Filed 9/18/14 P. v. Miller CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.
LAURENCE LORENZO MILLER,
Defendant and Appellant. B254854
(Los Angeles County Super. Ct. No. GA039926)

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

________________ ______________2 Laurence Lorenzo Miller appeals from an order denying his petition to recall his
sentence under the Three Strikes Reform Act of 2012 (Pen. Code, § 1170.126). 1 His petition was denied on the ground that his curre nt conviction, though not classified as a serious felony at the time of conviction, is now a serious felony rendering him ineligible for resentencing. We affirm the order. FACTUAL AND PROC EDURAL SUMMARY On February 25, 2000, appellant was co nvicted by a jury of making criminal threats (then-termed “terrori st threats”), a violation of section 422. Under the Three Strikes law as it existed at that time, a de fendant who had suffere d two or more prior serious or violent felony convictions would receive a mandatory sent ence of 25 years to life for any felony conviction, even if the current crime was not a serious or violent felony under sections 1192.7 , subdivision (c) and 667.5, subdivision (c). Because appellant was found to have had at least two prior strike convictions, he was given a mandatory sentence of 25 years to life following his section 422 conviction. We affirmed the judgment. ( People v. Miller (Aug. 2, 2001, B1399 00) [nonpub. opn.].) In 1999, when appellant co mmitted his current offense, a violation of section 422 was not classified as a serious or violen t felony. Proposition 21 was approved by the California voters and became effective on March 8, 2000, adding section 422 to the list of “serious” felonies. (§ 1192.7, subd. (c)(38); Manduley v. Superior Court (2002) 27 Cal.4th 537, 577.) On November 6, 2012, California vot ers approved Proposition 36, the Three Strikes Reform Act of 2012 (the Act). Releva nt to our inquiry, th e Act amended sections 667 and 1170.12 to require co urts to impose a mandatory 25 years to life sentence on defendants with two strike priors only if the defendant’s current offense constituted a violent or serious felony. A defendant with two strike prio rs but whose current offense did not constitute a violent or serious felo ny would be sentenced as a second strike offender. The Act also added section 1170. 126, a resentencing pr ovision providing an

1 Subsequent statutory refere nces are to the Penal Code.3 opportunity for resentencing to inmates serving an indeterm inate life sentence but whose third strike is not a violent or serious felony . Section 1170.126 give s the court discretion, upon petition, to resentence an e ligible inmate as a second stri ker or deny resentencing if it determines that the inmate poses an “unreas onable risk of danger to public safety.” (§ 1170.126 , subd. (f).) In 2014, appellant filed a petition to reca ll his sentence pursuant to the Act. The trial court denied the petition with prejudice, stating that “Defendant ’s current conviction is for criminal threats (Penal Code section 422), which is a serious felony pursuant to Penal Code section 1192.7(c)(38), making Defe ndant ineligible for resentencing.” This timely appeal followed. 2

DISCUSSION
I This case presents an issue of statutor y interpretation: whether, for purposes of determining an inmate’s eligibility for recall of his sentence under section 1170.126, the trial court must use the list of serious or viol ent felonies in effect on November 7, 2012 (the date the Act went into effect) or the list of violent and serious felonies existing at the
time the third strike crime was committed. 3 Voter initiatives are interpreted according to the same principles used in statutory construction. ( Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900.) The “fundamental purpose” of this interpretation is to determine the intent of the voters “as to effectuate the purpose of the law.” ( People v. Pieters (1991) 52 Cal.3d 894, 898.) To do so, we first look to the plain language of the statute and give it its literal meaning, so long

2 The appealability of an order denying a petition for a recall is under review by the Supreme Court. (See, e.g., Teal v. Superior Court (2013) 217 Cal.A pp.4th 308, review granted July 31, 2013, S211708; People v. Hurtado (2013) 216 Cal.Ap p.4th 941, review granted July 16, 2013, S212017.)

