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Filed 9/12/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

LARRY STEVEN SCHINKEL, JR.,

Petitioner,

v.

THE SUPERIOR COURT OF SACRAMENTO 

COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

C073404

(Super. Ct. No. 99F03948)

ORIGINAL PROCEEDING in mandate. Petition denied. Cheryl Chun Meegan, 

Judge.

Charles M. Bonneau, under appointment by the Court of Appeal, for Petitioner.

No appearance for Respondent.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General for Real 

Party in Interest.
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Petitioner Larry Steven Schinkel, Jr. (defendant), who is serving an indeterminate 

life term under the “Three Strikes” law, filed a petition for resentencing under the Three 

Strikes Reform Act of 2012, passed by the voters as Proposition 36. The trial court 

denied the petition without a hearing because Schinkel’s current conviction for 

solicitation of murder necessarily included an intent to cause great bodily injury, which is 

a disqualifying factor for resentencing under the Three Strikes Reform Act of 2012. 

We treat defendant’s appeal from the order denying his petition for resentencing as 

a petition for writ of mandate and conclude: (1) the trial court properly determined that 

defendant is ineligible for resentencing under the Three Strikes Reform Act of 2012 

because his conviction for solicitation of murder necessarily included the intent to cause 

great bodily injury; (2) defendant is not eligible for resentencing on other 

nondisqualifying current convictions because the Three Strikes Reform Act of 2012 

excludes defendant’s class of dangerous criminals from the benefit of resentencing; and 

(3) defendant is not entitled to a jury trial on whether he is eligible for resentencing.

Having found no merit in defendant’s contentions, we deny the petition for writ of 

mandate.

BACKGROUND

Defendant, who had prior strike convictions (specifically, he had six prior burglary 

convictions), engaged in sexual intercourse with a minor. After he was arrested on the 

charges related to the minor, he solicited another inmate to have the minor killed so that 

she could not testify against him. Convicted of four counts of sexual intercourse with a 

minor (Pen. Code, § 261.5, subd. (c)) and solicitation of murder (Pen. Code, § 653f, subd. 

(b)), defendant was eventually sentenced under the Three Strikes law to an indeterminate 

term of 25 years to life for solicitation of murder with two consecutive 25-year-to-life 

terms for two of the sexual intercourse counts, for an aggregate term of 75 years to life. 

Two 25-year-to-life terms for the other sexual intercourse counts were imposed 
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concurrently. (People v. Schinkel (Aug. 27, 2002, C036877) [nonpub. opn.].) (Hereafter, 

unspecified code citations are to the Penal Code.)

In November 2012, California voters passed Proposition 36, the Three Strikes 

Reform Act of 2012, which we refer to in this opinion as the Three Strikes Reform Act 

or, simply, the Act. The Act amended sections 667 and 1170.12 (relating to Three 

Strikes sentencing) and added section 1170.126 (relating to resentencing of defendants

previously sentenced under the Three Strikes law). Among other things, the Act allows a 

defendant sentenced to an indeterminate life term under the Three Strikes law to file a 

petition for resentencing, but only if the defendant is eligible for resentencing under the 

Act.

Defendant, representing himself, filed a petition for resentencing under the Three 

Strikes Reform Act. Without a hearing, the court denied the petition. The court held that 

defendant was not eligible for resentencing because, with respect to the solicitation of 

murder conviction, defendant intended to cause great bodily injury. 

Defendant filed a notice of appeal, and we appointed counsel to represent him on 

appeal. 

The appealability of an order denying a defendant’s petition for resentencing 

under the Three Strikes Reform Act is currently under review in the California Supreme 

Court. (See, e.g., Teal v. Superior Court (Second App. Dist., Div. Seven, Perluss, P. J., 

with Zelon and Segal, JJ., concurring), review granted July 31, 2013, S211708 [not 

appealable, but treated as petition for writ of mandate]; People v. Hurtado (Second App. 

Dist., Div. One, Mallano, P. J., with Rothschild and Johnson, JJ., concurring), review 

granted July 31, 2013, S212017 [appealable]; People v. Leggett (Third App. Dist., Raye, 

P. J., with Robie and Murray, JJ., concurring), review granted Dec. 18, 2013, S214264

[appealable under some circumstances, not appealable under others].) Since our opining 

either way will not resolve the appealability issue, we elect to treat the appeal as a 

petition for writ of mandate and reach the merits to promote judicial efficiency and 
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expedite final resolution of defendant’s petition without waiting for the Supreme Court to 

act. (See Olson v. Cory (1983) 35 Cal.3d 390, 401 [court has power to treat appeal as 

petition for writ of mandate under unusual circumstances]; In re Martinez, review granted 

May 14, 2014, S216922) [treating appeal of denial of petition for resentencing as habeas 

corpus petition to avoid appealability issue].)

