Martinez filed a Romero2 motion to strike his two previous strikes as to counts 1,
3, 4, and 5. The court granted the motion as to counts 3 and 4, but denied it as to counts 1
and 5. The court then sentenced Martinez as a third strike offender to an indeterminate
term of 50 years to life in prison, consisting of an indeterminate term of 25 years to life
for count 1 and a consecutive indeterminate 25-years-to-life sentence for count 5.3
After the Act went into effect, Martinez filed a petition to recall his sentence and
for resentencing under section 1170.126. The superior court summarily denied the
petition, finding Martinez was disqualified from seeking relief under the statute because
his "current commitment offenses include PC289(a)(1) and PC262 and PC664/286(c)(2)
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3 The court also sentenced Martinez to prison for four years under count 3 and four years under count 4, both to run concurrently to his sentence for count 1. 3
are serious and violent felonies making [Martinez] ineligible for re-sentencing under
PC1170.126." Martinez timely appealed.
DISCUSSION
I
APPEALABILITY
As a threshold matter, we must address the People's argument that the superior
court's order is not appealable because Martinez is ineligible to petition for recall of his
sentence. The People cite People v. Leggett (2013) 219 Cal.App.4th 846 (Leggett) for the
proposition: "[A]n order denying relief under section 1170.126 is not appealable if it
denies a petition that was erroneously filed by an individual whose indeterminate three
strikes sentence is based on a conviction for any serious or violent felony." (Leggett,
supra, at p. 854.) However, after the People filed their brief, the California Supreme
Court granted the petition for review of Leggett on December 18, 2013 (S214264). As
such, we may no longer rely on Leggett. Thus, Leggett joins two other cases currently
pending before our high court dealing with the appealability of a superior court's order on
a postjudgment petition under section 1170.126. (See, e.g., Teal v. Superior Court (2013)
217 Cal.App.4th 308, review granted July 31, 2013, S211708; People v. Hurtado (2013)
216 Cal.App.4th 941, review granted July 31, 2013, S212017 [review granted with hold
pending consideration of Teal].)
Instead of adding another voice to this appealability debate prior to any decision
by the California Supreme Court, we exercise our discretion to treat Martinez's appeal as
a petition for writ of habeas corpus. (See People v. Segura (2008) 44 Cal.4th 921, 928,
4
fn. 4.) Martinez is in custody and contends he is unlawfully restrained under count 1 and
will be irreparably harmed if we do not reach the merits of his appeal. Thus, he is a
proper party to petition for habeas relief. (See People v. Romero (1994) 8 Cal.4th 728,
736-737; § 1473, subd. (a).) We therefore consider the instant matter a petition for a writ
of habeas corpus in the interest of judicial economy and because the issue presented here
is novel and a matter of general concern. (See Segura, supra, at p. 928, fn. 4.)
II
THE ACT
The Act changes the requirements for sentencing a third strike offender to an
indeterminate term of 25-years-to-life imprisonment. Under the original version of the
three strikes law, a recidivist, with two or more prior strikes, who is convicted of any new
felony is subject to an indeterminate life sentence. (Yearwood, supra, 213 Cal.App.4th at
pp. 167-168.) However, the Act altered the previous three strikes law and limits three
strike sentences to current convictions of serious or violent felonies and a limited number
of other felonies4 unless the offender has a prior strike conviction that falls within one of
several enumerated categories.5 If these exceptions do not apply to a defendant, then the
4 For example, a felony offense that results in mandatory registration as a sex offender would make a defendant ineligible to petition for a resentence under the Act. (See §§ 1170.126, subd. (c); 667, subd. (e)(2)(C)(ii); 1170.12, subd. (c)(2)(C)(ii).)
5 For example, offenses punishable by life in prison would make a defendant ineligible for resentencing under the Act. (See §§ 1170.126, subd. (c); 667, subd. (e)(2)(C)(iv)(VIII); 1170.12, subd. (c)(2)(C)(iv)(VIII).) 5
court is to sentence the defendant as a second strike offender. (See Yearwood, supra, 213
Cal.App.4th at p. 168; §§ 667, 1170.12.)
Section 1170.126 also establishes a procedure for qualified inmates serving
indeterminate life sentences under the three strikes law to seek resentencing under the
terms of the amended law. To this end, a defendant files a petition that "specif[ies] all of
the currently charged felonies, which resulted in the sentence under" section 667,
subdivision (e)(2) or section 1170.12, subdivision (c)(2), "or both, and . . . specif[ies] all
of the prior convictions alleged and proved under subdivision (d) of Section 667 and
subdivision (b) of Section 1170.12." (§ 1170.126, subd. (d).) The superior court then
considers the petition and must make a threshold determination whether the defendant is
eligible for resentencing under section 1170.126, subdivision (e).
Section 1170.126, subdivision (e) states that an inmate is eligible for resentencing
if:
"(1) The inmate is serving an indeterminate term of life imprisonment imposed pursuant 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.
"(2) The inmate's current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12.
"(3) The inmate has no prior convictions for any of the offenses appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12."
