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People v Yearwood

Case No. F063712 (CA Dist. 5 Ct. App., Jan. 29, 2013)

INTRODUCTION



During the autumn of 2011, appellant Ricardo Alejandro Yearwood was convicted of one count of unlawfully possessing marijuana in prison and sentenced as a third strike offender to 25 years to life imprisonment plus one year. (Pen. Code, § 4573.6.) This crime is not a serious felony within the meaning of section 1192.7, subdivision (c), or a violent felony within the meaning of section 667.5, subdivision (c). Two prior strike allegations and one prior prison term allegation were sustained. (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(c), 667.5, subd. (b).)

On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012, which amended sections 667 and 1170.12 and added section 1170.126 (hereafter the Act). The Act changes the requirements for sentencing a third strike offender to an indeterminate term of 25 years to life imprisonment. Under the original version of the three strikes law a recidivist with two or more prior strikes who is convicted of any new felony is subject to an indeterminate life sentence. The Act diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike offender. (§§ 667, 1170.12.) The Act also created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126.)

It is undisputed that if appellant had been sentenced for the marijuana possession conviction after the effective date of the Act, an indeterminate life sentence would not have been imposed. Appellant argues he is entitled to resentencing under amended sections 667 and 1170.12. Respondent argues that appellant‟s remedy is limited to filing a petition for a recall of his sentence in compliance with section 1170.126. Appellant rejects this remedy because he does not want to bear the risk that the trial court could find that he poses an unreasonable public safety risk and decline to reduce his sentence. Such a discretionary finding is a component of section 1170.126 but not sections 667 and 1170.12, as amended.
 

 

Judge(s): Bert Levy
Jurisdiction: California Court of Appeals, Fifth District
Trial Court Judge(s)
John Lua

 
Court of Appeals Judge(s)
Brad Hill
Stephen Kane
Bert Levy

 
Appellant Lawyer(s) Appellant Law Firm(s)
Carol Foster

 
Appellee Lawyer(s) Appellee Law Firm(s)
Michael Canzoneri Office of the California Attorney General
Michael Farrell Office of the California Attorney General
Dane Gillette Office of the California Attorney General
Kamala Harris Office of the California Attorney General

 

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the act‟s public safety purpose by reducing the likelihood that prisoners who are carol foster, under appointment by the court of appeal, for defendant and which judgment is not yet final include those in which a conviction has been entered and defendant and appellant. poses an unreasonable risk of danger to public safety, he will receive the same sentencing the prisoner is serving an indeterminate life sentence for a crime that is not a serious or punishment can be applied constitutionally to acts committed before its only be discovered pursuant to evidence code sections 1043 and 1045.” (giovanni b. v. “… when the legislature amends a statute so as to lessen the punishment it recall of sentence and pursuing other legal remedies to which they might be entitled (e.g., trial or plea, of a felony or felonies that are not defined as serious and/or violent felonies stated that “criminal justice experts and law enforcement leaders carefully crafted prop. appellant pled not guilty and denied all the special allegations. (voter information guide, gen. elec., supra, rebuttal to argument in favor of prop. 36, p. we concur: the competing interpretations of section 1170.126(b) do not stand in relative equipoise, kane, j. implemented its principles in a multiplicity of circumstances.” (in re pedro t., supra, 8 at p. 325.) it reasoned that this statute “does not represent a judgment about the needs of applies only if the court can do more than guess what the legislative body intended; there incarcerated is neither an immutable characteristic nor an invidious basis of classification. paragraph (2) of subdivision (c) of section 1170.12, whose sentence under this act would court considers a petition for a recall of sentence after final resolution of legal issues amended statutes.” (in re n.d., supra, 167 cal.app.4th at p. 890.) the estrada court currently dangerous will be released from prison due to the act. during the pretrial, trial indeterminate term of life imprisonment” in section 1170.126(b) is ambiguous because it (a)(1), 667, subds. (a), (e).) writing .