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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. John Jeffrey JONES, Defendant and Appellant.

No. A067463.

Decided: November 28, 1995

Colleen M. Rohan, San Francisco, for Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Ronald E. Niver, Supervising Deputy Attorney General, David H. Rose, Deputy Attorney General, San Francisco, for Respondent.

On April 14, 1994, Ms. X. was held captive in her apartment and subjected to a series of degrading violations at the hands of defendant John Jeffrey Jones.   After a jury found him guilty as charged of 19 felonies,1 defendant admitted allegations that he had 5 prior felony convictions, one of which was a 1976 robbery committed in Arizona.   He was sentenced to state prison for 16 consecutive terms of 25 years to life pursuant to the “Three Strikes” law enacted by the Legislature one month before the crimes were committed.

During the pendency of defendant's appeal the electorate passed an initiative which codified the “Three Strikes” law in a different form.   The legislative version (Pen.Code, § 667, subds. (b)–(i)) 2 specifies that the maximum term of imprisonment may be based on a felony conviction incurred in another state.   The plain language of the initiative version (§ 1170.12), however, seems to exclude such convictions.   The primary issue presented is whether this apparent disparity is one of genuine substance sufficient to invoke the leniency principle of In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 as defendant claims.   We hold that the difference in the wording of the initiative version is the result of a drafting error and does not indicate an intent to produce sentences that are any less severe than under the earlier legislative version.


I **


 The intent of the original “Three Strikes” statute was “to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.”  (§ 667, subd. (b).)  Predicate prior felonies are defined as (1) “Any 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” (2) any “conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison [and] ․ includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7,” and (3) certain types of “prior juvenile adjudication” (§ 667, subd. (d)(3)).   Maximum terms of life imprisonment are specified if the defendant “has two or more prior felony convictions as defined in subdivision (d)” (§ 667, subd. (e)(2)(A)).   The defendant here was tried and sentenced in accordance with these provisions.

Three months later the voters adopted Proposition 184, which codified another version of “Three Strikes” by adding section 1170.12.   In its subdivision (b) the initiative version uses the same criteria as the legislative version in defining “prior conviction of a felony”—California priors for violent or serious felonies (subd. (b)(1)), equivalent felonies committed in other jurisdictions (subd. (b)(2)), and limited categories of “juvenile adjudication [s]” (subd. (b)(3)).   Like the statute, the initiative version's maximum punishment is an indeterminate term of life imprisonment (§ 1170.12, subd. (c)(2)(A)).

Defendant was tried, convicted, and sentenced under the legislative version of the “Three Strikes” law.   His claim that the subsequently enacted initiative version is applicable to his situation would ordinarily be rejected on the ground that statutes are presumed not to operate retroactively.  (E.g., § 3;  Tapia v. Superior Court (1991) 53 Cal.3d 282, 287, 279 Cal.Rptr. 592, 807 P.2d 434.)   Defendant, however, presents an intriguing argument to get past this presumption.

He notes that the initiative version requires a life term if the defendant “has two or more prior felony convictions, as defined in paragraph (1) of subdivision (b)” (§ 1170.12, subd. (c)(2)(A)).   The provision incorporated by this reference deals only with California priors for violent or serious felonies.   Reading this language literally, defendant reasons that it necessarily excludes his Arizona conviction, which would mean that he has only two strikes, and not the three needed for imposition of a life term.   According to this logic, the initiative version reduces the punishment required by the legislative version and therefore should be applied retroactively.

The authority cited for this conclusion is the celebrated decision of In re Estrada, supra, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, which presented the issue of whether a statutory reduction in penalties should be retroactively applied to offenses committed before the change.   In the absence of an express determination by the Legislature, the decisive factor was ascertaining legislative intent.   The Supreme Court concluded:  “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper․  It 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,” i.e., all cases not yet reduced to final judgment.  (Id. at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948.)

Estrada does not come into play to rebut the presumption against retroactivity unless the initiative version is more lenient than the legislative version.   As previously shown, the literal language of the initiative version can be read in such a way as to prevent defendant from receiving the full brunt of the “Three Strikes” treatment.   The initiative does not have an express statement that it is prospective or retroactive.   The Attorney General acknowledges the apparent strength of defendant's literalism but responds that it is based on nothing more than a “drafter's error” and should be overridden by “the plain, repeated, and unmistakable intent” of the electorate not to effect “any such accidental weakening” of the existing scheme of the legislative version.   We agree with the Attorney General.