DISCUSSION

I

Eligibility for Resentencing for Solicitation of Murder

This appeal deals exclusively with the resentencing provisions of the Three Strikes 

Reform Act, found in section 1170.126. That section allows a defendant sentenced under 

the Three Strikes law to petition for resentencing under some circumstances. 

The resentencing provisions of the Three Strikes Reform Act require the trial 

court, in determining the defendant’s eligibility for resentencing, to consider both the 

prior convictions that justified the Three Strikes sentencing in the first place (here, the six 

prior burglary convictions), as well as the current convictions, meaning the convictions 

for which the defendant is serving an indeterminate life term under the Three Strikes law 

(here, solicitation of murder and four counts of unlawful intercourse with a minor).

A defendant is not eligible for resentencing under the Three Strikes Reform Act if 

any of the prior convictions on which the Three Strikes sentence was based are among

the offenses listed in section 667, subdivision (e)(2)(C)(iv) or section 1170.12, 

subdivision (c)(2)(C)(iv)(V), which list includes solicitation of murder (§ 653f). 

(§ 1170.126, subd. (e)(3).) Here, defendant’s prior burglary convictions did not 

disqualify him from resentencing.

A defendant also is not eligible for resentencing under the Three Strikes Reform 

Act if the defendant’s current conviction is for a serious or violent felony listed in section 

667.5, subdivision (c), or section 1192.7, subdivision (c). (§ 1170.126, subd. (e)(1).) 
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None of defendant’s current convictions (neither solicitation of murder nor unlawful 

intercourse with a minor) is listed as a serious or violent felony in these statutes.

Finally, a defendant is not eligible for resentencing under the Three Strikes 

Reform Act if the defendant’s current conviction involved any of the circumstances listed 

in section 667, subdivision (e)(2)(C)(i)-(iii)) or section 1170.12, subdivision (c)(2)(C)(i)-

(iii)). (§ 1170.126, subd. (e)(2).) The circumstance in those lists that is relevant to this 

case is that “[d]uring the commission of the current offense, the defendant . . . intended to 

cause great bodily injury to another person.” (§§ 667, subd. (e)(2)(C)(iii); 1170.12, subd. 

(c)(2)(C)(iii).) The question presented here is whether, by virtue of his conviction for 

solicitation of murder, defendant necessarily intended to cause great bodily injury and is 

therefore not eligible for resentencing under the Act.

The trial court based its denial of the petition for resentencing on the fact that 

defendant’s current conviction for solicitation of murder necessarily included an intent to 

cause great bodily injury. On appeal, defendant contends this conclusion was error 

because: (1) solicitation of murder is not one of the enumerated current offenses that 

disqualifies a defendant from resentencing, (2) any intended injury must be (a) personally 

inflicted and (b) contemporaneous with the crime, and (3) the Three Strikes Reform Act

requires that the disqualifying circumstance be pleaded and proved at trial. 

A. Solicitation of Murder Necessarily Includes Intent to Cause Great Bodily 

Injury

On appeal, defendant contends that his current conviction for solicitation of 

murder does not disqualify him from resentencing under the Three Strikes Reform Act. 

He relies on the fact that, while the offense is listed as a disqualifying prior conviction, it 

is not listed as a disqualifying current conviction. His argument carries some logic – if 

solicitation of murder is listed as a disqualifying prior conviction but not as a 

disqualifying current conviction, then the Legislature must have intended to allow 

resentencing under the Act for a current solicitation of murder conviction. However, the 
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argument is ultimately untenable because it would require us to ignore the voters’ express 

desire to exclude from resentencing all defendants who have a current conviction 

involving an intent to cause great bodily injury. (See Copley Press, Inc. v. Superior 

Court (2006) 39 Cal.4th 1272, 1284 [we must give effect and significance to every word 

and phrase].)

Solicitation of murder is committed when a person “with the intent that the crime 

be committed, solicits another to commit or join in the commission of murder . . . .” 

(§ 653f, subd. (b).) Express malice, a specific intent to kill, is an element of solicitation 

of murder. (People v. Bottger (1983) 142 Cal.App.3d 974, 980.) Certainly, intending to 

kill someone involves intending to cause that person great bodily injury. Therefore, 

intent to cause great bodily injury is necessarily included in solicitation of murder.

B. No Personal Infliction or Contemporaneous Infliction Requirement

Defendant argues that “there is an indication that the necessary intent is to inflict 

great bodily injury personally and concurrently or contemporaneously with the crime.” 