… [¶] … i‟m going to order at this time that no information will be released as a 54 cal.4th 314, 324 (brown).) the amendment took effect. (estrada, supra, 63 cal.2d at p. 748; in re n.d., supra, 167 (g).) ricardo alejandro yearwood, violate appellant‟s constitutional equal protection rights. the judgment will be affirmed. pending litigation and a “reasonable belief” that the agency has the type of information would create an unreasonable safety risk. on july 29, 2011, appellant amended his pitchess motion to include records pertaining to the statutory scheme of which it is a part, giving significance to every word, phrase, these documents have been made part of the appellate record without being disclosed to reform.” (ibid.) the fiscal argument reasoned that the act could save taxpayers “$100 date. failure to accord retroactive effect to amended sections 667 and 1170.12 does not sentenced, prosecutorial and judicial discretion are effectively exhausted. amended as appellant within its ambit and operates as the functional equivalent of a saving clause. 1170.12, the defendant must be sentenced as a second strike offender under subdivision (6) “tough and smart on crime.” (voter information guide, gen. elec. (nov. 6, 2012) did not include an express saving clause. most recently, in brown, supra, 54 cal.4th 314, appellant argues that the phrase contained in section 1170.126(b) “serving an unreasonable public safety risk. wide discretion in ruling on a motion for access to law enforcement personnel records. appellant filed a timely notice of appeal on october 25, 2011. cal.app.4th 885, this court held that amendments to welfare and institutions code dangerousness during this interval. an increase in dangerousness will not always be consideration clearly dictated a contrary result.” (in re pedro t. (1994) 8 cal.4th 1041, -ooooo- offender unless the court determines that resentencing would pose an unreasonable risk of lighter punishment is imposed” in all cases in which the judgment was not yet final when disqualified, may have his or her sentence recalled and be sentenced as a second strike argument against prop. 36, p. 53.) also, “prop. 36 will help stop clogging overcrowded initiatives approved by the voters. (see, e.g, floyd, supra, 31 cal.4th at p. 182.) “the the litigation. (people v. gaines, supra, 46 cal.4th at p. 179.) a trial court is afforded offender. (§§ 667, 1170.12.) the act also created a postconviction release proceeding kamala d. harris, attorney general, dane r. gillette, chief assistant attorney sections 667 and 1170.12 infringes his equal protection rights, is not convincing. 15. sought.‟ [citation.]” (people v. gaines (2009) 46 cal.4th 172, 179.) “is inapplicable unless two reasonable interpretations of the same provision stand in unaffected by the act). since we are not required to guess what the voters intended and prison terms. (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e), 667.5, subd. (b).) the prior 19. rights by creating two classes of nonviolent drug offenders based on the date of voter information guide. the argument headings were titled: (1) “make the punishment following non-confidential ruling: “i have looked through the personnel file of [the c. the estrada rule is inapplicable. and 1170.12 apply retroactively to prisoners who were sentenced prior to the act‟s filing period. the pendency of appellate proceedings and consequent lack of jurisdiction fifth appellate district reasoned: the act was added by the initiative process. ballot pamphlet arguments have offender. because direct appellate review is pending. the estrada rule compels retroactive application of amended sections 667 and 1170.12, argument in favor of prop. 36, p. 52, capitalization omitted.) the ballot arguments prisoners who were sentenced years before the act‟s effective date are now entitled to (people v. cruz, supra, 207 cal.app.4th at p. 676, fn. 11.) prospective application of that he poses an unreasonable public safety risk and decline to reduce his sentence. such believe that this circumstance causes any ambiguity. hill, p.j. has no prior convictions for any of the offenses appearing in clause (iv) of section 667, by subdivision (c) of section 667.5 or subdivision (c) of section 1192.7, may file a early. people convicted of shoplifting a pair of socks, stealing bread or baby formula officer‟s personnel file. the trial court complied with the procedural requirements of a appellant also argues that section 1170.126(k) can only be reasonably interpreted we have examined the record of the trial court‟s in camera examination of the three packages of marijuana. the marijuana had an aggregate weight of 3.16 grams. 207 cal.app.4th at pp. 678-680.) prisoners are not a suspect class. the status of being to preclude retroactive application of mitigating changes.” (in re pedro t, supra, 8 cal.app.4th 739 concluded that amendment of section 12022.6 “to make the of count 1; the jury sustained both of the strike priors and one of the prison priors. person serving an indeterminate term of life imprisonment” imposed for a third strike 2. 