People v. Valencia , 220 Cal. Rptr. 3d 230 ( 2017 )

Filed 7/3/17
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S223825
v. )
) Ct.App. 5 F067946
DAVID J. VALENCIA, )
) Tuolumne County
Defendant and Appellant. ) Super. Ct. No. CRF30714
____________________________________)
)
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S223676
v. )
) Ct.App. 3 C073949
CLIFFORD PAUL CHANEY, )
) Amador County
Defendant and Appellant. ) Super. Ct. No. 05CR08104
____________________________________)
In November 2012, California voters enacted Proposition 36, the Three
Strikes Reform Act of 2012 (Proposition 36 or Three Strikes Reform Act). With
some exceptions, Proposition 36 modified California‘s ―Three Strikes‖ law to
reduce the punishment imposed when a defendant‘s third felony conviction is not
serious or violent. (Pen. Code,1 § 667, subd. (e)(2)(C), as amended by Prop. 36,
1 All statutory references are to the Penal Code unless otherwise noted.
SEE CONCURRING & DISSENTING OPINIONS
§ 2, approved by the voters at Gen. Elec. (Nov. 6, 2012).) It also enacted a
procedure governing inmates sentenced under the former Three Strikes law whose
third strike was neither serious nor violent, permitting them to petition for
resentencing in accordance with Proposition 36‘s new sentencing provisions.
(§ 1170.126, subd. (e), as added by Prop. 36, § 2, approved by the voters at Gen.
Elec. (Nov. 6, 2012).) The resentencing provisions provide, however, that an
inmate will be denied resentencing if ―the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public
safety.‖ (§ 1170.126, subd. (f), as added by Prop. 36, § 6, approved by the voters
at Gen. Elec. (Nov. 6, 2012).) Proposition 36 did not define the phrase
―unreasonable risk of danger to public safety.‖
Two years later, in November 2014, California voters approved Proposition
47, the Safe Neighborhoods and Schools Act (Proposition 47). Proposition 47
reduced certain drug-related and theft-related offenses that previously were
felonies or ―wobblers‖2 to misdemeanors. (§ 1170.18, added by Prop. 47, § 14,
approved by the voters at the Gen. Elec. (Nov. 4, 2014).) It also enacted a
procedure permitting inmates who are serving felony sentences for offenses that
Proposition 47 reduced to misdemeanors to petition to have their felony
convictions reclassified as misdemeanors and to be resentenced based on the
reclassification. Like Proposition 36, Proposition 47 gave resentencing courts
discretion to decline to impose a lesser sentence if resentencing ―would result in
an unreasonable risk of danger to public safety.‖ (§ 1170.18, subd. (b)(3).) In
2 Wobblers are ―a special class of crimes involving conduct that varies
widely in its level of seriousness,‖ and may therefore be ―chargeable or . . .
punishable as either a felony or a misdemeanor.‖ (People v. Park (2013) 56
Cal. 4th 782, 789; see also People v. Kunkel (1985) 176 Cal. App. 3d 46, 51, fn. 3.)
2
contrast to Proposition 36, however, Proposition 47 restricted that discretion by
defining the phrase ―unreasonable risk of danger to public safety.‖ (§ 1170.18,
subd. (c).) It stated: ―As used throughout this Code, ‗unreasonable risk of danger
to public safety‘ means an unreasonable risk that the petitioner will commit a new
violent felony within the meaning of‖ section 667, subdivision (e)(2)(C)(iv).
(§ 1170.18, subd. (c).) The cited subdivision of section 667 identifies eight types
of particularly serious or violent felonies, known colloquially as ―super strikes.‖3
We granted review in these two cases to resolve two related issues
concerning Proposition 47‘s effect on resentencing proceedings under Proposition
36. In People v. Valencia (S223825), we address whether Proposition 47‘s
definition of ―unreasonable risk of danger to public safety‖ (§ 1170.18, subd. (c))
applies to resentencing proceedings under Proposition 36. People v. Chaney
(S223676) presents the question whether, if Proposition 47‘s definition of
unreasonable risk of danger to public safety applies to resentencing proceedings
under the Three Strikes Reform Act, does the definition apply retroactively to
Proposition 36 resentencing petitions that a court has already denied but are not
yet final on appeal.
3 The felonies commonly referred to as super strikes are (1) a ― ‗sexually
violent offense,‘ ‖ as defined in Welfare & Institutions Code, section 6600,
subdivision (b); (2) oral copulation or sodomy, or sexual penetration of a child
under 14 years of age and more than 10 years younger than the defendant, as
defined in sections 286, 288a and 289; (3) a lewd or lascivious act involving a
child under 14 years of age, in violation of section 288; (4) any homicide offense,
including attempted homicide, as defined in sections 187 to 191.5; (5) solicitation
to commit murder, as defined in section 653f; (6) assault with a machine gun on a
peace officer or firefighter, as defined in section 245, subdivision (d)(3); (7)
possession of a weapon of mass destruction, as defined in section 11418,
subdivision (a)(1); and (8) any serious and/or violent felony offense punishable in
California by life imprisonment or death. (See § 667, subd. (e)(2)(C)(iv)(I-VIII).)
3
For the reasons set forth below, we hold that Proposition 47 did not amend
the Three Strikes Reform Act. Accordingly, we need not address whether, in
People v. Chaney (S223676), the measure applies retroactively to Proposition 36
resentencing petitions that have been denied.
I. FACTS
Defendant David J. Valencia has a lengthy criminal record. In 1995, he
was convicted of kidnapping. (§ 207, subd. (a).) In 1996, he was convicted of
making criminal threats (§ 422), resisting arrest by threat or violence (§ 69), and
driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)). In 2000,
he was convicted of corporal injury to a spouse or cohabitant. (§ 273.5.) In
addition, between 1987 and 2007, he was convicted of 12 misdemeanors. Finally,
in 2009, Valencia struck his wife during an argument over whether she should
drive while drunk, causing a laceration on her head that was closed with staples.
He was convicted a second time of corporal injury to a spouse or cohabitant
(§ 273.5), which qualified as a third strike offense, and he was sentenced to an
indeterminate term of 25 years to life.
In 2013, following the enactment of the Three Strikes Reform Act,
Valencia petitioned for resentencing. He was eligible for resentencing because
(1) his third strike was neither serious nor violent, as defined by statute, (2) his
third strike was not among the other crimes excluded from the sentencing
reforms,4 and (3) he had not suffered a prior conviction for a super strike. (See
People v. Johnson (2015) 61 Cal. 4th 674, 681-682 (Johnson).)
4 A prisoner is not eligible for resentencing if his or her third strike offense
involved large quantities of controlled substances (§ 1170.12, subd. (c)(2)(C)(i))
or is one of various enumerated sex offenses (id., subd. (c)(2)(C)(ii)). A prisoner
is also ineligible if he or she used a firearm, was armed with a firearm or deadly
weapon, or intended to cause great bodily injury. (Id., subd. (c)(2)(C)(iii).)
4
The People opposed resentencing, arguing that releasing Valencia would
pose an unreasonable risk of danger to public safety based on his criminal history
of alcohol abuse and domestic violence. In August 2013, after considering
evidence from both parties and hearing testimony from Valencia and his mother,
the sentencing court denied Valencia‘s petition: ―I cannot grant this. I just feel
that he is a danger. He is an unreasonable risk to public safety. And, in particular,
to the women he‘s around. I just can‘t do this.‖
On appeal, Valencia argued that Proposition 47 had amended the Three
Strikes Law by narrowing the sentencing court‘s discretion to deny resentencing
on the ground that the petitioner posed an unreasonable risk to public safety. The
Court of Appeal rejected this contention and affirmed the judgment. All three
justices took the view that, read literally, Proposition 47‘s plain language —
defining ―unreasonable risk of danger to public safety‖ ―[a]s used throughout this
[Penal] Code‖ — applied to resentencing proceedings under Proposition 36. Two
justices concluded, however, that ―the literal meaning [of Proposition 47‘s
amendment] does not comport with the purpose of the [Three Strikes Reform] Act,
and applying it to resentencing proceedings under the [Three Strikes Reform] Act
would frustrate, rather than promote, that purpose and the intent of the electorate
in enacting both initiative measures.‖ The third justice found the text‘s plain
language insurmountable. But because he concluded that the electorate did not
clearly manifest an intent to apply Proposition 47 retroactively to sentencing
petitions like Valencia‘s that had already been denied, he concurred in the result.
In 2005, Clifford Paul Chaney was arrested for felony drunk driving after
having been convicted of three separate incidents of driving under the influence in
the prior 10 years. (Veh. Code, § 23550.) In exchange for having other counts
dismissed, Chaney admitted he had six prior 1984 convictions for armed robbery
and for conspiracy to commit robbery, which were all serious or violent felonies,
5
and was sentenced as a third strike offender for the 2005 felony drunk-driving
conviction, receiving an indeterminate sentence of 25 years to life.
In 2013, Chaney unsuccessfully sought resentencing under the Three
Strikes Reform Act. The resentencing court stated that it was unconvinced ―that
[Chaney] would not re-engage in alcohol use and place the public at risk.‖
Accordingly, the court concluded that Chaney posed an ―unreasonable risk of
danger to public safety‖ (§ 1170.126, subd. (f)) and denied his petition.
On appeal, Chaney argued that Proposition 47‘s narrower definition of
―unreasonable risk of danger to public safety‖ (§ 1170.18, subd. (c)) applied
retroactively to resentencing proceedings under the Three Strikes Reform Act.
(§ 1170.126.) The Court of Appeal rejected Chaney‘s argument and concluded
that Proposition 47‘s definition of ―unreasonable risk of danger to public safety‖
did not apply retroactively to him because his resentencing petition was decided
before the effective date of Proposition 47.
II. DISCUSSION
A. The Three Strikes Reform Act (Proposition 36) and the Safe
Neighborhoods and Schools Act (Proposition 47)
1. Proposition 36: The Three Strikes Reform Act
We recently summarized the Three Strikes Reform Act in Johnson, supra,
61 Cal. 4th 674. As we noted, ―[p]rior to its amendment by the [Three Strikes
Reform] Act, the Three Strikes law required that a defendant who had two or more
prior convictions of violent or serious felonies receive a third strike sentence of a
minimum of 25 years to life for any current felony conviction, even if the current
offense was neither serious nor violent. (Former §§ 667, subds. (d), (e)(2)(A),
1170.12, subds. (b), (c)(2)(A).)‖ (Id. at p. 680-681.) We explained that
Proposition 36 ―amended the Three Strikes law with respect to defendants whose
current conviction is for a felony that is neither serious nor violent. In that
6
circumstance, unless an exception applies, the defendant is to receive a second
strike sentence of twice the term otherwise provided for the current felony,
pursuant to the provisions that apply when a defendant has one prior conviction
for a serious or violent felony.‖ (Id. at p. 681.) As noted above, Proposition 36
excluded from its reforms third strikes involving large quantities of controlled
substances, specified sex offenses, and offenses committed when the defendant
was armed or intended to cause great bodily harm. It also excluded defendants
with prior convictions for super strikes. (See ante, fns. 3 & 4.)
Most pertinent here is Proposition 36‘s resentencing provision, which
―provides a procedure by which some prisoners already serving third strike
sentences may seek resentencing in accordance with the new sentencing rules.
(§ 1170.126.)‖ (Johnson, supra, 61 Cal.4th at p. 682.) An inmate who is serving
a third strike sentence that would have yielded a second strike sentence under
Proposition 36‘s new sentencing rules ―shall be resentenced‖ as second strike
offender ―unless the court, in its discretion, determines that resentencing the
petitioner would pose an unreasonable risk of danger to public safety.‖
(§ 1170.126, subd. (f).)
In exercising its discretion to deny resentencing, the court has broad
discretion to consider: (1) the inmate‘s ―criminal conviction history, including the
type of crimes committed, the extent of injury to victims, the length of prior prison
commitments, and the remoteness of the crimes‖; (2) his or her ―disciplinary
record and record of rehabilitation while incarcerated‖; and (3) ―[a]ny other
evidence the court, within its discretion, determines to be relevant in deciding
whether a new sentence would result in an unreasonable risk of danger to public
safety.‖ (§ 1170.126, subd. (g)(1)-(3).) Thus, as the Legislative Analyst explained
in the Voter Information Guide, ―[i]n determining whether an offender poses [an
unreasonable risk of danger to public safety], the court could consider any
7
evidence it determines is relevant, such as the offender‘s criminal history, behavior
in prison, and participation in rehabilitation programs.‖ (Voter Information Guide,
Gen. Elec. (Nov. 6, 2012) analysis of Prop. 36, p. 50, italics added.)
Following the enactment of Proposition 36, Courts of Appeal have rejected
arguments that the phrase ―unreasonable risk of danger to public safety,‖ as used
in section 1170.126, subdivision (f), is unconstitutionally vague. (See, e.g.,
People v. Garcia (2014) 230 Cal. App. 4th 763, 769-770; People v. Flores (2014)
227 Cal. App. 4th 1070, 1075 [―Surely a superior court judge is capable of
exercising discretion, justly applying the public safety exception, and determining
whether a lesser sentence would pose an unreasonable risk of harm to the public
safety‖].)
2. Proposition 47: The Safe Neighborhoods and Schools Act
Proposition 47 reclassified as misdemeanors certain drug- and theft-related
offenses that previously were felonies or wobblers. (§ 1170.18, subds. (a), (b); see
Health & Saf. Code §§ 11350 [possession of a controlled substance], 11357
[same], 11377 [possession of concentrated cannabis]; Pen. Code §§ 459.5
[shoplifting], 473 [forgery], 476a [writing bad checks], 490.2 [grand theft], 496
[receiving stolen property], and 666 [petty theft with a prior conviction].)
Proposition 47 also added a provision allowing felony offenders ―serving a
sentence for a conviction‖ for offenses now reclassified as misdemeanors to
petition to have their sentences recalled and to be resentenced. (§ 1170.18, subd.
(a); see also People v. Morales (2016) 63 Cal. 4th 399, 404.)
The resentencing procedure provides that if an inmate ―would have been
guilty of a misdemeanor‖ had Proposition 47 been in effect at the time of the
offense, and he or she has no prior convictions for super strikes or any offense that
requires registration as a sex offender, the inmate may petition for a recall of his or
8
her sentence and resentencing in accordance with Proposition 47‘s reclassification
of certain offenses as misdemeanors. (§ 1170.18, subds. (a) - (i).) If the court
determines that the petitioner meets these criteria, it must recall the felony
sentence and resentence the petitioner based on the new classification of the
offense as a misdemeanor, ―unless the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public
safety.‖ (§ 1170.18, subd. (b).)
In exercising this discretion, the resentencing court may consider: (1) the
petitioner‘s ―criminal conviction history, including the type of crimes committed,
the extent of injury to victims, the length of prior prison commitments, and the
remoteness of the crimes‖; (2) his or her ―disciplinary record and record of
rehabilitation while incarcerated‖; and (3) ―[a]ny other evidence‖ the court deems
relevant. (§ 1170.18, subd. (b)(1)-(3).)
Significantly, however, in contrast to Proposition 36, Proposition 47 limits
the trial court‘s discretion to deny resentencing by defining the phrase
―unreasonable risk of danger to public safety‖ narrowly. In connection with
resentencing under Proposition 47, ― ‗unreasonable risk of danger to public safety‘
means an unreasonable risk that the petitioner will commit a [super strike].‖
(§ 1170.18, subd. (c); see ante, fn. 3.) Thus, under Proposition 47 a resentencing
court may not deny a petition for reclassification and resentencing for certain theft
and drug possession felonies to misdemeanors for an otherwise eligible petitioner
unless it finds that the resentencing would pose an unreasonable risk that the
petitioner will commit a super strike.
Of most significance to the present matter, Proposition 47 also provides that
its definition of ―unreasonable risk of danger to public safety‖ is effective ―[a]s
used throughout this Code.‖ (§ 1170.18, subd. (c).) Because section 1170.126,
subdivision (g)(3), added by Proposition 36, the Three Strikes Reform Act, also
9
requires the court to assess whether the petitioner‘s resentencing would pose ―an
unreasonable risk of danger to public safety,‖ this raises the question of whether
Proposition 47 amended the resentencing criteria for eligible third strike offenders
under the previously enacted measure, Proposition 36. The parties do not contest
that such an amendment would be more favorable to three strike inmates and
result in the release of more recidivist serious and/or violent offenders than had
been originally contemplated under Proposition 36.
B. Proposition 47’s Definition of “Unreasonable Risk of Danger to
Public Safety” Does Not Apply to the Three Strikes Reform Act
Viewed in isolation, Proposition 47‘s statement that its definition of
― ‗unreasonable risk of danger to public safety‘ ‖ is to be ―used throughout this
Code‖ (§ 1170.18, subd. (c)) would be understood to result in the amendment of
the entire Penal Code, which of course includes the resentencing criteria for the
Three Strikes Reform Act. But our courts have recognized that the meaning of
isolated statutory language can be informed by and indeed must be consistent with
the provisions of the relevant statute as whole. In the present matter, there are
several reasons why the meaning of the phrase ―[a]s used throughout this Code‖ in
section 1170.18, subdivision (c) should be subject to careful scrutiny.
First, the phrase ―[a]s used throughout this Code‖ in section 1170.18,
subdivision (c), when considered in the context of both section 1170.18 and other
provisions of Proposition 47 as a whole, renders the entirety of section 1170.18,
subdivision (c) ambiguous as to its potential application to the resentencing
criteria for the Three Strikes Reform Act. Second, the ballot materials for
Proposition 47 supplied no notice to voters that the measure intended to amend the
resentencing criteria of the Three Strikes Reform Act and that three strike inmates
previously convicted of serious or violent felonies could be released as a
consequence. Third, despite creating detailed procedures for the resentencing of
10
low-level felons to misdemeanants, Proposition 47 provided no similar procedural
guidance for the resentencing of three strike inmates under its definition of
―unreasonable risk of danger to public safety,‖ which further detached any
perceived connection with the Three Strikes Reform Act.
Finally, under the circumstances of this matter, it is unreasonable to assign
dispositive significance to the legal presumptions we normally apply to voters who
approve an initiative in order to interpret the phrase ―[a]s used throughout this
Code.‖ Those presumptions, even if applicable, would not alter our conclusion
that the statutory language is ambiguous and that this ambiguity should be
resolved by construing section 1170.18, subdivision (c) not to apply to petitioners
under other provisions of the Penal Code such as the Three Strikes Reform Act.
Furthermore, as we will explain, neither the initiative‘s text nor its supporting
materials describe any intention to amend the criteria for the resentencing of
recidivist serious or violent felons, and both the Attorney General, who is required
by law to summarize ballot measures, and the Legislative Analyst, who is required
by law to provide and explain to voters a measure‘s potential impacts, did not
interpret the phrase ―[a]s used throughout this Code‖ as referring to the sentencing
criteria for the Three Strikes Reform Act. Given these circumstances, it is
unreasonable to assume or presume that voters, with greater acumen than the legal
professionals of the offices of the Attorney General and Legislative Analyst,
somehow discerned a connection with the Three Strikes Reform Act. Thus, those
legal presumptions provide no assistance in determining whether such a
connection existed.
1. The Rules of Statutory Interpretation
We have long recognized that the language used in a statute or
constitutional provision should be given its ordinary meaning, and ―[i]f the
11
language is clear and unambiguous there is no need for construction, nor is it
necessary to resort to indicia of the intent of the Legislature (in the case of a
statute) or of the voters (in the case of a provision adopted by the voters).‖
(Lungren v. Deukmejian (1988) 45 Cal. 3d 727, 735.) To that end, we generally
must ―accord[] significance, if possible, to every word, phrase and sentence in
pursuance of the legislative purpose,‖ and have warned that ―[a] construction
making some words surplusage is to be avoided.‖ (Dyna-Med, Inc. v. Fair
Employment & Housing Com. (1987) 43 Cal. 3d 1379, 1387.)
But ―[t]he words of the statute must be construed in context, keeping in
mind the statutory purpose, and statutes or statutory sections relating to the same
subject must be harmonized, both internally and with each other, to the extent
possible.‖ (Dyna-Med, Inc. v. Fair Employment & Housing Com., supra, 43
Cal.3d at p. 1387.) ―Where uncertainty exists consideration should be given to the
consequences that will flow from a particular interpretation.‖ (Ibid.)
2. Prior Cases Involving Ambiguous Statutory Language
A reason to further explore the meaning of statutory language and to
consider extrinsic evidence of legislative intent is where statutory language is
ambiguous when considered ―in the context of the statute and initiative as a
whole.‖ (People v. Superior Court (Pearson) (2010) 48 Cal. 4th 564, 571.) This is
because an initiative‘s ― ‗language must also be construed in the context of the
statute as a whole‘ ‖ and its ― ‗overall … scheme.‘ ‖ (Professional Engineers in
California Government v. Kempton (2007) 40 Cal. 4th 1016, 1037, quoting People
v. Rizo (2000) 22 Cal. 4th 681, 685.)
In Building Industry Assn. v. City of Camarillo (1986) 41 Cal. 3d 810, this
court interpreted the meaning of the phrase ―governing body,‖ as used in Evidence
Code former section 669.5, subdivision (a), a statute that sought to limit growth
12
control legislation ―enacted by the governing body of a city, county, or city and
county.‖ Opponents of a local growth control ordinance, adopted by city voters as
a local initiative, claimed the ordinance was invalid because it did not comply with
the requirements of Evidence Code section 669.5. This court acknowledged that,
under its plain meaning, ―[t]he term ‗governing body‘ excludes the electorate.‖
(Building Industry Assn., supra, 41 Cal.3d at p. 818.) But the court further noted
that ―the words ‗governing body‘ cannot be considered by themselves, but must be
analyzed within the context of the entire statute,‖ which also included an
exception for certain voter-approved initiatives, and when so read, ―[a]mbiguity
does exist within [Evidence Code] section 669.5.‖ (Id. at pp. 818-819, italics
omitted.) This court then reviewed the legislative history of Evidence Code
section 669.5 in order to reach the conclusion that it does apply to growth control
legislation enacted by local initiatives. (Id. at pp. 819-820.)
In Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal. 3d
245, this court interpreted a provision of article XIII A, section 3 of the California
Constitution (hereafter, article XIII A, section 3) that stated that any changes in
state taxes collected for increasing revenue ― ‗must be imposed by an Act passed
by no less than two-thirds of all members elected to each of the two houses of the
Legislature . . . .‘ ‖ (Id. at p. 248, quoting Cal. Const., art. XIII A, § 3.)
Opponents of Proposition 99, a measure passed by the voters in 1988 that
increased the tax on tobacco products, contended that article XIII A, section 3
rendered the measure void because only a supermajority of the Legislature may
impose such taxes. This court acknowledged that, considered in isolation, the
plain meaning of article XIII A, section 3 would have such an effect. (Kennedy
Wholesale, supra, 53 Cal.3d at p. 249.) Instead, however, the court found section
3 ―ambiguous when read in the context of the whole Constitution.‖ (Ibid.) We
construed section 3 in light of article IV, section 1 of the state Constitution,
13
through which ―the people expressly ‗reserve to themselves the powers of
initiative and referendum.‘ ‖ (Kennedy Wholesale, at p. 249, quoting Cal. Const.,
art. IV, § 1.) Accordingly, we concluded that ―[t]o interpret section 3 as giving the
Legislature exclusive power to raise taxes would implicitly repeal article IV,
section 1, pro tanto‖ even though article XIII A, section 3 ―does not even mention
the initiative power, let alone purport to restrict it.‖ (Kennedy Wholesale, at p.
249.) This court then turned to the ballot materials of the measure that enacted
article XIII A, section 3 and found ―[n]othing in the official ballot pamphlet
supports the inference that the voters intended to limit their own power to raise
taxes in the future by statutory initiative.‖ (Kennedy Wholesale, at p. 250.)
