P v. Thurston (1st. Dist., Div.2): "Conviction" in Section 1170.126(e)(3) Includes Juvenile Wardships

Mr. Thurston was sentenced under the old "two strikes plus any felony" scheme to 27 years to life.  The conviction was for VC 2800.2(a), felony evasion, with two prior robbery convictions (two strikes) and two prior prison terms.

After the three strikes scheme was reformed, Thurston petitioned for resentening under Penal Code section 1170.126.  This section, added as part of the 3 strikes reform, makes certain lifers eligible for resentencing under the new scheme.  In order to be eligible, the lifer must not have

 a prior conviction for any offense appearing in section 667, subdivision (e)(2)(C)(iv), or section 1170.12, subdivision (c)(2)(C)(iv). (italics added).

Although not alleged in the evasion case, it turns out Thurston had a juvenile wardship disposition based upon a forceable rape charge, a charge appearing in section 1170.12(c)(2)(C)(iv).  Upon this discovery, the issue became whether "conviction" in the disqualification language of 1170.126 includes a juvenile wardship finding.  The trial judge ruled "conviction" included specific juvenile wardships and denied Thurston's petition.  The First District affirms.

This is a question of statutory interpretation.  And this panel from the First District shows themselves either unwilling, or unable, to construct, and ratiocinate within, the accepted rubric of statutory interpretation.

The panel substitutes citations to an unpublished pamphlet by Judge Couzens, a retired superior court judge, in place of a threshold determination of whether the language at issue is ambiguous or not.  This is inexcusable.  Appellate justices are, theoretically, selected (and paid well) for their ability to interpret newly enacted statutes.  Delegating this very important job to a retired trial judge who happens to enjoy commenting on new legislation is disturbing.  Judge Couzens is certainly qualified to comment on legislation and his interpretations are valid, and no doubt helpful to his readers.  However they are not, and should not be treated as, a succedaneum for the cannons of statutory interpretation.

The panel eventually does some work of its own.  They examine the reform scheme's statute on initial sentencing, which explicitly includes juvenile wardships within the category of disqualifying "convictions".  In other words, had Thurston committed his crime after the 3 strikes reforms, he would still legally receive the 27-life sentence.  Therefore it makes no sense that he should now be eligible for a lesser sentence.

Had the panel done their job correctly they would have first examined the word "conviction" within 1170.126 and determined it was susceptible of more than one reasonable meaning.  Such a threshold finding then would have justified examining the various meanings within the larger context of the enacting statute (which the panel did quite well) and choosing the meaning that is more reasonable.

This is not too much to ask.