6
If the court finds the defendant is eligible under section 1170.126, subdivision (e),
then it shall resentence the defendant unless it determines that resentencing the defendant
would pose an unreasonable risk of danger to public safety. (§ 1170.126, subd. (f).)
Here, the parties disagree regarding Martinez's eligibility for resentencing under
section 1170.126, subdivision (e). Martinez contends that, in determining his eligibility,
the court should have only considered count 1, inflicting corporal injury on his wife
(§ 273.5, subd. (a)). Martinez argues this offense is neither a serious felony under section
1192.7, subdivision (c) nor a violent felony under section 667.5, subdivision (c);
therefore, he satisfies the criteria of section 1170.126, subdivision (e)(1) and (2).
Martinez further asserts his two prior strikes were not disqualifying strikes under section
1170.126, subdivision (e)(3). Accordingly, Martinez insists he is eligible for
resentencing.
The People concede that count 1 is not a serious or violent felony, but argue that
the superior court was required to consider all offenses that led to an indeterminate life
sentence. The People note that count 5, spousal rape, is a violent and serious felony. As
such, the People maintain Martinez was ineligible under every prong of subdivision (e).
As such, we must determine whether a court, in considering a petition for resentencing
under section 1170.126, must consider all the offenses on which the petitioner was
sentenced or consider each offense and related term of imprisonment separately.
Martinez contends that the court must take the latter approach, but does not focus
on the text of section 1170.126. Instead, he emphasizes the arguments in the Act's ballot
7
pamphlet to support his position that the superior court should only evaluate his
eligibility for resentencing based on count 1. We agree with Martinez that ballot
pamphlet arguments are the "proper extrinsic aid in construing voter initiatives adopted
by popular vote." (People v. Floyd (2003) 31 Cal.4th 179, 187-188.) To that end, our
colleagues in the Fifth District have comprehensively summarized the various arguments
in favor of the Act:
"The Act's proponents advanced six arguments in favor of the Act in the Voter Information Guide. The argument headings were titled: (1) 'make the punishment fit the crime'; (2) 'save California over $100 million every year'; (3) 'make room in prison for dangerous felons'; (4) 'law enforcement support'; (5) 'taxpayer support'; and (6) 'tough and smart on crime.' (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) argument in favor of Prop. 36, p. 52, capitalization omitted.) The ballot arguments supporting Proposition 36 were primarily focused on increasing public safety and saving money. The public safety argument reasoned, 'Today, dangerous criminals are being released early from prison because jails are overcrowded with nonviolent offenders who pose no risk to the public. Prop. 36 prevents dangerous criminals from being released early. People convicted of shoplifting a pair of socks, stealing bread or baby formula don't deserve life sentences.' (Voter Information Guide, Gen. Elec., supra, rebuttal to argument against Prop. 36, p. 53.) Also, 'Prop. 36 will help stop clogging overcrowded prisons with non-violent offenders, so we have room to keep violent felons off the streets' and 'Prop. 36 will keep dangerous criminals off the streets.' (Voter Information Guide, Gen. Elec., supra, argument in favor of Prop. 36, p. 52.) The Act's proponents stated that 'Criminal justice experts and law enforcement leaders carefully crafted Prop. 36 so that truly dangerous criminals will receive no benefits whatsoever from the reform.' (Ibid.) The fiscal argument reasoned that the Act could save taxpayers '$100 million every year' that would otherwise be spent 'to house and pay health care costs for non-violent Three Strikes inmates if the law is not changed.' (Ibid.)" (Yearwood, supra, 213 Cal.App.4th at p. 171.)
8
Martinez focuses on the following arguments in favor of the Act: (1) making the
punishment fit the crime; (2) reducing the costs of prisoner incarceration; and (3) public
safety. He reasons that his 25-year-to-life sentence imposed on count 5 will ensure
public safety, but the additional indeterminate life sentence on count 1 is not
proportionate to his act of spousal abuse and will add "immeasurably to the costs of his
incarceration." Thus, Martinez insists the court's failure to consider his petition as to
count 1 only is not consistent with the public's intent in voting for the Act. We disagree.
Martinez's argument does not sufficiently consider the public safety rationale
behind the Act. The arguments in the Voter Information Guide were clear that the Act
would help to "keep dangerous criminals off the streets" and was "carefully crafted" "so
that truly dangerous criminals will receive no benefits whatsoever . . . ." (Voter
Information Guide, Gen. Elec., supra, argument in favor of Prop. 36, p. 52.) To achieve
these objectives, the Act only applies to a petitioner who is serving an indeterminate
sentence based on offenses not defined as serious and/or violent felonies by section
667.5, subdivision (c) or section 1192.7, subdivision (c). (§ 1170.126, subd. (e)(1).) In
addition, the petitioner's prior two strikes cannot be one of certain enumerated serious
for Martinez's petition, he was required to list count 1 and count 5 because the court
10
sentenced him to consecutive indeterminate life sentences for each of those counts. If the
court was not to consider all the felonies that led to his sentence, there would little need
to require all of them to be listed.6
In addition, count 5 (spousal rape) is one of the enumerated felonies that section
1170.126, subdivision (e)(2) deems to render a petitioner ineligible for resentencing if it
is one of the offenses leading to the current sentence. Spousal rape falls under both
section 677, subdivision (e)(2)(C)(ii) and section 1170.12, subdivision (c)(2)(C)(ii).