In People v. Hazelton (1996) 14 Cal. 4th 101, we interpreted a provision
enacted in 1994 by Proposition 184, the initiative version of the Three Strikes law
that mandated life sentences as the third strike penalty for those who have ― ‗two
or more prior felony convictions, as defined in paragraph (1) of subdivision (b)‘ ‖
of former section 1170.12. (Hazelton, supra, 14 Cal.4th at p. 105, quoting former
§ 1170.12, subd. (c)(2)(A).) At issue was whether former section 1170.12
permitted third strike penalties for similar out-of-state prior felony convictions,
which were defined not in paragraph (1) but in paragraph (2) of subdivision (b) in
section 1170.12. Instead, paragraph (1) defined an eligible prior felony conviction
as ―[a]ny offense defined in subdivision (c) of Section 667.5 as a violent felony or
any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this
state.‖ (Former § 1170.12, subd.(b)(1), as added by Prop. 184, Gen. Elec. (Nov. 8,
1994).) The defendant in Hazelton contended that the life sentence required by
former section 1170.12, subdivision (c)(2)(A), should not apply to him because his
prior out-of-state conviction was not included in ―paragraph (1) of subdivision
(b),‖ and the life sentence provision did not expressly refer to out-of-state felony
14
convictions described in paragraph (2) of subdivision (b) in former section
1170.12.
We rejected this argument by concluding that ―[r]ead in the context of
section 1170.12 as a whole, the language of subdivision (c)(2)(A) is ambiguous
regarding the inclusion of out-of-state convictions . . . .‖ (Hazelton, supra, 14
Cal.4th at p. 105.) This court observed that introductory language in section
1170.12, subdivision (b) stated: ― ‗Notwithstanding any other provision of law and
for the purposes of this section, a prior conviction of a felony shall be defined
as:‘ ‖ followed by the list of subparts that included both paragraph (1) and
paragraph (2) of subdivision (b). (Hazelton, at p. 106, quoting former § 1170.12,
subd. (b).) When read in light of this introductory language, we concluded that
―[s]ubdivision (c)(2)(A), therefore, arguably proffers a different and inconsistent
definition to the extent it limits the definition of a prior felony for purposes of the
three strikes provision to only adult California convictions.‖ (Hazelton, at p. 106.)
As a result, we turned to the ballot materials of the initiative that enacted section
1170.12 and found ―no evidence in the legislative history that the voters intended
to exclude out-of-state convictions from the purview of the initiative‘s third strike
penalty.‖ (Hazelton, at p. 108.)
Consequently, Building Industry Assn., Kennedy Wholesale, and Hazelton
all established that statutory language, even if it appears to have a clear and plain
meaning when considered in isolation, may nonetheless be rendered ambiguous
when the language is read in light of the statute as a whole or in light of the overall
legislative scheme.
3. Ambiguity of Section 1170.18’s Application to the Three Strikes
Reform Act
Section 1170.18, subdivision (c) states: ―As used throughout this Code,
‗unreasonable risk of danger to public safety‘ means an unreasonable risk that the
15
petitioner will commit a new violent felony within the meaning of‖ section 667,
subdivision (e)(2)(C)(iv). The dissents argue this language should have made it
plain to voters that only offenders at risk of committing a super strike could be
denied resentencing under either Proposition 47 or the Three Strikes Reform Act.
But the initiative‘s language is ambiguous when viewed in the context of the
subject matter of Proposition 47 as a whole and, in particular, in the context of
section 1170.18 in which subdivision (c) is located. The ambiguity is
compounded because the alleged effect on the Three Strikes Reform Act is not
reflected in the uncodified provisions of Proposition 47 that set forth the purposes
of the measure.
First, although the words ―as used throughout this code‖ in section 1170.18,
subdivision (c) may appear clear and unambiguous when viewed in isolation, the
ambiguity regarding the intended meaning and scope of subdivision (c) becomes
apparent when this language is viewed in context. To begin with, the subdivision
was enacted as part of an initiative measure — Proposition 47 — whose primary
focus was reducing the punishment for a specifically designated category of low-
level felonies from felony to misdemeanor sentences. The measure did not
purport to alter the sentences for felonies other than those that the measure
reduced to misdemeanors.
Moreover, section 1170.18, subdivision (c) itself contains language that
reasonably supports the conclusion that it was intended to apply only to persons
who are eligible for resentencing to misdemeanors under the provisions of
Proposition 47. To reiterate, section 1170.18, subdivision (c) states: ―As used
throughout this Code, ‗unreasonable risk of danger to public safety‘ means an
unreasonable risk that the petitioner will commit a new violent felony . . . .‖
(Italics added.) As the Attorney General contends, the use of the phrase ―the
petitioner‖ in section 1170.18, subdivision (c) is significant because section
16
1170.18, subdivision (a), provides that an eligible person may file a petition for a
recall of sentence in order to reduce the conviction to a misdemeanor, and,
thereafter, the statute repeatedly refers to such a person as ―the petitioner.‖
(§§ 1170.18, subds. (b), (c), (l), (m).) For the reasons described in Justice
Kruger‘s concurring opinion, it is unclear whether the petitioners referred to in
section 1170.18, subdivision (c) include ―any petitioner in any proceeding
governed by any provision of the Penal Code, including Proposition 36‖ or
whether it refers ―only to the lower-level offenders who have petitioned for relief
under Penal Code section 1170.18, subdivision (a).‖ (Conc. opn. of Kruger, J.,
post, at p. 9.) Moreover, the use of the definite article ―the,‖ instead of ―a‖
petitioner, is an indication that Proposition 47‘s definition of ―unreasonable risk of
danger to public safety‖ applies only to those individuals applying for relief under
Proposition 47.
If Proposition 47‘s definition of ―unreasonable risk of danger to public
safety‖ was intended to apply to petitioners both under Proposition 36 and
Proposition 47, then section 1170.18, subdivision (c), should have referred to ―a
petitioner‖ or otherwise made clear that it applied both to individuals seeking
relief under section 1170.18, subdivision (a), and to those seeking relief under
section 1170.126, subdivision (b), part of the Three Strikes Reform Act. To read
the statute as applying to the latter individuals would transform the meaning of the
phrase ―the petitioner.‖
Additionally, the location of the provision in question within section
1170.18 is informative. As noted, section 1170.18 creates the procedure through
which those persons who, having been previously convicted and sentenced for
those low-level felonies now reducible to misdemeanors, may petition to have
their convictions resentenced as misdemeanors.
17
Section 1170.18 begins by listing the previously designated low-level
felony convictions that are eligible for relief under Proposition 47 in subdivision
(a). This is followed by subdivision (b), which describes the criteria a
resentencing court may apply in granting or denying relief to Proposition 47
eligible offenders. (§ 1170.18, subd. (b).) The next subdivision of section
1170.18 is subdivision (c), and it defines the phrase ―unreasonable risk of danger
to public safety,‖ which is one of the resentencing criteria listed in subdivision (b)
for the resentencing of the low-level felonies described in subdivision (a). Thus,
the placement of subdivision (c) tends to reinforce its application to crimes that
had previously been low-level felonies. Given that nothing in the subject matter of
section 1170.18 as a whole suggests a connection to the Three Strikes Reform Act
or serious and violent felonies, the placement of subdivision (c) in section 1170.18
obscures any indication that the subdivision was intended to amend the
resentencing criteria for the Three Strikes Reform Act. (See, e.g., Lonicki v. Sutter
Health Central (2008) 43 Cal. 4th 201, 210-211 [relying upon the location of
statutory provision in ascertaining its meaning and scope].)
It is true that the use of the phrase ―[a]s used throughout this Code‖ in
section 1170.18, subdivision (c) could support an alternative interpretation of its
intended scope, under which the limiting definition it sets forth would apply to
persons seeking resentencing under other statutory provisions in addition to
section 1170.18. For this reason, these two opposing interpretations render section
1170.18, subdivision (c) ambiguous. But, as further explained below, the
interpretation that takes into account both the meaning of the phrase ―the
petitioner‖ and the location of subdivision (c) itself within section 1170.18 appears
more consistent with the express purpose and intended scope of Proposition 47, as
stated in its uncodified sections, which we describe below.
18
Second, another indication that section 1170.18, subdivision (c) is
ambiguous rests on the fact that the subdivision, as construed by defendant and the
dissenting opinions, is difficult to reconcile with Proposition 47‘s uncodified
preamble, which was presented to the electorate. The preamble, which describes
Proposition 47 to the voters, contains uncodified sections expressing the measure‘s
―Findings and Declarations‖ and its ―Purpose and Intent.‖ (Voter Information
Guide, Gen. Elec. (Nov. 4, 2014) (Voter Information Guide) text of Prop. 47, §§ 2,
3, p. 70.) ―In considering the purpose of legislation, statements of the intent of the
enacting body contained in a preamble, while not conclusive, are entitled to
consideration.‖ (People v. Canty (2004) 32 Cal. 4th 1266, 1280.) As we explain,
these uncodified provisions are inconsistent with and beyond the scope of any
intention to amend the resentencing criteria for the Three Strikes Reform Act or to
release additional three strike inmates.
The initiative‘s Findings and Declarations state that the ―act ensures that
sentences for people convicted of dangerous crimes like rape, murder, and child
molestation are not changed.‖ (Voter Information Guide, supra, text of Prop. 47,
§ 2, p. 70.) Similarly, Proposition 47 reiterates its Purpose and Intent as being to
―[e]nsure that people convicted of murder, rape, and child molestation will not
benefit from this act,‖ and to ―[r]equire misdemeanors instead of felonies for
nonserious, nonviolent crimes like petty theft and drug possession, unless the
defendant has prior convictions for specified violent or serious crimes.‖ (Id., § 3,
p. 70.) The Purpose and Intent of the initiative is also to ―[a]uthorize
consideration of resentencing for anyone who is currently serving a sentence for
any of the offenses listed herein that are now misdemeanors.‖ (Ibid.)
Thus, the expressly stated central objectives of Proposition 47 were to
redesignate specified minor felony offenses as misdemeanors and to permit those
persons previously convicted of these same low-level felonies to seek resentencing
19
as misdemeanors. Proposition 47 further assured voters that persons convicted of
murder, rape, and child molestation would not benefit from Proposition 47 and
specifically declared that the ―act ensures that sentences for people convicted of
dangerous crimes . . . are not changed.‖ (Voter Information Guide, supra, text of
Prop. 47, § 2, p. 70, italics added.)
It is not unreasonable to view the term ―dangerous crimes‖ as
encompassing the serious and violent felonies addressed by both the Three Strikes
law and the Three Strikes Reform Act. The uncodified introductory provisions of
Proposition 47 further assured voters that the measure would reduce low-level
felony convictions to misdemeanors, ―unless the defendant has prior convictions
for specified violent or serious crimes.‖ (Voter Information Guide, supra, text of
Prop. 47, § 3, p. 70.) By design, those convicted under either the former Three
Strikes law or the amended version enacted by Proposition 36 are persons
convicted of dangerous crimes and have prior convictions for various violent or
serious crimes. These uncodified introductory provisions, therefore, are
inconsistent with any intention to make the resentencing provisions of the Three
Strikes Reform Act more favorable to the resentencing and release of three strike
inmates, who are felons with recidivist convictions for serious or violent felonies.
Also, an extension of Proposition 47‘s definition of ―an unreasonable risk
of danger to public safety‖ to the previously enacted Three Strikes Reform Act
would conflict with the measure‘s stated purpose to ―[e]nsure that people
convicted of murder, rape, and child molestation will not benefit from this act.‖
(Voter Information Guide, supra, text of Prop. 47, § 3, p. 70.)
As previously discussed, the list of super strike offenses is limited to a set
of eight categories of serious or violent felonies. (See, ante, p. 2, fn. 3.) The only
sexual offenses included in that set are specific sexually violent offenses involving
threats, force, violence, duress, menace, or fear of immediate and unlawful bodily
20
injury and specific sexual offenses involving minors under the age of 14. (See
§ 667, subd. (e)(2)(C)(iv)(I-VIII).) Thus, contrary to Proposition 47‘s Purpose and
Intent, three strike inmates previously convicted of nonforcible rape or molestation
of a child over the age of 14 would stand to benefit under Proposition 47‘s
definition of ―an unreasonable risk of danger to public safety.‖ Proposition 47‘s
uncodified Purpose and Intent, therefore, appears inconsistent with the application
of the phrase ―[a]s used throughout this Code,‖ under its section 1170.18,
subdivision (c), which would have the effect of extending possible sentencing
relief to convicted rapists and child molesters.
Construing the phrase ―[a]s used throughout this Code‖ as a more
expansive standard to permit the resentencing of three strikes offenders would thus
be inconsistent with Proposition 47‘s uncodified findings, declarations, purpose,
and intent. This stark inconsistency reinforces the conclusion that the meaning of
section 1170.18, subdivision (c) is ambiguous.
4. The Voter Information Materials Concerning Proposition 47
Accordingly, we turn to evidence, outside the measure‘s express provisions,
to ascertain the voter‘s intent in approving the initiative. Specifically, we examine
the materials that were before the voters.5 (Robert L. v. Superior Court (2003) 30
Cal. 4th 894, 905 (Robert L.) [in order resolve questions of purpose and ambiguity,
―we look to the materials that were before the voters‖].)
5 Even assuming a few advocacy groups may have predicted that Proposition
47 could affect three strikes resentencing, there is no evidence that the electorate
as a whole, or indeed any significant part of it, was aware of such statements. (See
Farmers Ins. Exchange v. Superior Court (2006) 137 Cal. App. 4th 842, 857 [―We
cannot presume that the electorate as a whole was aware of statements made in an
article published in legal periodicals before the election, or in a magazine article
published after the election . . . .‖].)
21
Nothing in the materials accompanying the text of Proposition 47 suggested
that the initiative would alter the resentencing criteria under the previously enacted
Three Strikes Reform Act, resulting in the potential release of additional recidivist
serious or violent felony offenders. ―We cannot presume that . . . the voters
intended the initiative to effect a change in law that was not expressed or strongly
implied in either the text of the initiative or the analyses and arguments in the
official ballot pamphlet.‖ (Farmers Ins. Exchange v. Superior Court, supra, 137
Cal.App.4th at pp. 857-858.)6
Proposition 47 voter information materials focused on describing the
reclassification of certain theft- and drug-related felonies to misdemeanors and did
not make any reference to three strike inmates. For instance, the ―Official Title
and Summary,‖ which was prepared by the Attorney General, states that the
measure ―[r]equires [a] misdemeanor sentence instead of [a] felony for certain
drug possession offenses,‖ as well as ―petty theft, receiving stolen property, and
forging/writing bad checks.‖ (Voter Information Guide, supra, Summary of Prop.
47, p. 34.) The Official Title and Summary further clarifies that a ―felony
6 We recognize that the materials in the ballot pamphlet may not touch on
every aspect of an initiative, no matter how minor. ―A statute, of course, must
prevail over any summary. Were it not so, no statute could ever be enacted whole
and entire. For every summary, by definition, is incomplete.‖ (In re Cervera
(2001) 24 Cal. 4th 1073, 1079-1080.) When, for example, an initiative contains a
clear and unambiguous provision that, because of its relatively limited
significance, is not mentioned in ballot summary or arguments, the absence of
such a reference will not nullify its effectiveness. Here, however, the language of
Proposition 47 is not free from ambiguity. And the application of its definition of
dangerousness to inmates seeking resentencing under the Three Strikes Reform
Act is a matter of such substantial import that the voters could reasonably expect
that, if Proposition 47 applied to such inmates, the ballot materials would mention
it.
22
sentence for these offenses‖ would remain intact if the person ―has [a] previous
conviction for crimes such as rape, murder, or child molestation or is [a] registered
sex offender‖ or unless the court ―finds [an] unreasonable public safety risk.‖
(Ibid., italics added.) The Official Title and Summary makes no mention of the
Three Strikes Law, the Three Strikes Reform Act, three strike inmates, or life
sentences for recidivist serious or violent felons.
Nor does the Legislative Analyst‘s Analysis of Proposition 47 included in
the Voter Information Guide make any reference to the Three Strikes Law, the
Three Strikes Reform Act, three strike inmates, or life sentences for recidivist
serious or violent felons. Under the Elections Code, the Legislative Analyst must
―prepare an impartial analysis of the measure describing the measure and
including a fiscal analysis of the measure showing the amount of any increase or
decrease in revenue or cost to state or local government.‖ (Elec. Code, § 9087,
subd. (a).) Accordingly, if the Legislative Analyst had recognized that Proposition
47 would have also negated life sentences and facilitated the resentencing and
release of third strike inmates under the more restrictive definition of an
―unreasonable risk of danger to public safety,‖ the Analyst would have been
required to provide the voters with an estimate of the fiscal scope of such an
application. Yet the analysis provides no estimate of any effect on third strike
offenders and their crimes nor any discussion of the fiscal effects on the state
prison system from the invalidation of life sentences for recidivist serious or
violent felons or on the parole system in handling the release of inmates caused by
a resentencing of third strike inmates under a standard that would be more
favorable to them.
In addition, the Legislative Analyst must provide an analysis that is ―easily
understood by the average voter‖ and it ―may contain background information,
including the effect of the measure on existing law and the effect of enacted
23
legislation which will become effective if the measure is adopted, and shall
generally set forth in an impartial manner the information the average voter needs
to adequately understand the measure.‖ (Elec. Code, § 9087, subd. (b).)
However, the analysis mentions no ―effect‖ on the ―existing‖ Three Strikes
Reform Act. Instead, it focuses on Proposition 47‘s proposal to reduce
punishment for nonserious and nonviolent felony crimes. In explaining what
Proposition 47 proposed, the Legislative Analyst declared: ―This measure reduces
penalties for certain offenders convicted of nonserious and nonviolent property
and drug crimes,‖ and would allow ―certain offenders who have been previously
convicted of such crimes to apply for reduced sentences.‖ (Voter Information
Guide, supra, analysis of Prop. 47, p. 35, italics added.) The analysis then lists the
offenses for which the measure would reduce punishment — grand theft,
shoplifting, receiving stolen property, writing bad checks, check forgery, and drug
possession. (Id. at pp. 35-36.) Thus, the Legislative Analyst discerned that
Proposition 47 would provide reduced punishment for only nonserious and
nonviolent property and drug offenses.7
7 In his dissenting opinion, Justice Liu correctly notes that the analysis
provided by the Legislative Analyst ―may contain background information,
including the effect of the measure on existing law.‖ (Elec. Code, § 9087, subd.
(b), italics added.) Quoting Justice Rushing‘s majority opinion in People v.
Cordova (2016) 248 Cal. App. 4th 543 (Cordova), however, his dissent further
contends that the Analyst, under these circumstances, is only required to make ― ‗a
rational judgment about what effects are most likely to matter to voters.‘ ‖ (Dis.
opn. of Liu, J., post, at pp. 21-22, quoting Cordova, supra, 248 Cal.App.4th at p.
559.) But the majority in Cordova cited no authority for its described scope of the
Analyst‘s duties. More important, the majority in Cordova held that Proposition
47‘s definition of ―unreasonable risk of danger to public safety‖ applies to
determinations of dangerousness under the Three Strikes Reform Act of 2012
(Cordova, at p. 578), and we granted review of it (People v. Cordova, rev. granted
Aug. 31, 2016, S236179). Our decision today, therefore, effectively overrules the
majority decision in Cordova. (Cal. Rules of Court, rule 8.1115, subd. (e)(2)
(Footnote continued on next page)
24
Turning to the assessments of Proposition 47‘s impacts, the Legislative
Analyst again focused solely on the effect of the reduction of certain crimes from
felonies to misdemeanors: ―We estimate that about 40,000 offenders annually are
convicted of the above crimes [grand theft, shoplifting, receiving stolen property,
writing bad checks, check forgery, and drug possession] and would be affected by
the measure.‖ (Voter Information Guide, supra, analysis of Prop. 47, at p. 36.)
Furthermore, the Legislative Analyst expressed uncertainty regarding the
measure‘s fiscal impact, noting that ―[i]n particular, it would depend on the way
individuals are currently being sentenced for the felony crimes changed by this
measure.‖ (Ibid.) There was no discussion of the probable fiscal effects related to
the resentencing of third strike inmates, especially notable considering the
significant costs associated with life sentences for recidivist serious or violent
felons.
Finally, the arguments in favor of and opposed to Proposition 47 discussed
only the reductions of certain felonies to misdemeanors and did not mention the
previously enacted Three Strikes Reform Act.8 (Voter Information Guide, supra,
arguments regarding Prop. 47, at pp. 38-39.)
(Footnote continued from previous page)
[―any published opinion of a Court of Appeal in a matter in which the Supreme
Court has ordered review and deferred action pending the decision, is citable and
has binding or precedential effect, except to the extent it is inconsistent with the
decision of the Supreme Court or is disapproved by that court‖].) Moreover,
assuming, without deciding, that Cordova accurately describes the scope of the
Analyst‘s duty under the Elections Code, it would seem logical to conclude that it
would matter to voters whether a measure under their consideration might result in
the release of additional recidivist serious or violent felony offenders.
8 In his dissenting opinion, Justice Cuéllar contends that the ballot arguments
made by opponents of Proposition 47 warned voters that persons with violent
criminal histories might benefit from the measure. (Dis. opn. of Cuéllar, J., post,
(Footnote continued on next page)
25
Accordingly, nothing in the voter information pamphlet for Proposition 47
informed the electorate that the definition of ―unreasonable risk of danger to
public safety,‖ contained in section 14 of the measure, proposed section 1170.18,
subdivision (c), was intended to amend and narrow the resentencing criteria under
Proposition 36, the Three Strikes Reform Act. The materials for Proposition 47
signaled no relationship at all with that prior initiative. In fact, based on the
analysis and summary they prepared, there is no indication that the Legislative
Analyst or the Attorney General were even aware that the measure might amend
the resentencing criteria governing the Three Strikes Reform Act.
5. The Absence of Procedures for Resentencing Third Strike Offenders
under the New Definition
Further weighing against the defendants‘ proposed interpretation of the
phrase ―[a]s used throughout this Code‖ is the fact that Proposition 47 provides no
guidance whatsoever concerning how to implement the resentencing of three strike
inmates under the new definition of ―unreasonable risk of danger to public safety.‖
(§ 1170.18, subd. (c).) Given the effective date of Proposition 47 in 2014, any
amendatory effect on the previously enacted 2012 Three Strikes Reform Act raises
serious procedural questions that the measure does not address. This circumstance
further widens the gap concerning the voters‘ understanding of whether
Proposition 47 would amend the resentencing criteria for three strike inmates.
(Footnote continued from previous page)
at p. 19.) This ballot argument, however, is made in the context of discussing only
the 10,000 felons whose theft- and drug- related convictions would be reduced
under Proposition 47. As previously discussed, the Legislative Analyst made no
estimated count of any three strike inmates that would benefit from the measure
nor did the drafters or proponents of the measure provide such a number.
26
As previously described, Proposition 36, the Three Strikes Reform Act,
took effect on November 7, 2012, and it gave inmates ―two years after the
effective date of the act‖ or ―at a later date upon a showing of good cause‖ to file
any petition for resentencing. (§ 1170.126, subd. (b).) Proposition 47 took effect
on November 5, 2014, two days short of the two-year window enacted by the
Three Strikes Reform Act to file a resentencing petition. Assuming Proposition 47
were construed to amend the Three Strikes Reform Act, its provisions are silent
with respect to whether its definition of ―an unreasonable risk of danger to public
safety‖ in section 1170.18, subdivision (c), would apply only to inmates who had
not yet sought resentencing, or whether it would also apply to inmates whose
resentencing petitions had already been filed but not acted upon, and to those
whose petitions had already been denied.
