People v. Conley

Filed 6/30/16

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S211275

v. )

) Ct.App. 3 C070272

PATRICK LEE CONLEY, )

) Yolo County

Defendant and Appellant. ) Super. Ct. No. CRF113234

____________________________________)

Under the ―Three Strikes‖ law as originally enacted in 1994, an individual

convicted of any felony offense following two prior convictions for serious or

violent felonies was subject to an indeterminate term of life imprisonment with a

minimum term of no less than 25 years. (Pen. Code, former §§ 667, subds. (b)-(i),

1170.12, subd. (c)(2).) In 2012, the electorate passed the Three Strikes Reform

Act of 2012 (Reform Act or Act) (Prop. 36, as approved by voters, Gen.

Elec. (Nov. 6, 2012)), which amended the law to reduce the punishment prescribed

for certain third strike defendants. The electorate also authorized persons

―presently serving‖ an indeterminate term of life imprisonment imposed under the

prior version of the law to seek resentencing under the amended penalty scheme

by filing a petition for recall of sentence. (Pen. Code, § 1170.126, subd. (a).)

Under the Act, a court must grant a recall petition unless it determines that

resentencing the petitioner ―would pose an unreasonable risk of danger to public

safety.‖ (§ 1170.126, subd. (f).)

SEE CONCURRING OPINION

1

The Reform Act took effect on November 7, 2012. The question in this

case is whether third strike defendants who were sentenced under the Three

Strikes law before November 7, 2012, but whose judgments were not yet final as

of that date, are entitled to automatic resentencing under the revised penalty

provisions of the Reform Act. We conclude that these defendants are not entitled

to automatic resentencing, but instead may seek resentencing by petitioning for

recall of sentence under section 1170.126.

I.

A.

Enacted ―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‖ (Pen. Code, former § 667, subd. (b), as amended by Stats.

1994, ch. 12, § 1, pp. 71, 72), the Three Strikes law ―consists of two, nearly

identical statutory schemes.‖ (People v. Superior Court (Romero) (1996) 13

Cal.4th 497, 504 (Romero).) The first of these schemes was enacted by the

Legislature in March 1994. (Pen. Code, former § 667, subds. (b)-(i).) The second

was enacted by ballot initiative in November of the same year. (Pen. Code, former

§ 1170.12, added by Prop. 184, as approved by voters, Gen. Elec. (Nov. 8, 1994)

(Proposition 184).) The two statutes differ only in minor respects not relevant

here. (Accord, Romero, at p. 505.)1

Under the Three Strikes law as originally enacted, a felony defendant who

had been convicted of a single prior serious or violent felony (a second strike

defendant) was to be sentenced to a term equal to ―twice the term otherwise

1 For convenience, we therefore refer in this opinion to the version enacted

by Proposition 184. Our decision, however, applies equally to both.

2

provided as punishment for the current felony conviction.‖ (Pen. Code, former

§ 1170.12, subd. (c)(1).) By contrast, a defendant who had been convicted of two

or more prior serious or violent felonies (a third strike defendant) was to be

sentenced to ―an indeterminate term of life imprisonment with a minimum term

of‖ at least 25 years. (Pen. Code, former § 1170.12, subd. (c)(2).)

The Reform Act changed the sentence prescribed for a third strike

defendant whose current offense is not a serious or violent felony. (See Teal v.

Superior Court (2014) 60 Cal.4th 595, 596-597.) Under the Reform Act‘s revised

penalty provisions, many third strike defendants are excepted from the provision

imposing an indeterminate life sentence (see Pen. Code, § 1170.12, subd.

(c)(2)(A)) and are instead sentenced in the same way as second strike defendants

(see id., subd. (c)(2)(C)): that is, they receive a term equal to ―twice the term

otherwise provided as punishment for the current felony conviction‖ (id., subd.

(c)(1)). A defendant does not qualify for this ameliorative change, however, if his

current offense is a controlled substance charge involving large quantities (id.,

subd. (c)(2)(C)(i)), one of various enumerated sex offenses (id., subd.

(c)(2)(C)(ii)), or one in which he used a firearm, was armed with a firearm or

deadly weapon, or intended to cause great bodily injury (id., subd. (c)(2)(C)(iii)).