That the voters had no intent to weaken the “Three Strikes” version already enacted by the Legislature is conclusively shown by the ballot pamphlet, which we may properly consult.  (E.g., Lungren v. Deukmejian (1988) 45 Cal.3d 727, 740, fn. 14, 248 Cal.Rptr. 115, 755 P.2d 299.)   The initiative was described by the legislative analyst as follows:  “This measure proposes amendments to state law that are identical to a law enacted by the Legislature and signed by the Governor in March 1994.   Consequently, adoption or rejection of this initiative will have no direct impact on existing law because the measure reaffirms provisions of the law that are already in effect.”  (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen.Elec. (Nov. 8, 1994) p. 33 [emphasis added].)   At two other points it was reiterated that the initiative version “reaffirms” and was “identical” to the legislative version.  (Id. at pp. 32, 34.)   The proponents of the initiative stated that its purpose was to “strengthen” the legislative version.4  (Id. at p. 36.)   More pertinent to the inquiry here, the proponents stated that “Felonies committed outside California ․ are counted as strikes.”  (Id.)  Even the opponents of the initiative acknowledged that it “DOES NOT CHANGE THE LAW.  [¶] This measure is identical to three strikes legislation already signed into law.”  (Id.)

It is apparent that there was general agreement that the initiative version was essentially a restatement of the legislative version.   It is impossible to find a hint that the voters intended to establish a more lenient “Three Strikes” scheme than was already in place.   The predicate for application of Estrada is therefore absent, and nothing rebuts the presumption that the initiative version was intended to have only prospective operation.

Defendant's construction of the initiative version of “Three Strikes” must also be rejected because it would produce absurd results.   If defendant is correct, a foreign felony conviction could not be used in sentencing a third strike defendant because section 1170.12, subdivision (c)(2)(A)—mentions only California felony convictions as prior offenses.   Yet the same limiting language does not appear in the provision governing defendants being sentenced for their second strike (§ 1170.12, subd. (c)(1)).   Logically, foreign felony convictions would thus count for second strike defendants but not for third strike defendants.   This would be a bizarre inconsistency in a measure intended to “keep[ ] career criminals ․ behind bars where they belong.”   (Ballot Pamp., supra, p. 36.)   Defendants' construction would make nonsense of the initiative proponent's statement to voters—that it “DOES NOT CHANGE THE LAW” and “is identical to three strikes legislation already signed into law.”   (Id.)

Based on the plain language of section 1170.12, subdivision (c)(2)(A) standing by itself, defendant's construction is plausible.   But that plausibility vanishes when the initiative version is examined in its entirety and in light of its unmistakable objective.   The underlying intent is so clear that it will prevail over an inexplicable drafting error.  (E.g., Lungren v. Deukmejian, supra, 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)   Because the initiative version is not more lenient, it is not retroactive.   Defendant was properly sentenced according to the legislative version of “Three Strikes” in effect at the time.

 Defendant makes a similar argument concerning the provision of the legislative version stating that “The determination of whether a prior conviction is a prior felony conviction for purposes of [the “Three Strikes” law] shall be made upon the date of that prior conviction” (§ 667, subd. (d)(1)).5  Read literally, as defendant urges, he would have no qualifying prior convictions because no such determination was made when he was sentenced for his 1976 Arizona robbery or his 1979 assault with a deadly weapon.   In effect this would mean that the “Three Strikes” law could not take account of convictions which occurred prior to its operative date.   Every court which has considered this argument has rejected it because it would cripple the measure's intended operation.  (See Gonzales v. Superior Court (1995) 37 Cal.App.4th 1302, 1304, 44 Cal.Rptr.2d 144 and decisions cited.)   We join that unanimity.

 Defendant has a related argument why his 1976 Arizona prior should not count as his first strike.   He reasons that it counts as a strike only because it is one of the felonies enumerated in subdivision (c) of sections 667.5 and 1192.7, but his conviction occurred before those provisions became operative (in July of 1977 and June of 1982, respectively).   Defendant apparently reasons that because at the time he committed his offense it was not designated as either a “violent” or a “serious” felony by these statutes, the statutes were ineffective to attach these labels for subsequent use by the “Three Strikes” law.   Defendant is attacking a feature of application that inheres in recidivist statutes and has uniformly been upheld.  (E.g., Gryger v. Burke (1948) 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683;  People v. Jackson (1985) 37 Cal.3d 826, 833, 210 Cal.Rptr. 623, 694 P.2d 736.)

The judgment of conviction is affirmed.


1.   Six counts of rape with a foreign object (Pen.Code, § 289, subd. (a)), six counts of oral copulation (id., § 288a, subd. (c)), three counts of assault by means of force likely to produce great bodily injury (id., § 245, subd. (a)(1)), and single counts of first degree burglary (id., § 459), false imprisonment (id., § 236), rape by force (id., § 261, subd. (2)), and sodomy by force (id., § 286, subd. (c)).

2.   Statutory references are to the Penal Code unless otherwise indicated.

FOOTNOTE.   See footnote *, ante.

4.   Although no particulars were given, this presumably was a reference to the Legislature's lack of power to alter the initiative version once enacted without approval at the polls.  (See Cal. Const., art. II, § 10, subd. (c).)

5.   The initiative version has virtually identical language (§ 1170.12, subd. (b)(1)).

POCHÉ, Associate Justice.

ANDERSON, P.J., and REARDON, J., concur.