An application only to inmates who had not yet sought resentencing would
mean that such inmates would have only two days to seek resentencing under the
new definition, unless the passage of Proposition 47 could constitute ―good cause‖
for an untimely resentencing petition under section 1170.126, subdivision (b). In
any event, it is reasonable to infer that, by November 5, 2014, most of the three
strike inmates eligible for resentencing under the Three Strikes Reform Act would
have already petitioned for resentencing.
Even if we were to assume without deciding that the new definition may
apply to any inmate who had filed a resentencing petition, but the proceedings on
that petition were not yet final (see In re Estrada (1965) 63 Cal. 2d 740, 744
[without legislative guidance to the contrary, courts ordinarily presume that newly
enacted legislation ameliorating criminal punishment is intended to apply to all
cases not yet reduced to final judgment on the statute‘s effective date]), such an
application would serve, only a subset of third strike inmates — those who had
unsuccessfully petitioned for resentencing and whose judgments on those petitions
27
were not final as of November 5, 2014. Although Proposition 47 created new
procedures for the resentencing of felons as misdemeanants, it created no similar
procedural mechanism enabling previously unsuccessful third strike petitioners to
seek a second opportunity for resentencing using the new definition of ―an
unreasonable risk of danger to public safety.‖ (§ 1170.18, subd. (c).)
If one of the purposes of Proposition 47 was to narrow the criteria
applicable to resentencing third strike offenders, one would expect the drafters to
have addressed at least some of the above described problems. Instead, the
measure was silent on these matters.9 This further exacerbated the unlikelihood
that the Attorney General, the Legislative Analyst, and the voters understood that
the measure would potentially release not just low-level, nonviolent offenders, but
also three strike inmates with repeat convictions for serious and violent felonies.
In fact, had Proposition 47 tried to answer the questions surrounding its procedural
9 As defendants note, following the November 2014 election, one of
Proposition 47‘s drafters, a law professor at Stanford School of Law, stated that
three strike inmates who had been previously denied relief under the resentencing
provisions of the Three Strikes Reform Act ―could return to court and cite
Proposition 47‘s new definition of an ‗unreasonable risk of danger.‘ ‖ (St. John &
Gerber, Prop. 47 jolts landscape of California justice system, L.A. Times (Nov. 5,
2014) online at [as of July 3, 2017].) But ― ‗[t]he opinion of
drafters or legislators who sponsor an initiative is not relevant since such opinion
does not represent the intent of the electorate and we cannot say with assurance
that the voters were aware of the drafters‘ intent.‘ ‖ (Robert L., supra, 30 Cal.4th
at p. 904.) This caution applies with even greater force here where a single drafter
expressed an intent and interpretation only after the passage of the measure.
28
applicability to the Three Strikes Reform Act, it would have alerted the public to
its proposed direct applicability to that prior measure.10
6. The Presumptions Concerning an Initiative Adopted by Voters
In favor of applying the defendants‘ proposed interpretation, defendants
and the dissents rely heavily on two presumptions we generally apply to measures
approved by the initiative process. The first is the assumption that voters who
approve an initiative are presumed to ― ‗have voted intelligently upon an
amendment to their organic law, the whole text of which was supplied [to] each of
them prior to the election and which they must be assumed to have duly
considered . . . .‘ ‖ (Amador Valley Joint Union High Sch. Dist. v. State Bd. of
Equalization (1978) 22 Cal. 3d 208, 243-244, quoting Wright v. Jordan (1923) 192
Cal. 704, 713.) The second is a presumption, which we also apply to the
Legislature, that the voters, in adopting an initiative, did so being ―aware of
existing laws at the time the initiative was enacted.‖ (Professional Engineers in
California Government v. Kempton, supra, 40 Cal.4th at p. 1048; see also In re
Lance W. (1985) 37 Cal. 3d 873, 890, fn. 11.)
Even if we assume for the sake of argument that these presumptions apply
here, they do not alter our conclusion that the electorate did not intend to apply
Proposition 47‘s definition of ―unreasonable risk of danger to public safety‖ to
inmates seeking resentencing under the Three Strikes Reform Act, because the
10 Of course, as the dissenters point out, the Legislature can always enact
necessary procedures to implement directives in a voter-enacted measure. But the
utter absence of procedures for revised three strikes resentencing is significant
because the measure included detailed procedures for resentencing Proposition 47
petitioners. Without similar attention to three strikes resentencing, or indeed any
mention of the Three Strikes Reform Act, the measure gave voters no notice of a
potential change in that law.
29
presumptions have no bearing on our determination that the statutory language is
ambiguous and that this ambiguity should be resolved by construing the definition
as inapplicable to those inmates. In any event, we have found compelling reasons
not to apply such presumptions in prior cases, and, to an even greater degree, they
are also inapt in the present matter.
a) The Presumption that Voters Have Considered the Text of the
Laws Proposed by an Initiative
In Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Comm.
(1990) 51 Cal. 3d 744 (Taxpayers), we declined to credit the presumption that
voters had thoroughly studied the probable impact of proposed initiatives. (Id. at
pp. 769-770.) There, we considered the voters‘ simultaneous approval of two
overlapping ballot measures regulating campaign contributions and spending. We
examined the reach of California Constitution article II, section 10, subdivision
(b), which provides: ―If provisions of 2 or more measures approved at the same
election conflict, those of the measure receiving the highest affirmative vote shall
prevail.‖ In determining the voters‘ intent, the court had to decide whether this
constitutional provision required the measure with the highest votes to prevail
entirely or whether the rules of statutory construction required the individual
provisions of each measure to be grafted into a hybrid form and put into effect,
despite any conflicting provisions. (Taxpayers, supra, 51 Cal.3d at p. 747.) We
observed that both a state commission and the Court of Appeal had attempted to
reconcile the measures using the latter approach, but noted that each had reached
―divergent conclusions‖ concerning whether various provisions from each
measure were irreconcilable and whether the voters would have adopted various
parts of the measure that had received fewer votes if they had ―not been part of
that measure.‖ (Id. at p. 760.)
30
In rejecting the contention that the voters intended a hybrid version of the
measures if they were both approved, this court acknowledged the ―presumption
that the voters thoroughly study and understand the content of complex initiative
measures.‖ (Taxpayers, supra, 51 Cal.3d at p. 768.) But we refused to assume
further ―that voters not only recognized that they were approving initiatives with
fundamentally conflicting provisions intended to regulate the same subject, but
also analyzed the remaining provisions in order to predict which would be
implemented if either measure received a lesser affirmative vote.‖ (Ibid.) This
court remarked ―that even the most conscientious voters may lack the time to
study ballot measures with that degree of thoroughness.‖ (Id. at p. 770.) ― ‗ ―We
think the assertion may safely be ventured that it is only the few persons who
earnestly favor or zealously oppose the passage of a proposed law initiated by
petition who have attentively studied its contents and know how it will probably
affect their private interests.‖ ‘ ‖ (Ibid., quoting Wallace v. Zinman (1927) 200
Cal. 585, 592-593, quoting in turn State v. Richardson (1906) 48 Or. 309, 319.)
The present case is similar. In defining the phrase ―unreasonable risk of
danger to public safety,‖ it is peculiar that section 1170.18, subdivision (c),
extended that definition to the Three Strikes Reform Act by use of the phrase ―[a]s
used throughout this Code.‖ When Proposition 47 was presented to the voters, the
phrase ―unreasonable risk of danger to public safety‖ appeared in only one other
section of the Penal Code. (§1170.126, subd. (f).) Given this unique
circumstance, it is highly unusual that the drafters of Proposition 47 did not simply
make a direct reference to the single relevant provision intended to be amended —
section 1170.126, the resentencing statute previously enacted by the Three Strikes
Reform Act. Such a direct reference would have expressly disclosed to the voters
a connection between Proposition 47 and the Three Strikes Reform Act. Instead,
Proposition 47 applied its definition of ―unreasonable risk of danger to public
31
safety‖ to the entire Penal Code, which has thousands of sections encompassing
hundreds of thousands of provisions, only one of which was relevant to the
proposed new definition.
Consequently, without an express reference to section 1170.126, part of the
Three Strikes Reform Act, the average voter would not have known the impact or
import of the phrase ―[a]s used throughout this Code‖ in section 1170.18,
subdivision (c), unless they had exhaustively sifted through the voluminous Penal
Code in order to find the single other reference to the phrase ―unreasonable risk of
danger to public safety.‖ We similarly recognized in Taxpayers that it is
unreasonable to presume that the voters had such a ―degree of thoroughness‖ that
they ― ‗ ―attentively studied‖ ‘ ‖ the measure and analyzed various provisions
using the acumen of a legal professional. (Taxpayers, supra, 51 Cal.3d at p. 770.)
Indeed, in the present matter, even professional bodies charged with the
duty of enforcing the law and assessing the effects of proposed legislation did not
identify the need to refer to the Three Strikes Reform Act‘s section 1170.126.
First, the Attorney General‘s Official Title and Summary fails to note or describe
any effect Proposition 47 might have in facilitating the release of serious or violent
recidivist felons. In general, the Official Title and Summary prepared by the
Attorney General plays an important role in preempting voter confusion and
manipulation in the initiative process. If the Attorney General had omitted a key
provision from Proposition 47‘s title and summary, the initiative‘s drafters should
have brought this to her attention during the measure‘s public review period. (See
Elec. Code, §§ 9002, subd. (a), 9004, subd. (a).) Their failure to do so suggests no
32
such change was contemplated.11 Second, the Legislative Analyst‘s Analysis of
Proposition 47, included alongside the Attorney General‘s Official Title and
Summary in the Voter Information Guide, also make no mention of the Three
Strikes Law, the Three Strikes Reform Act, three strike inmates, or the life
sentences for serious or violent recidivist felons.
Defendants and our dissenting colleagues find these circumstances
unremarkable and engage in the fiction that we should still apply the presumption
that the voters thoroughly study and understand the content of complex initiative
11 After the review period, the Attorney General issued the following Official
Title and Summary for Proposition 47, which ultimately appeared on the
November 2014 ballot:
―Criminal Sentences. Misdemeanor Penalties. Initiative Statute.
• Requires misdemeanor sentence instead of felony for certain drug possession
offenses.
• Requires misdemeanor sentence instead of felony for the following crimes when
amount involved is $950 or less: petty theft, receiving stolen property, and
forging/writing bad checks.
• Allows felony sentence for these offenses if person has previous conviction for
crimes such as rape, murder, or child molestation or is registered sex offender.
• Requires resentencing for persons serving felony sentences for these offenses
unless court finds unreasonable public safety risk.
• Applies savings to mental health and drug treatment programs, K-12 schools,
and crime victims.
Summary of Legislative Analyst‘s Estimate of Net State and Local Government
Fiscal Impact:
• Net state criminal justice system savings that could reach the low hundreds of
millions of dollars annually. These savings would be spent on school truancy and
dropout prevention, mental health and substance abuse treatment, and victim
services.
• Net county criminal justice system savings that could reach several hundred
million dollars annually.‖
33
measures, even though the implications for three strikes resentencing were
apparently opaque to the Attorney General and the Legislative Analyst. They
were almost certainly opaque to the average voter as well. It is not reasonable to
apply a presumption of voter awareness when the text of the initiative and the
voter information guide supporting it make no reference whatsoever to any effect
on a different law.12
b) The Presumption that Voters Are Aware of Existing Laws
In Robert L., supra, 30 Cal. 4th 894, we refused to presume that voters were
aware of the legal meaning of the term ―wobbler.‖ (See ante, p. 2, fn. 2.) There,
we interpreted the meaning of a gang enhancement adopted by the 2000 electorate
in Proposition 21, finding no evidence presented to the voters of the interpretation
put forth by the defendant. The enhancement provides that ―[a]ny person who is
convicted of a public offense punishable as a felony or a misdemeanor,‖
committed for the benefit of a criminal street gang, is to be punished by
imprisonment in the county jail, or by imprisonment in the state prison for one,
two, or three years. (§ 186.22, subd. (d).) We rejected the defendant‘s contention
that the phrase ― ‗punishable as a felony or a misdemeanor‘ ‖ in Proposition 21
meant that the enhancement applied only to so-called wobbler offenses. (Robert
L., supra, 30 Cal.4th at p. 902.)
12 Concurring with the result in Taxpayers, Justice Mosk warned: ―It is a sad
fact of democratic life that many voters have neither the time nor the will to
scrutinize a measure‘s contents in the detail needed to discern a conflict not
squarely presented in the ballot arguments or title‖ and that the drafter of an
initiative ―could take advantage of this reality to offer the voters a competing
initiative that artfully conceals its true aim by failing to declare its opposition to
the target initiative in materials the voter can readily comprehend.‖ (Taxpayers,
supra, 51 Cal.3d at p. 772 (conc. & dis. opn. of Mosk, J.).)
34
In reaching this conclusion, we first analyzed the statute‘s plain meaning.
We acknowledged that wobblers are the only ―offenses punishable as a
misdemeanor or felony,‖ but we refused to apply the standard presumption that
voters are aware of existing law when approving an initiative. (Robert L., supra,
30 Cal.4th at p. 901, italics omitted.) Although the term ―wobbler‖ is commonly
used by ―attorneys, judges, and law enforcement personnel who are familiar with
criminal law,‖ we observed that the word ―does not have a meaning defined by
statute or commonly understood by the electorate.‖ (Id. at p. 902.) We refused to
attribute this level of knowledge to the electorate such that voters would have
recognized the phrase ―punishable as a felony or a misdemeanor‖ as restricting the
enhancement to ―wobbler‖ offenses. ―We are confident that the average voter,
unschooled in the patois of criminal law, would have [instead] understood the
plain language of section 186.22(d) to encompass all misdemeanors and all
felonies.‖13 (Robert L., at p. 902.)
Similarly, in this matter, without further guidance from Proposition 47‘s
drafters or its Voter Information Guide materials, it is unreasonable to conclude
that the measure‘s reference to an ―unreasonable risk of danger to public safety‖
13 In his dissenting opinion, Justice Cuéllar contends that our holding in
Robert L. did not disregard the presumption that voters are presumed to be aware
of existing laws. (Dis. opn. of Cuéllar, J., post, at p. 23.) But in Robert L., we
rejected the petitioner‘s argument that that ―section 186.22(d) ‗perfectly describes
wobblers,‘ because ‗[w]obblers are the only public offenses punishable as a
misdemeanor or felony,‘ and the voters, who are presumed to know this fact,
therefore intended section 186.22(d) to be limited to wobblers.‖ (Robert L., supra,
30 Cal.4th at p. 901, original italics omitted, new italics added.) In rejecting this
contention, we refused to apply such a presumption, recognizing that ―the average
voter, unschooled in the patois of criminal law, would have understood‖ a
different meaning. (Id. at p. 902.) Thus, in Robert L., we found it unreasonable to
presume that a lay voter would understand or give credit to a term of legal art.
35
would have triggered awareness on the part of voters that this was precisely the
same language applied to govern the resentencing of three strike inmates.
7. Conclusion
The parties agree that the application of Proposition 47‘s definition of an
―unreasonable risk of danger to public safety‖ to the resentencing proceedings of
three strike inmates would ease the burden for recidivist serious or violent
offenders to have their life sentences vacated, and render them more likely to be
released. If Proposition 47 had truly intended to amend the Three Strikes Reform
Act in order to allow additional three strike inmates, who by definition, have
records for multiple serious or violent felonies to be resentenced, one would
expect its drafters to have mentioned or referred to such a purpose and intention in
the measure‘s preamble. They did not.
Moreover, such an amendment necessarily would suggest disfavor with the
broad discretion that Proposition 36, two years earlier, had given resentencing
courts to determine which offenders are too dangerous to the public to be eligible
for resentencing. If Proposition 47 actually intended to curtail this discretion, just
two years after Proposition 36 went into effect, and confine trial courts to consider
only whether the resentencing of a recidivist serious or violent offender posed a
danger of committing one of eight categories of super strike offenses, one would
expect to see some mention of the Three Strikes Law, the Three Strikes Reform
Act, three strike inmates, life sentences, or why the resentencing discretion
required reform in the text of the initiative. But there is none.
Instead, Proposition 47 explicitly assured voters that the sentences of
persons convicted of dangerous crimes and various sex crimes would not change.
In describing to voters Proposition 47‘s title and summary, the Attorney
General failed to note or identify any effect the measure might have in facilitating
36
the release of serious or violent recidivist felons. In describing to voters
Proposition 47‘s effect on public safety, the criminal justice system, and fiscal
policy, the Legislative Analyst also failed to note or identify any effect the
measure might have in facilitating the release of serious or violent recidivist
felons.
Our dissenting colleagues argue that our decision here subverts the will of
the voters and impermissibly interferes with the sanctity of our state‘s initiative
process. On the contrary, adopting the construction advocated by defendants and
the dissents as to the scope of a phrase in a measure without notice to the voters,
not mentioned by the Attorney General or Legislative Analyst, and contrary to the
stated purposes and assurances described in the measure‘s own preamble, would
not protect the voters‘ right to directly enact laws but could very likely encourage
the subversion and manipulation of that democratic right.
―While we are of the opinion that statutes dealing with the initiative should
be liberally construed to permit the exercise by the electors of this most important
privilege, we are also of the opinion that statutes passed for the purpose of
protecting electors from confusing or misleading situations should be enforced.‖
(Clark v. Jordan (1936) 7 Cal. 2d 248, 252.) The statutory provisions imposed on
the Attorney General and Legislative Analyst in order to educate voters about the
effect of proposed initiatives and to protect them from being misled or confused,
would have no meaning and would not serve their intended purpose of protecting
the democratic process if we adopted the defendants‘ and the dissents‘
interpretation of Proposition 47. In that scenario we would be imputing to voters
an intent that could not reasonably have existed, where even the Attorney General
and Legislative Analyst, in advising voters, apparently were unaware of that
professed intent.
37
We cannot infer the realization of a voter intent where there was nothing to
enlighten it in the first instance. As we have aptly recognized, and reiterated in
Robert L., ― ‗[i]n the case of a voters‘ initiative statute . . . we may not properly
interpret the measure in a way that the electorate did not contemplate: the voters
should get what they enacted, not more and not less.‘ ‖14 (Robert L., supra, 30
Cal.4th at p. 909, quoting Hodges v. Superior Court (1999) 21 Cal. 4th 109, 114.)
For the reasons described above, we decline to credit defendants‘ proposed
interpretation of section 1170.18, subdivision (c) as enacted by Proposition 47, the
Safe Neighborhoods and Schools Act. Given the circumstances, it is reasonable to
interpret section 1170.18, subdivision (c)‘s definition of an ―unreasonable risk of
danger to public safety‖ as applicable only to the resentencing proceedings that are
authorized under Proposition 47.
14 In addition to the complaint that we are not making a finding of drafting
error, to varying degrees of forcefulness, the dissents also fault us for purportedly
failing to contend that we are not adopting their interpretation on the basis that it
would generate absurd results or that their interpretation would frustrate the
manifest purposes of Proposition 47, regardless of any ambiguity in its language.
But there is no value in raising and then rejecting arguments that the majority does
not rely upon to reach its ultimate conclusion. (Branch v. Smith (2003) 538 U.S.
254, 280-281 [addressing the dissent‘s various irrelevant arguments in favor of a
different interpretation of redistricting statutes].) The arguments distract from the
question of whether Proposition 47, as a whole, is ambiguous as to any intent to
facilitate the release of recidivist serious and violent felons in light of the
measure‘s express promise that dangerous criminals would not benefit from the
act. Nor do the dissents adequately address the omission by the entities entrusted
to ensure that voters are fully informed and not misled by the provisions of an
initiative, the Attorney General and the Legislative Analyst.
38
C. Equal Protection Does Not Compel the Application of Proposition
47’s Definition of “Unreasonable Risk of Danger to Public Safety”
to the Three Strikes Reform Act
We further conclude that refusing to construe Proposition 47‘s definition as
applicable to the previously enacted Three Strikes Reform Act does not violate
equal protection or due process; nor does our determination raise any question
concerning cruel and unusual punishment under the federal Constitution.
―The concept of equal protection recognizes that persons who are similarly
situated with respect to a law‘s legitimate purposes must be treated equally.
[Citation.] Accordingly, ‗ ―[t]he first prerequisite to a meritorious claim under the
equal protection clause is a showing that the state has adopted a classification that
affects two or more similarly situated groups in an unequal manner.‖ ‘ [Citation.]
‗This initial inquiry is not whether persons are similarly situated for all purposes,
but ―whether they are similarly situated for purposes of the law challenged.‖ ‘
[Citation.]‖ (People v. Brown (2012) 54 Cal. 4th 314, 328, italics omitted.)
It is not difficult to conclude that those resentenced under Proposition 36
are not similarly situated to those resentenced under Proposition 47. These are
two very different populations of offenders. As the text of Proposition 47
indicates, that measure focused on offenders convicted of a set of low-level,
nonserious, nonviolent felonies and reduced them to misdemeanors. In contrast,
Proposition 36 concerned the resentencing of recidivist offenders who had two
prior violent or serious felony convictions and a third nonserious, nonviolent
felony conviction, and who are serving terms of 25 years to life. Obviously, those
recidivists with criminal records involving serious or violent felonies, who may
have already been incarcerated for a lengthy period, raise concerns for public
safety different from those who committed what were previously low-level
felonies. Thus, the two groups are not similarly situated for purposes of
resentencing because one group consists of recidivist serious or violent offenders,
39
who may have the propensity to commit serious or violent felony crimes and the
other generally consists of low-level offenders.15
For these same reasons, the defendants‘ Eighth Amendment challenge fails
as well because there is a valid reason to apply less lenient resentencing criteria to
third strike offenders, as opposed to low-level offenders whose crimes are now
reclassified as misdemeanors.
Because we hold that Proposition 47‘s definition of ―unreasonable risk of
danger to public safety‖ does not apply to resentencing proceedings under the
Three Strikes Reform Act, we need not address whether, in People v. Chaney
(S223676), that definition applies retroactively to petitions that a court has already
denied but are not yet final on appeal.
15 Accordingly, we also reject application of the rule of statutory construction
that when statutes are in pari materia similar phrases appearing in each should be
given like meanings because Proposition 47 and the Three Strikes Reform Act do
not address the same subject. (California Fed. Savings & Loan Assn. v. City of
Los Angeles (1995) 11 Cal. 4th 342, 352.) In addition, we observe that this
doctrine might carry greater force concerning provisions enacted by the same
initiative or initiatives on the same ballot. But here, the electorate that enacted
Proposition 47 in 2014 was obviously different from the one that had endorsed
Proposition 36 in 2012. More important, because the voters in 2014 were not
advised of any overlap between the two measures when they considered
Proposition 47, reliance on the appearance of the phrase ―unreasonable risk of
public safety‖ as proof that voters intended the same meaning is not justified,
especially where the later measure, at best, tacitly attempted to amend the same
language used in the former measure.
40
III. DISPOSITION
For the foregoing reasons, we affirm the judgments of the Courts of Appeal
in both People v. Valencia (S223825) and People v. Chaney (S223676).
CANTIL-SAKAUYE, C. J.
WE CONCUR:
CHIN, J.
CORRIGAN, J.
KRUGER, J.
41
CONCURRING OPINION BY KRUGER, J.
A provision of the Safe Neighborhoods and Schools Act of 2014 (better
known as Proposition 47) permits inmates serving felony sentences for certain
drug- and theft-related offenses to petition to have their sentences recalled and to
be resentenced as misdemeanants. (Pen. Code, § 1170.18, subd. (a).) If the
inmate otherwise satisfies the statutory criteria for resentencing, the court must
grant the petition unless it ―determines that resentencing the petitioner would pose
an unreasonable risk of danger to public safety.‖ (Id., subd. (b).) The provision
goes on to specify that, ―[a]s used throughout this Code, ‗unreasonable risk of
danger to public safety‘ means an unreasonable risk that the petitioner will
commit‖ one of an enumerated list of violent felonies, colloquially known as super
strikes. (Id., subd. (c) (section 1170.18(c)); see Pen. Code, § 667, subd.