The ameliorative provisions of the Reform Act also do not apply in cases in which

the defendant was previously convicted of certain enumerated offenses, including

those involving sexual violence, child sexual abuse, homicide or attempted

homicide, solicitation to commit murder, assault with a machine gun on a peace

officer or firefighter, possession of a weapon of mass destruction, or any serious or

violent felony punishable by life imprisonment or death. (§ 1170.12, subd.

(c)(2)(C)(iv)(I)-(VIII).) The Act provides that these disqualifying factors must be

pleaded and proved by the prosecution. (§ 1170.12, subd. (c)(2)(C).)

3

In the Reform Act, the voters also established a procedure for ―persons

presently serving an indeterminate term of imprisonment‖ under the prior version

of the Three Strikes law to seek resentencing under the Reform Act‘s revised

penalty structure. (Pen. Code, § 1170.126, subd. (a).) Under section 1170.126,

―within two years after the effective date of the act . . . or at a later date upon a

showing of good cause,‖ such persons can file a petition for a recall of sentence

before the trial court that entered the judgment of conviction. (Id., subd. (b).) If

the petitioner would have qualified for a shorter sentence under the Reform Act

version of the law, taking into consideration the disqualifying factors (§ 1170.126,

subds. (e), (f)), section 1170.126 provides that he ―shall be resentenced pursuant to

[the Reform Act] unless the court, in its discretion, determines that resentencing

the petitioner would pose an unreasonable risk of danger to public safety‖ (id.,

subd. (f)). In exercising this discretion, the court may consider the defendant‘s

criminal conviction history, the defendant‘s disciplinary record and record of

rehabilitation while incarcerated, and ―[a]ny other evidence the court . . .

determines to be relevant.‖ (Id., subd. (g).)

B.

In October 2010, a California Highway Patrol officer observed defendant

Patrick Lee Conley retrieving tools from the middle of a county road.2

Defendant‘s pickup truck was parked nearby, partially blocking a lane of the road.

Defendant appeared to be intoxicated and smelled of alcohol. At first, defendant

claimed that his son had been driving the truck and had gone to get gas, but later

defendant admitted that he had been the driver. Defendant also admitted that he

had consumed a few cans of malt liquor at his son‘s house. After defendant failed

2 We take the facts from the opinion of the Court of Appeal.

4

a series of field sobriety tests, the highway patrol officer arrested him.

Defendant‘s blood was drawn at a hospital approximately an hour after he was

first stopped. Testing showed defendant‘s blood alcohol content (BAC) was 0.19

percent.

Following a jury trial, defendant was convicted of driving under the

influence of alcohol (Veh. Code, § 23152, subd. (a)) and driving with a BAC level

of 0.08 percent or more (id., § 23152, subd. (b)), with enhancements for refusing

to take a chemical test (id., § 23578).3 The jury also found true allegations that

defendant had four prior convictions for driving under the influence of alcohol

(see Veh. Code, § 23550), that he had served three prior prison terms (Pen. Code,

§ 667.5), and that he had two prior convictions that qualified as strikes under the

Three Strikes law (Pen. Code, § 1170.12). The first prior strike conviction was for

a residential burglary in which defendant — then on parole for a different first

degree burglary that he committed as a juvenile — entered a home, while armed

and wearing a stocking over his face, and assaulted and bound the occupant. The

second prior strike conviction was for a physical altercation in which defendant

stabbed his opponent multiple times. On January 23, 2012, the trial court denied

defendant‘s motion to dismiss one or both strike allegations (see Romero, supra,

13 Cal.4th at p. 504), citing the details of defendant‘s prior offenses, his poor

parole record, and his attempt to evade responsibility for his current offense by

shifting the blame to his son. The court sentenced defendant under the Three

Strikes law to an indeterminate term of 25 years to life (Pen. Code, former

3 Defendant also pleaded no contest to driving with driving privilege

suspended due to a driving-under-the-influence conviction (with three prior

violations within the preceding five years) (Veh. Code, § 14601.2, subd. (a)),

failure to provide proof of insurance (id., § 16028), and driving an unregistered

vehicle (id., § 4000, subd. (a)(1)).