Accordingly, Martinez's current conviction for spousal rape made him ineligible for
resentencing. (See §1170.126, subd. (e)(2).) It also is a serious and violent felony,
making Martinez ineligible for resentencing under section 1170.126, subdivision (e)(1).
Martinez alternatively contends the rule of lenity should apply here. (See People
v. Avery (2002) 27 Cal.4th 49, 57 (Avery).) Our high court recently clarified the
application of that rule:
" 'That rule generally requires that "ambiguity in a criminal statute should be resolved in favor of lenity, giving the defendant the benefit of every
6 A possible justification for the inclusion of every felony leading to an indeterminate life sentence would be to aid the court in its determination of the risk of danger that the resentencing of the petitioner may cause. (See § 1170.126, subd. (f).) However, that determination will require more than a list of felonies leading to indeterminate life sentences. For example, if a court were to consider the risk of danger presented by resentencing Martinez, it undoubtedly would want to consider Martinez's other convictions for attempted forcible sodomy and attempted forcible penetration. Yet, there is no requirement under section 1170.126 that a petition for recall reference a felony that did not result in the petitioner's current indeterminate life sentence or constitute a prior strike. As such, we view the requirement that all felonies for which the petitioner received an indeterminate life sentence under the previous three strikes law as supporting the People's position that the superior court must consider both count 1 and count 5 in evaluating Martinez's petition for resentencing. 11
reasonable doubt on questions of interpretation. But . . . 'that rule applies "only if two reasonable interpretations of the statute stand in relative equipoise." [Citation.]' [Citations.]" [Citations.]' [Citation.] 'The rule of lenity does not apply every time there are two or more reasonable interpretations of a penal statute. [Citation.] Rather, the rule applies " 'only if the court can do no more than guess what the legislative body intended; there must be an egregious ambiguity and uncertainty to justify invoking the rule.' " [Citation.]' [Citation.]" (People v. Nuckles (2013) 56 Cal.4th 601, 611; original italics.)
We determine no such uncertainty exists here. Although the statute is not entirely
clear that the superior court must consider all felonies or just the felony being challenged,
section 1170.126 clearly was not intended to apply to a certain group of truly dangerous
criminals of which Martinez is one. As we discuss above, we find support in the text that
the superior court did not err here and should have considered all the felonies that lead to
an indeterminate life sentence. "[A]lthough true ambiguities are resolved in a defendant's
favor, an appellate court should not strain to interpret a penal statute in defendant's favor
if it can fairly discern a contrary legislative intent." (Avery, supra, 27 Cal.4th at p. 58.)
The rule of lenity therefore does not apply here.
In summary, we conclude the superior court correctly found Martinez was not
eligible for resentencing under section 1170.126. We interpret section 1170.126 as
requiring the superior court to consider all felonies that led to any indeterminate life
sentence under the previous version of the three strikes law. If one of those felonies is a
serious or violent felony or is otherwise disqualifying under the Act, section 1170.126
does not apply. That certainly is the case here. Martinez's conviction for spousal rape
12
(not to mention attempted forcible sodomy and attempted forcible penetration)7 rendered
Martinez ineligible for resentencing under section 1170.126. The Act clearly was not
intended to apply to a certain type of dangerous criminal. Martinez is that kind of
criminal.
DISPOSITION
The petition is denied.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
7 Ironically, Martinez can present a colorable argument here only because the superior court granted his Romero motion as to the wrong counts. Attempted forcible sodomy (count 3) and attempted forcible penetration (count 4) are both serious felonies (§ 1192.7, subd. (c)(39)) while corporal injury to spouse (count 1) is not. Had the court granted the Romero motion only as to count 1, Martinez would have no argument that he was entitled to resentencing under section 1170.126. (See § 1170.126, subd. (e)(1).) Further, Martinez's conviction under counts 3 and 4 only underscores that he is a truly dangerous criminal to whom section 1170.126 was never intended to apply. 13
AI Brief
AI-generated · verify before citing
Holding. The court held that a petitioner seeking resentencing under the Three Strikes Reform Act is ineligible if any of the offenses resulting in their indeterminate life sentence are serious or violent felonies, as the Act was not intended to benefit dangerous criminals.
Issues
Whether a superior court must consider all offenses resulting in an indeterminate life sentence when determining eligibility for resentencing under Penal Code section 1170.126.
Whether a petitioner convicted of spousal rape is eligible for resentencing under the Three Strikes Reform Act.
Disposition. denied
Quotations verified verbatim against the opinion
“We conclude that the superior court did not err in denying Martinez's petition for resentencing because Martinez's sentence was imposed, in part, for spousal rape”
“The Act clearly was not intended to apply to a certain type of dangerous criminal. Martinez is that kind of criminal.”
“We interpret section 1170.126 as requiring the superior court to consider all felonies that led to any indeterminate life sentence under the previous version of the three strikes law.”