Mr. Myers was previously sentenced to an indeterminate sentence under the old "two strikes and any felony" law. Following the 2012 passage of Proposition 36 and the November 2014 passage of Proposition 47, Myers petitioned the trial court for resentencing pursuant to PC 1170.126. The petition was denied and Myers appealed.
The central issue on appeal is the meaning of the phrase "unreasonable risk of danger to public safety" within PC 1170.126. When 1170.126 was added to the Penal Code, it provided no guidance as to what the phrase should mean, although it did enumerate particular factors courts could consider in determining whether the phrase was true in a particular case.
Two years later, PC 1170.18 was added to the Penal Code. It contains this:
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.The language is unambiguous; anywhere the phrase is found within the penal code, courts are to apply this definition. But the panel here doesn't like the result of the unambiguous language. So they conclude that the drafters of PC 1170.18 erred, that they meant to write "section" instead of "Code". To paraphrase the late Justice Scalia, "this is pure applesauce".
First, it is unctuous to suggest the "drafters" didn't know the difference between "code" and "section". Second, and more importantly, it doesn't matter what the "drafter" intended as the "drafter" lacks the ability to enact a law. Regardless of whether the "drafter" wrote what she intended, the lawmakers passed the act as written, not as a drafter subjectively intended. It is the intent of the lawmaker, not the drafter, that controls. A lawmaker casts her vote for or against the text presented, not some subjective intent of the "drafter".
For example, if a legislature passes a bill that states, "the maximum penalty for the crime of X shall be 11 years in the state prison", it is legally irrelevant that the person who wrote the bill intended to type "10 years" and their finger slipped to the "1". It is an affront to the lawmaker to suggest that her power to enact legislation is subordinate to the subjective intent of the person who drafted the legislation. In other words, if we assume the drafter really intended to type "10 years" in the above example, how can we conclude the lawmakers would have voted to enact that bill? Maybe they felt 10 years was too little. It is beyond arrogant and ultracrepidarian to decide not only that the drafter did not write what she intended, but that had she written what she intended, the electorate would have approved it. This is an actual example of legislating from the bench; not only rewriting a piece of legislation, but then, by judicial fiat, deciding for the electorate that they would have voted for the revised act.
The panel's remaining attempts to swaddle its judicial revision in specious supporting arguments are easily undone by the most basic of logic. The only arguments the panel can create all suffer from the same defect; they assume that which they seek to prove. Take the argument, "nothing in Prop47 evinced an intent to modify Prop36". This only works if you presume the "drafter's error". Taken at face value, Prop47 obviously intended to modify Prop36 because it explicitly and unambiguously did so. The same argument is reworded as, "Prop 36 and Prop47 have difference 'scopes'". Only if you are illiterate. If you read the text the voters enacted, they included Prop36 within the "scope" of Prop47 by directing that a phrase within 1170.126 be defined by a Prop47 statute.
Next, maybe not realizing some of us own thesauruses, the opinion next posits as a separate argument that Prop47 contains an expressed intent not to affect judgments outside the purview of Prop47. The problem is that "purview" is just a synonym of "scope". To say 1170.126 falls outside the purview of Prop47 requires the assumption that 1170.18 did not mean what it said when defining the phrase at issue. Someone should remind the panel that a baseless argument does not gain legitimacy by mere repetition. There is no cannon of logicae sequitur repition.
The reason the opinion has to resort to such jiggery pokery (RIP Antonin Scalia) is that the only legitimate judicial cannon that can justify the panel's decision is the doctrine of avoiding absurd consequences. "Absurd" means "wildly unreasonable and illogical". No doubt there are times when application of the doctrine is appropriate. For instance a statute reading, "any person found not to have committed burglary is to be sentenced to three years in the state prison", would be a good candidate for judicial revision (striking the word "not"). It would be illogical and ridiculous for the legislature to intend to punish all people who didn't commit burglary. But the text at issue here is not illogical nor wildly unreasonable.
After three readings, I am left wondering why this opinion was ordered published. It involves an issue pending before the California Supreme Court so its authoritative quality is non-existent. The opinion's primary effect is to emphasize the fallacious logic of a reflexive resort to the "drafter's error" doctrine. A secondary effect is to reinforce the notion that, in reality, judges often simply follow their own personal feelings about what the law should be and then attempt to disguise this reality with "judicial theories" and/or florid language. The judge who defers to legal deduction even when it rubs her wrong is, unfortunately, the rare exception.
To be fair, our analysis of the merit of a judge's decision is often just our own subjective reaction to the result. When we agree with the result, we say the judge was just following the law as written. When we disagree with the result, we say the judge is a judicial activist legislating from the bench. Here I believe the court of appeal legislated from the bench.
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