5

§ 1170.12, subd. (c)(2)), plus three consecutive one-year terms for his three prior

prison terms (Pen. Code, § 667.5).

Defendant appealed, raising no issues but asking the Court of Appeal to

independently review the record under People v. Wende (1979) 25 Cal.3d 436.

While defendant‘s appeal was pending, the voters enacted the Reform Act on

November 6, 2012. Two days later, the Court of Appeal issued an opinion

affirming defendant‘s conviction.

Defendant petitioned for rehearing, asking the Court of Appeal to vacate his

sentence and remand the matter to the trial court for resentencing under the new

sentencing provisions of the Three Strikes law. Although the Court of Appeal

initially denied the petition, it later granted rehearing on its own motion to more

fully explain its reasoning. The court noted that, under In re Estrada (1965) 63

Cal.2d 740 (Estrada), courts ordinarily presume that newly enacted legislation

lessening a criminal punishment is intended to apply ―to all cases not yet reduced

to final judgment on the statute‘s effective date.‖ The court concluded, however,

that the Estrada presumption is inapplicable here because the Reform Act includes

a procedure whereby ―persons presently serving an indeterminate term of

imprisonment [under the Three Strikes law]‖ (Pen. Code, § 1170.126, subd. (a))

may file a petition for recall of sentence. Observing that this provision does not

distinguish between persons serving final sentences and those serving nonfinal

sentences, the court concluded that ―[t]hose already sentenced and serving an

indeterminate term of imprisonment must petition the trial court for a recall of

sentence regardless of whether or not their judgment is final.‖

We granted defendant‘s petition for review to resolve a conflict in the

Courts of Appeal about the application of the Reform Act to defendants who had

been sentenced to indeterminate life terms under the previous version of the Three

Strikes law but whose sentences were not yet final when the Act took effect.

6

II.

In answering the question presented, we begin by identifying common

ground. Defendant is a ―person[] presently serving an indeterminate term of

imprisonment‖ under the prior version of the Three Strikes law. (Pen. Code,

§ 1170.126, subd. (a); see, e.g., People v. Buckhalter (2001) 26 Cal.4th 20, 30-31

[a defendant‘s sentence of imprisonment begins to run upon the delivery of the

defendant to the custody of the Director of Corrections], citing Pen. Code, § 2900,

subds. (a), (c).) Therefore, under the plain language of the Reform Act, defendant

is entitled to seek the benefit of the Act‘s reduced penalties by filing a petition to

recall his sentence and requesting resentencing under the new law. (Pen. Code,

§ 1170.126, subd. (b).)

Defendant argues, however, that he and others whose judgments were not

yet final as of the effective date of the Reform Act are entitled to automatic

resentencing under the revised penalty provisions of the Act, without the need to

file a recall petition under Penal Code section 1170.126, and thus without regard

to whether the trial court determines that resentencing the defendant would pose

―an unreasonable risk of danger to public safety.‖ (Id., subd. (f).) He relies for his

argument on this court‘s decision in Estrada, supra, 63 Cal.2d 740, which held

that new laws that reduce the punishment for a crime are presumptively to be

applied to defendants whose judgments are not yet final.

In Estrada, we considered the retroactive application of a statutory

amendment that reduced the punishment prescribed for the offense of escape

without force or violence. ―The problem,‖ we explained, ―is one of trying to

ascertain the legislative intent — did the Legislature intend the old or new statute

to apply? Had the Legislature expressly stated which statute should apply, its

determination, either way, would have been legal and constitutional.‖ (Estrada,

supra, 63 Cal.2d at p. 744.) But in the absence of any textual indication of the

7

Legislature‘s intent, we inferred that the Legislature must have intended for the

new penalties, rather than the old, to apply. (Id. at pp. 744-745.) We reasoned

that when the Legislature determines that a lesser punishment suffices for a

criminal act, there is ordinarily no reason to continue imposing the more severe

penalty, beyond simply ― ‗satisfy[ing] a desire for vengeance.‘ ‖ (Id. at p. 745,

quoting People v. Oliver (1956) 1 N.Y.2d 152, 160.) Thus, we concluded, ―[i]t 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,‖ including ―to acts committed

before its passage[,] provided the judgment convicting the defendant of the act is

not final.‖ (Estrada, supra, 63 Cal.2d at p. 745.)

