(Super. Ct. No. DF10407A) APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge.
The opinion of the court was delivered by: Levy, J.
CERTIFIED FOR PUBLICATION
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.)*fn1 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 post-conviction 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.
Resolution of this issue requires us to decide if the amendments to sections 667 and 1170.12 apply retroactively to prisoners who were sentenced prior to the Act's effective date but whose judgments were not final as of that date. We conclude that the common law doctrine embraced by the California Supreme Court in In Estrada (1965) 63 Cal.2d 740 (Estrada) does not apply because section 1170.126 operates as the functional equivalent of a saving clause.*fn2 The voters intended for the amendments to sections 667 and 1170.12 to operate prospectively only. Section 1170.126 is not ambiguous. It applies to prisoners, like appellant, whose judgments were not final on the Act's effective date. Failure to accord retroactive effect to amended sections 667 and 1170.12 does not violate appellant's constitutional equal protection rights. The judgment will be affirmed.
It is important to recognize that prospective-only application of the amendments to sections 667 and 1170.12 does not withhold from appellant a reduction in punishment. When the judgment is final, he can file a petition for a recall of his sentence in compliance with section 1170.126. Absent a finding by the trial court that appellant poses an unreasonable risk of danger to public safety, he will receive the same sentencing reduction that he would have obtained if had been resentenced under amended sections 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 effective date to comply with section 1170.126 provides the trial court with a limited capacity to protect the public in specific cases where reduction of a prisoner's sentence would create an unreasonable safety risk.
On February 3, 2011, appellant was an inmate at Kern Valley State Prison.*fn3 He and another inmate began fighting with a third inmate. Correctional staff ordered the inmates to lie down on the ground. Appellant ran approximately 10 yards before lying on the ground. A correctional officer observed appellant throw an object five to seven feet in front of him. The object was photographed and collected. It was a bindle containing three packages of marijuana. The marijuana had an aggregate weight of 3.16 grams.
On July 8, 2011, an information was filed charging appellant with one count of unauthorized possession of marijuana in prison (count 1). (§ 4573.6.) It was specially alleged that appellant had suffered two prior strike convictions and served two prior prison terms. (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e), 667.5, subd. (b).) The prior strikes resulted from convictions for robbery and assault with a semiautomatic firearm on a peace officer. (§§ 211, 245, subd. (d)(2).)
Appellant pled not guilty and denied all the special allegations.
A bifurcated jury trial was held in September of 2011. Appellant was found guilty of count 1; the jury sustained both of the strike priors and one of the prison priors.
On October 24, 2011, the court denied probation and imposed a sentence of 25 years to life plus one year to be served consecutive to the sentence imposed for Los Angeles County Superior Court case No. BK5743896.
Appellant filed a timely notice of appeal on October 25, 2011.
I. The Amendments to Sections 667 and 1170.12 Do Not ...