Filed 3/19/15 P. v. Hamilton CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE,
Plaintiff and Respondent,

v.
FREDERICK ROMAN HAMILTON,
Defendant and Appellant. B256751
(Los Angeles County Super. Ct. No. GA041750)

APPEAL from a judgment of the Superi or Court of Los Angeles County. William C. Ryan, Judge. Affirmed. Suzan E. Hier, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Ge rald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

________________ _________________2 Defendant Frederick Roman Hamilton appe als from an order denying his petition for Proposition 36 resentencing pursu ant to Penal Code section 1170.126. 1 Defendant contends his commitment offense—criminal th reats—does not render him ineligible for resentencing because he comm itted that offense before it was added to the list of
“serious” felonies set forth in section 1192.7, subdivision (c). 2 We affirm the trial court’s order finding defendant ineligible. BACKGROUND As far as the record reveals, defendant was charged with, and convicted of, having made criminal threats, in violation of secti on 422. The information alleged the crime was committed in January of 2000. At that time, criminal threat s was not included in the list of “serious” felonies set forth in section 1192.7, subdivision (c). Defendant had prior convictions of first degree burglary, kidnapping, and second degree robbery, all of which were “serious” felonies in January of 2 000. In September of 2000, defendant was sentenced to a third strike pris on term of 25 years to life. On March 7, 2000, the electorate appr oved Proposition 21, which, inter alia, amended the list of “serious” felonies set forth in section 1192.7, subdivision (c) to include criminal threats. (Voter Information Guide, Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 17, p. 125; John L. v. Superior Court (2004) 33 Cal.4th 15 8, 165; § 1192.7, subd. (c)(38).) The provisions of Propos ition 21 took effect on March 8, 2000. Proposition 36, also known as the Th ree 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 1170.1 2 so that an indeterminate term of 25 years to life in prison is applied only where the “third strike” offense is a seri ous or violent felony or the

1 Undesignated statutory refere nces pertain to the Penal Code.

2 The same issue is now pending on review in People v. Johnson (2014) 226 Cal.App.4th 620, review grante d July 30, 2014, S219454; and Braziel v. Superior Court (2014) 225 Cal.App.4th 933, review granted July 30 , 2014, S218503.3 prosecution pleads and proves an enumerated triggering factor. (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2).) 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 indeterminate life sentence.” (§ 1170.126, subd. (a).) Such a person may file a petition to recall his or her sentence and be resentence d 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 th e factors that would trigger a third-strike sentence under the Thre e Strikes law as refo rmed by Proposition 36 applies. (§ 1170.126, subd. (e).) Resentencing of qualifie d inmates may nonetheless be refused if the trial court, “in its discreti on, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) Defendant filed a petition to recall his sentence and be resentenced pursuant to section 1170.126. The trial court denied th e petition with prejudice, stating defendant was ineligible for resentencing because his commitment offens e, criminal threats, is a serious felony. The trial cour t’s order is appealable. ( Teal v. Superior Court (2014) 60 Cal.4th 595, 597, 601.) DISCUSSION Defendant contends he was eligible for resentencing because the status of his commitment offense as a serious felony must be determined by the lis t of serious felony in effect when he committed the offense in Janua ry 2000, not the lis t in effect when Proposition 36 became effective on November 7, 2012. The Atto rney General argues eligibility for resentencing is determined by re ference to the list of serious felonies in effect when Proposition 36 became effective. In construing a statute enacted by voter initiative, we apply the same rules of statutory construction that a pply to legislative enactments to attempt to determine the intent of the electorate ( People v. Park (2013) 56 Cal.4th 782, 796.) In determining that4 intent, we first examine the words of the stat ute, viewing them in their statutory context and giving them their ordina ry and usual meaning. ( People v. Albillar (2010) 51 Cal.4th 47, 55.) If the language is not ambigu ous, its plain meaning governs. ( Ibid .) “‘“If, however, the statutory language is ambiguous, ‘we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.’ [Citation.] Ultimately we choose the construction that comports most closely with the apparent intent of the lawmakers, with a view to promoting rather than defeating the general purpose of the statute. [Citations.]”’” ( People v. Gutierrez (2014) 58 Cal.4th 1354, 1369.) Defendant and the Attorney General do not disagree that thes e are the applicable principles for construing a voter initiative. 1. Language of the statute Section 1170.126, subdivisio n (b) provides, in pertinent part, “Any person serving an indeterminate term of life imprisonmen t imposed pursuant to paragraph (2) of subdivision (e) of Section 6 67 or paragraph (2) of subdiv ision (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 petitio n 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 ac t that added this section.” (Italics added.) Similarly, section 1170.126, subdivision (e) provides, in pertinent part, “An inmate is eligible for resentencing if: [¶] (1) The inmate is serving an indeterminate term of life imprisonment imposed pursua nt to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c ) of Section 1192.7.” (Italics added.) “‘[The legislative] use of a verb tense is significant in construing statutes.’ [Citations.]” ( People v. Loeun (1997) 17 Cal.4th 1, 11.) According significance to the use of the present tense in section 1170.126 , subdivisions (b) and (e), and giving the5 language of the subdivisions its ordinary an d usual meaning, an inmate serving a third strike term is eligible for resentenci ng under Proposition 36 only if his or her commitment offense was not listed as a seri ous or violent felony as of the date Proposition 36 went into effect, November 7, 2012. Because defendant’s commitment offense was listed as a serious felony on November 7, 2012 in section 1192.7, he was ineligible for resentencing. This plain meaning is consistent with section 1170.126, subdivision (a), which provides, “The resentencing provisions unde r this section and related statutes are intended to apply exclusively to persons pr esently serving an indeterminate term of imprisonment pursuant to paragraph (2) of su bdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, whose sentence under th is act would not have been an indeterminate life sentence. ” (Italics added.) Defe ndant’s sentence under Proposition 36 would have been an indeterminate life sent ence because his commitment offense was a serious felony. If the resentencing provisions of Propos ition 36 instead were intended to utilize the definitions of serious and violent felonies in effect at the time of a defendant’s commitment offense, the drafters easily could have so provided. For example, resentencing eligibility could ha ve been granted to anyone se rving an indeterminate term under the Three Strikes law upon convic tion “of a felony or felonies that were not defined as serious and/or violent fe lonies at the time the pers on committed the offense or offenses.” Such a provision was not enact ed, and the use of the present tense in describing resentencing eligibility makes de fendant’s interpretation of the statutory language strained. Defendant concedes that the use of th e present tense in section 1170.126 is “significant.” Defendant argues that the defi nition of a serious felony for purposes of resentencing under Proposition 36 and of a qualifying strike under the “‘Three Strikes Law’” should be read in pari materia