3 On July 30, 2014, the California Supr eme Court granted review in two cases addressing this issue. (See People v. Johnson (2014) 226 Cal.App.4th 620, review granted July 30, 2014, S219454; Braziel v. Superior Court (2014) 225 Cal.App.4th 933, review granted July 30, 2014, S218503.) As of this writing, these cases are still pending.4 as doing so does not “‘result in absurd consequences’” that the voters did not intend to bring about. ( Ibid. ) “‘[T]he intent prevails over the le tter, and the letter will, if possible, be so read as to conform to the spirit of the act.’” ( Id. at p. 899.) “[W]e do not construe statutes in isolation, but rather read every statute ‘with reference to the entire scheme of law of which it is part so that the whole ma y be harmonized and retain effectiveness.’” ( Ibid. ) “‘We must also consider “the object to be achieved and the evil to be prevented by the legislation.”’” ( People v. Westbrook (2002) 100 Cal.App.4th 378, 383.)
II
A. Use of the Present Verb Tense in Section 1170.126 The retroactive resentencing provisions of the Act are codified in section 1170.126. Specifically, sec tion 1170.126, subdivision (b) states that “[a]ny person serving an indeterminate term of life im prisonment imposed pursuant to [the Three Strikes law] upon conviction, whether by trial or plea, of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192 .7, may file a petition for a reca ll of sentence.” (Italics added.) Additionally, section 1170.126, subdi vision (e)(1) deems an inmate eligible for resentencing if “[t]he inmate is serving an indeterminat e term of life imprisonment imposed pursuant to [the Three Strikes law] for a conviction of a felony or felonies that

are not defined as serious and/or violent felonies.” (Italics added.) In both instances, section 1170.126 refers to definitions of serious or violent felonies in the present tense. The plain mean ing of this language su ggests that courts are to utilize the definitions of serious or violen t felonies as they existed on November 7, 2012 in evaluating an inmate’s eligibility for resentencing under section 1170.126. As the California Supreme Court has noted, the use of verb tense by the legislature is considered significant. ( People v. Loeun (1997) 17 Cal.4th 1, 11 .) Respondent contends, and we agree, that the tria l court properly found that appellant was ineligible for5 resentencing because his curre nt conviction for a violation of section 422 constituted a serious felony under section 1192.7, subdivision (c) as of November 7, 2012. 4 Appellant concedes that the use of present tense in the language of section 1170.126 is significant. However, ap pellant urges us to look to the manner in which courts have interpreted other parts of the Three Strikes law, noting that “from its inception, the determination of whether a cr ime was a violent or serious felony for purposes of the ‘Three Strikes Law’ has been based upon the defin ition of violent or serious felony in effect at the time of the commission of the crime being punished.” Appellant cites People v. James (2001) 91 Cal.App.4th 1147 ( James ) as support, arguing that although sections 667.1 and 1170.125 also use the pr esent tense, courts have held
that the date of commission of the current crime controls. 5 James was a Three Strikes case involving a dispute over the classification of the defendant’s prior convictions for assault with a firearm (a violation of § 245 , subd. (a)(2)) and shooting at an inhabited dwelling, vehicle, or aircraft (a violation of § 246) as “strike” convictions. Neither crime was a serious or violent felony at the tim e of commission. But by the time James committed his potential third strike, Propos ition 21 had amended the Penal Code to include violations of sections 245, subdivision (a)(2) and 24 6 as serious felonies under the meaning of section 1192.7, subdivision (c). ( James , supra , at p. 1149.) The James court held that “if a defendant’s current offe nse 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 th e three strikes law must be based on the

4 While not raised by either party, we al so note that section 7 provides: “Words used in this code in the present tense include the future as well as the present.” This does not aid appellant’s position, as the section does not indicate that the present tense refers to the past.