1170.126(k) protects prisoners from being forced to choose between filing a petition for a to review the officer‟s personnel records related to dishonesty, false report writing and rehabilitation center in june of 1963. “in september of that year, statutory amendments only. facts appellant‟s final contention, that prospective-only application of amended court for writ of certiorari.” (in re pine (1977) 66 cal.app.3d 593, 594.) “cases in principles while continuing to conform to its procedural mandate to confirm the intention 5 section 1170.126(b) provides as follows: “any person serving an indeterminate a. changes to the three strikes law. “if the trial court concludes the defendant has fulfilled these prerequisites and added this section or at a later date upon a showing of good cause, before the trial court appeal from a judgment of the superior court of kern county. john w. lua, 2 as applicable here, a saving clause makes legislation applicable prospectively 7. sentence, and part of an act in pursuance of the legislative purpose.” (curle v. superior became effective under which the minimum preparole sentence for a nonviolent escape v. cal.app.4th at p. 891.) f. prospective-only application does not infringe equal protection rights. a petition for a recall of his sentence in compliance with section 1170.126. appellant result of this hearing.” reports of racism and discrimination. on july 8, 2011, an information was filed charging appellant with one count of the judgment is not determinative for purposes of section 1170.126(b). conviction after the effective date of the act, an indeterminate life sentence would not reviewing courts have departed from the estrada standard “only when new violent felony as defined in subdivision (d) of section 667 and subdivision (b) of section the ground. a correctional officer observed appellant throw an object five to seven feet of lenity applies to restrict application of section 1170.126 only to prisoners whose (2001) 26 cal.4th 1216, 1226.) the trial court reviews the records in camera to d. section 1170.126(b) is not ambiguous. constitutionally could apply. the amendatory act imposing the lighter the rational relationship test has been deemed appropriate to equal protection resolution of this issue requires us to decide if the amendments to sections 667 effective date, does not violate appellant‟s state or federal equal protection rights. (floyd, sections 731 and 733 that took effect in 2007 did not apply retroactively because “[t]he 1 unless otherwise specified all statutory references are to the penal code. a discretionary finding is a component of section 1170.126 but not sections 667 and in appellant‟s procedural posture would be entitled to automatic resentencing as second statute increasing the rate at which prisoners may earn credits for good behavior .…” (id. file a petition for a recall of his or her sentence within two years after the act‟s effective appeal. (people v. flores (2003) 30 cal.4th 1059, 1064.) a section 1170.126 petition deputy attorney general, for plaintiff and respondent. and 1170.12 to operate prospectively only. section 1170.126 is not ambiguous. it rehabilitation officer. appellant specifically requested any records pertaining to reports were not final on the act‟s effective date from obtaining relief to which they may be in the court of appeal of the state of california to include retroactive application of amended sections 667 and 1170.12. we disagree. it is reasonable for the voters to have designed a statutory process where the trial of these arguments is convincing. as will be explained, appellant errs by separating the sections 667, subdivision (e)(2)(a) and 1170.12, subdivision (c)(2)(a) to provide that only to prisoners whose judgments were final before the act‟s effective date. we believe thus, the length of the appellate process will not foreclose prisoners whose judgments the estrada court held: “[w]here the amendatory statute mitigates punishment prisoners who were serving an indeterminate life sentence imposed under the former be sentenced to an indeterminate term of 25 years to life imprisonment. subdivision 3. unauthorized possession of marijuana in prison (count 1). (§ 4573.6.) it was specially (super. ct. no. df10407a) increased incentives for good behavior.” (ibid.) in pedro t., supra, 8 cal.4th at pages effective date of a statute lessening the punishment for a particular offense. numerous that entered the judgment of conviction in his or her case, to request resentencing in danger to public safety.” (§ 1170.126, subd. (f).) in exercising this discretion the trial reasonable presumption that a legislative act mitigating the punishment for a particular f063712 and sentencing phases of the criminal justice system, various discretionary decisions are popular vote. (people v. floyd (2003) 31 cal.4th 179, 187-188 (floyd); davis v. city of in front of him. the object was photographed and collected. it was a bindle containing indeterminate term of life imprisonment” is ambiguous because it does not expressly state to provide us with the sealed documents it reviewed in conducting its pitchess analysis. personnel records. [citation.] peace officer personnel records are confidential and can on october 24, 2011, the court denied probation and imposed a sentence of 25 [citation.]” (id. at p. 191.) the estrada rule is not “constitutionally compelled” and 667 or paragraph (2) of subdivision (c) of section 1170.12 upon conviction, whether by 667 and 1170.12. prospective-only application of amended sections 667 and 1170.12 serves a valid purpose. requiring all prisoners who were sentenced before the act‟s judgments were final on the act‟s effective date. he further contends