(e)(2)(C)(iv).)
The question before us is whether this definition of ―unreasonable risk of
danger to public safety‖ applies only to petitioners who seek resentencing under
Proposition 47, or whether it also applies to individuals who have petitioned for
relief under a different provision of the Penal Code — specifically, life prisoners
seeking resentencing under the earlier enacted Three Strikes Reform Act of 2012
(better known as Proposition 36), which contains a parallel recall procedure. I
agree with the majority that the text of this definitional provision contains
conflicting indications about its intended scope. I also agree that standard
interpretive aids resolve the ambiguity in favor of the narrower interpretation.
Every other provision of Proposition 47 reflects a clear and exclusive focus on
affording relief to individuals who have committed specified drug- and theft-
related offenses, and neither the stated purposes of the proposition nor the ballot
materials alerted voters to any possibility that a favorable vote might also result in
a significant change to the separate statutory scheme governing the resentencing of
life prisoners under the ―Three Strikes‖ law. Although this is certainly a choice
the voters could make, I do not think we can say it is a choice the voters have
already made.
I.
At issue in this case are two related statutory schemes: Proposition 36,
which amended the Three Strikes law, and Proposition 47. As first enacted in
1994, the Three Strikes law provided that the prison sentence of a defendant
convicted of a felony who had a single prior conviction for a violent or serious
felony (a strike) was doubled (Pen. Code, § 1170.12, former subd. (c)(1)), and a
defendant convicted of a felony (no matter how minor) who had two or more prior
strikes would be sentenced to a minimum of 25 years to life in prison (id., former
subd. (c)(2)).1 Nearly 20 years later, partly in response to the swelling prison
population and rising incarceration costs, voters passed Proposition 36. It
provides that a defendant with two prior strikes who commits a felony that is
1 What is commonly referred to as the Three Strikes law ―consists of two,
nearly identical statutory schemes‖: the first enacted by the Legislature in March
1994 (Pen. Code, former § 667, subds. (b)-(i)), and the second enacted by ballot
initiative in November 1994 (Pen. Code, former § 1170.12, added by Prop. 184, as
approved by voters, Gen. Elec. (Nov. 8, 1994)). (People v. Superior Court
(Romero) (1996) 13 Cal. 4th 497, 504-505.)
2
neither violent nor serious is no longer subject to a 25-years-to-life sentence;
instead, the sentence is merely doubled, as is the case for a defendant with only
one prior strike. (Pen. Code, §§ 667, subd. (e), 1170.12, subd. (c).)
Proposition 36 also permits inmates who, before its enactment, had
received a life sentence under the Three Strikes law as the result of a conviction of
a nonserious and nonviolent felony with two or more prior strikes to file a petition
asking the trial court to instead impose a second-strike sentence. (Pen. Code,
§ 1170.126.) But not all such inmates may apply. Those whose third strike was a
sex offense, involved large amounts of drugs, involved a firearm or deadly
weapon, or was committed with the intent to inflict great bodily injury may not
seek resentencing. (Pen. Code, § 1170.12, subd. (c)(2)(C).) Also barred from
applying are inmates with prior convictions for certain extremely serious crimes
that have come to be referred to as super strikes: violent sex crimes, child
molestation, homicide, solicitation of murder, assaulting a police officer or
firefighter with a machine gun, possession of a weapon of mass destruction, or any
crime punishable by life imprisonment or death. (Id., subd. (c)(2)(C)(iv).)
Finally, the trial court may deny a petitioner‘s request for resentencing when ―the
court, in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety‖ (Pen. Code, § 1170.126, subd. (f),
italics added), based on the petitioner‘s criminal record, disciplinary record in
prison, and other relevant evidence. Proposition 36 did not define the phrase
―unreasonable risk of danger to public safety.‖
In November 2014, two years after the enactment of Proposition 36, the
voters approved Proposition 47. Proposition 47 reclassifies certain drug offenses
and theft-related crimes, which previously were either felonies or wobblers, as
misdemeanors. Much like Proposition 36, Proposition 47 creates a recall
procedure that permits previously sentenced individuals to seek the benefit of its
3
ameliorative changes to the law. Such a petition may be brought by a person
whose felony conviction was based on conduct that the initiative reclassified as a
misdemeanor (Pen. Code, § 1170.18, subd. (a)), but resentencing may be denied
when ―the court, in its discretion, determines that resentencing the petitioner
would pose an unreasonable risk of danger to public safety‖ (id., subd. (b)), based
on the petitioner‘s criminal record, disciplinary record in prison, and other relevant
evidence. But unlike Proposition 36, Proposition 47 defines ―unreasonable risk of
danger to public safety‖: ―As used throughout this Code, ‗unreasonable risk of
danger to public safety‘ means an unreasonable risk that the petitioner will commit
a new violent felony within the meaning of clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (e) of section 667.‖ (Id., subd. (c).) The specified
clause lists the super strikes. In other words, section 1170.18(c) states that a court
may find a petitioner to be dangerous to public safety only if it finds that there is
an unreasonable risk that the petitioner will commit a super strike offense.
II.
The question before us is one of statutory interpretation: whether
Proposition 47‘s definition of ―unreasonable risk of danger to public safety,‖ set
forth in section 1170.18(c), applies to petitioners who have received life sentences
under the Three Strikes law and are seeking resentencing under Proposition 36.
California cases have established a set of standard rules for the construction
of voter initiatives. ―We interpret voter initiatives using the same principles that
govern construction of legislative enactments. [Citation.] Thus, we begin with the
text as the first and best indicator of intent. [Citations.] If the text is ambiguous
and supports multiple interpretations, we may then turn to extrinsic sources such
as ballot summaries and arguments for insight into the voters‘ intent.‖ (People
v. Mentch (2008) 45 Cal. 4th 274, 282.) On the other hand, ― ‗ ―[i]f there is no
ambiguity, then we presume the lawmakers meant what they said,‖ ‘ ‖ and the
4
plain meaning of the language ordinarily will govern. (Mays v. City of Los
Angeles (2008) 43 Cal. 4th 313, 321.) In interpreting a voter initiative, we ―give
effect to the voters‘ formally expressed intent, without speculating about how they
might have felt concerning subjects on which they were not asked to vote.‖ (Ross
v. RagingWire Telecom., Inc. (2008) 42 Cal. 4th 920, 930 (Ross).)
Proposition 47‘s resentencing provision states, as relevant here: ―As used
throughout this Code, ‗unreasonable risk of danger to public safety‘ means an
unreasonable risk that the petitioner will commit a new violent felony within the
meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of
section 667.‖ (§ 1170.18(c).) The central interpretive task before us is to identify
the ―petitioner[s]‖ to whom this provision refers. Does it refer to petitioners
seeking resentencing under the provisions of Proposition 47? Or does it refer to
any petitioner in any proceeding provided for in the Penal Code — in which case
the definition also applies to life prisoners seeking resentencing under Proposition
36?
The text of section 1170.18(c) alone does not provide a clear answer. On
the one hand, the breadth of the introductory clause of section 1170.18(c) (―As
used throughout this Code‖) suggests that the ―unreasonable risk‖ definition is
designed to apply broadly, for purposes of evaluating the dangerousness of any
―petitioner‖ in any petition proceeding under any provision of the Penal Code.
And not coincidentally, the phrase ―unreasonable risk of danger to public safety‖
appears only in one other place in the Penal Code: the earlier-enacted, parallel
resentencing provision of Proposition 36 (§ 1170.126, subd. (f)), which contains
an essentially identical petition procedure.
But on the other hand, reading section 1170.18(c) in the context of
surrounding provisions, the focus of the provision appears much narrower.
Subdivision (a) of Penal Code section 1170.18 explains that ―[a] person . . .
5
serving a sentence for a conviction . . . of a felony or felonies who would have
been guilty of a misdemeanor under the act that added this section . . . may
petition for a recall of sentence . . . .‖ The next subdivision explains that ―[u]pon
receiving a petition under subdivision (a), the court shall determine whether the
petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the
criteria in subdivision (a), the petitioner’s felony sentence shall be recalled and the
petitioner resentenced to a misdemeanor . . . unless the court, in its discretion,
determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety. In exercising its discretion, the court may consider all of
the following: [¶] (1) The petitioner’s criminal conviction history . . . . [¶]
(2) The petitioner’s disciplinary record and record of rehabilitation . . . . [¶]
(3) Any other evidence the court . . . determines to be relevant . . . .‖ (Pen. Code,
§ 1170.18, subd. (b), italics added.)
In total, the phrase ―the petitioner‖ appears seven times in subdivision (b)
of Penal Code section 1170.18. Each time, the phrase is unmistakably used to
refer to a person who has filed ―a petition under subdivision (a)‖ — that is, a
person who ―would have been guilty of a misdemeanor‖ under Proposition 47 and
has asked to be resentenced accordingly, barring a finding that his or her
resentencing ―would pose an unreasonable risk of danger to public safety.‖ The
natural inference is that when the very next subdivision of the statute supplies a
definition of ―unreasonable risk‖ that refers to the ―risk that the petitioner will
commit a new [super strike]‖ (§ 1170.18(c), italics added), the definition uses the
phrase in the same way — that is, to refer to a person who has filed a petition
under subdivision (a) to reduce a conviction for a minor felony or wobbler to a
misdemeanor, and not to other persons who have filed other petitions in other
proceedings governed by other provisions of the Penal Code. (See, e.g., People
v. Blackburn (2015) 61 Cal. 4th 1113, 1125 [― ‗it is generally presumed that when
6
a word is used in a particular sense in one part of a statute, it is intended to have
the same meaning if it appears in another part of the same statute‘ ‖]; Wilcox v.
Birtwhistle (1999) 21 Cal. 4th 973, 979 [―words or phrases given a particular
meaning in one part of a statute must be given the same meaning in other parts of
the statute‖]; see also Department of Revenue of Ore. v. ACF Industries, Inc.
(1994) 510 U.S. 332, 342 [― ‗ ― ‗identical words used in different parts of the same
act are intended to have the same meaning‘ ‖ ‘ ‖].)
The remainder of the statute reinforces the inference. The phrase ―the
petitioner‖ appears in just two other places in the statute, and each time, it again
clearly refers to persons who have filed a petition authorized by subdivision (a).
(See Pen. Code, § 1170.18, subd. (l) [―If the court that originally sentenced the
petitioner is not available, the presiding judge shall designate another judge to rule
on the petition or application.‖]; id., subd. (m) [―Nothing in this section is intended
to diminish or abrogate any rights or remedies otherwise available to the petitioner
or applicant.‖].)
Defendants argue that if the ―unreasonable risk‖ definition in section
1170.18(c) does not apply to Proposition 36 petitioners, then the introductory
language providing that the definition is to apply ―throughout this Code‖ is
superfluous. Because no other provision of the Penal Code applies to Proposition
47 petitioners, section 1170.18(c) would operate no differently had the drafters of
Proposition 47 omitted the introductory clause entirely. But while we do generally
strive to construe enactments to avoid rendering any word or provision surplusage
(City of Alhambra v. County of Los Angeles (2012) 55 Cal. 4th 707, 724), we have
also made clear that, like all such interpretive canons, the canon against surplusage
is a guide to statutory interpretation and is not invariably controlling. (People v.
Cruz (1996) 13 Cal. 4th 764, 782; see also In re J.W. (2002) 29 Cal. 4th 200, 209;
accord, e.g., Arlington Central School Dist. Bd. of Ed. v. Murphy (2006) 548 U.S.
7
291, 299, fn. 1 [―While it is generally presumed that statutes do not contain
surplusage, instances of surplusage are not unknown.‖]; Lamie v. United States
Trustee (2004) 540 U.S. 526, 536 [―[O]ur preference for avoiding surplusage
constructions is not absolute.‖].)2
In truth, either interpretation of section 1170.18(c) raises oddities. If we
accept the proposition that the phrase ―throughout this Code‖ must be given
independent significance, then we also must accept that Proposition 47 contains a
definitional provision that uses the phrase ―the petitioner‖ differently from every
other provision of the Act in which that phrase appears — including its
2 Justice Liu‘s dissenting opinion suggests that a reviewing court may
construe statutory language as surplusage only when the resulting interpretation
renders that language redundant. (Dis. opn., of Liu, J., p. 5.) There is, however,
no such rigid rule; other instances of surplusage, too, are not unknown. (See, e.g.,
King v. Burwell (2015) ___ U.S. ___, ___-___ [135 S. Ct. 2480, 2489-2492];
Chickasaw Nation v. United States (2001) 534 U.S. 84, 89-90 (Chickasaw
Nation); People v. Watts (2016) 2 Cal.App.5th 223, 236-237.)
In Chickasaw Nation, for example, the United States Supreme Court held
that a statutory cross-reference should be treated as surplusage, even though doing
so gave no effect to the language at issue. (Chickasaw Nation, supra, 534 U.S. at
p. 94; see also pp. 97-98 (dis. opn. of O‘Connor, J.).) The court explained that it
was impossible to give effect to the cross-reference without either ―seriously
rewriting the language of the rest of the statute‖ (id. at p. 89) or adopting a
construction that, though ―comprehensible,‖ would expand the statute well beyond
its apparently intended scope (id. at p. 90). The court further explained that while
courts ordinarily endeavor to ―give effect to each word ‗if possible,‘ ‖ that canon
of construction ―is sometimes offset by the canon that permits a court to reject
words ‗as surplusage‘ if ‗inadvertently inserted or if repugnant to the rest of the
statute . . . .‘ [Citation.] And the latter canon has particular force here where the
surplus words consist simply of a numerical cross-reference in a parenthetical.‖
(Id. at p. 94; see also pp. 90-91, 92 [concluding that Congress had simply ―fail[ed]
to delete an inappropriate cross reference‖ that ―might easily escape notice‖ in the
legislative process.) This case raises similar considerations, though it does not
concern the meaning of a specific cross-reference to another statute; it instead
concerns the meaning of a general reference to the Penal Code, which, it is argued,
should be understood as an oblique cross-reference to Proposition 36.
8
immediately preceding subdivision, in which the same phrase appears no fewer
than seven times, and which contains the operative ―unreasonable risk‖ language
to which the definition attaches. This, too, would be a departure from ordinary
interpretive rules.
All this leads to the unavoidable conclusion that the text of section
1170.18(c)‘s ―unreasonable risk‖ definition is indeed ambiguous. It is possible
that it was meant to apply to any petitioner in any proceeding governed by any
provision of the Penal Code, including Proposition 36. It is also possible that it
applies only to the lower-level offenders who have petitioned for relief under
Penal Code section 1170.18, subdivision (a). To determine section 1170.18(c)‘s
intended scope, we must look beyond the provision itself.
This wider look ultimately settles the matter, because, with the arguable
exception of section 1170.18(c)‘s introductory phrase, every other provision of the
initiative focuses exclusively on the category of offenders covered by Proposition
47‘s operative provisions — that is, the lower-level offenders who have committed
certain drug- and theft-related crimes the law now treats as misdemeanors. No
provision of Proposition 47 manifests an intent to change the law applicable to
other categories of offenders, nor were the voters otherwise informed that their
vote on the initiative might result in any such change.
Uncodified section 3 of Proposition 47, entitled ―Purpose and Intent,‖
identifies six statutory purposes: (1) to ―[e]nsure that people convicted of murder,
rape, and child molestation will not benefit from this act,‖ (2) to create a ―Safe
Neighborhoods and Schools Fund,‖ (3) to ―[r]equire misdemeanors instead of
felonies for nonserious, nonviolent crimes like petty theft and drug possession,
unless the defendant has prior convictions for specified violent or serious crimes,‖
(4) to ―[a]uthorize consideration of resentencing for anyone who is currently
serving a sentence for any of the offenses listed herein that are now
9
misdemeanors,‖ (5) to ―[r]equire a thorough review of criminal history and risk
assessment of any individuals before resentencing to ensure that they do not pose a
risk to public safety,‖ and (6) to ―save significant state corrections dollars‖ and to
―increase investments in programs that reduce crime and improve public safety.‖
(Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, at p. 70.)
The fourth and fifth items on this list describe the purposes of Proposition
47‘s resentencing provision: namely, to permit persons who have been convicted
of specified minor offenses that the initiative designates as misdemeanors to
obtain reduction of their sentences, while ensuring that none of those individuals
―pose[s] a risk to public safety.‖ (Voter Information Guide, supra, at p. 70.)
Neither provision contains any indication that the voters also intended the
resentencing provision to make a significant alteration to the existing law
governing resentencing for life prisoners under Proposition 36. On the contrary,
uncodified section 3 suggests that, as far as resentencing is concerned, the only
persons to whom section 1170.18(c) applies are those ―currently serving a
sentence for any of the offenses listed herein that are now misdemeanors.‖ (Voter
Information Guide, supra, at p. 70.)
The remaining text of Proposition 47 is to similar effect. (See Horwich v.
Superior Court (1999) 21 Cal. 4th 272, 276 [― ‗we do not construe statutes in
isolation, but rather read every statute ―with reference to the entire scheme of law
of which it is part so that the whole may be harmonized and retain
effectiveness‖ ‘ ‖].) It describes the reclassification of certain felonies and
wobblers as misdemeanors, it explains the relief that is available to persons
previously convicted of those offenses as felonies, and it discusses what to do with
the money saved by the reclassification. The initiative makes no reference to any
other provision of law, including Proposition 36 or the Three Strikes law, or to any
10
other kind of petition besides the recall petition authorized by Penal Code section
1170.18, subdivision (a).
As the majority opinion explains (maj. opn., ante, at pp. 21-26), the ballot
materials accompanying Proposition 47 also focus exclusively on the lower-level
offenders who are the subject of Proposition 47‘s operative provisions. (See
Robert L. v. Superior Court (2003) 30 Cal. 4th 894, 905 [to determine the voters‘
intent in adopting ambiguous language, ―we look to the materials that were before
the voters‖].) On the subject of resentencing, the analysis of the initiative
prepared by the Legislative Analyst states that Proposition 47 ―reduces penalties
for certain offenders convicted of nonserious and nonviolent property and drug
crimes,‖ and ―allows certain offenders who have been previously convicted of
such crimes to apply for reduced sentences‖ (Voter Information Guide, supra, at
p. 35). After describing the crimes that are reduced to misdemeanors by the
initiative, the analysis states that an offender who is serving a felony sentence for
one of those crimes may ―apply to the court to have their felony conviction
changed to a misdemeanor.‖ (Id. at p. 36.) The analysis contains no indication
that the initiative‘s definition of dangerousness would also apply to inmates
sentenced under the Three Strikes law who are seeking reduction of their sentence
under Proposition 36.
This omission is not, of course, dispositive. But neither is it irrelevant. Our
cases recognize that, as a practical matter, voters often rely on the experts
employed by the Attorney General and the Legislative Analyst to summarize
proposed initiatives and to discuss their significant effects. Here, the use of the
phrase ―[a]s used throughout this Code‖ in section 1170.8(c) was, it appears,
sufficiently oblique that neither the Attorney General nor the Legislative Analyst
appeared to recognize the possibility that its purpose might be to make a
significant amendment to the resentencing provisions of Proposition 36. When
11
these trained experts were apparently unaware of the initiative‘s possible effect on
Proposition 36, and thus did not alert the voters to the possibility of such an effect,
it becomes more difficult to conclude that the voters understood that a ―yes‖ vote
would have that consequence.
The ballot arguments both for and against Proposition 47 likewise made no
mention of petitioners seeking relief under Proposition 36. As pertinent to the
resentencing provision, the proponents argued that the initiative ―[s]tops wasting
prison space on petty crimes and focuses law enforcement resources on violent
and serious crime‖ (Voter Information Guide, supra, at p. 38), and that it ―[s]tops
wasting money on warehousing people in prisons for nonviolent petty crimes‖
(ibid.), whereas the opponents stressed that the initiative would make thousands of
felons eligible for early release and that judges could block their release only in
very rare cases. Neither side suggested that Proposition 47 might have any effect
on other categories of offenders.
Finally, the circumstances surrounding the enactment of Proposition 47
reinforce this conclusion. Proposition 36 prescribed a two-year window,
beginning on November 7, 2012, during which life prisoners could file a petition
for resentencing. Proposition 47 took effect on November 5, 2014, two days
before that window closed. Had the voters intended to make significant changes
to the procedures governing Proposition 36 resentencing so shortly before the
window closed, one might have expected to see some acknowledgment of this
state of affairs, if not some effort to address how the changes might apply to
petitions that had already been filed or adjudicated. Proposition 47 contains no
such acknowledgment.
In sum, aside from the unelaborated reference to ―this Code‖ in section
1170.18(c)‘s definitional provision, every provision of the statute, as well as the
ballot materials accompanying the initiative, focuses exclusively on the
12
mechanisms for providing relief for the lower-level offenders covered by
Proposition 47 itself. All available interpretive aids thus point in the same
direction: The phrase ―the petitioner‖ in section 1170.18(c) refers to an offender
seeking to reduce convictions for specified minor felonies to misdemeanors under
Proposition 47.3
III.
It is entirely possible that, if the choice had been put to them, the voters
might have decided that Proposition 47‘s definition of ―unreasonable risk of
danger to public safety‖ should apply equally to inmates serving life sentences
under the Three Strikes law who are seeking resentencing under Proposition 36.
Proposition 36 itself supplied no definition of the term, instead conferring more
open-ended discretion on judges to evaluate a life prisoner‘s dangerousness. (Cf.
People v. Conley (2016) 63 Cal. 4th 646, 659 [advising that the public safety
requirement ―must be applied realistically, with careful consideration of the [Three
3 To read the statute otherwise would, I fear, lay the groundwork for abuse of
the initiative system. I see no reason to question the intentions or good faith of the
drafters of Proposition 47 — neither of which is particularly relevant to the
analysis in any event. But if the drafters had intended to submit to voters a
provision that modified the existing resentencing scheme under Proposition 36,
they chose a curious way to accomplish that goal. To give dispositive effect to an
oblique reference to an entire statutory code, in the face of considerable evidence
suggesting the intended scope of the statute is materially narrower, would
undoubtedly encourage drafters in future cases to deploy similarly oblique
references to hide the true scope of proposed legislation from the electorate.
The alternative is to recognize the practical reality that voters are
sometimes asked to vote on statutory language that is not drawn with the precision
one might hope for. In the initiative process, there are no hearings, no committee
reports, no opportunities to propose amendments from the floor. Our job,
ultimately, is to give effect to the voters‘ intent, ―without speculating about how
they might have felt concerning subjects on which they were not asked to vote.‖
(Ross, supra, 42 Cal.4th at p. 930.)
13
Strikes] Reform Act‘s purposes of mitigating excessive punishment and reducing
prison overcrowding‖].) There is nothing inherently improbable or absurd about a
conclusion that life prisoners should be entitled to resentencing under Proposition
36 unless a court determines that there is an unreasonable risk that they will
commit future super strikes. That is not the only possible policy choice the voters
could make, but it is a plausible one.
But voters can make that choice only if the question is presented in the
initiative on which they have been asked to vote. The question was not presented
in Proposition 47, and so it is not a choice we can say the voters have already
made.
Voter initiatives play a unique role in California‘s system of government.
They are designed to ―enable the people to amend the state Constitution or to enact
statutes when current government officials have declined to adopt (and often have
publicly opposed) the measure in question.‖ (Perry v. Brown (2011) 52 Cal. 4th
1116, 1125.) In interpreting a voter initiative, we are bound to respect both the
choices the voters have made and the limits of those choices. ―For a court to
construe an initiative statute to have substantial unintended consequences
strengthens neither the initiative power nor the democratic process . . . .‖ (Ross,
supra, 42 Cal.4th at p. 930.) For these reasons, I concur.
