Majority broke statutory construction rules in Prop 47 case

In her July 24 column, "The lies behind Props 47, 57," Michele Hanisee, the president of the Association of Los Angeles Deputy District Attorneys, heralded the California Supreme Court's 4-3 decision in People v. Valencia, 2017 DJDAR 6549 (July 3, 2017), which concerned the interplay of Proposition 36, the Three Strikes Reform Act of 2012, and Proposition 47, the Safe Neighborhoods and School Act passed in 2014.

Prop. 36 reduced the punishment of 25-years-to-life imprisonment for third-strike offenders -- i.e., those with at least two prior convictions for serious or violent felonies -- whose third felony was neither serious nor violent. Prop. 47 reduced certain drug and theft felonies to misdemeanors. Both propositions were made fully retroactive to reduce the punishment for prisoners still serving the terms for the previously specified punishment, but they both also provided a safety valve exception to that retroactive application for any prisoner that a judge found would pose "an unreasonable risk to public safety" if resentenced to the shorter term.

Prop. 47 tweaked Prop. 36's retroactive provision to tighten the safety valve exception to the reduced punishment by strictly defining the phrase "unreasonable risk of danger to public safety." As Hanisee explained about that definition, "[u]nder Prop. 47, a judge could only refuse to reduce the sentence if he or she found an unreasonable risk that the inmate would commit one of eight specific types of violent crime."

The issue in Valencia was whether this definition applied to Prop. 36 cases. Hanisee lauded the majority's determination that it did not as delivering "some common sense reality" to these sentencing reform measures. As Hanisee pointed out, the Valencia majority was concerned that if the definition did apply, "it would make it easier for 'recidivist serious or violent offenders to have their life sentences vacated, and render them more likely to be released.'" Of course, the whole idea of Prop. 36 was to do away with such draconian sentences where the third-strike felony was nonserious and nonviolent, and to extend its reduced punishment to all such past offenders whose indeterminate life sentence could be safely reduced to a determinate one.

Hanisee reported that the majority "wisely rejected the inmate's appeal" by "holding there was nothing in Prop. 47 that suggested it was intended to apply to serious and violent third strikers seeking resentencing." Hanisee quoted the majority's determination that nothing in "the initiative's text ... describes[s] any intention to amend the criteria for the resentencing of recidivist or violent felons," so that no such intention was "discernable to the voting public."

But conspicuously absent from Hanisee's column is any mention that Prop. 47 specified that its definition applied to that phrase "as used throughout the Code." The majority broke every rule of statutory construction in reaching its conclusion that "the average voter," as it put it, would not understand from this text that the definition would apply to Prop. 36 -- when it was the electorate itself who had introduced into the Penal Code that very phrase when it enacted Prop. 36 only two years earlier.

Hanisee found "most illuminating ... the dissent of Justice Goodwin Liu, who ... wrote: 'The court today concludes that the drafters of Proposition 47 pulled a fast one on an uninformed public.'" "Truer words were never spoken," she applauds, explaining: "With their deliberately misleading title referencing 'safe schools' and platitudinal language about public safety, the drafters of Prop. 47 fooled the public to accomplish their goal of ... releasing convicted criminals from custody." But Hanisee's thesis is an argument for invalidating the whole of Prop. 47 on the ground that the court has a wiser policy than does the foolish average voter -- and is simply a transformation of the opponents' pre-election argument against Prop. 47. In fact, those opposed to Prop. 47 made the argument that Prop. 47 would threaten public safety, just as those opposed to Prop. 36 had similarly argued. The opponents widely published an analysis of Prop. 47 by the California District Attorneys Association that highlighted the fact that its definition of the dangerousness phrase would apply to Prop. 36 cases by virtue of Prop. 47's language that applied its definition to that phrase wherever it might be found in the Penal Code.

As Hanisee notes, while one might "pore over the Valencia opinion for its lessons on the intricacies of statutory construction, the big takeaway was contained in the dissent. "Justice Liu protested that the majority's holding "that the voters were caught unawares and did not actually intend to enact what they did ... is highly irregular and goes beyond our legitimate authority to interpret statutes.... 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." While Hanisee cheers what she says is "a truth worth repeating" -- "The court today concludes that the drafters of Proposition 47 pulled a fast one on an uninformed public" -- that is a truth worth lamenting. The Liu dissent wondered how to "tell inmates ... whose third strike was neither serious nor violent, that what Proposition 47 plainly says is not what the voters really meant." We must also wonder how to tell "the voters, [who] spoke clearly on how widely its resentencing criteria would apply" when they "enacted Proposition 47," "that what Proposition 47 plainly says is not what the voters really meant." Lamentably, what the majority did was pull a fast one on the voters, giving Hanisee and her fellow opponents of sentencing reform a victory in court that they could not win at the ballot box.

The author is the attorney for Chaney in the Valencia case.