that subdivision (k) intention with sufficient clarity that a reviewing court can discern and effectuate it.” (id. judgments are not final and are subject to possible modification on appeal. we do not was reduced. in october, estrada was convicted of escape. after he was captured and the criteria contained in subdivision (e) of section 1170.126. (§ 1170.126, subd. (f).) if it 14. cause for an in camera hearing on reports of racism and discrimination. the court determine what information, if any, should be disclosed. subject to the exceptions and 1170.12, subds. (a)-(c), 667.5, subd. (b).) as weakening or modifying the default rule of prospective operation codified in section 3, whether it includes persons sentenced before the effective date of the act whose plaintiff and respondent, with the requirement to bring all the records and submit them for review by the court. guide, gen. elec., supra, argument in favor of prop. 36, p. 52.) the act‟s proponents capacity to protect the public in specific cases where reduction of a prisoner‟s sentence date “or at a later date upon a showing of good cause.” (§ 1170.126, subd. (b), hereafter of one count of unlawfully possessing marijuana in prison and sentenced as a third strike whole.” (sunset beach, supra, 209 cal.app.4th at p. 1189, italics added.) in deciding if court may consider the prisoner‟s criminal history, disciplinary record and record of rejected the defendant‟s claim that denying him the benefits of an ameliorative statute voter intent. (floyd, supra, 31 cal.4th at pp. 187-188.) enhancing public safety was a discriminate against appellant. a prisoner who was sentenced to an indeterminate life offenders sentenced before, and those offenders who are sentenced after the act‟s petition for habeas corpus). section 1170.126(k) does not have any impact in sections 667 and 1170.12. respondent argues that appellant‟s remedy is limited to filing must be an egregious ambiguity and uncertainty to justify invoking the rule.‟ [citation.]” 17. final.” (estrada, supra, 63 cal.2d at p. 745.) those sections must be examined within the context of the entire act. appellant‟s related to the conviction and original sentence (which may have components that are i. the amendments to sections 667 and 1170.12 do not operate retroactively. 1170.126(b).) upon receipt of such a petition, the trial court must determine if it satisfies third strike sentence based on a finding of current dangerousness. in contrast, section indeterminate term of life imprisonment imposed pursuant to” the three strikes law may accordance with the provisions of subdivision (e) of section 667, and subdivision (c) of court (2001) 24 cal.4th 1057, 1063.) during the autumn of 2011, appellant ricardo alejandro yearwood was convicted a peace officer. (§§ 211, 245, subd. (d)(2).) the three strikes law by reserving the life sentence for cases where the current crime is a violent felony within the meaning of section 667.5, subdivision (c). two prior strike convicted of any new felony is subject to an indeterminate life sentence. the act diluted pose no risk to the public. prop. 36 prevents dangerous criminals from being released file a petition for a recall of sentence in the trial court. “any person serving an the judgment is affirmed. 36 so that truly dangerous criminals will receive no benefits whatsoever from the hughes (2002) 27 cal.4th 287, 330.) when the legislature has amended a statute to lessen the punishment, its determination as term of imprisonment pursuant to paragraph (2) of subdivision (e) of section 667 or eligible for resentencing as a second strike offender if all of the following are shown: (1) discretion. respondent did not object to the requested review. we ordered the trial court “[a] judgment is not final so long as the courts may provide a remedy on direct offender to 25 years to life imprisonment plus one year. (pen. code, § 4573.6.)1 this been legal and constitutional.‟ [citations.]” (id. at pp. 188-189.) prospective application of dishonesty, false testimony and falsification of offense reports and other information. supporting proposition 36 were primarily focused on increasing public safety and saving subdivision (e)(2)(c) or clause (iv) of section 1170.12 (c)(2)(c). (§ 1170.126, subd. (e).) 13. amendments did not mitigate punishment, but only limited the places in which a ward can does not apply. when the language of an initiative is construed “we consider not only the 16. e. section 1170.126(k) does not compel retroactive application. criminal offense is intended to apply to all nonfinal judgments.” (people v. brown (2012) cal.2d 740 (estrada) does not apply because section 1170.126 operates as the functional this court reached the same conclusions with respect to the 2011 sentencing realignment enhancement applicable to $50,000 rather than $25,000 in losses” did not apply cal.4th 784, 793.) yet, the legislature is not “always bound to use the same method, or under the estrada rule. he also argues that the phrase “[a]ny person serving an section 1170.12, as those statutes have been amended by the act that added this section.” the criminal law with respect to a particular criminal offense, and thus does not support that section 1170.126(b) is correctly interpreted to apply to all prisoners serving an proceeding “intended to apply exclusively to persons presently serving an indeterminate section 1170.126(k) provides, “nothing in this section is intended to diminish or sentencing, dismissal of a strike in the interests of justice). once the defendant is key purpose of the act. the act‟s proponents argued that the initiative would ensure courts, however, have rejected such a claim—including this court.” (id. at p. 188.) 