5 Appellant also cites to People v. Ringo (2005) 134 Cal.A pp.4th 870, 884, People v. Superior Court (Andrades) (2003) 113 Cal.App. 4th 817, 826-830, and In re Jensen (2001) 92 Cal.App.4th 262, 266, footnote 3. Like James , these cases hold that, for sentencing purposes, cour ts should look to the definition of serious or violent felony on the date of commission of the crime to de termine whether prior convictions should be counted as strikes.6 definition of serious felonies in Penal Code secti on 1192.7, subdivisi on (c) in effect on March 8, 2000 [the effective date of Proposition 21].” ( Id. at p. 1150, italics added.) Based on this holZding appellant argues that courts are required to look to the date
of the commission of the current offe nse in interpreting any provision with in the Three Strikes law, including the resenten cing provision. Extending the James holding in this manner, however, is inappropriate. James addressed only the classification of prior felony convictions as strike priors during original sentencing proceedings . Given its context, the fact that James required sentencing courts to look to the date of the commission of the current crime makes sense. A contrary result would raise ex post facto implications, as the defendant must have notice that the conduct he is about to engage in will result in an enhanced punishment. (See People v. Acosta (2009) 176 Cal.App.4th 472, 476 [central concern to ex post facto prohibition is “‘“‘the lack of fair notice and governmental restraint when the legislat ure increases punishment beyond what was prescribed when the crime was consummated’”’”]; Couzens & Bigelow, The Amendment of the Three Strikes Senten cing Law (Aug. 2014) p. 27 [http://www.courts.ca.gov/doc uments/Three-Strikes-Amendm ent- Couzens-Bigelow.pdf] [as of Sept. 17, 2014].) There are no ex post facto concerns in deciding whether or not to
resentence an inmate under the Act based on th e current definition of serious or violent felonies. The inmate stands only to pote ntially benefit from this ameliorative law. Appellant appropriately does not raise any ex post facto arguments. Thus, we reject his contention that the use of the present tense in sections 667. 1 and 1170.125 requires us to look to the state of the law at the time the current crime wa s committed for the purpose of determining eligibility for resenten cing under section 1170.126.
B . Section 1170.125 and its Reference to Section 1170.126 Appellant’s second argument is that , since section 1170.125 refers to section 1170.126, the two sections must be interpreted in the same manner. Section 1170.125 states: “Notwithst anding Section 2 of Propositi on 184, as adopted at the November 8, 1994, General Election, for all o ffenses committed on or after November 7, 2012, all references to existi ng statutes in Sections 1170. 12 and 1170.126 are to those7 sections as they existed on November 7, 20 12.” Appellant notes that Section 1170.125 always has included la nguage limiting its applicability to offenses committed “on or after” the effective date of its enactment a nd subsequent amendments . The inclusion of the “on or after” language in the section make s sense, as it would otherwise raise ex post
facto concerns in cases where the defendant is being sentenced for the first time. It requires the evaluating court to look at the state of the law at th e time the offense was committed, not at the time of evaluation. Appellant now points to the most recent amendment to section 1170.125, which make s a reference to section 1170.126. He argues this reference “makes it clear that th e same rule [used in original sentencing proceedings] applies in cases of petitions for recall.” Although it is generally true that language within the same statute must be given the same meaning, if two prov isions of an act have differ ing purposes, similar language found in the provisions is not necessa rily given the same meaning. (See Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1520.) As mentioned earlier, the purpose of the prospective sentencing provisions in se ction 1170.125 is to avoid ex post facto implications by ensuri ng individuals have notice that their criminal conduct will be subject to heightened punishment. Th e purpose of section 1170.126 is to resentence inmates serving an indeterminate life sentence based on a nonserious, nonviolent felony conviction; it does not implicate ex post facto concerns. The two provisions serve different purposes—one retrospective and the other prospective— and as such, the court is not required to construe thei r language in the same manner. This, then, raises the ques tion of why the amendment to section 1170.125 contains a reference to section 1170.126 at all. Couzens and Bigelow state, “The intent of the amendment to section 1170.125 with . . . resp ect to the eligibility fo r resentencing is not entirely clear. . . . On its face, the ame ndment makes no sense—section 1170.126 only applies to crimes committed prior to November 7, 2012. . . . [¶] Likely the intent of the amendment to section 1170.125, when viewed against the opening paragraph to section 1170.126(a), is to limit the ab ility to request resentencing to those persons who would be eligible for a lower sentence had the crime been committed on or after November 7,8 2012 . . . . Based on the objective intent of the amendment to section 1170.125 and the opening paragraph of section 1170.126(a), eligibility for resentencing must be based on the interpretation of statutes as they exist on or after November 7, 2012.” 6 (Couzens & Bigelow, The Amendment of the Three Strikes Sentencing Law, supra , at p. 28.) We find this to be a plausible construction, one that seeks to “harmoni ze[] [the] parts [of the statute] without disregarding or altering any of them.” ( People v. Garcia (1999) 21 Cal.4th 1, 6.) A close reading of section 1170.125 sugg ests an additional explanation. The language in section 1170.125 stat es that “all references to existing statutes in Sections 1170.12 and 1170.126 are to those sections as they existed November 7, 2012.” (§ 1170.125, italics added.) Thus , section 1170.125 refers to the statutes referenced in section 1170.126, not to the resentencing provision itself. For example, section 1170.126 contains references to sections 667.5, subdivision (c) and 1 192.7, subdivision (c)— provisions defining serious and violent fe lonies. Given the prospective nature of section 1170.125 and because sections 667.5 , subdivision (c) and 1192.7, subdivision (c) are not specifically referenced in this sec tion, it is reasonable to conclude that the Legislature intended to incorpor ate the current list of serious or violent felonies into section 1170.125 by referencing section 11 70.126. The resentencing provisions of section 1170.126, then, are i rrelevant to the substance of section 1170.125 or how the section is interpreted.

