THE PEOPLE, Plaintiff and Appellant, v. WILLIAM ROYAL HAZELTON, Defendant and Respondent, 14 Cal. 4th 101

Opinion BROWN, J. The issue in this case is whether an out-of-state conviction qualifies as a “strike" under the “three strikes” provision of Proposition 184. (Pen Code, § 1170.12.) Unlike its legislative predecessor,

section 667, subdivisions (b)-(i), this portion of

section 1170.12 is ambiguous regarding whether it includes out-of-state convictions. We conclude, in light of the unequivocal evidence of voters’ intent, that the statute is properly construed to include such convictions. I. Facts and Procedural Background Defendant William Royal Hazelton was charged with felonies in two separate complaints filed in Contra Costa County in May and August 1994. The first complaint alleged that he had suffered a single prior felony conviction within the meaning of

section 667, subdivisions (

d) and (e), the legislative version of the “three strikes” law. The second complaint alleged that defendant had suffered two prior felony convictions under

section 667, subdivisions (

d) and (e), one of which was an attempted rape in Nevada. Before these cases were adjudicated, the initiative version of the “three strikes” law, which added

section 1170.12 to the Penal Code, was adopted and became operative. In response to defendant’s motion, the trial court ruled that under

section 1170.12, defendant’s out-of-state prior “may be used for two strike . . . [but] not for three-strike purposes.” The People’s request to reinstate the prior conviction allegation was denied, and they appealed. (§ 1238, subd. (a)(9).) The Court of Appeal consolidated the appeals and reversed and remanded. We granted defendant’s petition for review. II. Discussion In March 1994, the Legislature enacted its version of the “Three Strikes and You’re Out” law by amending

section 667. In general, the legislation provides longer sentences for certain prior serious or violent felonies popularly denoted “strikes.” A “two strike” case involves one prior qualifying felony; a “three strike” case involves two or more prior qualifying felonies. Predicate prior felonies are defined in

section 667, subdivision (d), 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) A 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] prior juvenile adjudication^].” A defendant with three strikes, i.e., “two or more prior felony convictions as defined in subdivision (d),” must be sentenced to an indeterminate term of life imprisonment for the current felony conviction, with a minimum term generally calculated as the greater of three times the term otherwise provided for each current felony conviction; twenty-five years; or the term required by

section 1170 for the current conviction, including any enhancements. (§ 667, subd. (e)(2)(A), italics added.) Thus, because the three strikes provision of

section 667 refers to all of subdivision (d), and subdivision (

d) defines a prior felony conviction as including out-of-state convictions in subdivision (d)(2), there is no question that the legislative version of the three strikes law includes out-of-state convictions for purposes of determining whether someone is eligible for the third strike penalty. In November 1994, the voters adopted Proposition 184, codified as

section 1170.12.

Section 1170.12, subdivision (b), is virtually identical to

section 667, subdivision (d), in defining a “prior conviction of a felony” 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) A 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] prior juvenile adjudication^].” However, in delineating who is eligible for the third strike penalty,

section 1170.12, subdivision (c)(2)(A) (subdivision (c)(2)(A)), refers to a defendant who has “two or more prior felony convictions, as defined in paragraph (1) of subdivision (b) . . . .” (Italics added.) Thus, defendant argues that unlike its legislative counterpart, subdivision (c)(2)(

A) does not include out-of-state convictions because it does not expressly refer to

section 1170.12, subdivision (b)(2). The case before us involves crimes committed prior to November 1994. It thus arises under the legislative statute (§ 667, subds. (b)-(i)) rather than under the initiative statute (§ 1170.12). (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 505 [53 Cal.Rptr.2d 789, 917 P.2d 628].) However, defendant asserts that because

section 1170.12 is more lenient than

section 667, subdivisions (b)-(i), in that it does not include defendant’s out-of-state conviction as a third strike, he is entitled to the benefit of this reduced punishment under the principles of In re Estrada (1965) 63 Cal.2d 740, 745 [48 Cal.Rptr. 172, 408 P.2d 948]. We therefore proceed to consider whether subdivision (c)(2)(

A) may be properly so construed. In construing subdivision (c)(2)(

A) to determine whether out-of-state convictions are included, “our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure.” (In re Littlefield (1993) 5 Cal.4th 122, 130 [19 Cal.Rptr.2d 248, 851 P.2d 42].) If “the terms of a statute provide no definitive answer, then courts may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.” (People v. Coronado (1995) 12 Cal.4th 145, 151 [48 Cal.Rptr.2d 77, 906 P.2d 1232].) Read in the context of

section 1170.12 as a whole, the language of subdivision (c)(2)(

A) is ambiguous regarding the inclusion of out-of-state convictions in at least two respects. First, the phrase “prior felony convictions, as defined in paragraph (1) of subdivision (b),” could be interpreted, as defendant suggests, to refer to the forum in which the prior conviction was obtained, i.e., an adult criminal proceeding in California. This

interpretation would, of course, mean that out-of-state convictions, which are described in subdivision (b)(2), would not qualify for subdivision (c)(2)(A)’s third strike penalty. Alternatively, the same phrase could be interpreted as highlighting the nature of the prior conviction, i.e., a violent or serious felony, that will qualify as a prior felony conviction in a three strikes case. Because

section 1170.12, subdivision (b)(2), includes only those out-of-state convictions deemed violent or serious in California, interpreting subdivision (c)(2)(