1170.12, as amended. must be filed once the judgment is final and jurisdiction over the cause has been returned argument erroneously considers amended sections 667 and 1170.12 in isolation. made a showing of good cause, the custodian of records should bring to court all available to the prosecutor and the trial court that can result in a shorter or longer term of conviction. the court reasoned: “defendant has not cited a single case, in this state or abrogate any rights or remedies otherwise available to the defendant.” section the act was approved by the electorate on november 6, 2012, and became context. we must “consider portions of a statute in the context of the entire statute and disposition compliance with section 1170.126. absent a finding by the trial court that appellant (e)(2)(c) of section 667 and subdivision (c)(2)(c) of section 1170.12 together provide b. neither procedural error nor abuse of discretion occurred below. fabrication of charges. the court did not find that there was a sufficient showing of good legislation, which contained a similar express saving clause. term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of section the life sentences were imposed and remained unreasonable safety risks. it would be ii. independent review of the sealed record pertaining to the pitchess6 when the judgment is final, he can file a petition for a recall of his sentence in petition for a recall of sentence, within two years after the effective date of the act that which exists “when the defendant shows both „“materiality”‟ to the subject matter of the of section 1170.126 (hereafter section 1170.126(k)) guarantees him resentencing. none effective the next day. it substantially changed the way habitual offenders with two or any other, that recognizes an equal protection violation arising from the timing of the (sunset beach).) the act‟s proponents advanced six arguments in favor of the act in the the rule of lenity does not require construction of section 1170.126(b) in the manner three strikes law on the act‟s effective dates without regard to the finality of the it is important to recognize that prospective-only application of the amendments to in estrada, supra, 63 cal.2d 740, the petitioner escaped from the california giving amended sections 667 and 1170.12 prospective-only application supports sentence imposed but an appeal is pending when the amendment becomes effective.” (in the act also added section 1170.126 which creates a postconviction release legislation has included an express saving clause or its equivalent or when some other 1170.126. it asserted that “[a] hidden provision … will allow thousands of dangerous unreasonable risk of danger to the public. thus, the distinction drawn between felony appellant. over the cause in the trial court would necessarily constitute good cause for a filing delay. million every year” that would otherwise be spent “to house and pay health care costs for danger to public safety. (§ 1170.126.) 5. 10. re n.d. (2008) 167 cal.app.4th 885, 891.) serious or violent felony or the prosecution has pled and proved an enumerated reduction that he would have obtained if had been resentenced under amended sections defendant‟s favor if it can fairly discern a contrary legislative intent.” (ibid.) amended sections 667 and 1170.12. the discretionary public safety exception to second that if the offender has two or more prior strikes, but the new felony is not a serious or a. factual background. returned and the addiction proceedings terminated, the adult authority continued to hold supra, 31 cal.4th at pp. 188-191; see also people v. cruz, supra, 207 cal.app.4th at pp. deemed to be sufficient should apply to every case to which it prior to testifying. (people v. mooc, supra, 26 cal.4th at pp. 1228, 1229, fn. 4; people v. rejects this remedy because he does not want to bear the risk that the trial court could find in our view, this case presents an additional circumstance where the estrada rule the supreme court ordered estrada‟s sentence for escape to be fixed as provided in the discretion was not abused. (ibid.) 52, capitalization omitted.) in rebuttal, proponents denounced this argument as a “scare angeles county superior court case no. bk5743896. since this appeal centers on statutory interpretation, “our task is ascertaining the 674-680.) _____________________ strike sentencing that is present in section 1170.126, but not in amended sections 667 and _____________________ at pp. 1048-1049, fn. omitted.) judge. the decision will be reversed only on a showing of abuse of discretion. (people v. to decrease punishment. (mcneely, supra, at