To the contrary, neither personal infliction nor contemporaneous infliction is a part of the 

Three Strikes Reform Act exclusion from resentencing of offenses committed with intent 

to cause great bodily injury.

Concerning a personal infliction element of the great-bodily-injury provision of 

the Three Strikes Reform Act, defendant argues that “the electorate meant to refer to the 

elements of the sentence enhancement provision of section 12022.7, including the 

element of personal infliction of great bodily injury.” Section 12022.7 provides for a 

sentence enhancement if the defendant “personally inflicts great bodily injury on any 

person . . . in the commission of a felony.” (§ 12022.7, subd. (a).) While this sentence 

enhancement for actual infliction of great bodily injury expressly requires personal 

infliction of such injury, there is no indication the voters intended to adopt that express 

provision when they excluded from resentencing those who intended to cause great 
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bodily injury. The Act neither refers to section 12022.7 nor adopts the personal infliction 

language.

Concerning contemporaneous infliction of great bodily injury, there is also no 

authority for imputing an additional element. The provision of the Three Strikes Reform 

Act states that “[d]uring the commission of the current offense, the defendant . . . 

intended to cause great bodily injury to another person.” (§§ 667, subd. (e)(2)(C)(iii); 

1170.12, subd. (c)(2)(C)(iii).) This language does not imply that the injury had to occur 

during the commission of the offense; instead, it states only that, during the commission 

of the offense, the defendant intended to cause the injury. Here, defendant necessarily 

intended to cause great bodily injury to the witness when he solicited her murder.

C. What is Necessarily Included in Conviction Need Not be Separately 

Pleaded and Proved

Finally, defendant argues that the trial court erred by excluding him from 

resentencing under the Three Strikes Reform Act because his intent to cause great bodily 

injury was neither pleaded nor proved in conjunction with his conviction for solicitation 

of murder. The argument fails to convince us, however, because, as noted above, intent 

to cause great bodily injury is necessarily included in the crime of solicitation of murder. 

Death is a significant and substantial physical injury. (See §§ 12022.7, subd. (f).) 

Therefore, intent to cause great bodily injury was pleaded and proved at trial by 

inexorable implication.

II

Resentencing on Counts Other Than Solicitation of Murder

Defendant contends that, even if he is not eligible for resentencing on the 

solicitation of murder count, he is eligible for resentencing on the other counts for which 

he received indeterminate life terms because those were not disqualifying current 

convictions. We disagree because defendant is one of the truly dangerous criminals that 
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the voters meant to exclude from the resentencing provisions of Three Strikes Reform 

Act. 

Four of defendant’s convictions were for sexual intercourse with a minor, which is 

not one of the disqualifying current convictions under Three Strikes Reform Act. He was 

sentenced on those four convictions to 25 years to life each (two consecutive and two 

concurrent terms). He argues that he should be resentenced on those counts. He bases 

his argument on the language of the statute, as well as People v. Garcia (1999) 20 Cal.4th 

490 (Garcia).

It is undisputed that section 1170.126 does not mention whether a defendant is 

eligible for resentencing on qualifying current convictions, such as the sexual intercourse 

counts in this case, even if he also has a disqualifying current conviction, such as the 

solicitation of murder count. However, subdivision (a) of the statute states the purpose of 

the Act: “The resentencing provisions under this section and related statutes are intended 

to apply exclusively to persons presently serving an indeterminate term of imprisonment 

pursuant to [the Three Strikes law], whose sentence under this act would not have been 

an indeterminate life sentence.” (§ 1170.126, subd. (a).) 

Applying this language to the question presented, we conclude that the voters did 

not intend to allow a defendant who has a disqualifying current conviction to benefit from 

the Act. Even if defendant is “serving an indeterminate term of imprisonment pursuant to 

[the Three Strikes law],” he is not someone “whose sentence under this act would not 

have been an indeterminate life sentence” had he been sentenced under the current law. 

Because his sentence would be an indeterminate life sentence under the current law, the 

Three Strikes Reform Act’s resentencing provisions were not meant to benefit defendant.

The Voter Information Guide for Proposition 36 reinforces this underlying 

purpose of the Three Strikes Reform Act not to allow resentencing for those who would 

be subject to an indeterminate life sentence under current law. Ballot pamphlet 
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arguments are a “proper extrinsic aid in construing voter initiatives adopted by popular 

vote. [Citations.]” (People v. Yearwood (2013) 213 Cal.App.4th 161, 171.)

