aim is to interpret the voters’ intent, we must give
the language “its ordinary meaning as understood by the electorate,” i.e., “the average

                                             11.
voter, unschooled in the patois of criminal law .…” (Robert L. v. Superior Court (2003)
30 Cal.4th 894, 901, 902, italics added.) Based on his view of “common lay person
understanding,” which he supports with various dictionary definitions, Cervantes says the
electorate understood being “armed with a firearm” to occur where the defendant was
carrying a firearm on his or her person while in the perpetration of a crime.
       For the most part, however, the dictionary definitions are not so limited.9 For
instance, the first definition of “armed” given by Webster’s Third New International
Dictionary (1986) at page 119 is “furnished with weapons of offense or defense.” The
American Heritage Dictionary (2d college ed. 1985) at page 128 defines “armed” as
“[e]quipped with weapons.” As commonly understood, the state of being furnished or
equipped with weapons is broader than carrying a weapon on one’s person.
       Moreover, Cervantes’s argument ignores the fact it has long been settled that
“[t]he enacting body is deemed to be aware of existing laws and judicial constructions in
effect at the time legislation is enacted” (People v. Weidert (1985) 39 Cal.3d 836, 844),
“and to have enacted or amended a statute in light thereof” (People v. Harrison (1989) 48
Cal.3d 321, 329). “This principle applies to legislation enacted by initiative. [Citation.]”
(People v. Weidert, supra, at p. 844.) Indeed, where, as here, “the language of a statute
uses terms that have been judicially construed, ‘“the presumption is almost irresistible”’
that the terms have been used ‘“in the precise and technical sense which had been placed
upon them by the courts.”’ [Citations.] This principle [likewise] applies to legislation
adopted through the initiative process. [Citation.]” (Id. at pp. 845-846.)
       In enacting Proposition 36, the voters are thus deemed to have been aware of the
longstanding statutory and judicially construed definition of “armed with a firearm.” Yet
they failed to expressly limit the term when amending sections 667, subdivision (e) and
1170.12, subdivision (c) and enacting section 1170.126. This strongly suggests they
9      This is true even with respect to the dictionaries consulted by Cervantes.



                                            12.
intended to disqualify from resentencing those inmates who had a firearm available for
use, either offensively or defensively, and not merely those who carried a firearm on their
person. (See Robert S. v. Superior Court (1992) 9 Cal.App.4th 1417, 1421-1422.)
       A conclusion “armed with a firearm,” as used in sections 667,
subdivision (e)(2)(C)(iii) and 1170.12, subdivision (c)(2)(C)(iii), and as disqualifies an
inmate from resentencing pursuant to section 1170.126, subdivision (e)(2), extends to
situations in which the defendant had the firearm available for use, either offensively or
defensively, is supported by an examination of the statutory scheme as a whole. The
purpose of the three strikes law has been variously stated as being “‘to ensure longer
prison sentences and greater punishment for those who commit a felony and have been
previously convicted of serious and/or violent felony offenses’” (In re Young (2004) 32
Cal.4th 900, 909) and “to promote the state’s compelling interest in the protection of
public safety and in punishing recidivism” (People v. Gipson (2004) 117 Cal.App.4th
1065, 1070). Although the Act “diluted” the three strikes law somewhat (People v.
Yearwood, supra, 213 Cal.App.4th at p. 167), “[e]nhancing public safety was a key
purpose of the Act” (id. at p. 175). Moreover, section 12022 was enacted “to deter those
engaged in felonies from creating a risk of death or injury by having a firearm at the
scene of the crime. [Citation.]” (People v. Bland, supra, 10 Cal.4th at p. 1001.)
       That such a construction of the term comports with voters’ intent is supported by
the ballot materials related to Proposition 36. The “OFFICIAL TITLE AND
SUMMARY” stated in part that the initiative “[c]ontinues to impose life sentence penalty
if third strike conviction was for certain nonserious, non-violent sex or drug offenses or
involved firearm possession.” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012)
official title and summary, p. 48, italics added.) In summarizing then-existing law, the
legislative analysis of Proposition 36 listed, as examples of violent felonies, murder,
robbery, and rape; as felonies that were serious but not violent, assault with intent to
commit robbery; and as felonies not classified as violent or serious, grand theft (not