p. 744.) in in re n.d., supra, 167 tactic.” (voter information guide, gen. elec., supra, rebuttal to argument against prop. the legislative intent. rather, what is required is that the legislature demonstrate its prisons with non-violent offenders, so we have room to keep violent felons off the abuse of pitchess discretion.” (people v. samayoa (1997) 15 cal.4th 795, 827.) judicial in his opening brief, appellant asked this court to independently review the sealed 18. whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the sections 667 and 1170.12 do not provide the trial court with any discretion to impose a allegations and one prior prison term allegation were sustained. (§§ 667, subds. (c)-(j), is impracticable.” (people v. jones (1988) 46 cal.3d 585, 599.) “„the rule [of lenity] statute temporarily increasing the penalty for auto theft. people v. mcneely (1994) 28 opposition to the act referenced the postconviction release process created by section the functional equivalent of a saving clause. section 1170.126 is not ambiguous. the (e)(1) of section 667 or subdivision (c)(1) section 1170.12, irrespective of the number of included in an initiative creating an alternative sentencing scheme for nonviolent drug not have been an indeterminate life sentence.” (§ 1170.126, subd. (a).) a prisoner is 1044 to 1049, the supreme court determined that the estrada rule did not apply to a years to life plus one year to be served consecutive to the sentence imposed for los prisoner‟s criminal history, disciplinary record while incarcerated and any other relevant the estrada rule is considered to be “well settled” and courts have “consistently (c)(2)(c) contain four exceptions to the new restriction on imposition of a third strike strike offenders without any judicial review to ensure they do not currently pose an imprisonment (e.g., selection of the appropriate base term, concurrent/consecutive relates to the nature of the offender‟s prior felony convictions. if the prosecution pleads an analogous inference of retroactive intent.… instead of addressing punishment for past appellant raises several arguments involving statutory interpretation of the act of the alternative drug offender sentencing scheme furthered legitimate legislative ambiguous. section 1170.126(b) could have been, but was not, drafted so that it applied to obtain a sentencing reduction pursuant to section 1170.126, the prisoner must original version of the three strikes law a recidivist with two or more prior strikes who is on august 24, 2011, the court granted appellant‟s motion for an in camera hearing b. arguments contained in the voter information guide. “a criminal defendant has a limited right to discovery of a peace officer‟s cannot “dictate to legislative drafters the forms in which laws must be written to express “„[t]the 14th amendment does not forbid statutes and statutory changes to have a proceedings reveals no procedural error or abuse of discretion. protection rights. (id. at p. 182.) in people v. cruz (2012) 207 cal.app.4th 664, 668, advanced by appellant. (floyd, supra, 31 cal.4th at p. 188.) reflected in new criminal convictions. also, prisoners could have been dangerous when have been imposed. appellant argues he is entitled to resentencing under amended records pertaining to the pitchess proceedings to determine if the lower court abused its (people v. wycoff (2008) 164 cal.app.4th 410, 414-415.) alleged that appellant had suffered two prior strike convictions and served two prior the act. the voters intended amended sections 667 and 1170.12 to be given prospective- limitations contained in evidence code section 1045, subdivisions (b)-(e), the court must inconsistent with the public safety purpose of the act to create a loophole whereby three strikes law for a crime that is not a serious or violent felony and who is not 1170.126 entrusts the trial court with discretion that may be exercised to protect the legislature has also accepted the rule of estrada, never statutorily altering the governing 11. the rule of lenity requires courts to “resolve doubts as to the meaning of a statute dangerous criminals from being released early.” (ibid., italics omitted.) released early from prison because jails are overcrowded with nonviolent offenders who strikes resulted from convictions for robbery and assault with a semiautomatic firearm on if amended sections 667 and 1170.12 are given retroactive application, prisoners applies to prisoners, like appellant, whose judgments were not final on the act‟s effective the people, reduction that would have been obtained if he or she had been resentenced under superior court (2007) 152 cal.app.4th 312, 318.) a defendant is entitled to discovery finality of the judgment can span years. prisoners can substantially increase in the estrada rule has been found inapplicable in a variety of contexts. in floyd, and proves one of the four exceptions, the offender will be sentenced as a third strike money. the public safety argument reasoned, “today, dangerous criminals are being automatic sentencing reduction even if they are currently dangerous and pose an 3 he was serving a 16-year term of imprisonment that was imposed for a robbery retroactively because the legislature amended the statute to account for inflation and not 6 pitchess v. superior court (1974) 11 cal.3d 531 (pitchess). 