California Court of Appeals, Fourth District, Third Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
Appeal from a judgment of the Superior Court of
Orange County, No. 11CF2494, Sheila Hanson, Judge.
[Copyrighted Material Omitted]
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant guilty of domestic battery resulting in a traumatic condition, a felony (Pen. Code, § 273.5, subd. (a)),  and misdemeanor assault (§ 240). In a bifurcated proceeding, the court found true that defendant was previously convicted of two prior strikes (§§ 667, subds. (d), (e)(2)(A), 1170.12, subd. (b)(C)(2)(A)), both of which were robberies (§ 211), and three prison priors (§ 667.5, subd. (b)). The court struck the prison priors and sentenced defendant to an indeterminate prison term of 25 years to life pursuant to the “Three Strikes” law then in effect.
This appeal concerns only defendant’s sentencing. Less than one month after defendant was sentenced, and thus before the judgment was final, the California electorate approved Proposition 36, the Three Strikes Reform Act of 2012 (Reform Act), which provides that, with certain exceptions, a three strike term of 25 years to life may be imposed only if the defendant’s current offense is a serious or violent felony. Domestic battery resulting in a traumatic condition is not deemed a serious or violent felony. (see §§ 667.5, subd. (c), 1192.7, subd. (c).) Defendant contends that under the analysis set forth in In re Estrada (1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948] (Estrada), the more lenient sentencing change applies retroactively to defendant and he is entitled to be resentenced. We agree and remand for resentencing.
Defendant also contends his presentence conduct credits for time served should have been calculated under the amendment to section 4019, effective October 1, 2011, which provides a one-for-one ratio of time served to credit, as opposed to the previous one-for-two ratio. We disagree.
Defendant is Entitled to Resentencing Under the Amended Three Strikes Law
“On November 6, 2012, voters approved the Reform Act, and it went into effect the next day. [Citation.] The Reform Act amended the Three Strikes law so that an indeterminate term of 25 years to life in prison is applied only where the ‘third strike’ conviction is a serious or violent felony, or where the prosecution pleads and proves other specific factors.” (People v. Wortham (2013) 220 Cal.App.4th 1018 [163 ...