A) to refer to the nature of the former conviction would mean that out-of-state convictions would qualify for the subdivision’s third strike penalty. Second,

section 1170.12, subdivision (b), provides: “Notwithstanding any other provision of law and for the purposes of this section, a prior conviction of a felony shall be defined as” including California convictions (§ 1170.12, subd. (b)(1)), out-of-state convictions (§ 1170.12, subd. (b)(2)), and juvenile adjudications (§ 1170.12, subd. (b)(3)). Subdivision (

b) thus defines a prior conviction for the entire

section broadly and without qualification to include out-of-state convictions and juvenile adjudications. As noted, however, subdivision (c)(2)(

A) states that a defendant is eligible for the third strike penalty if he or she has sustained “two or more prior felony convictions, as defined in paragraph (1) of subdivision (b).” (Italics added.) Subdivision (c)(2)(A), therefore, arguably proffers a different and inconsistent definition to the extent it limits the definition of a prior felony for purposes of the three strikes provision to only adult California convictions. By concluding that subdivision (c)(2)(A)’s reference to subdivision (b)(1) simply identifies the nature of the conviction and not the rendering forum, this potential inconsistency in definition is avoided. Even if subdivision (c)(2)(

A) could be construed as merely an exception to the more general definition of subdivision (b), there is still a tension between subdivision (b)’s unqualified language and the subsequent presence of such an exception in subdivision (c)(2)(A). For these reasons, the statutory language is ambiguous regarding whether out-of-state convictions are included in subdivision (c)(2)(A). We therefore turn to the initiative’s legislative history to determine which of these constructions best effectuates the voters’ intent.

The initiative’s history demonstrates an unequivocal intent on the part of the voters to adopt a sentencing scheme identical to the legislative version of the three strikes law. The legislative analyst described the initiative 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., analysis of Prop. 184 as presented to voters, Gen. Elec. (Nov. 8, 1994) p. 33, italics added.) The analysis twice reiterated that the initiative version “reaffirms” and is “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. (Id., argument in favor of Prop. 184, Gen.

Elec. (Nov. 8, 1994) p. 36.) Even the opponents of the initiative stated that “Proposition 184 Does Not Change the Law. [cf[] This measure is identical to three strikes legislation already signed into law.” (Id., rebuttal to argument in favor of Prop. 184, Gen. Elec. (Nov. 8, 1994) p. 36, italics added.) In contrast, there is no evidence that the voters intended to change the legislative version, or in particular, adopt a more lenient three strikes law.

Moreover, in describing the initiative’s third strike penalty, later codified in subdivision (c)(2)(A), the legislative analyst made no distinction between prior California and out-of-state convictions.

Thus, the analyst stated, “Both measures [the legislative and initiative versions] require that a person who is convicted of a felony and who has been previously convicted of one or more violent or serious felonies, be sentenced as follows: [<H . . . [1] If the person has two or more previous serious or violent felony convictions, the mandatory sentence for any new felony conviction (not just a serious or violent felony) is life imprisonment with the minimum term being the greater of (1) three times the term otherwise required under law for the new felony conviction, (2) 25 years, or (3) the term determined by the court for the new conviction. [^Q . . .

Both measures also require that specified crimes committed by a minor, who was at least age 16 at the time of the crime, count as a previous conviction. These specified crimes generally include the same crimes defined as serious and violent felonies.

Prior to March 1994, crimes committed by minors and dealt with by the juvenile court did not count as previous felony convictions.” (Ballot Pamp., analysis of Prop. 184, supra, p. 33, italics in original.) Likewise, the proponents of the initiative stated, “Felonies committed outside California, or by juveniles, are counted as strikes,” drawing no distinction between the two strikes penalty of

section 1170.12, subdivision (c)(1), and the three strikes penalty of subdivision (c)(2)(A). (Id., argument in favor of Prop. 184, supra, p. 36.) Indeed, the legislative and initiative versions are identical in all other sentencing aspects.

