1 Filed 4/15/15 P. v. Turnage CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yolo)

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THE PEOPLE, Plaintiff and Appellant,

v. BARRY TURNAGE, Defendant and Respondent. C075153 (Super. Ct. Nos. CRF041665, CRF065019)

This is an appeal by the People. The sole issue is whether a defendant who was originally sentenced to an indeterminate te rm under the “three strikes” law as it stood prior to November 7, 2012, th e operative date of the Three Strikes Reform Act of 2012 (the Act), and whose sentence is vaca ted on appeal and the matter remanded for resentencing after November 7, is entitled to be resentenced to a determinate term as provided by the Act’s amendm ent to the three strikes law. The trial court herein concluded defendant was so entitled because this court’s having vacated his sentence rendered him an unsentenced defendant with in the meaning of the Act and therefore imposed a determinate sentence.2 For reasons we explain, we conclude that, consistent with the intent of the Act, it is the date upon which the defendant’s senten ce was originally imposed that determines whether the defendant is entitle d to be sentenced under the Act. Because defendant herein was originally sentenced prior to November 7, he wa s not entitled to be sentenced under the Act. Accordingly, we shall vacat e defendant’s sentence and remand the matter for resentencing. THE ACT On November 6, 2012, the voters pa ssed the Act and it became operative on November 7, 2012. The Act consisted of two parts, one prospective and the other retrospective. The prospective part amende d the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) 1 to provide second-strike senten cing to defendants who were to be sentenced on or after November 7, who had two or more prior serious or violent felony convictions but whose pr esent felony was neither serious nor violent nor were the defendants excluded because th ey came within the scope of other specified circumstances (§ 667, subd. (e)). 2 The retrospective part of the Act added section 1170.126 to the Penal Code. This section permitted defendants who were servi ng indeterminate three-strike sentences imposed prior to November 7, 2012, to petiti on the trial court for resentencing as secondstrike offenders if the felony for which they were serving the indeterminate term was not a serious or violent felony and they were no t excluded from such sentencing because they came within the scope of other specified circumstances. Defendants meeting these

1 References to undesignated statutes are to the Penal Code.

2 Section 667, subdivisions (b)-(i) is the Le gislature’s version of the three strikes law, and section 1170.12 is the voter initiative ve rsion of the three strikes law. The two versions are almost identical. (See People v. Hazelton (1996) 14 Cal.4th 101, 103-109.) While our analysis herein is ma de with reference to the Legi slature’s version of the law, our analysis is equally applicable to the voter initiative version.3 threshold conditions were entitle d to be resentenced as s econd-strike defendants unless the trial court found that they posed an unreasonable risk of danger to the public. (§ 1170.126, subds. (b)-(f).) PROCEDURAL HISTORY 3 In August 2008 defend ant Barry Turnage, who had two prior serious felony convictions, was sentenced to an indetermin ate term of imprisonment under the three strikes law (§ 667, subds. (b)-(i)) based upon his being convicted by a jury of maliciously placing a false bomb (§ 148.1, subd. (d)), a felo ny. Defendant appeal ed, and in a decision filed in 2010 we affirmed his conviction bu t held that the false bomb offense was not punishable as a felony. We vacated defend ant’s sentence and remanded the matter for resentencing as a misdemeanor. Because defe ndant was no longer eligible for sentencing under the three strikes law, we did not addr ess his additional contention that the evidence was insufficient to support one of his prior strike convictions. In 2010 the California Supreme Court granted the People’s petition for review. ( People v. Turnage (2012) 55 Cal.4th 62, 67.) In August 2012 the Supreme Court affirmed defendant’s conviction but revers ed our holding that the offense was not punishable as a felony, and remanded the matter to us for further proceedings. ( Id. at pp. 80-81.) We ordered supplemental briefing, and in May 2013 we filed our opinion, vacating defendant’s sentence and remanding to the trial court for a retrial on the allegation that defendant had suffered a 1 985 conviction for assa ult with a deadly weapon. The remittitur issued in July 2013. In September 2013 a jury found defendant’s prior strike conviction allegation true, and in October 2013 the matt er came before the trial c ourt for resentencing. After hearing arguments the trial court conclude d defendant was entitled to be sentenced