Because the Estrada rule reflects a presumption about legislative intent,

rather than a constitutional command, the Legislature (or here, the electorate) may

choose to modify, limit, or entirely forbid the retroactive application of

ameliorative criminal-law amendments if it so chooses. Thus, as we explained in

Estrada, the presumption does not govern when the statute at issue includes a

―saving clause‖ providing that the amendment should be applied only

prospectively. (Estrada, supra, 63 Cal.2d at p. 747; see People v. Floyd (2003) 31

Cal.4th 179, 184-188.) And we have since made clear that, while such express

statements unquestionably suffice to override the Estrada presumption, the

―absence of an express saving clause . . . does not end ‗our quest for legislative

intent.‘ ‖ (People v. Nasalga (1996) 12 Cal.4th 784, 793, quoting In re Pedro T.

(1994) 8 Cal.4th 1041, 1049 (Pedro T.).) Our cases do not ―dictate to legislative

drafters the forms in which laws must be written‖ to express an intent to modify or

limit the retroactive effect of an ameliorative change; rather, they require ―that the

Legislature demonstrate its intention with sufficient clarity that a reviewing court

8

can discern and effectuate it.‖ (Pedro T., supra, 8 Cal.4th at pp. 1048-1049;

accord, Nasalga, supra, 12 Cal.4th at p. 793.)

In Pedro T., for example, we concluded that the Estrada presumption did

not govern the interpretation of a ― ‗sunset‘ ‖ provision attached to legislation

increasing the maximum punishment for vehicle theft. (Pedro T., supra, 8 Cal.4th

at p. 1045.) Although the legislation contained no express saving clause, we

concluded that the presumption did not control where the overarching purpose of

the legislation was to temporarily increase, rather than to decrease, the penalties

for the offense. We reaffirmed that, ―[o]rdinarily when an amendment lessens the

punishment for a crime, one may reasonably infer the Legislature has determined

imposition of a lesser punishment on offenders thereafter will sufficiently serve

the public interest.‖ (Ibid.) But we concluded that ―[i]n the case of a ‗sunset‘

provision attached to a temporary enhancement of penalty, the same inference

cannot so readily be drawn.‖ (Ibid.; see id. at pp. 1045–1046.) We further

reasoned that giving controlling weight to the Estrada presumption would have

―practical effect[s]‖ the Legislature could not have intended: It would both

undermine ―[t]he utility of a three-year legislative experiment in enhanced

penalties‖ and ―provide a motive for delay and manipulation in criminal

proceedings.‖ (Pedro T., at pp. 1046–1047.)

Here, a similar set of interpretive considerations persuades us that the

voters who passed the Reform Act did not intend to authorize automatic

resentencing for third strike defendants serving nonfinal sentences imposed under

the former version of the Three Strikes law. First, unlike the statute at issue in

Estrada, supra, 63 Cal.2d 740, the Reform Act is not silent on the question of

retroactivity. Rather, the Act expressly addresses the question in section

1170.126, the sole purpose of which is to extend the benefits of the Act

retroactively. Section 1170.126 creates a special mechanism that entitles all

9

persons ―presently serving‖ indeterminate life terms imposed under the prior law

to seek resentencing under the new law. By its terms, the provision draws no

distinction between persons serving final sentences and those serving nonfinal

sentences, entitling both categories of prisoners to petition courts for recall of

sentence under the Act.

The Estrada rule rests on an inference that, in the absence of contrary

indications, a legislative body ordinarily intends for ameliorative changes to the

criminal law to extend as broadly as possible, distinguishing only as necessary

between sentences that are final and sentences that are not. (See Estrada, supra,

63 Cal.2d at p. 745.) In enacting the recall provision, the voters adopted a

different approach. They took the extraordinary step of extending the retroactive

benefits of the Act beyond the bounds contemplated by Estrada — including even

prisoners serving final sentences within the Act‘s ameliorative reach — but

subject to a special procedural mechanism for the recall of sentences already

imposed. In prescribing the scope and manner of the Act‘s retroactive application,

the voters did not distinguish between final and nonfinal sentences, as Estrada

would presume, but instead drew the relevant line between prisoners ―presently

serving‖ indeterminate life terms — whether final or not — and defendants yet to

be sentenced.

