California Court of Appeal Dec 12, 2013 No. E054590Unpublished
Filed 12/12/13 P. v. James CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E054590
v. (Super.Ct.No. SWF10000828)
SHEON LORENZO JAMES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Eric G. Helgesen Judge.
(Retired judge of the Tulare Super. Ct., assigned by the Chief Justice pursuant to art. VI,
§ 6 of the Cal. Const.) Affirmed.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and Heather F.
Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Sheon Lorenzo James appeals after he was convicted by a
jury of five counts of burglary and five counts of petty theft with theft priors. Defendant
was sentenced as a third-striker. On appeal, he raises claims that the trial court erred in
1170.126, resentencing of defendants “presently serving” a three strikes sentence under
the old law is discretionary, even if the defendant meets the objective criteria to qualify
for the ameliorated treatment under the Reform Act. (Pen. Code, § 1170.126, subds. (f),
(g).)
Second, by contrast, a defendant who is sentenced under the Reform Act’s new
version of the three strikes law must be sentenced pursuant to paragraph 1 of Penal Code
section 667, subdivision (e)—i.e., as though the defendant had only one strike prior—if
the current offense is not a serious or violent felony as defined in Penal Code sections
667.5, subdivision (c), or 1192.7, subdivision (c), unless certain disqualifying factors are
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pleaded and proven.1 That is, it is mandatory in new cases to impose the ameliorated
sentence to third strikers whose third strike qualifies as a nonserious and nonviolent
1 Penal Code section 667, subdivision (e)(2)(C), provides that second strike sentencing does not apply if the prosecution pleads and proves any of the following:
“(i) The current offense is a controlled substance charge, in which an allegation under Section 11370.4 or 11379.8 of the Health and Safety Code was admitted or found true.
“(ii) The current offense is a felony sex offense, defined in subdivision (d) of Section 261.5 or Section 262, or any felony offense that results in mandatory registration as a sex offender pursuant to subdivision (c) of Section 290 except for violations of Sections 266 and 285, paragraph (1) of subdivision (b) and subdivision (e) of Section 286, paragraph (1) of subdivision (b) and subdivision (e) of Section 288a, Section 311.11, and Section 314.
“(iii) During the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.
“(iv) The defendant suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of this section, for any of the following felonies:
“(I) A ‘sexually violent offense’ as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.
“(II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289.
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“(III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.
“(IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.
“(V) Solicitation to commit murder as defined in Section 653f.
“(VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245.
“(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418.
“(VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.”
Penal Code section 1170.12, subdivision (c)(2)(C), is substantially to the same effect:
“(C) If a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and the current offense is not a felony described in paragraph (1) of subdivision (b) of this section, the defendant shall be sentenced pursuant to paragraph (1) of subdivision (c) of this section, unless the prosecution pleads and proves any of the following:
“(i) The current offense is a controlled substance charge, in which an allegation under Section 11370.4 or 11379.8 of the Health and Safety Code was admitted or found true.
“(ii) The current offense is a felony sex offense, defined in subdivision (d) of Section 261.5 or Section 262, or any felony offense that results in mandatory registration as a sex offender pursuant to subdivision (c) of Section 290 except for violations of Sections 266 and 14
285, paragraph (1) of subdivision (b) and subdivision (e) of Section 286, paragraph (1) of subdivision (b) and subdivision (e) of Section 288a, Section 314, and Section 311.11.
“(iii) During the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.
“(iv) The defendant suffered a prior conviction, as defined in subdivision (b) of this section, for any of the following serious and/or violent felonies:
“(I) A ‘sexually violent offense’ as defined by subdivision (b) of Section 6600 of the Welfare and Institutions Code.
“(II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286 or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289.
“(III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.
“(IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.
“(V) Solicitation to commit murder as defined in Section 653f.
“(VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245.
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felony. The issue is, which avenue of relief is open to those defendants who were
initially charged and sentenced under the old three strikes law, but whose convictions
were not yet final at the time the Reform Act became effective? Do such defendants
qualify for mandatory sentencing under the Reform Act, or are they relegated to
petitioning for discretionary resentencing?