. In other words, he appear s to contend that the date6 of the commission of the commitment offens e should govern any provision within the Three Strikes law, including re sentencing under Proposition 36. Defendant relies, in part, upo n section 1170.125, arguing that “[t]he ‘on or after’ language of section 11 70.125 has always been construed to mean that for purposes of the ‘Three Strikes Law’ the definition of violen t or serious felony is controlled by the definition of those terms in effect on the da te of the commission of the offense being sentenced.” Although this is generally a correct statement of law with respect to strike priors ( People v. James (2001) 91 Cal.App.4th 1147, 1150–1151 ( James )), neither James nor section 1170.125 supports defendant’s conten tion that he is eligible for resentencing under Proposition 36. Section 1170.125, as ame nded by Proposition 36, provi des, “Notwithstanding Section 2 of Proposition 184, as adopted at th e November 8, 1994, General Election, for all offenses committed on or after November 7, 2012, all references to existing statutes in Sections 1170.12 and 1170.126 are to those sections as they ex isted on November 7,
2012.” 3 Section 1170.125 is expressly applicab le only to “offenses committed on or after November 7, 2012.” Because defendant co mmitted his commitment offense before that date, section 1170.125 does not apply to him. Nor does section 1170.125 expressly or implicitly support defendant’s contention th at for defendants whose commitment offense predated Proposition 36, references to statutes in section 1170 .126 are to the versions in effect at the time of commission of the co mmitment offense. The drafters of the proposition easily could have added such a provisi on to section 1170.126 if they intended the date of the commitment offe nse to govern eligibility for re sentencing, but they did not do so.