KRUGER, J.
WE CONCUR:
CHIN, J.
CORRIGAN, J.
14
DISSENTING OPINION BY LIU, J.
In 1994, California voters enacted the ―Three Strikes‖ law, one of the
toughest sentencing laws in the country. This measure required any person
convicted of two prior serious or violent felonies to receive a sentence of 25 years
to life imprisonment for a third felony conviction, even if the third felony was not
serious or violent. (Pen. Code, former § 1170.12, subds. (b), (c)(2)(A); all
undesignated statutory references are to the Penal Code.) For over two decades,
we have applied the Three Strikes law in accordance with its plain meaning, and
we have done so regardless of whether the text, history, or ballot materials
addressed the particular application of the statute at issue. (See In re Cervera
(2001) 24 Cal. 4th 1073, 1078–1080 (Cervera); People v. Deloza (1998) 18 Cal. 4th
585, 594; People v. Benson (1998) 18 Cal. 4th 24, 30–35; People v. Fuhrman
(1997) 16 Cal. 4th 930, 939.) Today the court departs from plain meaning in
deciding whether the terms of a recent initiative broaden a statutory entitlement to
resentencing for certain inmates whose third strike was neither serious nor violent.
This turnabout is as unorthodox in its methodology as it is unsettling in its
implications for the initiative process and the limited role of courts in interpreting
statutes.
In 2012, the California electorate passed Proposition 36. This initiative
reduced the punishment for nonviolent, nonserious third-strike felonies and allows
eligible persons who had received third-strike sentences for such felonies to
petition for resentencing. (§ 1170.126.) An eligible petitioner ―shall be
resentenced . . . unless the court, in its discretion, determines that resentencing the
petitioner would pose an unreasonable risk of danger to public safety.‖
(§ 1170.126, subd. (f).)
In 2014, California voters passed Proposition 47. This measure reduced
certain low-level crimes from felonies to misdemeanors and allows eligible
persons previously convicted of such crimes to seek recall of the felony sentence
and resentencing to a misdemeanor. (§ 1170.18, subd. (a).) An eligible person
―shall‖ be resentenced ―unless the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public
safety.‖ (§ 1170.18, subd. (b).) Proposition 47 then says: ―As used throughout
this Code, ‗unreasonable risk of danger to public safety‘ means an unreasonable
risk that the petitioner will commit‖ one of several particularly violent felonies
known as ―super strikes.‖ (§ 1170.18, subd. (c) (hereafter section 1170.18(c)).)
Everyone agrees that ―this Code‖ means the Penal Code and that the resentencing
provision of Proposition 36 is the only other place in the Penal Code where the
term ―unreasonable risk of danger to public safety‖ is used.
The question here is whether Proposition 47‘s definition of ―unreasonable
risk of danger to public safety‖ applies to that term as used in Proposition 36. The
plain meaning of section 1170.18(c) supplies the answer: Proposition 47‘s
definition applies to that term ―[a]s used throughout this Code‖ (§ 1170.18(c)), and
Proposition 36‘s resentencing provision is part of the Penal Code.
Instead of following this straightforward analysis, the court today nullifies
the phrase ―As used throughout this Code‖ in section 1170.18(c). This judicial
override of statutory text defies basic rules of interpretation and the democratic
values those rules are designed to serve. We interpret voter initiatives as we
interpret all legislative enactments: ― ‗we begin with the text as the first and best
2
indicator of intent.‘ ‖ (Kwikset Corp. v. Superior Court (2011) 51 Cal. 4th 310,
321.) ― ‗Absent ambiguity, we presume that the voters intend the meaning
apparent on the face of an initiative measure [citation] and the court may not add
to the statute or rewrite it to conform to an assumed intent that is not apparent in
its language.‘ [Citation.] Of course, in construing the statute, ‗[t]he words . . .
must be read in context, considering the nature and purpose of the statutory
enactment.‘ ‖ (People ex rel. Lungren v. Superior Court (1996) 14 Cal. 4th 294,
301 (Lungren).) ― ‗A court must, where reasonably possible, harmonize statutes,
reconcile seeming inconsistencies in them, and construe them to give force and
effect to all of their provisions.‘ ‖ (Pacific Palisades Bowl Mobile Estates, LLC v.
City of Los Angeles (2012) 55 Cal. 4th 783, 805.)
A statute‘s plain meaning need not be given effect if the text clearly reveals
a drafting error, but the court does not say there was a drafting error here. A
statute‘s plain meaning need not be given effect if doing so would produce absurd
results, but the court does not claim any absurdity here. The plain meaning rule
does not apply if the text is in fact ambiguous, but the court identifies no
ambiguity in the phrase ―As used throughout this Code.‖ Indeed, what two ways
are there to read those words? Finally, we have said the plain meaning rule does
not apply if it would contravene the manifest purpose of the statute, but the
evidence of a purpose to restrict the applicability of Proposition 47‘s definition of
―unreasonable risk of danger to public safety‖ is underwhelming. The court says
nothing indicates the voters intended or knew that Proposition 47‘s definition of
that term would apply to Proposition 36. Nothing, that is, except the unambiguous
words they enacted, which we must presume the voters duly considered against
the backdrop of existing laws.
Today‘s decision crosses the line from statutory interpretation to judicial
legislation. When the voters enacted Proposition 47, they spoke clearly on how
3
widely its resentencing criteria would apply. We cannot now tell inmates like
David Valencia and Clifford Chaney, whose third strike was neither serious nor
violent, that what Proposition 47 plainly says is not what the voters really meant. I
respectfully dissent.
I.
At the outset, it is essential to note that the phrase ―As used throughout this
Code‖ in section 1170.18(c) has a plain meaning, and no one suggests otherwise.
No member of the court contends that this phrase is itself ambiguous. Yet the
court contends that the entirety of section 1170.18(c) is ambiguous when
considered in context. This seriously distorts the concept of ambiguity.
The court relies on cases ―where statutory language is ambiguous when
considered ‗in the context of the statute and initiative as a whole.‘ ‖ (Maj. opn.,
ante, at p. 12.) But in those cases, the consideration of context did not create
ambiguity in statutory text that was otherwise unambiguous. Instead, the
consideration of context showed that the text itself was susceptible to multiple
meanings and therefore ambiguous. (See Kennedy Wholesale, Inc. v. State Bd. of
Equalization (1991) 53 Cal. 3d 245, 249 [statutory text is ―susceptible of the
interpretation that plaintiff has proposed‖ (italics added)]; People v. Hazelton
(1996) 14 Cal. 4th 101, 105–106 [the statutory term ― ‗prior felony convictions . . .‘
could be interpreted . . . to refer to the forum in which the prior conviction was
obtained‖ or ―the nature of the prior conviction‖]; Building Industry Assn. v. City
of Camarillo (1986) 41 Cal. 3d 810, 819–820 [―the Legislature must have assumed
that measures enacted by a ‗governing body‘ included initiatives adopted by the
electorate‖].) No one could disagree with the principle that statutory language
must be construed in the context of the statute as a whole, and there are many
cases where context sheds light on alternative ways of interpreting language. But
those cases provide no support for what the court has done here.
4
The court contends that section 1170.18(c) is ambiguous because its use of
the term ―the petitioner‖ may be understood to mean only a Proposition 47
petitioner, which is what the term means in subdivisions (b), (l), and (m) of section
1170.18. This interpretation of ―the petitioner‖ is not unreasonable. But it does
not establish that there are two ways of reading the entirety of section 1170.18(c).
Instead, reading ―the petitioner‖ to mean what the court says it means requires us
to wholly disregard the introductory phrase ―As used throughout this Code.‖
Although the concurring opinion suggests that the phrase may be read as
tolerable ―surplusage‖ (conc. opn., ante, at pp. 7–8), all the instances of tolerable
surplusage cited in the main text of the concurring opinion involve language that
was construed as redundant. (See People v. Cruz (1996) 13 Cal. 4th 764, 782–783;
In re J.W. (2002) 29 Cal. 4th 200, 209–210; Arlington Central School Dist. Bd. of
Ed. v. Murphy (2006) 548 U.S. 291, 299, fn. 1; Lamie v. United States Trustee
(2004) 540 U.S. 526, 536.) It is one thing to tolerate redundancy in interpreting
statutory text; it is quite another to give no independent significance to operative
language that cannot be construed as redundant of anything else in the statute. In a
case of redundancy, the text is still given a meaning; here the court gives the
phrase ―As used throughout this Code‖ no meaning at all.
In a footnote, the concurring opinion says Chickasaw Nation v. United
States (2001) 534 U.S. 84, 94, held that ―a statutory cross-reference should be
treated as surplusage, even though doing so gave no effect to the language at
issue.‖ (Conc. opn., ante, at p. 8, fn. 2.) But Chickasaw Nation said the statutory
cross-reference was language that ―Congress included inadvertently‖ — in other
words, ―a drafting mistake.‖ (Chickasaw Nation, at pp. 90, 91.) No member of
the court contends that the phrase ―As used throughout this Code‖ in section
1170.18(c) was a drafting error. The concurring opinion‘s reliance on King v.
Burwell (2015) 576 U.S. __, __–__ [135 S. Ct. 2480, 2489–2492], is also
5
unavailing. The high court there said it was deciding between two plausible
interpretations of a statutory provision, not between one interpretation that gives
effect to all the words of the provision and another that does not. (Id. at p. __ [135
S.Ct. at p. 2491].) And in People v. Watts (2016) 2 Cal.App.5th 223, the court
declined to apply the rule against surplusage because doing so would not
― ‗result[] in a reasonable reading of the legislation.‘ ‖ (Id. at p. 237.) No
member of the court contends that giving effect to the plain meaning of ―As used
throughout this Code‖ in section 1170.18(c) would be unreasonable. In short, the
cases cited by the concurring opinion serve only to underscore how novel the
court‘s analysis is here.
There is indeed nothing unreasonable about reading ―the petitioner‖ in
section 1170.18(c) to include any petitioner who is subject to evaluation for
―unreasonable risk of danger to public safety‖ ―throughout this Code,‖ including a
petitioner who seeks resentencing under Proposition 36. Both Proposition 47 and
Proposition 36 refer to ―the petitioner‖ in setting forth similar petitioning schemes.
(Compare § 1170.18, subds. (a), (b), (l), (m) with § 1170.126, subds. (b), (f), (g).)
Reading ―the petitioner‖ in section 1170.18(c) to include ―the petitioner‖ under
either Proposition 47 or Proposition 36 readily harmonizes the term with section
1170.18(c)‘s unambiguous specification of how widely its definition of
―unreasonable risk of danger to public safety‖ applies — i.e., ―As used throughout
this Code.‖
Thus, the issue before us presents a choice between (1) giving ―the
petitioner‖ a reasonable construction that effectuates the plain meaning of ―As
used throughout this Code‖ and (2) giving ―the petitioner‖ a different, reasonable
construction that ignores the plain meaning of ―As used throughout this Code.‖
These two options do not show that section 1170.18(c) as a whole is ambiguous.
Deciding the meaning of ―the petitioner‖ involves a choice between accepting and
6
disregarding the plain meaning of ―As used throughout this Code.‖ The analytical
framework for making that choice consists of the rules governing when to follow
and when to depart from plain meaning, not the rules for resolving statutory
ambiguity.
Nor is it correct to say that section 1170.18(c) is ambiguous because giving
effect to the plain meaning of the phrase ―As used throughout this Code‖ would be
―inconsistent with Proposition 47‘s uncodified findings, declarations, purpose, and
intent.‖ (Maj. opn., ante, at p. 21.) The ―stark inconsistency‖ the court alleges
(ibid.) is illusory, as explained further below. But setting that issue to one side,
the contention that the plain meaning of an operative provision ―conflict[s] with‖
the statute‘s purposes (id. at p. 20) is an argument for disregarding plain meaning;
it is not an argument for ambiguity. Were it otherwise, then every case involving
whether to effectuate or disregard plain meaning in light of the statute‘s purposes
could be recast as a case about ambiguity. As today‘s decision shows, distorting
the concept of ambiguity in this way significantly, and unjustifiably, expands the
power of courts to rewrite statutes.
A finding of ambiguity opens the door to consideration of extrinsic sources
that may tip the balance between two reasonable readings of the text. But in order
to apply a statute in a manner that disregards its plain meaning, the burden of
justification is much steeper. Plain meaning may be disregarded if the text
contains a clear drafting error or if the consequences would be unreasonable or
absurd. (See, e.g., People v. Broussard (2003) 5 Cal. 4th 1067, 1071; People v.
Skinner (1985) 39 Cal. 3d 765, 775.) As noted, the court does not allege any
drafting error or absurd consequences here. We have also said courts may
disregard plain meaning when it ―contravenes clear evidence of a contrary
legislative intent.‖ (Ornelas v. Randolph (1993) 4 Cal. 4th 1095, 1105 (Ornelas).)
In truth, this is the standard of justification that the court‘s decision to disregard
7
the plain meaning of the phrase ―As used throughout this Code‖ must meet. The
court is not unaware of this, for why else does today‘s opinion argue at such length
that giving effect to the phrase‘s plain meaning would violate the voters‘ intent?
This labored effort to prove that the voters who enacted the phrase did not really
mean it is the real ground of today‘s decision, notwithstanding the court‘s attempt
to conjure ambiguity out of unambiguous text.
II.
To show that the voters did not mean what the statute says, the court points
to (1) uncodified language in Proposition 47 illuminating the initiative‘s purpose,
(2) the absence of procedural mechanisms for applying Proposition 47‘s definition
of ―unreasonable risk of danger to public safety‖ to Proposition 36 resentencing,
and (3) extrinsic evidence that voters were unaware of, and therefore could not
have intended, the plain meaning of the phrase ―As used throughout this Code.‖
None of these, singly or together, is convincing.
A.
According to the court, uncodified provisions of Proposition 47 make clear
that the initiative was not intended to affect the resentencing criteria for
Proposition 36 petitioners. (Maj. opn., ante, at pp. 19–21.) The court quotes the
initiative‘s ―Findings and Declarations‖ section, which says ―[t]his act ensures that
sentences for people convicted of dangerous crimes like rape, murder, and child
molestation are not changed.‖ (Voter Information Guide, Gen. Elec. (Nov. 4,
2014) text of Prop. 47, § 2, p. 70 (Voter Information Guide).) The court also
quotes the ―Purpose and Intent‖ section, which says ―it is the purpose and intent of
the people of California to: [¶] (1) Ensure that people convicted of murder, rape,
and child molestation will not benefit from this act. [¶] . . . . [¶] (3) Require
misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft
and drug possession, unless the defendant has prior convictions for specified
8
violent or serious crimes. [¶] (4) Authorize consideration of resentencing for
anyone who is currently serving a sentence for any of the offenses listed herein
that are now misdemeanors.‖ (Id., § 3, at p. 70.)
The court reasons that because three-strikes offenders who are eligible for
resentencing under Proposition 36 necessarily have been convicted of violent or
serious crimes, the application of Proposition 47‘s definition of ―unreasonable risk
of danger to public safety‖ to resentencing under Proposition 36 would contravene
Proposition 47‘s purpose to ―ensure[] that sentences for people convicted of
dangerous crimes . . . are not changed.‖ (Voter Information Guide, supra, text of
Prop. 47, § 2, at p. 70.) It would also conflict with Proposition 47‘s purpose to
―[e]nsure that people convicted of murder, rape, and child molestation will not
benefit from this act‖ (id., § 3, subd. (1), at p. 70), the court says, because three-
strikes offenders convicted of nonforcible rape or child molestation involving
minor victims over the age of 14 are eligible for resentencing under Proposition
36.
This line of argument is problematic for several reasons. First, although we
have looked to statements of purpose contained in a preamble to inform our
interpretation of an operative statutory provision that is ambiguous (see Carter v.
California Dept. of Veteran Affairs (2006) 38 Cal. 4th 914, 922–927; People v.
Canty (2004) 32 Cal. 4th 1266, 1280–1281), I am not aware of any case — the
court cites none — in which we have relied on statements of purpose in a
preamble to nullify an operative provision that is unambiguous. Indeed, we have
repeatedly declined to construe such statements of purpose in a manner that
restricts or alters a statute‘s operative provisions. (See, e.g., Scher v. Burke (2017)
__ Cal.5th __, __ [2017 WL 2589509, p. *5]; Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal. 4th 53, 58–61; Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal. 4th 1106, 1117–1119.)
9
Second, one reason courts do not assign much weight to preamble language
relative to operative provisions is that such language is often phrased at a high
level of generality and typically includes multiple purposes that point in different
directions. (Cf. Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal. 4th 1109, 1167
[― ‗[N]o statute . . . pursues its ―broad purpose‖ at all costs.‘ ‖]; ibid. [― ‗ ―[I]t
frustrates rather than effectuates legislative intent simplistically to assume that
whatever furthers the statute‘s primary objective must be the law.‖ ‘ ‖].) That is
certainly true here. The court, while citing the purposes above, neglects to
mention other purposes stated in Proposition 47: to ―save significant state
corrections dollars on an annual basis‖ and to ―increase investments in programs
that reduce crime and improve public safety, such as prevention programs in K-12
schools, victim services, and mental health and drug treatment, which will reduce
future expenditures for corrections.‖ (Voter Information Guide, supra, text of
Prop. 47, § 3, subd. (6), at p. 70; see id., § 2, at p. 70 [―The people enact
[Proposition 47] to ensure that prison spending is focused on violent and serious
offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest
the savings generated from this act into prevention and support programs in K–12
schools, victim services, and mental health and drug treatment.‖].) Applying
Proposition 47‘s definition of ―unreasonable risk of danger to public safety‖ to
Proposition 36 petitioners whose third strike is not serious or violent is fully
consistent with Proposition 47‘s purpose of maximizing alternatives for
nonserious, nonviolent crime, saving significant state correction dollars each year,
and increasing investment in crime prevention, victim services, and mental health
and drug treatment to reduce recidivism.
Third, apart from the court‘s one-sided presentation of Proposition 47‘s
purposes, there is no inconsistency between the purposes the court focuses on and
the application of Proposition 47‘s definition of ―unreasonable risk of danger to
10
public safety‖ to Proposition 36. It is true that inmates eligible for resentencing
under Proposition 36 have been convicted of violent or serious felonies. But that
is also true of many inmates eligible for resentencing under Proposition 47, which
excludes only persons who have been convicted of a ―super strike‖ or a registrable
sex offense. (§ 1170.18, subd. (i); see, e.g., Harris v. Superior Court (2016) 1
Cal.5th 984, 987–988 [Prop. 47 petitioner had a prior strike for robbery]; People v.
Hernandez (2017) 10 Cal.App.5th 192, 195–196 [Prop. 47 petitioner had two prior
strikes]; People v. Cortez (2016) 3 Cal.App.5th 308, 310 [Prop. 47 petitioner
admitted a prior strike].) Indeed, the Legislative Analyst made clear in the ballot
materials for Proposition 47 that some petitioners eligible for Proposition 47
resentencing had been sent to state prison instead of county jail for now-
reclassified nonserious, nonviolent felonies ―because they had a prior serious or
violent conviction.‖ (Voter Information Guide, supra, analysis by the Legis.
Analyst, at p. 36.)
Further, the fact that a smaller share of eligible Proposition 47 petitioners,
compared to eligible Proposition 36 petitioners, have prior serious or violent
felony convictions does not compel the inference that Proposition 47‘s definition
of ―unreasonable risk of danger to public safety‖ must apply only to the former
and not the latter. The definition establishes the level of risk that the electorate
found acceptable to authorize a reduced sentence in each individual case. (See
Voter Information Guide, supra, text of Prop. 47, § 3, subd. (5), at p. 70 [Prop. 47
―[r]equire[s] a thorough review of criminal history and risk assessment of any
individuals before resentencing to ensure that they do not pose a risk to public
safety‖].) It is perfectly rational for the voters to have established the same risk
threshold for evaluating individuals from both populations, even if the populations
differ on average in terms of criminal history. The Court of Appeal in Valencia‘s
case said it would be ―logical‖ and not ―absurd‖ to treat differently ―someone with
11
multiple prior serious and/or violent felony convictions whose current offense is
(or would be, if committed today) a misdemeanor‖ versus ―someone whose
current offense is a felony.‖ But even so, there is also nothing illogical or absurd
about using the same risk criteria in evaluating both types of recidivist offenders.
That is simply a policy judgment — and one that the voters made clearly in the
text of Proposition 47.
Nor does it help the court‘s analysis that Proposition 47, but not Proposition
36, excludes from resentencing eligibility persons who have committed certain sex
offenses involving minor victims over the age of 14. It is true that Proposition 47
declares a general purpose of ―ensur[ing] that people convicted of murder, rape,
and child molestation will not benefit from this act.‖ (Voter Information Guide,
supra, text of Prop. 47, § 3, subd. (1), at p. 70.) But Proposition 36 likewise states
in its uncodified preamble that its purpose is ―to restore the original intent of
California‘s Three Strikes Law—imposing life sentences for dangerous criminals
like rapists, murderers, and child molesters‖ and to ―[r]equire that murderers,
rapists, and child molesters serve their full sentences—they will receive life
sentences, even if they are convicted of a new minor third strike crime.‖ (Voter
Information Guide, Gen. Elec. (Nov. 6, 2012), text of Prop. 36, § 1, subd. (1),
p. 105.) It is entirely reasonable that the electorate understood Proposition 47‘s
intent not to benefit ―people convicted of murder, rape, and child molestation‖ in
the context of the initiative‘s other purposes in the same way it understood
Proposition 36‘s intent not to benefit ―murderers, rapists, and child molesters‖ in
the context of that initiative‘s other purposes just two years earlier.
It is important to keep in mind the burden that the court‘s analysis must
satisfy here. In order to disregard plain meaning, there must be ―clear evidence of
a contrary legislative intent‖ (Ornelas, supra, 4 Cal.4th at p. 1105, italics added);
the plain meaning must be inconsistent with the ―manifest purpose‖ of the statute
12
(Arias v. Superior Court (2009) 46 Cal. 4th 969, 979, italics added). It is hardly
enough to cite generally worded preamble language that declares several
competing purposes. Such language falls well short of the clarity and precision
required to nullify the plain meaning of an operative provision.
B.
As a further reason to reject section 1170.18(c)‘s plain meaning, the court
identifies several questions that would arise from applying Proposition 47‘s
definition of ―unreasonable risk of danger to public safety‖ to Proposition 36
petitioners: Would the definition apply prospectively or retroactively? Would
Proposition 47‘s new definition constitute ―good cause‖ for filing a Proposition 36
resentencing petition beyond the statutory two-year window? (§ 1170.126,
subd. (b).) And what about Proposition 36 petitioners whose resentencing
petitions are already final? The fact that Proposition 47 does not address these
―serious procedural questions,‖ the court says, is an indication that the initiative
was not intended to amend the resentencing criteria for Proposition 36 petitioners.
(Maj. opn., ante, at p. 27.)
Conspicuously absent from the court‘s discussion of this point is any
citation to precedent suggesting that the absence of details addressing the
procedure for implementing a statutory provision is a reason to disregard the
provision‘s plain meaning. As to whether Proposition 47‘s narrowing of the
definition of unreasonable risk constitutes ―good cause‖ for filing a new or
renewed Proposition 36 resentencing petition beyond the two-year window, isn‘t
this the kind of question that lawmakers regularly leave for the courts to answer?
Similarly, when we encounter a statute that does not say whether it applies
retroactively or prospectively, we do not simply throw up our hands in confusion
and infer that the lawmakers, having not addressed this issue, did not mean to
enact what they enacted. Instead, we regularly give effect to such statutes in a
13
manner guided by interpretive presumptions in our case law. (See, e.g., People v.