For example, the stated purpose of both the legislative and initiative versions is 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.” (Ballot Pamp., text of Prop. 184, supra, p. 64; § 667, subd. (b).) In addition, “When a defendant is convicted of a felony, and it is pleaded and proved that he has committed one or more prior felonies defined as ‘violent’ or ‘serious,’ sentencing proceeds under the Three Strikes law ‘[notwithstanding any other law.’ (§ 667, subd. (c); § 1170.12, subd. (a).) Prior felonies qualifying as ‘serious’ or ‘violent’ are taken into account regardless of their age. (§ 667, subd. (c)(3); § 1170.12, subd. (a)(3).) The current felony need not be ‘violent’ or ‘serious.’ (§667, subd. (c); §1170.12, subd. (a).) . . .

Sentencing on all current offenses is generally consecutive (§ 667, subds. (c)(6)-(8); § 1170.12, subds. (a)(6)-(8)) without any aggregate term limitation (§ 667, subd. (c)(1); § 1170.12, subd. (a)(1)). In sentencing, the court may not grant probation, suspend execution or imposition of sentence (§ 667, subd. (c)(2); § 1170.12, subd. (a)(2)), divert the defendant, or commit the defendant to any facility other than state prison (§667, subd. (c)(4); § 1170.12, subd. (a)(4)).” (People v.

Superior Court (Romero), supra, 13 Cal.4th at pp. 505-506.) Thus, the initiative, like the legislative version of the three strikes law: (1) specifically targets in its statement of purpose persons with prior serious and/or violent felony convictions without limiting the target group to California felons; (2) defines a prior felony conviction to include a foreign prior conviction “[notwithstanding any other provision of law and for the purposes of this section” (§ 1170.12, subd. (b)); (3) provides that a foreign prior felony conviction will trigger certain mandatory sentencing consequences (§ 1170.12, subd. (a)(l)-(8)); (4) mandates that “[notwithstanding any other provision of law,” the provisions of

section 1170.12 shall be applied in every case in which a defendant has a foreign prior felony conviction (§ 1170.12, subd. (d)(1)); and (5) provides that a foreign prior felony conviction qualifies as a strike in a two strikes case (§ 1170.12, subd. (c)(1)). Interpreting

section 1170.12 to include foreign convictions when calculating the sentence in a three strikes case is consistent with this statutory scheme. Accordingly, we see no evidence in the legislative history that the voters intended to exclude out-of-state convictions from the purview of the initiative’s third strike penalty, or ameliorate the punitive effect of

section 667, subdivisions (b)-(i). We therefore conclude that the language of subdivision (c)(2)(A), “two or more prior felony convictions, as defined in paragraph (1) of subdivision (b),” is most properly construed as referring to the nature of the prior felony conviction, i.e., violent or serious, not to the rendering forum. Accordingly, an out-of-state conviction qualifies as a strike for purposes of subdivision (c)(2)(A)’s third strike penalty.

Defendant asserts “the voters may have been misled to believe that [the legislative version] makes the same distinction between in-state and out-of-state felonies that Proposition 184 makes. An error such as this would invite no departure from the explicit terms of the initiative.” We find no evidence, however, that the voters understood that

section 1170.12 made a distinction between in-state and out-of-state felonies. Thus there is no basis on which we may conclude that in describing the statutes as “identical," the ballot pamphlet misled the voters as to the provisions of

section 667, subdivisions (b)-(i), not

section 1170.12. In any event, we have concluded that the terms of the initiative are not “explicit” but ambiguous. In addition, defendant attempts to argue that the federal and state due process rights of those who committed crimes after the passage of

section 1170.12, but prior to our decision in this case, will be violated because subdivision (c)(2)(

A) failed to give those persons notice that out-of-state convictions are included within its purview. Defendant does not raise this claim on his own behalf, perhaps recognizing that because his alleged offenses were committed prior to the effective date of

section 1170.12, he cannot claim his right to notice was violated. Nor, however, given that constitutional rights are generally personal and no exception is applicable here, may defendant assert this claim on behalf of others. (Cf. In re M.S. (1995) 10 Cal.4th 698, 709 [42 Cal.Rptr.2d 355, 896 P.2d 1365]; People v. Sipe (1995) 36 Cal.App.4th 468, 480-481 [42 Cal.Rptr.2d 266].) Moreover, the mere fact that a new statute requires

interpretation does not make it unconstitutionally vague. Conclusion The judgment of the Court of Appeal is affirmed. George, C. J., Baxter, J., and Chin, J., concurred. All statutory references are to the Penal Code unless otherwise indicated. We hereby grant the People’s request for judicial notice of the initiative petition and ballot statement regarding Proposition 184. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504, fn. 1.) By concluding that

section 1170.12 is ambiguous and reasonably construed to include out-of-state convictions, we have further concluded that the relevant provisions of

section 1170.12 and

section 667, subdivisions (b)-(

i) are consistent. Hence it is unnecessary to decide whether

section 1170.12 repealed

section 667, subdivisions (b)-(i).