We conclude that Penal Code sections 667, subdivision (e)(2)(C), and 1170.126,
subdivision (c)(2)(C)—the mandatory ameliorated sentence provisions of the Reform
Act—do not apply prospectively. We note that defendant’s current offenses—
commercial burglaries—do not disqualify him from discretionary second strike treatment
under the Reform Act. In the 2002 strike offense (robbery), one of the participants used a
gun to order a store clerk into the back, while others absconded with money and
merchandise. The record before us does not show any enhancement to the 2002 robbery
conviction. Similarly, the record before us does not disclose any enhancement to the
1997 robbery strike conviction. At least on the surface, defendant’s strike priors do not
appear to disqualify him from discretionary second strike treatment under the Reform
Act.
The Estrada rule (In re Estrada (1965) 63 Cal.2d 740) is that a statute amended to
lessen the punishment for an offense is generally presumed intended by the Legislature to
“(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418.
“(VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.”
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apply to all judgments not yet final as of the statute’s effective date, unless the
Legislature clearly indicates the intent that the amendment apply prospectively only.
Defendant here was more than 14 months into serving his prison sentence when the
Reform Act went into effect. Thus, at that time he was “presently serving” his life
sentence. In People v. Lester (2013) 220 Cal.App.4th 291 (Lester) [Fourth Dist., Div.
Two], this court held that, under the rule set forth in Estrada, the intent of the voters in
passing Proposition 36 was to reserve the mandatory reduction in sentence to future
felony offenders, but to allow existing inmates whose most recent offense was not a
serious or violent felony to apply for discretionary resentencing. This is because the
voter information guide for the initiative “could not have been more clear in its
distinction between the two and nowhere is there a reference to the possibility that some
existing inmates would automatically receive a twice-the-base-term sentence merely
because their judgments are not yet final.” (Lester at p. 302) Further, we concluded:
“Given the information supplied to the voters, we view Penal Code section 1170.126 as
the functional equivalent of a saving clause. ‘The rule in Estrada is not implicated where
the Legislature clearly signals its intent to make an amendment prospective, by the
inclusion of either an express saving clause or its equivalent . . . .’ [Citation.]” (Lester at
p. 303, italics added and omitted.)
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We also note that in People v. Yearwood (2013) 213 Cal.App.4th 161, 172, 175-
176, the first published opinion to consider this question, the Fifth District reached the
same conclusion. Defendant does not benefit from the mandatory provisions of the
Reform Act.
DISPOSITION
The judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
I concur:
MILLER J.
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McKINSTER, J., Concurring and Dissenting
I respectfully concur in part, and dissent in part. I concur with the majority’s
discussion of the aiding and abetting instructions and the propriety of the trial court’s
refusal to dismiss defendant’s strike priors. However, I disagree with the discussion of
the “Three Strikes Reform Act of 2012,” section 10 (Prop. 36, as approved by voters,
Gen. Elec. (Nov. 6, 2012)) (hereafter the Reform Act or the act). The Reform Act
became effective on November 7, 2012. (Pen. Code, §§ 667, subd. (e)(2)(C), 1170.12,
subd. (c)(2)(C), 1170.126.)1
I. Section 667, Subdivision (e)(2)(C), Applies to Defendants Whose Judgments Were
Not Yet Final on the Effective Date of the Reform Act
I agree that the majority has correctly highlighted the proper questions with
respect to applicability of the Reform Act to defendants whose third strike convictions
were not yet final when the Reform Act became effective:
“The issue is, which avenue of relief is open to those defendants who were
initially charged and sentenced under the old three strikes law, but whose convictions
were not yet final at the time the Reform Act became effective? Do such defendants
qualify for mandatory sentencing under the Reform Act, or are they relegated to
petitioning for discretionary resentencing?” (Maj. opn. ante, at p. 15.)
This court has issued conflicting opinions on the same issue: People v. Lewis
1 All further statutory references are to the Penal Code unless otherwise indicated. 1
S211494, holding that third strikers whose convictions were not yet final were eligible for
mandatory resentencing, as well as People v. Lester (2013) 220 Cal.App.4th 291 [Fourth
Dist., Div. Two], holding that third strikers whose convictions were not yet final were not
so eligible, but must petition for recall of their sentences under the alternative remedy.
The majority here relies on Lester, but I adhere to the view that sections 667, subdivision
(e)(2)(C), and 1170.12, subdivision (c)(2)(C)—the mandatory ameliorated sentence
provisions—properly does apply to qualifying three strike defendants whose judgments
were not yet final on the effective date of the Reform Act.