3 Prior to its amendment by Propos ition 36, section 1170.125 provided, “Notwithstanding Section 2 of Proposition 184, as adopted at the November 8, 1994, General Election, for all offens es committed on or after the effective date of this act, all references to existing statutes in Sections 1170 .12 are to those statutes as they existed on the effective date of this act, including am endments made to those statutes by the act enacted during the 2005–20 06 Regular Session that amended this section.”7 In addition, the cases citing the principl e of construction on wh ich defendant relies pertain only to the determination of whethe r prior offenses constitute strikes in the original sentencing proceeding, not whethe r the commitment offense is a strike for purposes of a subsequent resentencing proceeding. For example, in James , supra , 91 Cal.App.4th 1147, cited by defendant, Divisi on Two of this court held that where a defendant’s commitment offens e was committed after the effective date of Proposition 21, the strike status of his prior convictions was to be determined by reference to the lists of serious or violent felonies as amended by Proposition 21. ( James , at p. 1151.) People v. Superior Court (

Andrades ) (2003) 113 Cal.App.4th 817 , 826–830, also cited by defendant, reached th e same conclusion. People v. Ringo (2005) 134 Cal.App.4th 870, 884, also cited by de fendant, addressed a different i ssue, but reached a consistent conclusion in holding the date of the commi tment offense governs the determination of whether a prior offense constitutes a serious felony for which a five-year enhancement pursuant to section 667, subdivi sion (a)(1), may be imposed.
In re Jensen (2001) 92 Cal.App.4th 262, anot her of defendant’s authorities, involved a defendant whose commitment offense predated Proposition 21. Thus, whether his prior juvenile adjudicati on of voluntary manslaughter cons tituted a strike was to be determined by reference to the list of offens es included in Welfare and Institutions Code section 707, subdivision (b) before the passage of Proposition 21. ( Jensen , at p. 266.) 4