Second, the nature of the recall mechanism and the substantive limitations

it contains call into question the central premise underlying the Estrada

presumption: that when an amendment lessens the punishment for a crime, it is

reasonable to infer that the enacting legislative body has categorically determined

that ―imposition of a lesser punishment‖ will in all cases ―sufficiently serve the

public interest.‖ (Pedro T., supra, 8 Cal.4th at p. 1045.)

There can be no doubt that the Reform Act was motivated in large measure

by a determination that sentences under the prior version of the Three Strikes law

10

were excessive. As the ballot materials argued, ―[p]eople convicted of shoplifting

a pair of socks, stealing bread or baby formula don‘t deserve life sentences.‖

(Voter Information Guide, Gen. Elec. (Nov. 6, 2012), rebuttal to argument against

Prop. 36, p. 53.) But voters were motivated by other purposes as well, including

the protection of public safety. The ballot materials explained that ―dangerous

criminals are being released early from prison because jails are overcrowded with

nonviolent offenders who pose no risk to the public.‖ (Ibid.) Voters were told

that the Reform Act would protect public safety by ―prevent[ing] dangerous

criminals from being released early‖ (ibid.) and would have no effect on ―truly

dangerous criminals‖ (id., argument in favor of Prop. 36, p. 52).

The recall procedures in Penal Code section 1170.126 were designed to

strike a balance between these objectives of mitigating punishment and protecting

public safety by creating a resentencing mechanism for persons serving

indeterminate life terms under the former Three Strikes law, but making

resentencing subject to the trial court‘s evaluation of whether, based on their

criminal history, their record of incarceration, and other relevant considerations,

their early release would pose an ―unreasonable risk of danger to public safety.‖

(Id., subd. (f).)

Where, as here, the enacting body creates a special mechanism for

application of the new lesser punishment to persons who have previously been

sentenced, and where the body expressly makes retroactive application of the

lesser punishment contingent on a court‘s evaluation of the defendant‘s

dangerousness, we can no longer say with confidence, as we did in Estrada, that

the enacting body lacked any discernible reason to limit application of the law

with respect to cases pending on direct review. On the contrary, to confer an

automatic entitlement to resentencing under these circumstances would undermine

the apparent intent of the electorate that approved section 1170.126: to create

11

broad access to resentencing for prisoners previously sentenced to indeterminate

life terms, but subject to judicial evaluation of the impact of resentencing on

public safety, based on the prisoner‘s criminal history, record of incarceration, and

other factors. This public safety requirement must be applied realistically, with

careful consideration of the Reform Act‘s purposes of mitigating excessive

punishment and reducing prison overcrowding. But given that section 1170.126,

by its terms, applies to all prisoners ―presently serving‖ indeterminate life terms,

we can discern no basis to conclude that the electorate would have intended for

courts to bypass the public safety inquiry altogether in the case of defendants

serving sentences that are not yet final.

Finally, unlike in Estrada, the revised sentencing provisions at issue in this

case do more than merely reduce previously prescribed criminal penalties. They

also establish a new set of disqualifying factors that preclude a third strike

defendant from receiving a second strike sentence. (See Pen. Code, § 1170.12,

subd. (c)(2)(C).) The sentencing provisions further require that these factors be

―plead[ed] and prove[d]‖ by the prosecution. (Ibid.)

These provisions add an additional layer of complexity to defendant‘s

request for automatic resentencing under the revised penalty scheme. In cases

arising after the Reform Act‘s effective date, operation of the pleading-and-proof

requirements is straightforward enough. But for defendants who have already

been tried and sentenced, the matter would be considerably more complicated.

Before the Reform Act, prosecutors may have had no reason to plead and prove

the new disqualifying factors in a particular case. Take, for example, the

application of the ―armed with a firearm‖ disqualifying factor (Pen. Code,

§ 1170.12, subd. (c)(2)(C)(iii)) in the case of a prisoner serving an indeterminate

life term for possessing a firearm as a felon. (Pen. Code, § 29800, subd. (a); cf.