                                             13.
involving a firearm) and possession of a controlled substance. (Voter Information Guide,
Gen. Elec., supra, analysis of Prop. 36 by Legis. Analyst, p. 48.) In summarizing how
the initiative measure would shorten sentences for some third strikers, the Legislative
Analyst explained there would be some exceptions to the shorter sentence: “Specifically,
the measure requires that if the offender has committed certain new or prior offenses,
including some drug-, sex-, and gun-related felonies, he or she would still be subject to a
life sentence under the three strikes law.” (Id. at p. 49, italics added.) The legislative
analysis further described how certain current third strikers would be resentenced, but
explained that Proposition 36 “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.” (Voter
Information Guide, Gen. Elec., supra, at p. 50, italics added.)
       In their “ARGUMENT IN FAVOR OF PROPOSITION 36,” the measure’s
proponents spoke in terms of making the punishment fit the crime, saving California
money, and making room in prison for dangerous felons. (Voter Information Guide,
Gen. Elec., supra, argument in favor of Prop. 36, p. 52.) In their “REBUTTAL TO
ARGUMENT AGAINST PROPOSITION 36,” the proponents stated, in part: “Prop. 36
requires that murderers, rapists, child molesters, and other dangerous criminals serve
their full sentences. [¶] … [¶] 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, Gen. Elec., supra, rebuttal to argument against
Prop. 36, p. 53, original italics omitted, italics added.)
       Section 1 of the proposed law found and declared:

              “The People enact the Three Strikes Reform Act of 2012 to restore
       the original intent of California’s Three Strikes law — imposing life


                                              14.
       sentences for dangerous criminals like rapists, murderers, and child
       molesters.

              “This act will:

               “(1) Require that murderers, rapists, and child molesters serve their
       full sentences — they will receive life sentences, even if they are convicted
       of a new minor third strike crime.

             “(2) Restore the Three Strikes law to the public’s original
       understanding by requiring life sentences only when a defendant’s current
       conviction is for a violent or serious crime.

              “(3) Maintain that repeat offenders convicted of non-violent, non-
       serious crimes like shoplifting and simple drug possession will receive
       twice the normal sentence instead of a life sentence.

              “(4) Save hundreds of millions of taxpayer dollars every year for at
       least 10 years. The state will no longer pay for housing or long-term health
       care for elderly, low-risk, non-violent inmates serving life sentences for
       minor crimes.

              “(5) Prevent the early release of dangerous criminals who are
       currently being released early because jails and prisons are overcrowded
       with low-risk, non-violent inmates serving life sentences for petty crimes.”
       (Voter Information Guide, Gen. Elec., supra, text of proposed law, § 1,
       p. 105, italics added.)
       The foregoing materials expressly distinguished between dangerous criminals who
were deserving of life sentences, and petty criminals (such as shoplifters and those
convicted of simple drug possession) who posed little or no risk to the public and did not
deserve life sentences. We do not view the electorate as deeming someone with a firearm
available for use, either offensively or defensively, in the commission of a felony to be
nondangerous or to pose little risk to the public.
       Cervantes observes that the Act refers to specific statutory definitions in some
places (e.g., §§ 667, subd. (e)(2)(C)(iv), 1170.12, subd. (c)(2)(C)(iv)), but not in the
context of the “arming” definition. He argues this implies the electorate intended the
common, lay definition for the term. We disagree. There are multiple statutes in this



                                             15.
state’s codes that refer to arming. (E.g., §§ 1203.06, subd. (a)(2), 12022; Health & Saf.
Code, § 11370.1, subd. (a).) Some expressly define the term (e.g., § 1203.06,
subd. (b)(3); Health & Saf. Code, § 11370.1, subd. (a), 2d par.), while others rely on
judicial construction (e.g., § 12022; People v. Bland, supra, 10 Cal.4th at p. 997). By not
specifically including any, the electorate excluded none. (See Gikas v. Zolin (1993) 6
Cal.4th 841, 852 [under canon of construction expressio unius est exclusio alterius,
expression of some things in statute necessarily means exclusion of other things not
expressed].)
       We conclude the trial court erred, as a matter of law, in finding Cervantes
qualified for resentencing under the Act. The People are entitled to the relief they seek.
                                      DISPOSITION
       The “PETITION FOR WRIT OF PROHIBITION AND/OR MANDATE” is
granted. Let a writ of mandate issue directing the Superior Court of Tulare County to
vacate the order filed in action No. VCF036841-95 on March 21, 2013, finding real party
in interest not excluded from resentencing under Proposition 36, and to enter a new and
different order denying real party in interest’s “PETITION FOR RECALL OF
SENTENCE.”
       The order filed on April 9, 2013, staying the proceedings in Tulare County
Superior Court case No. VCF036841-95 shall remain in effect only until this opinion is
final in all courts in this state or the Supreme Court grants a hearing herein, whichever
shall first occur. Thereafter said stay order is vacated and said stay is dissolved.




                                             16.
                                                             _____________________
                                                                        DETJEN, J.
WE CONCUR:


    _____________________
    LEVY, Acting P.J.


    _____________________
    LAPORTE, J.†




†     Judge of the Superior Court of Kings County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



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