4 In a footnote, the Jensen court noted that Prop osition 21 added voluntary manslaughter to the list set forth in Welf are and Institutions Code section 707, subdivision (b), and added, “As a result, ad judications of voluntar y manslaughter that were committed on or after March 8, 2000 qualify as strikes.” ( Jensen , supra , 92 Cal.App.4th at p. 266, fn. 3.) This was dict um. “Incidental statements or conclusions not necessary to the decision are not to be regarded as authority.” ( Simmons v. Superior Court (1959) 52 Cal.2d 373, 378.) Long before Jensen , courts recognized that serious or violent felony convictions predating the Three Strikes law constituted “strikes” supporting a second or third strike sentence under the Three Strikes law. (See People v. Reed (1995) 33 Cal.App.4th 1608, 1611 –1612.) Thus, the statement in Jensen upon which defendant re lies is not binding or dispositive.8 Finally, defendant’s argument ignores the distinction between being sentenced in the original proceeding and being resenten ced in a subsequent proceeding under Proposition 36. In the former situation, choosing the date of the crime on which defendant is being sentenced makes sense in determining what qualifies as a strike to avoid an ex post facto concern. As set forth in part 3, post , there is no such concern in defining what is a serious felony for purposes of qualifying for a more lenient subsequent resentencing under Proposition 36. In short, there is nothing inconsistent or illogical in giving the present tense in section 1170.1 26, subdivision (b) its plain meaning. 2. Voters’ intent We find nothing in the ballot material s from Proposition 36 th at contradicts our reading of the plain language of section 1170.126. The Official Title and Summary section stated the following regarding rese ntencing: “Authorizes re-sentencing for offenders currently serving lif e sentences if third strike conviction was not serious or violent and judge determines sentence does no t pose unreasonable risk to public safety.” (Voter Information Guide, supra , Official Title and Summary of Prop. 36, p. 48.) The Legislative Analyst’s analysis of Proposition 36 addressed the resentencing provision, and stated, in pertinent part, “Thi s 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 an d prior offenses, such as certain drug-, sex-, and gunrelated felonies.” (Vot er Information Guide, supra , Analysis by the Le gislative Analyst of Prop. 36, p. 50, italics added.) Nothing in the arguments in favor of Proposition 36 in the Voter Information Guide addressed eligibility for resentencing , but they are nonetheless instructive regarding the overall intent of the electora te. The arguments incl uded the following:
“MAKE THE PUNISHMENT FIT THE CRIME [¶] Precious financial and law enforcement resources should not be imprope rly diverted to impose life sentences for some non-violent offenses. Prop. 36 will as sure that violent repeat offenders are9 punished and not released early”; “The Three Strikes law will continue to punish dangerous career criminals wh o commit serious violent crim es—keeping them off the streets for 25 years to life”; “Prop. 36 will help stop clogging over crowded prisons with non-violent offenders, so we have room to keep violent felons off the streets”; “Prosecutors, judges and police officers suppo rt Prop. 36 because Pr op. 36 helps ensure that prisons can keep dangerous criminals behind bars for life”; and “Criminal justice experts and law enforcement l eaders carefully crafted Prop. 36 so that truly dangerous criminals will receive no benefits whatsoever from the reform.” (Voter Information Guide, supra , Argument in Favor of Prop. 36, p. 52.) In their rebuttal to the arguments against Proposition 36, the proponents stated, “Today, dangerous criminals are being rel eased early from prison because jails are overcrowded with nonvio lent offenders who pose no risk to the public. Prop. 36 prevents dangerous criminals from being released early. People conv icted of shoplifting a pair of socks, stealing bread or baby formula don’t deserve life sent ences.” (Voter Information Guide, supra , Rebuttal to Argument Against Prop. 36, p. 53.) In addition, the findings and declarations in the text of the proposition stated, “This act will: [¶] . . . [¶] (2) Restore th e 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. [¶] . . . [¶] (5) Prevent the early release of dangerous criminals who are currently being released early becau se jails and prisons are overcrowded with low-risk, non-violent inmates serving life sentences for petty crimes .” (Voter Information Guide, supra , Text of Prop. 36, p. 105, italics added.) From these Voter Information Guide materials, we conclude the intent of the voters in enacting Proposition 36 was twofold. One objective was to promote and protect public safety by continuing to imprison fo r 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 a nd prison space—without underm ining the first objective.10 Allowing defendants whose commitment o ffense constitutes a serious or violent felony at the time Propos ition 36 was enacted to bene fit from the proposition’s resentencing scheme would be inconsistent with the first goal, even if it would save money and prison space. Indeed, the strong emphasis on pu blic safety and reforming the Three Strikes law to preclude its applicatio n to persons whose commitment offense was a “petty” crime strongly indicates the electorate did not intend to allow a person serving a third strike term after being convicted of at least three serious or violent felonies (two prior convictions and the commitment offense) to be resentenced to a shorter determinate term. Defendant, for instance, has been convicted of four se rious or violent felonies: three strike priors and his commitment offens e. Had he committed his criminal threats offense a few months later in 2000, there woul d be no question that he was ineligible for resentencing. The few months’ difference in the timing of his commitment offense would not make him any less dangerou s in the view of the electorate. Accordingly, the legislative history of Proposition 36 is consistent with our interpretation of section 1170.126 and inco nsistent with defendant’s contention. 3. No ex post facto or equal protection problem Defendant does not raise an ex post fact o or equal protection claim, but merely suggests “there may be . . . problems.” We briefly address each suggestion. The ex post facto clause of the federa l Constitution prohibits legislation that (1) punishes as a crime an act that was inno cent when it was comm itted; (2) makes more burdensome the punishment for a crime, after its commission; or (3) deprives a defendant of any defense available according to law at the time when the charged crime was committed. ( Collins v. Youngblood (1990) 497 U.S. 37, 42 [1 10 S.Ct. 2715].) Courts have interpreted California’s ex po st facto clause identically. ( People v. Grant (1999) 20 Cal.4th 150, 158.) Applying the definitions of serious a nd violent felonies as they existed on November 7, 2012, to determin e eligibility for resentencing do es not punish an act that was innocent when committed, make the punishment for the act more burdensome, or11 deprive a defendant of any defe nse. Accordingly, our construction of the statute does not implicate any ex post facto concern. Defendant suggests an e qual protection problem might arise where two defendants committed the same offense at th e same time, “but for some reason [one of them] was not tried or convicted until after 2012 and is on ly subject to a Second Strike sentence” whereas the other “must retain his indefinite term.” Temporal classifications resulting from a statutory change do not violate equal protection. ( People v. Floyd (2003) 31 Cal.4th 179, 188–190.) “‘[T]he Fourteenth Amendment does not forbid statutes and statutory changes to have a be ginning and thus to discrimina te between the rights of an earlier and later time.’” ( Baker v. Superior Court (1984) 35 Cal.3d 663, 669 [extension of MDSO commitments following repeal of MD SO law did not violate equal protection], quoting Sperry & Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505 [31 S.Ct. 490].) DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED.

BENDIX, J. *
We concur:

ROTHSCHILD, P. J.

CHANEY, J.

* Judge of the Los Angeles Superior Cour t, assigned by the Ch ief Justice pursuant to article VI, section 6 of the California Constitution.