4. appellant, who were convicted of a felony and sentenced to an indeterminate life term as in a defendant‟s favor, an appellate court should not strain to interpret a penal statute in prison for dangerous felons”; (4) “law enforcement support”; (5) “taxpayer support”; and certified for publication term before the act‟s effective date may file a section 1170.126 petition upon finality of discussion fit the crime”; (2) “save california over $100 million every year”; (3) “make room in has obviously expressly determined that its former penalty was too severe prior strike convictions. sections 667, subdivision (e)(2)(c) and 1170.12, subdivision rehabilitation while incarcerated and any other relevant evidence. (§ 1170.126, subd. (people v. avery, supra, 27 cal.4th at p. at p. 58.) while “true ambiguities are resolved dangerous criminals remain in prison. one of the arguments in the ballot pamphlet in prisoners whose sentences are reduced or who are released due to the act will not pose an functional equivalent of a saving clause. in part, section 1170.126(b) provides that “[a]ny white (2011) 191 cal.app.4th 1333, 1339-1440.) the custodians of records complied “[e]xcept as provided in subparagraph (c),” a person with two or more prior strikes must a bifurcated jury trial was held in september of 2011. appellant was found guilty non-violent three strikes inmates if the law is not changed.” (ibid.) and another inmate began fighting with a third inmate. correctional staff ordered the strike offender to an indeterminate term of 25 years to life imprisonment. under the molesters, and other dangerous criminals serve their full sentences,” and it “prevents offenses. it held that the estrada rule did not apply and prospective-only application of voters intended a petition for recall to be the sole remedy available under the act for indeterminate life sentence imposed under the former three strikes law. the finality of floyd, supra, 31 cal.4th 179 is instructive. in that case our supreme court criminal conduct, the statute addresses future conduct in a custodial setting by providing violent felony; (2) the life sentence was not imposed for any of the offenses appearing in crime is not a serious felony within the meaning of section 1192.7, subdivision (c), or a more prior strikes are sentenced after conviction of another felony. the act amended courts have departed from the estrada rule in several cases where the legislation 36, p. 53.) proponents insisted that the act “requires that murderers, rapists, child act into two isolated statutory parts and analyzing each statute independent of the larger 6. equivalent of a saving clause.2 the voters intended for the amendments to sections 667 cal.4th at p. 1055 (dis. opn. of arabian, j.).) “estrada is today properly understood, not disqualifying factor. in all other cases, the recidivist will be sentenced as a second strike determining if amended sections 667 and 1170.12 operate retroactively. interests. (id. at p. 191.) the initiative did not infringe the defendant‟s state and federal constitutional equal him pursuant to the former law on escapes. [citation.] in a habeas corpus proceeding, reform act of 2012, which amended sections 667 and 1170.12 and added section inmates to lie down on the ground. appellant ran approximately 10 yards before lying on unreasonable risk of danger to public safety. the time period between sentencing and opinion and that a lighter punishment is proper as punishment for the commission passage provided the judgment convicting the defendant of the act is not 1170.126 (hereafter the act). the act changes the requirements for sentencing a third sections 667 and 1170.12 does not withhold from appellant a reduction in punishment. 4 the saving clause “states that „[e]xcept as otherwise provided, the provisions of to enact an explicit saving clause .…” (pedro t., supra, 8 cal.4th at p. 1048.) courts cal.4th at p. 1054, fns. omitted (dis. opn. of arabian, j.).) these circumstances include on november 6, 2012, the voters approved proposition 36, the three strikes conducted an in camera hearing and examined the personnel records. it made the _____________________ a third strike offender prior to the act‟s effective date but whose judgments are not final filed 1/29/13 8. counsel for either party. sentence. three exceptions relate to the nature of the current felony and one exception named officer] and i did not find anything that relates to dishonesty and false report orange county local agency formation com. (2012) 209 cal.app.4th 1182, 1189 be confined.” (in re n.d., supra, at p. 888.) entitled pursuant to section 1170.126. the issues raised by the pitchess discovery motion that failure to disclose them was an on february 3, 2011, appellant was an inmate at kern valley state prison.3 he supra, 31 cal.4th 179, the supreme court considered an express saving clause4 that was judgment. the estrada rule does not apply to the act because section 1170.126 operates as pitchess hearing. a court reporter was present and the custodian of records was sworn documents „potentially relevant‟ to the defendant‟s motion. [citation.]” (people v. mooc criminals to get their prison sentence reduced and then released from prison early.” introduction this interpretation of section 1170.126(b) is consistent with the voters‟ intent in sections 667, subdivision (e)(2)(c) and 1170.12, subdivision (c)(2)(c); and (3) the inmate the judgment. if qualified, the prisoner will ordinarily receive the same sentencing streets” and “prop. 36 will keep dangerous criminals off the streets.” (voter information beginning, and thus to discriminate between the rights of an earlier and later time.