6 Couzens and Bigelow also note, “One of the prerequisites to obtaining a resentencing is that the offense which resulted in the life sentence is not itself a serious or violent felony. Sections 667. 5(c) and 1192.7(c) defining vi olent and serious felonies, for the most part, have remained substantially the same sinc e the enactment of the Three Strikes law in 1994. From time to time, however, the lists have been augmented to include new offenses. For example, Pro position 21, enacted March 7, 2000, added section 422, making criminal threats, to the list of serious felonies in section 1192.7(c)(38). It is of no benefit to a de fendant sentenced to a 25- life term for a violation of section 422 prior to 2000 that the cr ime was not then listed as a serious felony .” (Couzens & Bigelow, The Amendment of the Three Strikes Sentencing Law, supra , at p. 28, italics added.)9 C. Voters’ Intent A reviewing court must seek to “effectuate the electorate’s intent” in interpreting a ballot initiative. ( Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537, 576.) However, the statutory language is so metimes ambiguous. A statute is ambiguous if it “‘“is amenable to two alte rnative interpretations.”’” ( People v. Arias (2008) 45 Cal.4th 169, 177.) “When an initiative measure’s language is ambiguous, we refer to other indicia of the voters’ intent, particular ly the analyses and arguments contained in the official ballot pamphlet.” ( People v. Birkett (1999) 21 Cal.4th 226, 243.) Proposition 36 was enacted for th e “protection of the health, safety , and welfare of the people of the State of California” and it was intended to be “liberally construed to effectuate those purposes.” (Ballot Pamp., Gen. Elec. (Nov. 6, 2012) text of Prop. 36, p. 110, italics added.) The resentencing pr ovisions of the initiative were drafted for the purpose of alleviating California’s overcrowded prisons and saving taxpayers millions of dollars. (See Ballot Pamp., supra , analysis of Prop. 36 by the Legislative Analyst, p. 50.) However, the initiative also made clear to voter s that this purpose would not be achieved at the expense of public safety. It thus restricted resentencing eligibility to “third strikers whose current offense is nonserious, non-violent and wh o have not committed specified current and prior offenses, such as certain dr ug-, sex-, and gun-related felonies,” and gave the judge further discretion to deny resentencing to an eligible inmate upon an individualized finding that the inmate posed “an unreasonable risk to public safety .” ( Ibid. , italics added.) The arguments in favor of Proposition 36 further assured voters that “violent repeat offenders [will be] punished and not released earl y,” that the initiative is designed to “continue to punish dang erous career criminal s,” “keep dangerous criminals off the streets,” and that “truly dangerous criminals will receive no benefits whatsoever from the refo rm.” (Ballot Pamp., supra , argument in favor of Proposition 36, p. 52.) It is evident that ensuring public safety wa s a major concern. Allowing resentencing of inmates who have been thrice convicted of crimes that are currently considered serious or viol ent would contradict the ai m of the initiative; accepting appellant’s position would result in the potent ial release of inmates on the technicality10 that, many years ago, their current crime was not defined as a serious or violent felony. This was not the intent of the vot ers in approving Proposition 36. Appellant argues we should seek to determ ine eligibility for rese ntencing based on the definition of violent and serious felonies in effect at the time of commission in order
to increase the number of inma tes eligible for resentencing . It would be up to the discretion of the sentencing judge, then, to determine whether the inmate poses an unreasonable risk to public safety. Regard less of whether or not this would be an effective method of ensuring p ublic safety, it was the intent of the voters to disqualify certain inmates from resentencing altogethe r, without the benefit of a discretionary determination by a sentencing judge. If an inmate is serving an indeterminate life sentence for a felony that is considered violent or serious, he or she is not eligible for resentencing. Appellant falls within this category. Finally, appellant argues that “the intent to protect the public should not override all other purposes in passing Proposition 36 and mandate that its ameliorative provisions be as narrowly construed as possible. This is especially so when the public made the choice to release less dangerous inmates in order to be able to retain the most dangerous.” While we agree with the general principle of this argument, it does not aid appellant’s case. Appellant presumably does not deny that had he committed the same act a year later, after Proposition 21 classified a violati on of section 422 as a serious felony, he would not be eligible for resent encing. It is unclear how ap pellant would be considered a “less dangerous” inmate solely because he co mmitted what is now considered a serious felony before Proposition 21 we nt into effect. The logica l and appropriate inquiry is whether appellant is now eligible for resentencing, not whether he was when he
committed the curre nt crime. Because the intention of the voters in approving Propositi on 36 was clear, we interpret its provisions to find that an inmate serving an i ndeterminate life sentence under the Three Strikes law is eligible for resentenci ng only if his or her current conviction is a nonserious and nonviolent fel ony under the versions of sec tions 1192.7, subdivision (c) and 667.5, subdivision (c) in effect on November 7, 2012.11 DISPOSITION The order denying appellant’s petition to recall his sentence is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J.
We concur:

MANELLA, J.

COLLINS, J.