People v. White (2014) 223 Cal.App.4th 512.) Case law holds that possession of a

12

firearm does not necessarily imply being armed; ―a convicted felon may be found

to be a felon in possession of a firearm if he or she knowingly kept a firearm in a

locked offsite storage unit even though he or she had no ready access to the

firearm and, thus, was not armed with it.‖ (White, at p. 524.) Before the Reform

Act, the prosecution ordinarily would have had no reason to plead and prove that

the defendant was actually armed with, not merely in possession of, the firearm;

arming is not an element of the offense, and case law suggests that the armed-

with-a-firearm enhancement (Pen. Code, § 12022, subd. (a)) does not apply to the

offense of felon in possession of a firearm (see People v. Hicks (2014) 231

Cal.App.4th 275, 283-284). Thus, if the Reform Act version of the Three Strikes

law applied retroactively to a defendant who was appealing a felon-in-possession

conviction, then the defendant might receive a second strike sentence without the

prosecution ever having had occasion to plead and prove that the defendant was

disqualified from receiving that sentence on account of being armed with, not just

in possession of, the firearm.

Similar difficulties would arise in applying the ―intent to cause great bodily

injury‖ disqualifying factor. (Pen. Code, § 1170.12, subd. (c)(2)(C)(iii).) Before

the Reform Act became law, the prosecution ordinarily would have had no reason

to plead and prove a defendant‘s intent to cause great bodily injury. (Cf. Pen.

Code, § 12022.7 [creating an enhancement for inflicting great bodily injury].)4

Thus, much as in the case of the ―armed with a firearm‖ factor, if the Reform Act

version of the Three Strikes law applied retroactively to a defendant who was

4 Penal Code section 12022.7 at one time included a specific intent

requirement (see People v. Colantuono (1994) 7 Cal.4th 206, 222), but that

requirement was deleted from the statute in 1995 (Stats. 1995, ch. 341, § 1,

p. 1851).

13

appealing a conviction involving the infliction of great bodily injury, the defendant

might receive a second strike sentence without the prosecution ever having had

occasion to plead and prove that the defendant was actually disqualified from

receiving that sentence under section 1170.12, subdivision (c)(2)(C).

In short, application of the Reform Act‘s revised sentencing scheme would

not be so simple as mechanically substituting a second strike sentence for a

previously imposed indeterminate life term. Unless defendants were to be

resentenced solely based on the existing trial court record — leaving the

prosecution without the opportunity to plead and prove the presence of

disqualifying factors or offenses that have become newly relevant under the Act

— trial courts presumably would have to permit prosecutors to hold mini-trials for

the sole purpose of determining whether, for example, the defendant‘s offense of

conviction involved arming with a firearm or an intent to cause great bodily injury

(see Pen. Code, § 1170.12, subd. (c)(2)(C)(iii)).

As defendant points out, such single-issue trials would not be

unprecedented. (See People v. Figueroa (1993) 20 Cal.App.4th 65 [setting aside

the jury‘s true finding on an enhancement after an amendment to the law narrowed

the enhancement‘s scope, but remanding to permit the prosecution to prove the

enhancement as more narrowly defined].) But the question before us is not

whether such trials are possible. The question is whether this is the system the

voters intended to create, though no provision of the Act contains any affirmative

indication to that effect. We find it difficult to escape the conclusion that the Act

does not address the complexities involved in applying the pleading-and-proof

requirements to previously sentenced defendants precisely because the electorate

did not contemplate that these provisions would apply. Rather, voters intended for

previously sentenced defendants to seek relief under section 1170.126, which

14

contains no comparable pleading-and-proof requirements. (See Pen. Code,

§ 1170.126, subd. (e)(2), (3).)

III.