The proponents of the Three Strikes Reform Act, in their argument in the Voter 

Information Guide, touted the Act as helping to “keep dangerous criminals off the 

streets.” “Criminal justice experts and law enforcement leaders carefully crafted Prop. 36 

so that truly dangerous criminals will receive no benefits whatsoever from the reform.” 

(Voter Information Guide, Gen. Elec. (Nov. 6, 2012) argument in favor of Prop. 36, p. 

52.) While it is true that the Act was also meant to relieve prison overcrowding and save 

the state money, the proponents assured the voters that dangerous criminals would not 

receive a benefit from the Act. (Ibid.)

Defendant is one of those “truly dangerous criminals” referred to in the Act 

because he intended to inflict great bodily injury. (§ 1170.126, subd. (e)(2).) Allowing 

defendant to be resentenced on the sexual intercourse counts would allow a “truly 

dangerous criminal[]” who would be subject to an indeterminate life sentence even under 

current law to derive a benefit from the change in law. Therefore, defendant is not 

eligible for resentencing on the sexual intercourse counts because the voters’ intent as 

shown in the Voter Information Guide, as well as in the purpose language of the statute, 

was that an individual such as this defendant would not derive a benefit from the Act.

Defendant also argues that we must interpret the Three Strikes Reform Act with 

Garcia in mind. In Garcia, the Supreme Court held that a trial court sentencing a 

defendant under the Three Strikes law has discretion to dismiss strike allegations on a 

count-by-count basis. (Garcia, supra, 20 Cal.4th at pp. 492-493.) The court explained 

that in exercising its discretion, the trial court must consider the nature and circumstances 

of the current felonies, which may differ considerably. Under such circumstances, the 

court “might . . . be justified in striking prior conviction allegations with respect to a 

relatively minor current felony, while considering those prior convictions with respect to 

a serious or violent current felony.” (Id. at p. 499.)
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Contrary to defendant’s suggestion, Garcia is inapplicable because it applies only 

to the discretion of the judge imposing the initial Three Strikes sentence. In relying on 

Garcia, defendant attempts to take what was meant to give a sentencing court discretion 

and turn it into a mandatory provision of the Three Strikes Reform Act. There is no 

support for this requirement in the text of the Act.

Aside from the lack of support in the text of the Three Strikes Reform Act, 

defendant’s argument that Garcia should be applied to his resentencing ignores the fact 

that the trial court already considered its discretion under Garcia during the initial 

sentencing and declined to give defendant the benefit. At sentencing, which occurred 

after the Supreme Court decided Garcia, the trial court could have but did not strike the 

prior-conviction allegations for the purpose of sentencing on the convictions for sexual 

intercourse with a minor. On appeal from that judgment, defendant argued that the trial 

court did not properly exercise its Garcia discretion, but we rejected the argument. 

(People v. Schinkel, supra, C036877.) Nothing in the Three Strikes Reform Act requires 

a court to revisit that discretionary sentencing decision when a defendant files a petition 

for resentencing.

We also conclude that the rule of lenity does not help the defendant or constrain us 

to interpret the Three Strikes Reform Act to allow him to be resentenced on the sexual

intercourse counts because there is no egregious ambiguity or uncertainty to justify 

invoking the rule. (People v. Nuckles (2013) 56 Cal.4th 601, 611.) Read in light of its 

purpose and the voters’ intent, the meaning of the statute is reasonably clear. 

Because the voters intended the Three Strikes Reform Act to exclude “truly 

dangerous criminals” from benefits of resentencing, the Act does not provide for separate 

consideration of a defendant’s eligibility for resentencing as to each count. Instead, the 

court must consider all counts and when, as here, a defendant has a current, disqualifying 

conviction, he is not eligible for resentencing.
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III

Jury Trial on Resentencing Petition

Defendant contends that he is entitled to a jury trial on the issues posed by his 

petition for resentencing. He states: “There is at least one issue in the recall petition 

which triggers the constitutional right to jury trial: whether the infliction of great bodily 

injury was intended to be personal and contemporaneous with the solicitation of murder.” 

As we have already explained, however, there are no such requirements attached to the 

provision under which defendant was found ineligible for resentencing. The Three 

Strikes Reform Act does not require that great bodily injury that the excluded defendant 

intended to cause was to be personally inflicted or inflicted contemporaneously with the 

commission of the crime. Defendant’s contention that he is entitled to a jury trial is 

without merit because the factual issues on which he claims a jury trial right are 

nonexistent. We therefore need not consider whether there is such a jury trial right as to 

factual issues that actually exist.

DISPOSITION

The petition for writ of mandate is denied.

 NICHOLSON , Acting P. J.

We concur:

 HULL , J.

 HOCH , J.