As the majority has acknowledged, defendant’s current offenses would not
disqualify him from second strike treatment under the Reform Act, and his strike priors
similarly do not disqualify him from second strike treatment under the Reform Act. I
conclude that defendant should be eligible for mandatory resentencing (second strike
treatment), under the Estrada rule (In re Estrada (1965) 63 Cal. 2d 740), because the
Reform Act was an ameliorative statute without an express savings clause expressing the
clear intent of the Legislature that the ameliorative treatment should not, and could not
constitutionally, be afforded to three strikes defendants whose convictions were not yet
final.
Normally, “‘when there is nothing to indicate a contrary intent in a statute it will
be presumed that the Legislature intended the statute to operate prospectively and not
retroactively.’ [Citation.]” (People v. Floyd (2003) 31 Cal.4th 179, 184.) However, in
In re Estrada, supra, 63 Cal.2d 740, the California Supreme Court created a limited
2
exception to that presumption. The California Supreme Court held that, where a statute
has been amended to lessen the punishment for an offense and there is no clear indication
of an intent to apply the amendment prospectively only, it must be presumed that the
Legislature intended the mitigated punishment to apply to all judgments not yet final as
of the effective date of the amended statute. (Id. at pp. 744-747.) The court stated, “‘A
legislative mitigation of the penalty for a particular crime represents a legislative
judgment that the lesser penalty or the different treatment is sufficient to meet the
legitimate ends of the criminal law.’” (Id. at p. 745.) From this, “[i]t is an inevitable
inference that the Legislature must have intended that the new statute imposing the new
lighter penalty now deemed to be sufficient should apply to every case to which it
constitutionally could apply,” including those which are not yet final. (Ibid.)
The Legislature has never abrogated the Estrada rule. (See People v. Nasalga
(1996) 12 Cal.4th 784, 792, fn. 7.) Additionally, in People v. Brown (2012) 54 Cal.4th
314 (Brown), the California Supreme Court reiterated the vitality of the Estrada rule,
stating that the Estrada rule does not “weaken[] or modify[] the default rule of
prospective operation codified in section 3, but rather . . . inform[s] the rule’s application
in a specific context by articulating the reasonable presumption that a legislative act
mitigating the punishment for a particular criminal offense is intended to apply to all
nonfinal judgments.” (Id. at p. 324, italics added.)
Unquestionably, section 667, subdivision (e)(2)(C), is an amendment that
ameliorates punishment under the three strikes law for those defendants who meet its
3
criteria. The Reform Act does not contain any explicit provision for retroactive or
prospective application. It also does not explicitly state what remedy—i.e., section 667,
subdivision (e)(2)(C), or section 1170.126—applies to a person in defendant’s position.
A reviewing court must therefore “look for any other indications” to determine and give
effect to the intent of the electorate. (People v. Nasalga, supra, 12 Cal.4th at p. 794.)
Presumably, the electorate that enacted the Reform Act was aware of the Estrada
rule and its presumption that the ameliorative effects of the law would apply to all
judgments not yet final on appeal. (See In re Lance W. (1985) 37 Cal.3d 873, 890,
fn. 11.) The electorate is also presumed to be aware that a saving clause could have been
included to make it explicit, if the intent of the enactment was that its benefits were to be
prospective only. No express saving clause was included in the Reform Act; the absence
of such language is persuasive evidence that the electorate intended the ameliorative
effects of section 667, subdivision (e)(2)(C), to apply to nonfinal judgments.
Construing the Reform Act to apply the Estrada rule is consistent with the
expressed purposes of the Act. The ballot arguments in support of the Reform Act stated
that its purpose was to ensure that “[p]recious financial and law enforcement resources”
were not diverted to impose life sentences for some nonviolent offenses, while assuring
that violent repeat offenders are effectively punished and not released early. The
proponents stated that the act would “help stop clogging overcrowded prisons with non-
violent offenders, so we have room to keep violent felons off the streets” and “help[]
ensure that prisons can keep dangerous criminals behind bars for life.” (Voter
4
Information Guide, Gen. Elect. (Nov. 6, 2012), argument in favor of Prop. 36,
http://voterguide.sos.ca.gov/propositions/36.) An additional purpose was to save
taxpayers “$100 million every year” by ending wasteful spending on housing and health
care costs for “non-violent Three Strikes inmates.” (Ibid.) The Reform Act would still
ensure adequate punishment of nonviolent repeat offenders, however, by doubling their
state prison sentences. Applying section 667, subdivision (e)(2)(C), to nonfinal
judgments is consistent with these objectives (monetary savings, reducing the numbers of
nonviolent offenders in prison, retaining the greatest punishment for recidivists with
current violent and serious felonies, and still maintaining public safety by imposing strict
second strike sentences on less dangerous repeat offenders).