Conley (2016) 63 Cal. 4th 646, 656–657 (Conley); In re Pedro T. (1994) 8 Cal. 4th
1041, 1049; People v. Hajek (2014) 58 Cal. 4th 1144, 1195–1196; People v. Brown
(2012) 54 Cal. 4th 312.)
Here, I would apply the presumption that new statutes reducing criminal
punishment apply to cases that have not yet proceeded to final judgment, absent
evidence of contrary legislative intent. (See In re Estrada (1965) 63 Cal. 2d 740,
745 [―[w]hen the Legislature amends a statute so as to lessen the punishment‖ for
a crime, ―[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‖].) The
Attorney General says the Estrada presumption does not apply because section
1170.18(c) merely narrows resentencing discretion and does not reduce the
punishment for a particular crime. But by narrowing the definition of
―unreasonable risk of danger to public safety,‖ Proposition 47 recalibrates the
universe of third-strike offenders entitled to lesser punishment for a defined
category of offenses, i.e., nonserious, nonviolent felonies. (§ 1170.126, subd. (f)
[a third-strike offender eligible for resentencing ―shall‖ be resentenced unless the
court determines that resentencing the offender ―would pose an unreasonable risk
of danger to public safety‖].) Proposition 47‘s definition of unreasonable risk
plainly ― ‗represents a legislative judgment that the lesser penalty or the different
treatment is sufficient to meet the legitimate ends of the criminal law‘ ‖ for a
subset of defendants whose third strike was a nonviolent, nonserious felony.
(Estrada, at p. 745.) This would not be the first time we have applied the Estrada
presumption to a statute revising trial courts‘ sentencing discretion to allow for
lesser punishment. (See People v. Francis (1969) 71 Cal. 2d 66, 76.) Because
nothing in the text or history of Proposition 47 rebuts the Estrada presumption, I
14
would hold that Proposition 47‘s definition of ―unreasonable risk of danger to
public safety‖ applies to all Proposition 36 resentencing petitions that have not yet
proceeded to final judgment, including the two defendants‘ petitions here.
The main point is that courts do not infer that a statute does not mean what
it says simply because the statute does not say more about how it is to be
implemented. Lawmakers know that courts have plenty of tools to answer
questions that statutes leave unanswered. The court‘s approach, which effectively
― ‗dictate[s] to legislative drafters the forms in which laws must be written‘ ‖
(Conley, supra, 63 Cal.4th at p. 656), is unprecedented, as the court‘s failure to
cite any precedent confirms.
C.
In addition to citing the lack of procedures to guide Proposition 47‘s
applicability to resentencing under Proposition 36, the court says the ballot
materials for Proposition 47 ―signaled no relationship at all‖ with Proposition 36.
(Maj. opn., ante, at p. 26.) The court treats this silence as a reason to jettison the
usual presumptions that the voters have duly considered the initiative‘s text and
are aware of existing laws. (Id. at pp. 29–36.) According to the court, we should
not give effect to the plain meaning of the phrase ―As used throughout this Code‖
in section 1170.18(c) because apart from the statutory text, nothing else informed
the voters that Proposition 47‘s definition of ―unreasonable risk of danger to
public safety‖ would apply to Proposition 36 petitioners.
This line of argument is as startling as it is threatening to the orderly
development of the law. (See Eskridge et al., Legislation and Statutory
Interpretation (2d ed. 2006) p. 231 [―plain meaning is the most obvious and
perhaps the most objective focal point for all of us to know what the rule of law
requires of us and our neighbors‖].) Is the judiciary free to nullify an
unambiguous statutory provision whenever it can be shown that the ballot
15
materials did not inform the electorate of its consequences? Our precedent,
including two recent decisions construing Proposition 47, makes clear this is not
the law. We do not impute such ignorance to the voters out of respect for the
democratic process and out of concern for overstepping the judicial function. If
we can rewrite statutes on the ground that the voters were not aware of what they
were enacting, there will be no end to the mischief that courts and litigants can
inflict on the initiative process.
We have long followed the rule that voters ―must be assumed to have voted
intelligently upon an [initiative measure], the whole text of which was supplied
each of them prior to the election, and which they must be assumed to have duly
considered, regardless of any insufficient recitals in the instructions to voters or
the arguments pro and con of its advocates or opponents accompanying the text of
the proposed measure.‖ (Wright v. Jordan (1923) 192 Cal. 704, 713, italics
omitted (Wright).) This rule has led us, repeatedly, to enforce the plain meaning
of an initiative‘s text even when its consequences were not apparent from the
ballot materials.
In People v. Romanowski (2017) 2 Cal.5th 903, we held that theft of access
card (e.g., credit or debit card) information is a crime eligible for reduced
punishment under Proposition 47. We explained that Proposition 47 reduced
various theft crimes from felonies to misdemeanors where the value of the
property taken does not exceed $950. (Romanowski, at p. 908.) Although neither
the initiative‘s text nor the ballot materials mentioned theft of access card
information in describing reclassified theft offenses, we observed that the text of
Proposition 47 does refer to ― ‗[s]ection 487 or any other provision of law defining
grand theft.‘ ‖ (Romanowski, at p. 908, quoting § 490.2, italics added by
Romanowski.) We said: ―We deny a phrase like ‗any other provision of law‘ its
proper impact if we expect a penal statute — whether enacted by the Legislature
16
or the electorate — to further enumerate every provision of the Penal Code
to which it is relevant. And we generally presume that the electorate is aware of
existing laws. [Citation.] Here this means we must presume that voters were at
least aware that the Penal Code sets out ‗grand theft‘ crimes that included theft of
access card account information.‖ (Romanowski, at pp. 908–909.)
In People v. Gonzales (2017) 2 Cal.5th 858, we held that the new crime of
shoplifting created by Proposition 47 includes any entry into a commercial
establishment during regular business hours with intent to take property worth no
more than $950, including entering a bank to cash a forged check. We
acknowledged that this holding diverged from the ―colloquial understanding‖ of
shoplifting (Gonzales, at p. 871), and our examination of the ballot materials
revealed nothing that mentioned its application to nonlarcenous thefts (id. at
pp. 869–870). But we observed that Proposition 47‘s definition of shoplifting
―expressly mentions the burglary statute‖ (Gonzales, at p. 869), and we said the
burglary statute had long been construed to cover theft by false pretenses (id. at
pp. 867–868). Reasoning that ―[t]he electorate ‗is presumed to be aware of
existing laws and judicial construction thereof,‘ ‖ we concluded that the voters
intended the definition of shoplifting to have the same scope as the burglary
statute. (Id. at p. 869.)
In Day v. City of Fontana (2001) 25 Cal. 4th 268, we held that a provision
of Proposition 213 ―precludes uninsured drivers from recovering noneconomic
damages in actions against local public entities for nuisance and dangerous
condition of property.‖ (Day, at p. 282.) Finding that ―[s]uch actions fall squarely
within the terms‖ of the statute barring liability (id. at p. 282; see id. at pp. 273,
277), we said ―it is of no consequence here that the ballot materials did not
specifically refer to the act‘s application in actions against local public entities for
nuisance and dangerous condition of property‖ (id. at p. 282). Ballot arguments,
17
we explained, ― ‗are not legal briefs and are not expected to cite every case the
proposition may affect.‘ [Citations.] Here we may reasonably infer from the
ballot arguments that a primary aim of Proposition 213 was to protect insured
motorists and to reduce automobile insurance rates. [Citation.] Such arguments,
however, did not imply that protection of insured motorists was the initiative‘s
sole aim; nor did they suggest that reductions in automobile insurance premiums
would be the initiative‘s only effect.‖ (Id. at pp. 278–279.)
In Lungren, supra, 14 Cal. 4th 294, we held that Proposition 65‘s
prohibition on releasing toxic chemicals ― ‗into any source of drinking water‘ ‖
covered the discharge of toxic chemicals into faucet water. The defendants argued
that the analysis of the Legislative Analyst, which spoke of the initiative‘s effect
on government-issued permits, suggested to the electorate that Proposition 65 had
to do with surface and ground waters, not plumbing faucets. (Lungren, at p. 308.)
We said: ―The Legislative Analyst did not suggest that all the effects and
ramifications of the Act were being set forth in his brief summation. . . . In light
of the explicit language and purpose of the statute, and the generality and brevity
of the Legislative Analyst‘s commentary, the latter cannot plausibly be viewed as
implicitly limiting the scope of the statute in the manner advocated by
defendants.‖ (Ibid.)
In Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal. 4th 1243, we concluded
that Proposition 103 applied to surety insurance, finding the statutory text ―clear‖
and not ―ambiguous.‖ (Amwest, at p. 1260.) The plaintiff insurance company
observed that the ballot materials ―did not mention surety insurance‖ and thus ―it
is unlikely the voters understood that Proposition 103 applied to surety insurance.‖
(Ibid.) But we declined the plaintiff‘s suggestion ― ‗to make [the proposition] say
what the voters thought it meant.‘ ‖ (Amwest, at pp. 1260–1261.)
18
In Delaney v. Superior Court (1990) 50 Cal. 3d 785, we considered whether
an initiative amending the newsperson‘s shield law in our state Constitution
applied only to confidential as opposed to all unpublished information collected by
reporters. We found it ―clear and unambiguous‖ that the enacted text — which
protected any newsperson for ― ‗refusing to disclose any unpublished
information‘ ‖ — applied to all such information. (Id. at p. 798, italics added by
Delaney.) The defendant, who sought to compel testimony from two journalists,
suggested we rely on the Legislative Analyst‘s statement and ballot arguments to
find that the voters intended the shield law to apply only to confidential
information. (Id. at pp. 801–802.) We declined to do so: ―We cannot conclude
that, by emphasizing one purpose, perhaps the primary purpose of the measure, the
argument misled voters into thinking confidentiality was the only purpose,
especially when the measure itself made clear that all unpublished information
would be protected. Moreover, a possible inference based on the ballot argument
is an insufficient basis on which to ignore the unrestricted and unambiguous
language of the measure itself.‖ (Id. at pp. 802–803.)
And in Cervera, supra, 24 Cal. 4th 1073, we held that the Three Strikes law
does not authorize prison conduct credits for use against indeterminate terms
despite legislative history and ballot materials suggesting otherwise. We observed
that the text of the Three Strikes laws authorize the award of prison conduct
credits pursuant to a separate statute addressing only the application of such
credits to determinate sentences. (Cervera, at p. 1078.) We acknowledged that
the Legislative Analyst‘s analysis, the ballot arguments, and various legislative
committee analyses discussed the availability of prison conduct credits without
distinguishing between determinate and indeterminate terms. (Id. at p. 1079.)
―But,‖ we concluded, ―it was the Three Strikes law that was enacted, not any of
the documents within its legislative or initiative history. A statute, of course, must
19
prevail over any summary. Were it not so, no statute could ever be enacted whole
and entire. For every summary, by definition, is incomplete. A summary is a
model of the body of the statute, well executed or not as the case may be. It is not
a procrustean bed for the stretching or lopping off of its limbs. The summary must
yield to the statute, not the statute to the summary.‖ (Id. at pp. 1079–1080.)
The lessons of this body of precedent are clear. The unambiguous language
of an initiative is the best evidence of the voters‘ intent. Ballot materials may help
illuminate the purpose of an initiative statute. But the fact that ballot materials do
not speak to the application of the statute in a particular case is not a reason to
disregard the plain meaning of the enacted text. Ballot materials are necessarily
incomplete and serve as summaries. ―The summary must yield to the statute, not
the statute to the summary.‖ (Cervera, supra, 24 Cal.4th at p. 1080.)
Against the backdrop of this case law, it is mystifying how the court can
place such heavy reliance on the fact that the ballot materials prepared by the
Attorney General and Legislative Analyst did not mention Proposition 47‘s effects
on resentencing three-strikes inmates. (Maj. opn., ante, at pp. 22–26, 32–34, 36–
37.) The court makes reference to ―[t]he statutory provisions imposed on the
Attorney General and Legislative Analyst in order to educate voters about the
effect of proposed initiatives and to protect them from being misled or confused.‖
(Id. at p. 37.) But as the Court of Appeal explained in People v. Cordova (2016)
248 Cal. App. 4th 543, 558–559 (Cordova), the contents of the ballot pamphlet ―are
constrained by considerations of space, time, and subjective determinations of
materiality. The official summary of any ballot measure is authored by the office
of the Legislative Analyst. (Elec. Code, §§ 9087, 9086, subd. (b).) The summary
is required only to ‗generally set forth in an impartial manner the information
the average voter needs to adequately understand the measure.‘ (Elec. Code,
§ 9087, subd. (b), italics added.) Note the absence of any directive that the
20
Legislative Analyst attempt to provide voters with a complete understanding of the
measure, which would be a practical impossibility in any event; few judges or
lawyers would be so arrogant as to profess that they completely understand any
provision of law, at least in the sense of being able to forecast all of its effects.
(See In re Gabriel G. [(2008)] 134 Cal.App.4th [1428,] 1437 [―Legislation often
has unintended consequences.‖].) In manifest recognition of this fact, the
governing statute states only that the ballot summary ‗may contain‘ such
‗background information‘ as ‗the effect of the measure on existing law.‘ (Elec.
Code, § 9087, subd. (b), italics added.) The Legislative Analyst is thus called
upon only to make a rational judgment about what effects are most likely to matter
to voters, and to describe them in a fair and intelligible way. Inherent in this
undertaking is the necessity of informational triage—of determining what details
are necessary to form an ‗adequate[ ] understanding[ing],‘ and what details may be
omitted. The preparer of such a summary necessarily exercises a discretionary
function requiring courts to allow considerable latitude when the result is
challenged as incomplete or inaccurate. (See Brennan v. Board of Supervisors
(1981) 125 Cal. App. 3d 87, 96 [―Faced with the difficult task of simplifying a
complex proposal, the Committee drafted a summary which, if not all-
encompassing, at least briefly described its major subjects.‖].)
―When the Legislative Analyst fails to mention some effect of a ballot
measure, it remains open to the measure‘s official proponents and opponents to
use their space in the ballot pamphlet to supply any perceived lack. But they too
must practice triage; their arguments are restricted to 500 words to open and 250
words in rebuttal. (See Elec. Code, §§ 9062, 9069; cf. id., § 9041.) This means
the advocates must select a limited number of points to include in their voter
information guide arguments, relying on other media to pursue issues deemed of
lesser moment. Here, both sides evidently concluded that the effect of section
21
1170.18(c) on Proposition 36 petitions was not a powerful enough ground of
argument to warrant mention in the guide. That decision can hardly furnish an
occasion for judicial nullification.‖ (Fn. omitted.) Today‘s opinion does not
contend that Cordova‘s description of the Legislative Analyst‘s duties under the
Elections Code is incorrect. (Maj. opn., ante, at pp. 24–25, fn. 7; see Cal. Rules of
Court, rule 8.1115, subd. (e)(2) [a published Court of Appeal opinion on a matter
in which we have granted review ―is citable and has binding or precedential effect,
except to the extent it is inconsistent with the decision of the Supreme Court or is
disapproved by that court‖].)
Instead of grappling with the precedent above, the court relies on Robert L.
v. Superior Court (2003) 30 Cal. 4th 894 and Taxpayers to Limit Campaign
Spending v. Fair Political Practices Comm. (1990) 51 Cal. 3d 744 (Taxpayers).
But in Robert L., we rejected a technical reading of the phrase ―punishable as a
felony or a misdemeanor‖ in section 186.22, subdivision (d) in favor of how ―the
average voter . . . would have understood the plain language.‖ (Robert L., at
p. 902.) In this case, the court is rejecting how the average voter would have
understood the plain language of section 1170.18(c) in favor of nullifying the
disputed language altogether.
It is also far-fetched to say this case is ―similar‖ to Taxpayers in demanding
an unreasonable degree of thoroughness on the part of the electorate. (Maj. opn.,
ante, at p. 31.) In Taxpayers, the voters approved two overlapping ballot
initiatives. We held that the initiative receiving more votes should be given effect,
rejecting the view that we should attempt to reconcile the competing measures.
(Taxpayers, supra, 51 Cal.3d at p. 770.) No case had ever assumed that ―voters
not only recognized that they were approving initiatives with fundamentally
conflicting provisions intended to regulate the same subject, but also analyzed the
remaining provisions in order to predict which would be implemented if either
22
measure received a lesser affirmative vote.‖ (Id. at p. 768.) Hybridizing the two
initiatives, we said, would ―implement a fictitious electoral intent.‖ (Ibid.) Here,
the only issue is the voters‘ understanding of a single unambiguous and easily
intelligible phrase: ―As used throughout this Code.‖
The court‘s theory that the electorate was likely ignorant of the plain
meaning of section 1170.18(c) when it enacted Proposition 47 is misguided at a
more fundamental level. The presumption that voters have attentively studied the
text of measures they enact and are aware of existing laws is not primarily based
on the notion that most voters do in fact read the text or study the background law.
Instead, it is based on the importance of separating the judicial function from the
legislative function in our system of government. Without a strong presumption
that the legislative authority means what it says in its official enactments, the
lawmaking process would regularly be subject to ―collateral attack‖ (Wright,
supra, 192 Cal. at p. 713), with courts rewriting plain language to fit their
conception of what the lawmakers really meant. We should not countenance such
lack of judicial restraint or such erosion of legislative accountability.
In this case, the court claims neither a drafting error nor absurd
consequences. The court instead contends that the voters, having duly enacted
section 1170.18(c), were caught unawares and did not actually intend to enact
what they did. This holding is highly irregular and goes beyond our legitimate
authority to interpret statutes. We should enforce the statute as written and leave
any corrections up to the usual lawmaking process. (Cal. Const., art. I, §§ 9, 10,
subd. (c).)
III.
I conclude with a bit of context that may further illuminate why many will
look askance at today‘s decision. In the early 1980s, as the ―law and order‖
movement accelerated in this state and throughout the nation, California voters
23
enacted a major criminal justice reform initiative known as ―The Victims‘ Bill of
Rights‖ (Proposition 8). (See Brosnahan v. Brown (1982) 32 Cal. 3d 236, 242–245
(Brosnahan).) This initiative affected numerous areas of our criminal law:
restitution awards, evidentiary standards, bail, sentencing practices, diminished
capacity defenses, plea bargaining, and more. The petitioners in Brosnahan,
claiming that the initiative violated the single-subject rule, argued that ―the
complexity of Proposition 8 may have led to confusion or deception among voters,
who were assertedly uninformed regarding the contents of the measure.‖ (Id. at
p. 251.) We rejected this argument as follows:
―. . . Proposition 8 received widespread publicity. Newspaper, radio and
television editorials focused on its provisions, and extensive public debate
involving candidates, letters to the editor, etc., described the pros and cons of the
measure. In addition, before the election each voter received a pamphlet
containing (1) the title and summary prepared by the Attorney General, (2) a
detailed analysis of the measure by the Legislative Analyst, and (3) a complete
‗Text of the Proposed Law.‘ This text contained the entirety of the 10 sections of
the Victims‘ Bill of Rights and included in ‗strikeout type‘ the text of former
article I, section 12, of the Constitution. Each voter also was given written
arguments in favor of Proposition 8 and rebuttal thereto, and written arguments
against Proposition 8 and rebuttal thereto. [Citations.]
―Moreover, as we stated in [Fair Political Practices Com. v. Superior
Court (1979) 25 Cal. 3d 33, 42] in disposing of an identical contention that the
measure was too complicated, ‗Our society being complex, the rules governing it
whether adopted by legislation or initiative will necessarily be complex. Unless
we are to repudiate or cripple use of the initiative, risk of confusion must be
borne.‘ [Citation.]
24
―Petitioners‘ entire argument that, in approving Proposition 8, the voters
must have been misled or confused is based upon the improbable assumption that
the people did not know what they were doing. It is equally arguable that, faced
with startling crime statistics and frustrated by the perceived inability of the
criminal justice system to protect them, the people knew exactly what they were
doing. In any event, we should not lightly presume that the voters did not know
what they were about in approving Proposition 8. Rather, in accordance with our
tradition, ‗we ordinarily should assume that the voters who approved a
constitutional amendment “. . . have voted intelligently upon an amendment to
their organic law, the whole text of which was supplied each of them prior to the
election and which they must be assumed to have duly considered.‖ ‘ [Citations.]‖
(Brosnahan, supra, 32 Cal.3d at p. 252, italics added by Brosnahan.)
This court has applied Proposition 8 in accordance with the full sweep of its
plain language, even if the text or ballot materials did not alert the electorate to
particular applications. (See People v. Alvarez (2002) 27 Cal. 4th 1161, 1174–
1175; In re Lance W. (1985) 37 Cal. 3d 873, 885–888.) And, as noted (ante, at
p. 1), we have taken the same approach in applying the Three Strikes law.
Today California voters, like many citizens throughout America, have had
second thoughts about our past criminal justice policies. Fiscal, moral, religious,
and public safety considerations have motivated an unusually wide spectrum of
leaders to reexamine penal laws and sentencing practices. (See, e.g., Chettiar &
Waldman, Solutions: American Leaders Speak Out on Criminal Justice (2015);
Ball, Do the Koch Brothers Really Care About Criminal-Justice Reform? (Mar. 3,
2015) The Atlantic.) It is in this context that the electorate, by large majorities,
passed Proposition 36 and Proposition 47. Like the ―tough on crime‖ initiatives
from previous decades, Proposition 47 was vigorously debated, and statewide
advocacy groups highlighted its various implications, including its effect on
25
resentencing petitions under Proposition 36. The court notes that one of the
authors of Proposition 47, as reported the day after the 2014 general election, said
three-strikes inmates previously denied resentencing ― ‗could return to court and
cite Proposition 47‘s new definition of an ―unreasonable risk of danger.‖ ‘ ‖ (Maj.
opn., ante, at p. 28, fn. 9, quoting St. John & Gerber, Prop. 47 Jolts Landscape of
California Justice System, L.A. Times (Nov. 5, 2014).)
The court today concludes that the drafters of Proposition 47 pulled a fast
one on an uninformed public. But it is at least ―equally arguable that, faced with
startling [prison spending] statistics and frustrated by the perceived inability of the
criminal justice system to [reduce costs], the people knew exactly what they were
doing‖ when they passed Proposition 47. (Brosnahan, supra, 32 Cal.3d at p. 252.)
Many voters may have reasonably believed that inmates whose third strike was
neither serious nor violent should not have received 25-years-to-life sentences or
that some three-strikes inmates serving lengthy sentences have rehabilitated
themselves or have aged out of crime. ―In any event, we should not lightly
presume that the voters did not know what they were about in approving‖ the
initiative (ibid.) when the application of its definition of ―unreasonable risk of
danger to public safety‖ to inmates serving a third-strike sentence for a nonviolent,
nonserious offense is fully consistent with Proposition 47‘s stated purpose ―to
ensure that prison spending is focused on violent and serious offenses,‖ ―to
maximize alternatives for nonserious, nonviolent crime,‖ and to ―save significant
state corrections dollars.‖ (Voter Information Guide, supra, text of Prop. 47, §§ 2,
3, at p. 70.)
We should apply the same interpretive approach to this ameliorative statute
that we applied to the punitive statutes of an earlier era. The aberrant approach to
statutory interpretation in today‘s decision disserves the initiative process, the
inmates who are now its beneficiaries, and the judicial role itself.
26
I would reverse the judgments of the Courts of Appeal in these cases and
remand each case to the resentencing court to consider whether the petitioner
poses an ―unreasonable risk of danger to public safety‖ as defined in section
1170.18(c).
LIU, J.
WE CONCUR:
WERDEGAR, J.
CUÉLLAR, J.
27
DISSENTING OPINION BY CUÉLLAR, J.
In 2014, Californians enacted Proposition 47, the Safe Neighborhoods and
Schools Act. This initiative allowed certain offenders convicted of less serious
nonviolent felonies and wobblers to petition to have their felony convictions
reclassified as misdemeanors and their felony sentences recalled for resentencing.