Defendant objects that this analysis is inconsistent with Estrada, supra, 63

Cal.2d 740, which he reads to mean that ―a defendant whose judgment is not final

is entitled to the benefit of a lighter penalty in the absence of a clear indication to

the contrary.‖ Defendant argues that in the absence of an express statement that

section 1170.126 was meant to provide the exclusive means for defendants with

nonfinal sentences to seek resentencing under the Act, section 1170.126 should be

understood as supplementing, rather than supplanting, such defendants‘

entitlement to automatic resentencing. He further argues that the recall provision

expressly preserves this ―right‖ in subdivision (k), which states that ―[n]othing in

this section is intended to diminish or abrogate any rights or remedies otherwise

available to the defendant.‖ (Pen. Code, § 1170.126, subd. (k).) Neither argument

is persuasive.

As noted, our decision in Estrada, supra, 63 Cal.2d 740, recognizes that the

retroactive application of ameliorative changes to the criminal laws is ultimately

governed by the intent of the legislative body. And we have expressly rejected the

notion that Estrada ―dictate[s] to legislative drafters the forms in which laws must

be written to express the legislative intent.‖ (Pedro T., supra, 8 Cal.4th at

pp. 1048-1049.) ―[W]hat is required is that the Legislature demonstrate its

intention with sufficient clarity that a reviewing court can discern and effectuate

it.‖ (Id. at p. 1049.) As explained above, the text, structure, and purposes of the

Act all lead to the conclusion that the electorate meant what it said when it

approved section 1170.126: Prisoners presently serving indeterminate life terms

imposed under the prior version of the Three Strikes law, including those with

nonfinal judgments, may seek resentencing under the Act, but subject to judicial

15

determination of whether resentencing would pose an unreasonable danger to the

public.

That being the case, section 1170.126, subdivision (k) cannot help

defendant‘s argument. Subdivision (k) contains no indication that automatic

resentencing — as opposed to, for example, habeas corpus relief — ranks among

the ―rights‖ the electorate sought to preserve. A careful reading of the statute

points to the opposite conclusion: The voters authorized defendant and others

similarly situated to seek resentencing under the recall provisions of section

1170.126, but they did not intend to confer a right to automatic resentencing under

the amended penalty provisions of the Reform Act.5

IV.

We affirm the judgment of the Court of Appeal.

KRUGER, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

5 Defendants with nonfinal judgments who did not file petitions for recall of

sentence within the mandated two-year period (see Pen. Code, § 1170.126, subd.

(b)) because they were litigating the question of automatic resentencing will

generally have good cause for filing late petitions (ibid.), and therefore they will

not be deprived of the resentencing mechanism that the electorate created for

them.

16

CONCURRING OPINION BY WERDEGAR, J.

I concur in the court‘s decision that defendant, who was serving a third-strike

life term when the Three Strikes Reform Act of 2012 (Prop. 36, as approved by

voters, Gen. Elec. (Nov. 6, 2012) (Reform Act or act)) took effect, may seek relief

under the act only through the statutory procedure for recalling the sentence (Pen.

Code, § 1170.126)1 even though his judgment of conviction was not yet final.

Because I concur, I also necessarily agree that In re Estrada (1965) 63 Cal.2d 740

(Estrada) does not require a different result. As the author of the court‘s opinion

in In re Pedro T. (1994) 8 Cal.4th 1041 (Pedro T.), and the only current member

of the court who participated in that case, I write separately to explain its

significance.

To conclude that Estrada, supra, 63 Cal.2d 740, does not govern our

interpretation of the Reform Act is a relatively straightforward exercise. Estrada

articulates a presumption of statutory construction: ―[A]n amendatory statute

lessening punishment is presumed to apply in all cases not yet reduced to final

judgment as of the amendatory statute‘s effective date‖ (People v. Floyd (2003) 31

Cal.4th 179, 184, citing Estrada, at p. 744), unless the enacting body ―clearly

signals its intent to make the amendment prospective, by the inclusion of either an

express savings clause or its equivalent‖ (People v. Nasalga (1996) 12 Cal.4th

1 All further statutory citations are to the Penal Code.

784, 793 (Nasalga), citing Estrada, at p. 747). A savings clause is a provision in

which the lawmakers articulate how the amended law is to apply, if at all, to cases

decided under the prior law. This is precisely the effect of the Reform Act‘s

provision for recalling sentences. The recall provision offers, to all ―persons

presently serving an indeterminate term of imprisonment‖ (§ 1170.126, subd. (a))

under the Three Strikes law (§§ 667, subds. (b)–(i), 1170.12), an opportunity to

seek sentence reductions, without regard to whether the judgments underlying

those sentences are final or not. (See maj. opn., ante, at pp. 7, 9–10.) Thus, the

recall provision both functions as a saving clause and clearly signals the drafters‘

intent that the revised penalty provisions apply prospectively. (See maj. opn.,

ante, at p. 10.)