‟ 1055, fn. omitted (dis. opn. of arabian, j.) (pedro t.); people v. nasalga (1996) 12 this act shall become effective july 1, 2001, and its provisions shall be applied but rather as informing the rule‟s application in a specific context by articulating the on july 21, 2011, appellant filed a pitchess motion to permit discovery and of relevant information from the confidential records upon a showing of good cause, 12. the supreme court held that the estrada rule did not require retroactive application of “a that the amendments to sections 667 and 1170.12 must be given retroactive application for the foregoing reasons, we conclude that the estrada rule is not applicable to evidence, it determines that the prisoner poses “an unreasonable risk of danger to public conviction “may file a petition for a recall of sentence.”5 the quoted phrase is not berkeley (1990) 51 cal.3d 227, 237, fn. 4 (davis); citizens assn. of sunset beach v. ordinary meaning of the bare words, but how those words fit into the initiative as a challenge such as this one. (floyd, supra, 31 cal.4th at p. 191; people v. cruz, supra, effective date but whose judgments were not final as of that date. we conclude that the have intended that the new statute imposing the new lighter penalty now does, the prisoner shall be resentenced as a second strike offender “unless the court, in its only effect. this is consistent with the public safety purpose of the act. the broad safety.” (§ 1170.126, subd. (f).) the postconviction release proceeding crafted in section 1170.126 operates as the general, michael p. farrell, assistant attorney general, and michael a. canzoneri, our review of the sealed personnel file “reveals no materials so clearly pertinent to 1170.12, is rationally related to a legitimate state interest. it increases the likelihood that levy, j. is unclear if it includes prisoners whose convictions are not final. consequently, the rule it is undisputed that if appellant had been sentenced for the marijuana possession been recognized as a proper extrinsic aid in construing voter initiatives adopted by intent of the voters,” which “„is the paramount consideration.‟” (sunset beach, supra, 9. point in time. section 1170.126(b) contains a “good cause” exception to the two year review. that includes the time within which to petition to the united states supreme prospectively‟ [citation] .…” (floyd, supra, 31 cal.4th at p. 182.) creating an alternative drug offender sentencing scheme violated his equal protection disclosure of the personnel records of a named california department of corrections and that he asserts compel retroactive application of sections 667 and 1170.12. he contends don‟t deserve life sentences.” (voter information guide, gen. elec., supra, rebuttal to amended sections 667 and 1170.12 furthers legitimate interests and does not unfairly to which statute should apply to all convictions not yet final, „either way, would have to the trial court. appellant‟s eligibility for recall of sentence will be determined at that of the prohibited act. it is an inevitable inference that the legislature must common law doctrine embraced by the california supreme court in in estrada (1965) 63 relative equipoise, i.e., that resolution of the statute‟s ambiguities in a convincing manner conviction with an arming enhancement and one prior strike. (§§ 211, 12022, subd. effective date to comply with section 1170.126 provides the trial court with a limited approving the act as evidenced by the ballot arguments, which are reliable indicia of 209 cal.app.4th at p. 1189.) the act does not contain a saving clause or refer to the trial court does not have jurisdiction over a cause during the pendency of an public. a court may deny a section 1170.126 petition if, after examination of the in a criminal defendant‟s favor.” (people v. avery (2002) 27 cal.4th 49, 57.) this rule disclose to the defendant such information as is relevant to the subject matter involved in phrasing of section 1170.126(b) evidences the voters‟ intent to include individuals such discretion, determines that resentencing the petitioner would pose an unreasonable risk of retroactivity. it does not contain a provision explicitly referring to persons, like does not require a contrary result. (id. at p. 189.) the estrada decision “recognized that and there is no saving clause, … the amendment will operate retroactively so that the


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