(Pen. Code, § 1170.18, added by Prop. 47, § 1, approved by voters at Gen. Elec.
(Nov. 4, 2014).)1 Proposition 47, however, carved out an exception precluding
relief when reclassification would ―result in an unreasonable risk of danger to
public safety.‖ The measure defined the nature of this particular risk throughout
the Penal Code. The phrase ―[a]s used throughout this Code‖ in section 1170.18,
subdivision (c) means what it says. Thus, the definition applies in the context of
Proposition 36, the Three Strikes Reform Act of 2012.
The parties accept that Proposition 47 leaves intact the eligibility criteria to
petition for resentencing under the Three Strikes Reform Act. Under Proposition
47‘s more specific definition of ―unreasonable risk of danger to public safety,‖
courts retain discretion to determine whether sentence recall is warranted, though
subject to more precise constraints than would apply under the previously
undefined Proposition 36 standard. Permitting Proposition 47‘s definition to apply
1 All further statutory citations are to the Penal Code unless otherwise noted.
wherever the phrase ―unreasonable risk of danger to public safety‖ appears
throughout the Penal Code tends to advance the goal of concentrating state
corrections spending on the most dangerous offenders. And giving effect to the
terms of section 1170.18, subdivision (c) would not result in automatic, nor
immediate, release of Proposition 36 petitioners. Thus, the ordinary understanding
of this provision‘s language is consistent with the statute‘s overall structure and
context, and by imbuing the language with its ordinary meaning we promote the
broad remedial purposes of both the Safe Neighborhoods and Schools Act and the
Three Strikes Reform Act.
So why does the court conclude that ―throughout this Code‖ (§ 1170.18,
subd. (c)) cannot possibly mean ―throughout this Code‖ and instead must mean
―as applicable only to the resentencing proceedings that are authorized under
Proposition 47‖? (Maj. opn., ante, at p. 38.) Not because the ordinary meaning of
―[a]s used throughout this Code‖ in any way suggests that these words narrow
rather than expand the applicability of Proposition 47‘s definition. Indeed, one
needs more than even the Theory of Relativity to make ―throughout this Code‖
mean, as a matter of ordinary usage, ―only . . . under Proposition 47.‖ Not because
it‘s clear from the text, structure, or context of the initiative that the term ―the
petitioner‖ excludes all petitioners except those encompassed by Proposition 47.
Not because the court here undertakes a thorough analysis of past cases where we
have, in fact, failed to apply the literal meaning of a statutory provision. Not
because the initiative contains a drafting error. And not because it can be said that
giving effect to the phrase as written results in absurd consequences. Instead, the
court finds that ―it is reasonable‖ to confine Proposition 47‘s definition of the
exception precluding relief to the initiative in which it was introduced. (Maj. opn.,
ante, at p. 38.)
2
The most striking problem with the court‘s conclusion, for me, is that it‘s
not clear what justifies it. Even if one were to accept the implicit idea that we are
simply weighing competing ―reasonable‖ definitions of an opaque statute in this
case, there is nothing ―reasonable‖ about failing to apply a statutory definition
throughout the code when it is supposed to apply ―throughout this Code.‖ For the
majority, sentencing judges should retain somewhat greater discretion under the
Three Strikes Reform Act to deny relief to individuals who‘d have a marginally
stronger basis to obtain such relief if the phrase ―[a]s used throughout this Code‖
were given proper effect. To reach this conclusion, the majority appears to rely on
an implausibly cramped reading of Proposition 47‘s purposes. Nothing in the
court‘s analysis persuasively supports a reading of the statute that essentially
ignores the words ―throughout this Code‖ and their place in the statutory scheme.
Nor do the majority opinion and concurrence persuade in insisting that ―the
petitioner‖ in section 1170.18, subdivision (c) must mean only the Proposition 47
petitioner based on the provision‘s use of the definite article ―the.‖ By eschewing
the statutory provision‘s ordinary meaning in this context, the court redrafts
Proposition 47 without a credible rationale. In the process, the court fails to give
effect not only to the text and explicit purposes of the initiative, but also to a
variety of tenets we generally apply when we interpret statutes. Which is why I
respectfully dissent.
I.
The Legislature enacted the ―Three Strikes‖ law in 1994 ― ‗to ensure longer
prison sentences and greater punishment for those who commit a felony and have
been previously convicted of one or more serious and/or violent felony
offenses.‘ ‖ (§ 667, subd. (b).) That same year, California voters enacted a nearly
identical measure through ballot initiative. (§ 1170.12, as added by Prop. 184, § 1,
Gen. Elec. (Nov. 8, 1994); see also People v. Sasser (2015) 61 Cal. 4th 1, 11; In re
3
Cervera (2001) 24 Cal. 4th 1073, 1075 (Cervera).) Under the Three Strikes law,
any defendant convicted of a new felony who had previously been convicted of
one ―strike‖ — that is, a qualifying serious or violent felony — faced a sentence
equal to ―twice the term otherwise provided as punishment for the current felony
conviction.‖ (§ 1170.12, former subd. (c)(1).) For those defendants convicted of
any new felony with two or more prior strikes, the Three Strikes law required
courts to impose ―an indeterminate term of life imprisonment with a minimum
term of‖ at least 25 years. (§ 1170.12, former subd. (c)(2)(A); see Teal v. Superior
Court (2014) 60 Cal. 4th 595, 596 (Teal).) One particularly controversial aspect of
the law was that the third strike felony triggering a life sentence could be
nonviolent and relatively minor. (See In re Coley (2012) 55 Cal. 4th 524, 528–
529.)
Over the next 20 years, California‘s prison population surged. By 2008, the
state‘s correctional facilities housed roughly 156,000 persons, almost double the
number of inmates the state‘s prisons were designed to hold. (Brown v. Plata
(2011) 563 U.S. 493, 501 (Brown v. Plata).) In 2009, a three-judge federal court
concluded that overcrowding was the ―primary cause of the state‘s
unconstitutional failure to provide adequate medical and mental care‖ to its
prisoners and ordered the state to reduce its prison population to 137.5 percent of
design capacity within two years. (Coleman v. Schwarzenegger (E.D.Cal. 2009)
922 F. Supp. 2d 882, 949; see also id. at pp. 969–970.) In May 2011, the United
States Supreme Court affirmed the three-judge court‘s remedial order, holding that
―the court-mandated population limit [was] necessary to remedy the violation of
prisoners‘ constitutional rights.‖ (Brown v. Plata, at p. 502.)
The Legislature and the Governor responded by enacting the Criminal
Justice Realignment Act of 2011. (Stats. 2011, ch. 15, § 1; Stats. 2011, 1st Ex.
Sess. 2011–2012, ch. 12, § 1 (Realignment Act); see also People v. Scott (2014)
4
58 Cal. 4th 1415, 1418.) The Realignment Act revised sentencing for nonserious,
nonviolent, and non-sex registrant offenders, directing them from the state to local
jurisdictions, and shifting fiscal responsibility for those offenders from the state to
local governments. (See Scott, at pp. 1418–1419; § 1170, subd. (h)(2), (3), (5).)
California voters then began using the initiative process to reform some of
the most punitive features of the criminal justice system. In 2012, voters approved
Proposition 36, the Three Strikes Reform Act. (As approved by voters, Gen. Elec.
(Nov. 6, 2012).) In the wake of Brown v. Plata and the Realignment Act‘s
passage, Proposition 36 did two things to help advance the goal of reallocating
scarce prison spending and space from low-risk offenders to more dangerous ones.
First, the measure amended the Three Strikes law to reduce the punishment for
second strike defendants who commit third strike felony offenses that are neither
serious nor violent. (See §§ 667, subd. (e), 1170.12, subd. (c).) Second, as
relevant in this case, Proposition 36 added a resentencing provision permitting
third strike offenders presently serving an indeterminate term of life imprisonment
for a nonserious or nonviolent felony to petition for a reduction of their term to a
second strike sentence. (See § 1170.126, subd. (b); Teal, supra, 60 Cal.4th at
p. 597.)
A third strike inmate who satisfies certain specified criteria ―shall be
resentenced‖ as a second strike offender to ―twice the term otherwise provided for
the current felony conviction,‖ ―unless the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public
safety.‖ (§§ 1170.126, subd. (f), 1170.12, subd. (c)(1).) Despite the inclusion of
mandatory language, Proposition 36 supplied a judicial safeguard permitting
discretionary denial of resentencing petitions. When exercising that discretion, the
court may consider: ―(1) The petitioner‘s criminal conviction history, including
the type of crimes committed, the extent of injury to victims, the length of prior
5
prison commitments, and the remoteness of the crimes‖; ―(2) The petitioner‘s
disciplinary record and record of rehabilitation while incarcerated‖; and ―(3) Any
other evidence the court, within its discretion, determines to be relevant in
deciding whether a new sentence would result in an unreasonable risk of danger to
public safety.‖ (§ 1170.126, subd. (g)(1)–(3).)
Two years after the passage of Proposition 36, in November 2014,
California voters approved additional changes in sentencing law by enacting
Proposition 47, the Safe Neighborhoods and Schools Act. (As approved by voters,
Gen. Elec. (Nov. 4, 2014).) Proposition 47 reclassified certain drug- and theft-
related felony and wobbler offenses as misdemeanors. (See § 1170.18, subds. (a),
(b).) According to its provisions, an inmate who ―would have been guilty of a
misdemeanor‖ had the measure been effective at the time of the offense ―may
petition for a recall of sentence before the trial court that entered the judgment of
conviction in his or her case to request resentencing in accordance with‖ relevant
drug- and theft-related Penal Code provisions amended or added by Proposition
47. (§ 1170.18, subd. (a).) If, under these provisions, the court determines that the
inmate petitioner would have been guilty of a misdemeanor rather than a felony,
the felony sentence ―shall be recalled‖ and the petitioner resentenced to a
misdemeanor. (§ 1170.18, subd. (b).)
Through a procedure modeled on Proposition 36‘s, Proposition 47 permits
the sentencing court to deny a resentencing petition from an inmate otherwise
entitled to relief if ―the court, in its discretion, determines that resentencing the
petitioner would pose an unreasonable risk of danger to public safety.‖
(§ 1170.18, subd. (b).) In determining whether the petitioner poses an
unreasonable risk of danger to public safety under Proposition 47, the court
considers factors exactly identical to those it considers for risk assessment
purposes under Proposition 36: ―(1) The petitioner‘s criminal conviction history,
6
including the type of crimes committed, the extent of injury to victims, the length
of prior prison commitments, and the remoteness of the crimes‖; ―(2) The
petitioner‘s disciplinary record and record of rehabilitation while incarcerated‖;
and ―(3) Any other evidence the court, within its discretion, determines to be
relevant in deciding whether a new sentence would result in an unreasonable risk
of danger to public safety.‖ (§ 1170.18, subd. (b)(1)–(3).) ―As used throughout
this Code,‖ the statute states, the term ― ‗unreasonable risk of danger to public
safety‘ ‖ means an ―unreasonable risk that the petitioner will commit a new [super
strike].‖2 (§ 1170.18, subd. (c).)
II.
So what does Proposition 47‘s phrase ―[a]s used throughout this Code‖
mean here? When we interpret statutes, giving effect to legislative purpose is the
touchstone of our mission. (See Goodman v. Lozano (2010) 47 Cal. 4th 1327,
1332 [―In interpreting a statute, our primary goal is to determine and give effect to
the underlying purpose of the law‖].) ―[A]long with the text of the statutory
provision directly at issue, structure and context can be critical in determining
whether ambiguity exists and in discerning the Legislature‘s intended purpose.‖
(Poole v. Orange County Fire Authority (2015) 61 Cal. 4th 1378, 1393 (conc. opn.
of Cuéllar, J.).)
The text of the statute is integral to our understanding of the statute‘s
purpose. (See Robert L. v. Superior Court (2003) 30 Cal. 4th 894, 901 (Robert L.),
quoting People v. Birkett (1999) 21 Cal. 4th 226, 231 [in interpreting a voter
initiative, as with ordinary statutory construction, ― ‗we turn first to the language
of the statute, giving the words their ordinary meaning‘ ‖].) We treat the text as an
2 For a definition of ―super strike,‖ see maj. opn., ante, at p. 3, fn. 3.
7
especially important indication of legislative purpose, typically even as the most
reliable indicator of purpose. (Murphy v. Kenneth Cole Productions, Inc. (2007)
40 Cal. 4th 1094, 1103; Hsu v. Abbara (1995) 9 Cal. 4th 863, 871.) We must take
―the language . . . as it was passed into law, and [we] must, if possible without
doing violence to the language and spirit of the law, interpret it so as to harmonize
and give effect to all its provisions.‖ (People v. Garcia (1999) 21 Cal. 4th 1, 14,
citation omitted (Garcia).)
As the court suggests, we are indeed bound to give effect to the statute‘s
underlying purposes. In doing so, we must consider the function of the specific
statutory provisions as written. But giving effect to a provision‘s intended purpose
requires us to consider not only the statutory design in its wider legal context, but
also the purpose of a specific provision within the framework of that design.
Everything about that inquiry in this case points in the same direction:
―throughout this Code‖ means throughout this code.
Consider first the particular terms of the provision most directly at issue.
By defining a phrase as it is ―used throughout this Code‖ (§ 1170.18, subd. (c)),
the statute directs that the definition apply throughout the entire Penal Code, not
just in resentencing proceedings under Proposition 47. (See People v. Bucchierre
(1943) 57 Cal. App. 2d 153, 166 [―The words ‗as in this code provided‘ [citation]
refer to the Penal Code‖].) The court does not point to any part of the statute or
initiative indicating that ―throughout this Code‖ is a phrase carrying special
meaning in Proposition 47.
In addition, we strive to give effect to all the words in a statute, avoiding
surplusage whenever possible. (See City and County of San Francisco v. Farrell
(1982) 32 Cal. 3d 47, 54 [―In construing the words of a statute or constitutional
provision to discern its purpose, the provisions should be read together; an
interpretation which would render terms surplusage should be avoided, and every
8
word should be given some significance, leaving no part useless or devoid of
meaning‖].) The term ―unreasonable risk of danger to public safety‖ appears in
only one other provision in the entire Penal Code — section 1170.126, Proposition
36‘s analogous resentencing section. Hence, a refusal to apply section 1170.18‘s
definition ―throughout this Code‖ reduces that phrase to an inoperative appendage.
We may decline to give full effect to the ordinary meaning of a statute‘s
language in certain circumstances. None of those circumstances is present in this
case. For example, we have found judicial correction of language appropriate in
instances of drafting error, where it has ―appear[ed] clear that a word has been
erroneously used.‖ (People v. Skinner (1985) 39 Cal. 3d 765, 775; see id. at pp.
775–779 [construing statutory provision‘s use of the word ―and‖ instead of ―or‖ to
be inadvertent].) But the court carefully refrains from asserting that a drafting
error occurred in Proposition 47. Indeed, it acknowledges that at least one of
Proposition 47‘s authors has publicly taken the position that the measure‘s
definition of ―unreasonable risk of danger‖ applies to resentencing proceedings
under the Three Strikes Reform Act. (See maj. opn., ante, at p. 28, fn. 9.)
Nor is there any good reason to believe the consequences of construing the
phrase ―throughout this Code‖ to mean throughout the Penal Code will prove
absurd. On occasion, we have disregarded the literal meaning of a statutory
provision when an ―obvious absurdity‖ would otherwise result. (In re Thierry S.
(1977) 19 Cal. 3d 727, 741, fn. 13.) And it is certainly true that anticipating the
consequences of a particular interpretation can help inform our understanding of
whether an interpretation is consistent with the purpose of the statutory design.
(See Horwich v. Superior Court (1999) 21 Cal. 4th 272, 280; id. at pp. 287–288.)
But the absurdity doctrine is to be invoked sparingly — only when we determine
that ―as a matter of law, the [enacting body] did not intend the statute to have its
literal effect.‖ (Gorham Co., Inc. v. First Financial Ins. Co. (2006) 139
9
Cal. App. 4th 1532, 1544; see also California School Employees Assn. v. Governing
Bd. of South Orange County Community College Dist. (2004) 124 Cal. App. 4th
574, 588 [―We must exercise caution using the ‗absurd result‘ rule; otherwise, the
judiciary risks acting as a ‗ ―super-Legislature‖ ‘ by rewriting statutes to find an
unexpressed legislative intent‖].) In light of the striking similarities between the
resentencing procedures of the two initiatives, the results of applying the definition
consistently between Proposition 36 and Proposition 47 prove entirely reasonable.
Once a petitioner‘s eligibility is established under either Proposition 36 or
Proposition 47, the petitioner must be resentenced ―unless the court, in its
discretion, determines that resentencing the petitioner would pose an unreasonable
risk of danger to public safety.‖ (§§ 1170.126, subd. (f), 1170.18, subd. (b), italics
added.) The sentencing court considers the exact same listed factors in making the
required determination of dangerousness under either resentencing scheme.
Moreover, the groups of petitioners eligible to apply for relief under Propositions
36 and 47 are not wholly distinct. If an inmate is currently serving a sentence for a
third strike offense that also happens to be an enumerated offense in Proposition
47, that individual may petition for resentencing under either or both acts. Given
these comparable and overlapping resentencing structures, there is nothing absurd
about finding that the same method for assessing the risk of dangerousness applies
to petitioners under Proposition 36 and Proposition 47 alike.
What the court posits is that an amendment circumscribing the basis for
denying relief under the Three Strikes Reform Act ―necessarily would suggest
disfavor‖ of the broader discretion afforded courts under Proposition 36‘s
originally undefined phrase ―unreasonable risk of danger to public safety.‖ (Maj.
opn., ante, at p. 36.) Not so. The electorate was entitled to apply its later-
approved, more focused standard of dangerousness uniformly throughout the
Penal Code without first making any determination that Proposition 36‘s
10
undefined standard had turned out to be problematic or unfavorable. Moreover,
Proposition 47‘s focused standard preserves the sentencing court‘s authority, in
proceedings under Proposition 36, to consider the petitioner‘s criminal history, the
extent of injury to victims, the length of prior terms of incarceration, and any other
relevant evidence when making that determination. (See §1170.126, subd. (g).)
The considerations that inform a petitioner‘s risk of committing a super strike in
the future are of course not limited to the single question of whether a petitioner
has previously been convicted of a super strike. And if the sentencing court, after
considering all relevant evidence, were to find that the Proposition 36 petitioner
does not pose an unreasonable risk of committing a super strike, the petitioner
would not be immediately released into the general public. Instead, relief would
mean a reduction of a life term for a nonviolent, nonserious felony to a doubled
term of imprisonment. (See §§ 1170.126, subd. (b), 667, subd. (e)(1).) Thus, the
court — correctly — does not argue that allowing Proposition 47‘s definition of
―unreasonable risk of danger‖ to apply throughout the Penal Code would compel
absurd results.
Finally, we have held that a literal construction of an enactment‘s language
does not control ―when such a construction would frustrate the manifest purpose
of the enactment as a whole.‖ (Arias v. Superior Court (2009) 46 Cal. 4th 969,
979; accord, California School Employees Assn. v. Governing Board (1994) 8
Cal. 4th 333, 340.) This last exception to general statutory interpretation principles
appears to animate the court‘s view, insofar as the court concludes that that certain
aspects of the initiative appear ―inconsistent with‖ giving effect to the statutory
text. (Maj. opn., ante, at pp. 19–21.) But, according to some of its stated
purposes, Proposition 47 sought to assess the public safety risk of inmates and
reduce corrections spending. Proposition 36‘s petition mechanism is also
markedly similar to Proposition 47‘s in terms of its procedures and its
11
identification of factors bearing on an inmate‘s risk of danger to public safety.
The court has not gone so far as to find that Proposition 47‘s manifest purposes
would be frustrated by applying ―unreasonable risk‖ definition to the Three
Strikes Reform Act, as our precedent has up until now required. Today‘s
departure from our ordinary mode of statutory interpretation unjustifiably
augments the judicial power to rewrite duly enacted statutes in accordance with
courts‘ own preferences.3
III.
The court appears to concede that the phrase ―[a]s used throughout this
Code‖ — on its own — has a clear ordinary meaning. (See maj. opn., ante, at p.
16; see also Marshall v. Pasadena Unified School Dist. (2004) 119 Cal. App. 4th
1241, 1255 [―There is nothing ambiguous about the phrase ‗as used in this code.‘
In enacting [Public Contract Code] section 1102, the Legislature did not merely
define the term ‗emergency‘ for a particular chapter, article or division . . . .‖].)
But the court would find the statutory language ambiguous when considered in the
context of the entire statute and initiative.
The provisions of the initiative contain no reference to the Three Strikes
law or the Three Strikes Reform Act, or to persons sentenced to life imprisonment.
Such silence cannot be taken to resolve the issue, or else we would effectively
3 The court questions why I emphasize the absence of a drafting error, the
inapplicability of the absurdity doctrine, and the lack of any finding that the
manifest purposes of the law are frustrated by a particular interpretation of the law.
(See maj. opn., ante, at p. 38, fn. 14). Yet the fact that these matters are not
addressed in the court‘s opinion is precisely why I mention them. Although
California law underscores the importance of effectuating a statute‘s purpose, it
also limits the circumstances under which courts may simply refuse to give effect
to a statute as it was enacted. It is quite surprising that today‘s decision avoids any
meaningful discussion of cases where our court has declined to apply the literal
meaning of a provision because it conflicts with statutory purposes.
12
impose a requirement that initiative provisions specify every possible consequence
that would result from voter approval. (See People v. Romanowski (2017) 2
Cal.5th 903, 908–909 [―We deny a phrase like ‗any other provision of law‘ its
proper impact if we expect a penal statute — whether enacted by the Legislature
or the electorate — to further enumerate every provision of the Penal Code to
which it is relevant‖].) In harmonizing provisions of a ballot measure consistent
with the spirit of the law, ―it matters not whether the drafters, voters or legislators
consciously considered all the effects and interrelationships of the provisions they
wrote and enacted.‖ (Garcia, supra, 21 Cal.4th at p. 14.)
The court does not show that applying Proposition 47‘s definition to the
resentencing standard under the Three Strikes Reform Act would frustrate — or
even, under its diluted standard, prove inconsistent with — the manifest purposes
of Proposition 47. Portions of Proposition 47‘s uncodified sections demonstrate
the initiative‘s focus on reducing certain nonserious and nonviolent felonies to
misdemeanors, while ―ensur[ing] that sentences for people convicted of dangerous
crimes like rape, murder, and child molestation are not changed.‖ (Voter
Information Guide, Gen. Elec. (Nov. 4, 2014) (Voter Information Guide), text of
Prop. 47, § 2, p. 70.) But application of the definition in accordance with the
statute‘s literal text appears consistent with other stated purposes of the initiative.
One of Proposition 47‘s uncodified purposes is to ―[r]equire a thorough review of
criminal history and risk assessment of any individuals before resentencing to
ensure that they do not pose a risk to public safety.‖ (Voter Information Guide,
supra, text of Prop. 47, § 3, p. 70.) Given that Proposition 47 supplied a definition
by which resentencing courts are to assess whether a petitioner poses an
―unreasonable risk of danger to public safety,‖ this purpose would be promoted if
more inmates, such as Valencia and Chaney, were evaluated under the same
forward-looking risk measurement standard as a precursor to any sentence
13
reduction. Moreover, another one of Proposition 47‘s stated purposes is to ―save
significant state corrections dollars‖ and ―increase investments in programs that
reduce crime and improve public safety . . . which will reduce future expenditures
for corrections.‖ (Voter Information Guide, supra, text of Prop. 47, § 3, p. 70.)
