P v. Garner (3rd Dist.) Resentencing Pursuant to a Successful PC 1170.126 Petition Allows Enhancements.

Before the 2012 passage of Proposition 36, Mr. Garner pleaded guilty to felony possession of stolen property.  He admitted three one-year enhancements under PC 667.5(b) and having four prior "strike" convictions.  In an act of mercy, the sentencing judge struck the punishment for the 667.5(b) enhancements and sentenced Garner to 25 to life.

Following the November 2014 election, Garner returned to the trial court petitioning for relief under PC sections 1170.18 (Proposition 47) and 1170.126 (Proposition 36).

Garner's 1170.18 petition was denied because the value of the stolen property possessed was greater than 950 dollars.  His 1170.126 petition was granted and his 25-life sentence recalled.  The court resentenced Gardner as follows: a three year upper term sentence for the possession of stolen property, doubled to six years because of the prior strikes; added to these six years were the three one-year 667.5 enhancements for a total of nine years.

Garner appeals his nine year sentence claiming the statute governing his resentencing, PC 1170.126, does not allow the court to impose enhancements.  A Third District panel affirms the nine year sentence.  But Garner's argument is (surprisingly) not without some merit.

PC 1170.126 states, in pertinent part, that the resentencing shall be  “pursuant to paragraph (1) of subdivision (e) of Section 667 and paragraph (1) of subdivision (c) of Section 1170.12.”  Obviously the next step is to look at 667(e)(1) and 1170.12(c)(1).  There we find the following.

(1) If a defendant has one prior serious and/or violent conviction . . . the determinate term . . . shall be twice the term otherwise provided as punishment for the current felony conviction.” (§ 667, subd. (e).)

                                                                                  and,

(1) If a defendant has one prior serious and/or violent felony conviction . . . the determinate term . . . shall be twice the term otherwise provided as punishment for the current felony conviction.” (§ 1170.12, subd. (c).)  

Clearly, neither 667(e)(1) nor 1170.12(c)(1) say anything about enhancements.  But the introduction language to both 667 and 1170.12 states,

“For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has one or more prior serious and/or violent felony convictions:"

So the real issue, IMEO, is whether the introductory language is necessarily included within the referenced subdivisions.  That argument for inclusion is strong, and the panel would have been wise to base their holding on such a textual basis.  Instead, the panel points to a prior case holding that following the "recall" of a sentence the court may reconsider "the entire sentence".  But this citation doesn't resolve the issue of whether the language of Proposition 36 expressly states the court may not reconsider the entire sentence.  If it does, the cited case is of little value.  "Recall" is the act of undoing a previous sentence; "resentencing" is the act of imposing a new sentence.  They are two different concepts.  By confusing the two, the panel weakens their holding.

This is really just a question of statutory interpretation.  Had the court followed the cannons of statutory interpretation they would have arrived at the same result.  Is the language susceptible to more than one reasonable interpretation?  Yes, one interpretation is to limit the subsections to the language contained therein (Garner's choice) and the other is to incorporate the prefatory language (the State's choice).  Having been shown to be ambiguous, which interpretation best reflects the likely intent of the electorate?  Since the new post-Prop 36 sentencing scheme, had Garner possessed the stolen property today, would allow for the enhancements, it makes sense that the electorate meant to treat Garner the same way.

That's how I would have done it.