In contrast to the Reform Act and the statute at issue in Estrada, supra, 63

Cal.2d 740, the law we construed in Pedro T., supra, 8 Cal.4th 1041, expressly

declared the Legislature‘s intention not to mitigate, but rather to ― ‗enhance . . .

penalties.‘ ‖ (Id. at p. 1046, quoting Stats. 1989, ch. 930, § 1, p. 3247, italics

added.) Enacted to support ―an experimental study of the deterrent effect of

enhanced penalties‖ (Pedro T., at p. 1046), the statute temporarily increased the

punishment for vehicle thefts committed within a three-year period, and then

automatically reinstated the prior, lower punishment for offenses committed

thereafter through a ― ‗sunset‘ ‖ provision. (Id. at p. 1043.) Asked whether

Estrada, supra, 63 Cal.2d 740, required retroactive application of the sunset

provision, we concluded it did not. The sunset provision did not include a savings

clause or its equivalent. But retroactive sentence reductions would have

compromised the experiment‘s validity, and thus defeated the statute‘s purpose, by

reducing the data set from a three-year sample of offenders to a smaller sample

―comprised only of those whose convictions happened to become final before the

sunset date of the increased penalties.‖ (Pedro T., at p. 1046.) In other words,

2

applying the Estrada presumption would have violated the important rule that we

do not interpret legislation in a manner that would render it ―an idle act‖ by the

Legislature or ―a nullity.‖ (California Teachers Assn. v. Governing Bd. of Rialto

Unified School Dist. (1997) 14 Cal.4th 627, 634.)

This was the context for our observation in Pedro T., supra, 8 Cal.4th 1041,

that, ―[d]espite broad language in Estrada regarding the necessity of express

saving clauses, . . . courts [cannot] dictate to legislative drafters the forms in which

laws must be written to express the legislative intent. Rather, what is required is

that the Legislature demonstrate its intention with sufficient clarity that a

reviewing court can discern and effectuate it.‖ (Pedro T., at pp. 1048–1049, fn.

omitted.) While we thus declined to apply the Estrada presumption to defeat the

purpose of a statute expressly intended to increase penalties, we did not abandon

the presumption or replace it with a holistic inquiry into legislative intent

concerning prospective versus retroactive operation. Indeed, just two years after

Pedro T., this court strongly reaffirmed Estrada and pointedly declined the

Attorney General‘s invitation to abrogate it. (Nasalga, supra, 12 Cal.4th at p. 792

& fn. 7.) Neither does today‘s decision abrogate Estrada.

Estrada, supra, 63 Cal.2d 740, has now governed our application of

statutes reducing punishment for half a century. Our consistent application of the

presumption articulated in that case assists the state‘s lawmakers in predicting and

controlling the manner in which statutes mitigating punishment are applied. As

explained above, I view the court‘s decision as consistent with our prior decisions

on the subject, and on that basis I concur.

WERDEGAR, J.

WE CONCUR:

LIU, J.

CUÉLLAR, J.

3

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Conley

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 211 Cal.App.4th 953

Rehearing Granted

__________________________________________________________________________________

Opinion No. S211275

Date Filed: June 30, 2016

__________________________________________________________________________________

Court: Superior

County: Yolo

Judge: Stephen L. Mock

__________________________________________________________________________________

Counsel:

Patrick Lee Conley, in pro. per.; and Carol Foster, under appointment by the Supreme Court, for Defendant

and Appellant.

Michael S. Romano for Three Strikes Project as Amicus Curiae on behalf of Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P.

Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan P. Marrs, Deputy Attorneys General,

for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Carol Foster

Central California Appellate Program

2407 J Street, Suite 301

Sacramento, CA 95816

(916) 441-3792

Ivan P. Marrs

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-2550

(916) 324-0069