This purpose would be advanced by allowing the ―unreasonable risk of danger to
public safety‖ definition to apply throughout the code, because by reducing state
corrections spending on some greater increment of inmates who are no longer
deemed unreasonably dangerous, limited state resources could be more efficiently
spent to assure continued confinement for unreasonably dangerous criminals.
The majority and concurrence also find ambiguity in the language of the
initiative because section 1170.18, subdivision (c) refers to an unreasonable risk
that ―the petitioner‖ — rather than ―a petitioner‖ or ―any petitioner‖ — will
commit a new enumerated felony. (Italics added; see maj. opn., ante, at pp. 16–
17; conc. opn., ante, at pp. 5–7.) Both those opinions contend that the use of the
definite article ―the‖ offers support for the position that Proposition 47‘s definition
applies only to individuals applying for relief under Proposition 47.
Even if we assumed that the term ―the petitioner‖ in the preceding
provision of section 1170.18, subdivision (b) denotes a person who filed his or her
petition under subdivision (a) — that is, under Proposition 47 — that phrase could
very well adopt a different meaning within the immediately surrounding context of
subdivision (c). If the phrase, ―[a]s used throughout this Code,‖ is to have any
significance, it must encompass the only other instance in which the phrase is used
in the Penal Code, which is in the Three Strikes Reform Act. Nothing about the
use of the phrase ―the petitioner‖ deprives the provision of its literal meaning.
Section 1170.18, subdivision (c) relates to the petitioner whose opportunity for
relief is affected by an assessment of his or her ―unreasonable risk of danger to
public safety.‖ Thus, the phrase ―the petitioner‖ plainly has relevance elsewhere
14
in the Penal Code, specifically in the Three Strikes Reform Act. Those words,
―[a]s used throughout this Code,‖ would serve an unintelligible function if section
1170.18, subdivision (c)‘s definition were to pertain only to the Proposition 47
petitioner. There is no indication that twisting the language ―[a]s used throughout
this Code‖ to somehow mean ―as applicable only to the resentencing proceedings
that are authorized under Proposition 47‖ advances the goals of the statute.
(Compare § 1170.18, subd. (c) with maj. opn., ante, at p. 38.)
The court appears to have found ambiguity not because it has found
statements in the rest of Proposition 47 directly undermining the statute‘s clear
language, but instead because it has not found redundant statements bolstering this
language. The court posits that ―one would expect [the Proposition 47] drafters to
have mentioned or referred to a purpose and intention‖ to amend the Three Strikes
Reform Act in the initiative‘s preamble. (Maj. opn., ante, at p. 36.) But why
would this be so? The amendment was sufficiently conveyed through the text of
the law distributed to and approved by voters.
Nor should a lack of procedural detail in the statute bear on how we
construe an unambiguous term. A prospective-only application of Proposition
47‘s definition to the Three Strikes Reform Act would mean the new definition
would pertain to any petitioner who has not yet had a court decide whether he or
she presents ―an unreasonable risk of danger to public safety‖ as of Proposition
47‘s effective date. The court believes that Proposition 47‘s failure to include
procedures for resentencing Three Strikes Reform Act petitioners under the new
definition ―widens the gap concerning the voters‘ understanding‖ of Proposition
47‘s effects. (See maj. opn., ante, at p. 25.) But Proposition 36‘s two-year
deadline for filing a petition may be extended ―upon a showing of good cause.‖ (§
1170.126, subd. (b).) Nothing in the statute expressly bars Chaney, who is
currently serving a third strike sentence, from filing a second petition. Thus, the
15
question arises: If Proposition 47's definition of ―unreasonable risk‖ were to
govern proceedings under section 1170.126, would the new definition give
Chaney ―good cause‖ to file a second petition? Unfortunately for Chaney and
other similarly situated prisoners, the court‘s decision forecloses relief at an earlier
point in the analysis. While it is true that Proposition 47 itself does not specify
whether a new definition constitutes good cause for a belated or second petition,
such a question would require only judicial resolution. The court does not identify
any instance where a lack of procedural detail stopped us from giving effect to the
plain meaning of the substantive provisions of a statute.
Under today‘s holding, the clarity and meaning of text would be called into
question whenever any statute refers to an application of a provision ―throughout
this Code.‖ The phrase itself is straightforward, and remains so even when
considering the definite article preceding the word ―petitioner.‖ (§ 1170.18, subd.
(b).) But the court‘s opinion implicitly imposes an ersatz clear statement rule
whenever any statute seeks to modify a previous one, and then elevates it to
become a clearer statement requirement that voters and legislators confirm —
through additional, redundant provisions and declarations of purpose — that they
do indeed mean what they say, in order for their enactments to be given effect.
IV.
Having detected what it perceives to be ambiguity in the language of the
statute, the court proceeds to examine evidence of voter ―intent‖ outside the
measure‘s provisions. Ballot materials extrinsic to the initiative may be relevant
in the interpretation of statutes forged through the initiative process. But this does
not mean that the ballot materials‘ failure to expressly mention one particular
consequence can contravene relatively simple language. Official ballot materials
are not detailed legal memoranda, nor can we command they discuss every nuance
or legal issue an initiative may touch. (Santa Clara County Local Transportation
16
Authority v. Guardino (1995) 11 Cal. 4th 220, 237 [―Ballot arguments are not legal
briefs and are not expected to cite every case the proposition may affect‖]; see also
Day v. City of Fontana (2001) 25 Cal. 4th 268, 282 [―it is of no consequence here
that the ballot materials did not specifically refer to the act‘s application in actions
against local public entities for nuisance and dangerous condition of property‖
because ―[s]uch actions fall squarely within the terms of [Civil Code] section
3333.4, and the statute‘s operation in such cases promotes rather than defeats the
declared purpose of Proposition 213 to restore balance to the justice system with
respect to violators of the financial responsibility law‖].)
Here, a total of seven brief bullet points constitute Proposition 47‘s Official
Title and Summary. This abbreviated statement prepared by the Attorney General
may serve as a useful guide to voters, but it by no means replaces the statute itself.
In Cervera, we considered whether the original Three Strikes law authorized a
defendant with three strikes to receive prison conduct credits under article 2.5 of
the Penal Code — which by its terms only applied to determinate sentences — for
use against his mandatory indeterminate term of life imprisonment. (Cervera,
supra, 24 Cal.4th at p. 1076.) Although some of the ―documents within the
history of the bill and the initiative measure that would each become the Three
Strikes law‖ assumed that prison conduct credits could apply to third-strikers (id.
at p. 1079), we concluded that the statute‘s language did not authorize such
reductions of indeterminate life sentences. ―A statute, of course, must prevail over
any summary. Were it not so, no statute could ever be enacted whole and entire.
For every summary, by definition, is incomplete. . . . The summary must yield to
the statute, not the statute to the summary.‖ (Id. at pp. 1079–1080.)
Ballot materials are not and cannot be dispositive in discerning an
initiative‘s intended purpose, in particular where — as here — the statute‘s text,
read in context, adequately communicates a provision‘s meaning and intended
17
purpose. In Delaney, we acknowledged that ―repeated references in the [ballot]
argument to confidentiality and the like permit the inference the proponents of the
measure intended to protect only confidential information.‖ (Delaney v. Superior
Court (1990) 50 Cal. 3d 785, 802.) But we declined to conclude that ―by
emphasizing one purpose, perhaps the primary purpose of the measure, the
argument misled voters into thinking confidentiality was the only purpose,
especially when the measure itself made clear that all unpublished information
would be protected.‖ (Id. at pp. 802–803; see also id. at p. 803 [―It would be a
strained approach to constitutional analysis if we were to give more weight to a
possible inference in an extrinsic source (a ballot argument) than to a clear
statement in the Constitution itself‖].)
Moreover, just as with the language of the uncodified initiative, there are
several statements in the ballot materials consistent with an application of
Proposition 47‘s definition to the Three Strikes Reform Act. The ―Argument in
Favor of Proposition 47‖ disclosed that the initiative would ―[i]mprove public
safety,‖ ―[r]educe prison spending and government waste,‖ and ―focus[] law
enforcement dollars on violent and serious crime.‖ (Voter Information Guide,
supra, argument in favor of Prop. 47, p. 38.) These declared purposes of
reallocating prison spending to the most dangerous criminals and allowing others
to pursue resentencing would be advanced by permitting Three Strikes Reform
Act petitioners to demonstrate that — under the same forward-looking risk
assessment employed under Proposition 47 — they do not pose an unreasonable
risk of danger to public safety.
Opponents of the initiative also argued that ―[t]he proponents of this
dangerous measure have already admitted that Proposition 47 will make 10,000
felons eligible for early release. According to independent analysis, many of those
10,000 felons have violent criminal histories‖ and ―Felons with prior convictions
18
for armed robbery, kidnapping, carjacking, child abuse, residential burglary, arson,
assault with a deadly weapon, and many other serious crimes will be eligible for
early release under Prop. 47.‖ (Voter Information Guide, supra, argument against
Prop. 47, p. 39.) The rebuttal to the opponents‘ argument clarified that
Proposition 47 would not require automatic release of anyone. (Voter Information
Guide, at p. 39.) Yet the voters enacted Proposition 47 despite cautionary
statements that persons with violent criminal histories could benefit from the
passage of the initiative. (Cf. Robert L., supra, 30 Cal.4th at pp. 906–907 [voters‘
approval of initiative despite warnings contained in opponents‘ argument was
indicative of voter intent].)
We afford the Legislative Analyst‘s review of an initiative the same
interpretive weight as other ballot materials not enacted into law. Comments of
the Legislative Analyst, like other ballot statements presented to the electorate, ―
‗may be helpful but are not conclusive in determining the probable meaning of
initiative language.‘ ‖ (San Francisco Taxpayers Assn. v. Board of Supervisors
(1992) 2 Cal. 4th 571, 580; see also Carman v. Alvord (1982) 31 Cal. 3d 318, 331
[“We should not assume that [the Legislative Analyst’s] brief comments
accurately reflected the full intent of the drafters or the understanding of the
electorate”].) For Proposition 47, the Legislative Analyst estimated the fiscal
effects of reducing felonies to misdemeanors and did not expressly mention the
Three Strikes Reform Act. It is possible the Legislative Analyst did not apprehend
the significance of the statutory phrase ―[a]s used throughout this Code.‖ Or
perhaps the analyst omitted reference to Proposition 36 in deciding to relay, within
a limited space, what he ascertained to be the most prominent aspects of
Proposition 47. Incompleteness of the analysis does not necessarily render an
absent consequence incongruous with the statutory text. After all, the analyst
never wrote that he understood Proposition 47‘s definition of ―unreasonable risk‖
19
to not apply to resentencing Three Strikes Reform Act. Even assuming arguendo
there existed a contradiction between the Legislative Analyst‘s statements and an
application of Proposition 47‘s dangerousness risk assessment definition
throughout the Penal Code, we have previously rejected the notion that extrinsic
materials — even the Legislative Analyst‘s analysis — would trump plain
language of the initiative. (San Francisco Taxpayers, at p. 580 [―The case for
rejecting the Legislative Analyst’s views is even more compelling here, where the
contradiction is in the language of the initiative”].)
Both the majority opinion and the concurrence appear to use the ballot
statements made by the Attorney General and the Legislative Analyst as a
reference point for voter awareness and understanding. (See, e.g., maj. opn., ante,
at p. 11 [expressing skepticism at notion that voters may have ―greater acumen
than the legal professionals‖]; conc. opn., ante, at pp. 11–12 [―When these trained
experts were apparently unaware of the initiative‘s possible effect . . . it becomes
more difficult to conclude that voters understood‖ the consequences of their
affirmative vote].) Such an approach downplays the fact that the ballot materials
authored by the Attorney General and Legislative Analyst are indisputably
incomplete summaries of the ballot measure, constrained by word limits. An even
more troubling feature of the court‘s argument is that it suggests that a few ―legal
professionals‖ or ―trained experts‖ hold ultimate authority to decide (advertently
or not) which portions of the people‘s enactments are ratified. Under today‘s
holding, pronouncements of individual officers can defeat the actual language of
laws approved by the electorate.
V.
To the extent that the court‘s decision is calibrated to apply only in the
initiative context, it departs from our longstanding commitment to analyze voter-
approved statutes using the same approach we employ for Legislature-enacted
20
statutes. Lawmaking by ballot initiative is so fundamental to California‘s
democracy that our state Constitution speaks of the power of initiative ―not as a
right granted the people, but as a power reserved by them.‖ (Associated Home
Builders etc., Inc. v. City of Livermore (1976) 18 Cal. 3d 582, 591; Cal. Const., art.
IV, § 1.) When voters opt to wield the legislative power, they step into the shoes
of legislators. Thus, traditionally, judicial interpretation of ballot initiatives has
been ―governed by the same rules that apply in construing a statute enacted by the
Legislature.‖ (People v. Park (2013) 56 Cal. 4th 782, 796; accord, People v.
Johnson (2015) 61 Cal. 4th 674, 682.) Voter enactments are to be afforded
legitimacy commensurate to that which is furnished to enactments by our
Legislature, and our respect for the doctrine of separation of powers should not
wane when we encounter a voter-enacted statute.
We generally presume voters ― ‗have voted intelligently upon an
amendment to their organic law, the whole text of which was supplied [to] each of
them prior to the election and which they must be assumed to have duly
considered.‘ ‖ (Amador Valley Joint Union High Sch. Dist. v. State Bd. of
Equalization (1978) 22 Cal. 3d 208, 243–244, quoting Wright v. Jordan (1923) 192
Cal.704, 713.) This presumption, we have acknowledged, serves ―to further the
fundamental right of the electorate to enact legislation through the initiative
process.‖ (Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com.
(1990) 51 Cal. 3d 744, 768.) Although the court identifies Taxpayers as one case
in which we recognized some limit to the degree of thoroughness with which we
presume voters review ballot measures, Taxpayers is a far cry from the case before
us. There, the voters simultaneously approved two initiatives with ―fundamentally
conflicting provisions intended to regulate the same subject.‖ (Ibid.) Provision-
by-provision reconciliation of nonconflicting aspects of those initiatives was
riddled with uncertainty, as ―illustrated by the divergent conclusions‖ reached by
21
lower courts and administrative agencies. (Id. at p. 760.) In contrast, in the instant
case, we are tasked with assessing whether reasonable voters plausibly meant to
give effect to a ballot measure‘s clear language, thus affecting a law previously
enacted by ballot measure. These unremarkable circumstances do not warrant a
departure from our standard presumption that the electorate votes intelligently
after considering the provided text of the law.
As another baseline presumption to ground our interpretations, we
presuppose that the voters, in adopting an initiative, did so being ―aware of
existing laws at the time the initiative was enacted.‖ (Professional Engineers in
California Government v. Kempton (2007) 40 Cal. 4th 1016, 1048; see also People
v. Shabazz (2006) 38 Cal. 4th 55, 65, fn. 8 [rejecting argument that ―voters were
unlikely to have considered the doctrine of transferred intent‖ because ―it is well-
settled that voters ‗ ―are presumed to know the law‖ ‘ ‖]; In re Lance W. (1985) 37
Cal. 3d 873, 890, fn. 11 [―the electorate would be deemed to know of the
superseding impact of federal constitutional provisions on state laws or
constitutional provisions which conflict with and restrict rights guaranteed by the
United States Constitution‖ because ―[t]he adopting body is presumed to be aware
of existing laws and judicial construction thereof‖]; Penziner v. West American
Finance Co. (1937) 10 Cal. 2d 160, 174 [―It must be presumed that the Legislature
in proposing and the electorate in adopting the constitutional amendment acted
with full knowledge of the existence of the prior statute relating to the same
general subject‖].) It is not untenable at all –– and indeed, more consistent with
our previous case law on statutory construction –– to presume that reasonable
voters were aware of the Three Strikes Reform Act when they voted to approve
Proposition 47 two years later.
Contrary to the court‘s assertion, we did not ―refuse[] to apply‖ this
presumption in Robert L. (Maj. opn., ante, at p. 35.) What we did was interpret
22
the term at issue in the context of the entire statute. We observed that the ordinary
meaning of the phrase ―a public offense punishable as a felony or a misdemeanor‖
would not have been restricted to wobbler offenses, and identified discrepancies
between that phrase and the statutory description of so-called wobbler offenses.
(Robert L., supra, 30 Cal.4th at p. 901.) Our conclusion was also supported by the
fact that the term wobbler was, at that time, ―a legal term of art of recent vintage‖
with no ―meaning defined by statute or commonly understood by the electorate.‖
(Id. at p. 902.) Our opinion in Robert L. does not signify that we disregard the
presumption that voters are aware of existing law; it means that we cannot assume
that every term is unambiguous in its meaning. We must acknowledge when
statutory language is reasonably susceptible to multiple interpretations. Yet, in
attempting to justify their interpretation in this case, the court does not contend
that the word ―code‖ is commonly understood by the electorate to refer to only the
initiative containing the provision at issue. Its decision to strike the phrase
―throughout this Code‖ from section 1170.18, subdivision (c) and limit the
effectiveness of the provision‘s definition to resentencing proceedings authorized
only under Proposition 47 is all the more indefensible.
At times, both the majority opinion and the concurrence appear to imply
that courts should ascertain the subjective, exact thoughts of the voters casting
ballots for the initiative –– presumably the electoral majority who prevailed at the
ballot box. It is undisputed that the statutory language of the Safe Neighborhoods
and Schools Act was provided to every individual who cast a vote for Proposition
47. Yet the majority opinion finds the phrase ―[a]s used throughout this Code‖
was insufficient to provide ―notice‖ to the voters as to the scope of the definition
at issue. (See maj. opn., ante, at p. 37.) The concurrence similarly concludes that
the question of whether to apply Proposition 47‘s definition throughout the Penal
Code was ―not presented‖ to voters who were asked to approve Proposition 47.
23
(Conc. opn., ante, at p. 14.) In relying on these rationales, these opinions
essentially demand an extra degree of assurance — beyond what we can glean
from any reasonable understanding of the statutory text, the statute‘s structure, or
its context — that the electorate possessed actual awareness of the meaning of
language contained in section 1170.18, subdivision (c). Recall how firmly settled
is our responsibility to interpret legislation consistently, whether enacted by voters
or by their representatives in the Legislature. (See, e.g., Lesher Communications,
Inc. v. City of Walnut Creek (1990) 52 Cal. 3d 531, 540, quoting Legislature v.
Deukmejian (1983) 34 Cal. 3d 658, 675 [statutes enacted by initiative ― ‗are subject
to the same constitutional limitations and rules of construction as are other
statutes‘ ‖].) Democracy involves both lofty aspirations and messier realities. In
the absence of an unambiguous reason to require an extraneous statement of
purpose in either this context or in lawmaking generally, we give effect to
statutory provisions in question. Nothing about Proposition 47 or its purposes
calls for a plainer statement than ―[a]s used throughout this Code‖ for one of its
terms to apply ―throughout this Code.‖
Although we analyze text, structure, and context to give effect to a statutory
provision‘s intended purpose or purposes as reasonable voters or legislators might
have understood them, we are hardly in a position to ascertain the subjective
intentions of each member of an enacting majority. When we analyze a statute, a
particularly compelling mix of humility and analytical clarity should prevent us
from implying that we are articulating legislators‘ or voters‘ subjective states of
mind. (Garcia, supra, 21 Cal.4th at p. 14, fn. 8. [―We do not say anything
regarding the ‗probability‘ any or all legislators or voters subjectively
contemplated a given meaning; we simply do not know.‖]) To some extent, we
must attribute constructive notice on the part of the enacting body in order to
properly give effect to the purposes of any enacted law. We do so because, in
24
construing statutes, our task is not to ask whether the enacting body ―consciously
considered all the effects and interrelationships of the provisions‖ but is instead to
take the language of the law and ―if possible without doing violence to the
language and spirit of the law, interpret it so as to harmonize and give effect to all
its provisions.‖ (Id. at p. 14.)
It is one of democracy‘s recurring challenges that the rules and standards
governing society –– whether enacted by legislation or initiative –– are often
enormously complicated in both their content and effect. (Fair Political Practices
Com. v. Superior Court (1979) 25 Cal. 3d 33, 42 [―Our society being complex, the
rules governing it whether adopted by legislation or initiative will necessarily be
complex‖].) Whether or not the complexity of any individual provision is fully
understood by a voter casting a ballot on an initiative, we ―should not lightly
presume‖ that voters are unaware of what they are doing in approving an initiative
— even when the contents of a ballot measure are intricate and potentially
confusing. (Brosnahan v. Brown (1982) 32 Cal. 3d 236, 252.) The tenets we
typically apply to voter-enacted statutes are rooted in our respect for the initiative
process and, more generally, the legislative function. Thus, they start from the
premise that the electorate must take a considerable measure of responsibility in
enacting complicated laws. The court has not offered a convincing reason for us
to here dispense with these fundamental interpretive canons.
It is a well-settled principle of statutory interpretation that, where both text
and purpose are clear, courts shall not endeavor to rewrite language of a ballot
measure. (See People v. Skinner (1985) 39 Cal. 3d 765, 775; see also Ross v.
RagingWire Telecommunications, Inc. (2008) 42 Cal. 4th 920, 930 [―the initiative
power is strongest when courts give effect to the voters‘ formally expressed
intent‖].) Here, the court contravenes this principle by attempting to discern the
25
purpose of the voters‘ enactment without consideration of a relevant provision‘s
clear text as a crucial indicator of purpose.
The court sees in section 1170.18, subdivision (c)‘s terms –– ―[a]s used
throughout this Code‖ –– not a clear, expansive indication that Proposition 47‘s
definition of ―unreasonable risk of danger to public safety‖ applies across the
Penal Code as the provision‘s literal terms indicate, but the opposite: a quirky
limitation which restricts the ―unreasonable risk‖ definition from applying
―throughout this Code.‖ None of the court‘s arguments to justify this remarkable
conclusion strike me as persuasive. This would be a more difficult case if there
were any compelling reason to doubt that Proposition 36 and Proposition 47 share
fundamental, common purposes. But the purposes of both voter initiatives are
advanced by giving effect to Proposition 47‘s explicit terms, which provide that
the definition of ―unreasonable risk of danger to public safety‖ applies
―throughout this Code‖ –– rather than only throughout proceedings authorized
under Proposition 47 or, effectively, ―throughout this Code, except the Three
Strikes Reform Act.‖ With respect, I must dissent.
CUÉLLAR, J.
WE CONCUR:
WERDEGAR, J.
LIU, J.
26
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Chaney & People v. Valencia
__________________________________________________________________________________
Unpublished Opinion XXX NP opn. filed 12/16/14 – 5th Dist.
Original Appeal
Original Proceeding
Review Granted XXX 231 Cal. App. 4th 1391
Rehearing Granted
__________________________________________________________________________________
Opinion No. S223676 & S223825
Date Filed: July 3, 2017
__________________________________________________________________________________
Court: Superior
County: Amador & Tuolumne
Judge: Steve Hermanson & Eleanor Provost
__________________________________________________________________________________
Counsel:
Michael Satris, under appointment by the Supreme Court, for Defendant and Appellant Clifford Paul
Chaney.
Stephanie L. Gunther, under appointment by the Supreme Court, for Defendant and Appellant David John
Valencia.
Three Strikes Project and Michael S. Romano for George Gascon, Bill Landsdowne and David Mills as
Amici Curiae on behalf of Defendants and Appellants.
Richard Such and John T. Philipsborn for California Attorneys for Criminal Justice as Amici Curiae on
behalf of Defendants and Appellants.
Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief
Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Rachelle
A. Newcomb, Peter W. Thompson and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Michael Satris
Law Office of Michael Satris
Post Office Box 337
Bolinas, CA 94924-0337
(415) 868-9209
Stephanie L. Gunther
P.O. Box 20910
Bakersfield, CA 93309
(661) 428-3720
Peter W. Thompson
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5244
Darren K. Indermill
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5244
2