3 We take judicial notice of our records in defendant’s prior appeal in case C059887. (Evid. Code, § 452, subd. (d).)4 pursuant to the Act, reasoning as follows: “T he defendant is presently unsentenced. The true finding as to his second strike o ccurred after the amendm ent to Penal Code Section 667. The Court finds that under the facts of this case the amended Penal Code Section 667 applies. The de fendant’s conviction of Penal Code Section 148.1 is not a serious or violent felony. None of the excl usions under [section] 667 apply. Therefore, an indeterminate sentence may not be imposed .” The court then imposed a determinate term of six years (the upper term of three ye ars, doubled because of the strike) plus an effective consecutive term of one year four months for a separate case for which defendant was on probation. ANALYSIS “In interpreting a voter initiative, we appl y the same principles that govern our construction of a statute. [Citation.] We turn first to the statutory language, giving the words their ordinary meaning. [Citation.] If the statutory language is not ambiguous, then the plain meaning of the language governs. [Citation. ] If, however, the statutory language lacks clarity, we may resort to ex trinsic sources, including the analyses and arguments contained in the official ballot pa mphlet, and the ostensible objects to be achieved. [Citations.].” ( People v. Lopez (2005) 34 Cal.4th 1002, 1006.) The Act makes clear that a defendant whos e original sentence is to be imposed on or after November 7, 2012, and who qualifie s for sentencing under amended section 667, subdivision (e) must be sentenced under that section. However, the Act does not address whether, as here, a defendant originally sentenced before November 7, but whose sentence was vacated on appeal and the matter remanded for resentencing after November 7, is in the same unsentenced po sition as he or she was when originally sentenced. Thus, in such circumstances the Act is ambiguous, and therefore it is appropriate to look to extr insic evidence, such as th e argument contained in the Amendment’s ballot pamphlet, to determine voter intent. ( People v. Yearwood (2013) 213 Cal.App.4th 161, 171 ( Yearwood ).)5 According to the Act’s proponents, one of the primary purposes of the Act was to make the punishment fit the crime while guarding public safety. ( Yearwood , supra , 213 Cal.App.4th at p. 171.) As to making the punishment fit the crime, proponents of the Act argued that people who were convicted of such crimes as “ ‘shoplifting a pair of socks, stealing bread or baby formul a don’t deserve life sentences.’ ” ( Ibid .) Public safety was addressed by limiti ng application of the Act to defendants whose crimes for which they were to be senten ced or had been sentenced were neither serious nor violent felonies, nor did they come within the scope of other specified offenses or circumstances. (§ 667, subd. (e).) Indeed, the voters were expressly assured th at dangerous persons would not be released under the Act: “Cri minal justice experts and law enforcement leaders carefully crafted [the Act] so that truly danger ous criminals w ill receive no benefits whatsoever from the reform. Repeat criminals will get life in prison for serious or violent third strike crimes.” (Voter In formation Guide, Gen. Elec. (Nov. 6, 2012) argument in favor of Prop. 36 [(the Act)], p. 52.) “The main difference between the prosp ective and the retrospective parts of the Act is that the retrospective part of th e Act contains an ‘escape valve.’ ” ( People v. Superior Court ( Kaulick ) (2013) 215 Cal.Ap p.4th 1279, 1293 ( Kaulick ).) The escape valve provides that even if a defendant meets the threshold requirements for resentencing, namely, that the sentence he was now serving was not for a serious or violent felony and that he did not come within any other of th e disqualifying conditions, the court is still authorized to deny resentencing if the court determines that “ ‘resentencing the [defendant] would pose an unreasonable ri sk of danger to public safety.’ ” ( Ibid .) The circumstances of Kaulick , which we discuss in detail, post , demonstrate the need for such an escape valve. ( Kaulick , supra , 215 Cal.App.4th at p. 1293.) In 1999, after violently assaulting his neighbor, Ba rbara S., Kaulick was charged with false imprisonment by violence (§ 236), assault with intent to commit rape (§ 220), and making criminal threats (§ 422), the latter two offenses being violent or serious felonies.6 ( Kaulick , at pp. 1286-1287.) It was also alleged that he had two prior serious or violent felony convictions. ( Id. at p. 1287.) In 2000 a jury c onvicted him of false imprisonment, which is not a serious or violent felony, bu t deadlocked on the remaining charges, which were ultimately dismissed at the prosecution’s request. ( Id. at pp. 1287-1288.) The court found the alleged prior serious or violent felo ny allegations true and sentenced Kaulick to 25 years to life in state prison. ( Ibid. ) In December 2012, around 12 years afte r his sentencing, Kaulick filed a petition for resentencing under section 1170.126. ( Kaulick , supra , 215 Cal.App.4th at p. 1289.) Kaulick asserted he was entitled to resent encing because his conviction was for false imprisonment, which was neither a serious nor violent felony. He minimized his dangerousness by claiming that his present conv iction arose from his effort to retrieve a gold necklace Barbara S. had pu rportedly stolen from him, a nd he claimed that his prior convictions arose from a family dispute gone awry for which he had naively accepted a plea bargain. ( Ibid. ) He submitted no evidence whatso ever regarding his behavior while in prison or his current ri sk of dangerousness. ( Ibid. ) On December 31, 2012, the trial court, without giving notice or op portunity to be hear d to the district attorney, granted the petition and resentenced Kau lick to seven years. ( Id. at pp. 1289-1290, 1296.) Because Kaulick had served more than seven years, he was entitle d to immediate release from prison. ( Id. at p. 1290.) The district attorney sought and obt ained an immediate 30-day stay. ( Kaulick , supra , 215 Cal.App.4th at p. 1290 .) A review of Kaulick’s prison records disclosed that he had been found guilty of se rious rules violations—twice for battery on a peace officer (2002, 2005); six times for fighting (2001, 2003, 2007, 2010, 2011, 2012); and once for disrespecting staff (2011), possession of al cohol (2009), being under the influence of alcohol (2008), and destructi on of property (2002). ( Ibid .) The district attorney al so reviewed the facts of Kaulick’s present and past convictions, which the defendant had minimized in his petition. ( Kaulick , s upra ,7 215 Cal.App.4th at p. 1290.) As to Ka ulick’s claim that his false imprisonment conviction arose out of his efforts to recover a necklace Barbara S. had purportedly stolen from him, he neglected to include evidence from the trial that Barbara S. was helping defendant move out of his ap artment when he closed the door, tore her blouse, choked her, threatened to kill her, threw her on his bed, ordered her to remove her clothes, and unbuckled his belt. ( Id . at pp. 1286-1287.) Barbara S. managed to escape by kicking defendant between his legs and fleeing. ( Id . at p. 1287.) As to prior strike convictions purportedly having arisen from a family dispute gone awry, evidence from the preliminary hearing showed that Kaulick ar rived at his parents’ motor home drunk and demanded a gun from his father. When his fath er refused, Kaulick repeatedly punched, strangled, and threatened to kill him. Kau lick eventually got the gun and kidnapped his parents in their motor home. After consumi ng more alcohol, defe ndant drove back to where the motor home ha d been parked, released his parent s, and drove off in their motor home, leaving them abandoned. ( Id . at p. 1287, fn. 3.) A writ of mandate directed the trial cour t to vacate its resentencing of Kaulick under the Act and to conduct a new hearin g wherein the prosecution was afforded the opportunity to challenge Kaulick’s qualificati on for resentencing under section 1170.126. ( Kaulick , supra , 215 Cal.App.4th at pp. 1306-1307.) In the present case, by sentencing defendant pursuant to the prospective part of the Act the trial court permitted defendant to byp ass having the trial court determine whether, as in Kaulick , facts existed that established he pos ed an unreasonable risk of danger to public safety based upon any evidence relevant on the issue. As in Kaulick , such a bypass was clearly contrary to the inte nt of the voters in passing the Act. DISPOSITION Defendant’s sentence is vacated and the ma tter is remanded to the superior court with directions to resentence defendant under the three strikes law as it stood at the time of his original sentencing, which includes the tr ial court’s discretion to strike one or more8 of his prior strikes if the court determines that he so qualifies. The judgment is otherwise affirmed.

RAYE , P. J.

We concur:

BUTZ , J.

MURRAY , J.