The majority’s reliance on People v. Yearwood (2013) 213 Cal.App.4th 161 is, in
my view, misplaced. In Yearwood, as in this case, the defendant would have been
entitled to second strike sentencing under the Reform Act if he had been sentenced
initially after the effective date of the Reform Act. He had already been sentenced and
his appeal was pending on the date the act became effective. The court held that even
though the judgment was not yet final, Yearwood’s only remedy was to petition for recall
of his sentence and for resentencing pursuant to section 1170.126. (Id. at pp. 167-169.)
The Yearwood court held, correctly, that the Reform Act does not contain a saving clause
or refer to retroactive or prospective application or refer explicitly to persons in
Yearwood’s position. Nevertheless, the Yearwood court considered section 1170.126 to
apply unambiguously to all those “presently serving” a three strikes sentence, including
5
those who were doing so as a result of a judgment which was not yet final. (Yearwood, at
p. 170.)
The Yearwood court’s reasoning was fallacious, however, because it presumed the
answer to the question, which was itself in issue: In light of the Estrada presumption and
the absence of a saving clause in section 667, subdivision (e)(2)(C), the provision that
section 1170.126, subdivision (a), applies “exclusively to persons presently serving” a
third strike sentence is ambiguous—does it refer only to prisoners serving sentences
which are final, or does it include those whose judgments are not final? In my view, it is
not so clear as to qualify as the “functional equivalent” of a saving clause. Rather,
retroactive application of section 667, subdivision (e)(2)(C), is more consistent with the
proponents’ stated objectives of reducing prison overcrowding, reducing the resources
expended on third strike offenders whose current and prior offenses are nonviolent and
less serious, and enhancing public safety by ensuring that the truly dangerous repeat
offenders serve indeterminate life terms. Accordingly, there is a logical basis for
inferring that the electorate intended the amendment to apply to nonfinal judgments. (See
People v. Contreras (Nov. 18, 2013, G047603) Cal.App.4th [2013 Cal.App.
LEXIS 926], criticizing Yearwood and Lester, and finding the new sentencing scheme
applicable to a third striker whose conviction is not final.)
I also find Lester problematic and unpersuasive because it suffers from the same
analytical fallacy. (People v. Lester, supra, 220 Cal.App.4th 291, 303-304.)
CONCLUSION
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I respectfully part company with the majority’s conclusion that defendant is not
entitled to a reduction in his sentence or resentencing because he retains the ability, under
section 1170.126, to petition the trial court to recall his indeterminate sentence and to
possibly resentence him to a determinate term. I conclude that in passing the Three
Strikes Reform Act of 2012, the electorate intended the mandatory sentencing provisions
of sections 667, subdivision (e)(2)(C), and 1170.12, subdivision (c)(2)(C), to apply to
qualifying defendants whose judgments were not yet final on the effective date of the act.
Hence, I would vacate defendant’s sentence and remand the matter to the trial court for
resentencing.
McKINSTER J.
7
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction and sentence, holding that any instructional error regarding aiding and abetting was harmless beyond a reasonable doubt and that the trial court properly exercised its discretion in denying the motion to strike prior convictions. Furthermore, the court held that the defendant was not entitled to mandatory resentencing under the Three Strikes Reform Act of 2012, as he was required to seek discretionary relief under the Act's petition process.
Issues
Whether the trial court's failure to instruct the jury with CALCRIM No. 401 regarding aiding and abetting was reversible error.
Whether the trial court abused its discretion in refusing to dismiss a strike prior under People v. Superior Court (Romero).
Whether the defendant is entitled to mandatory resentencing under the Three Strikes Reform Act of 2012 for a non-final judgment.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Any error in the Aiding and Abetting Instructions Was Harmless Beyond a Reasonable Doubt”
“we conclude that Penal Code sections 667, subdivision (e)(2)(C), and 1170.126, subdivision (c)(2)(C)—the mandatory ameliorated sentence provisions of the Reform Act—do not apply prospectively.”