California Court of Appeals, Fourth District, Third Division
Appeal from a postjudgment order of the Superior Court of Orange County, No. 95NF1169 W. Michael Hayes, Judge.
[Copyrighted Material Omitted]
Law Offices of Dennis A. Fischer, Dennis A. Fischer, John M. Bishop and Brandon Fischer for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis, Warren Williams and Scott Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
In 1996, a jury convicted defendant Scott Anthony Smith of possessing methamphetamine for sale and the sale or transportation
of it. The trial court found true allegations defendant had five prior burglary convictions and sentenced him under the “Three Strikes” law to 25 years to life on count 1 and stayed the sentence on count 2. In an unpublished decision, this court affirmed the judgment. (People v. Smith (June 18, 1998, G020521) [nonpub. opn.].)
In the present case, defendant contends he is entitled to automatic resentencing under Proposition 36, the Three Strikes Reform Act of 2012 (Act). The Act changed “the Three Strikes law so that an indeterminate life sentence may only be imposed where the offender’s third strike is a serious and/or violent felony or where the offender is not eligible for a determinate sentence based on other disqualifying factors. (Pen. Code, §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).) The Act also enacted section 1170.126, establishing a procedure for an offender serving an indeterminate life sentence for a third strike conviction that is not defined as a serious and/or violent felony to file a petition for recall of sentence.” (Teal v. Superior Court (2014) 60 Cal.4th 595, 596-597 [179 Cal.Rptr.3d 365, 336 P.3d 686], fn. omitted (Teal).) Penal Code section 1170.126 applies “exclusively to persons presently serving” a three strikes indeterminate sentence of 25 years to life (Pen. Code, § 1170.126, subd. (a); all further statutory references are to the Penal Code), but gives the trial court discretion not to resentence a person who “would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)
Had defendant been sentenced after the Act became effective, he would not have been subject to an indeterminate life sentence because his commitment offenses for the transportation or sale, and possession of methamphetamine for sale were not serious or violent felonies. (Teal, supra, 60 Cal.4th at pp. 596-597; §§ 667, subd. (e)(2)(C), 1170.12, subd. (e)(2)(C).) Thus, he petitioned under section 1170.126 to have his original sentence recalled and to be resentenced as a second strike offender. The court denied the petition after determining defendant was not entitled to relief because he had committed violent acts while incarcerated and thus “present[ed] a danger to the public.” Defendant does not challenge this finding.
Rather, defendant contends he is entitled to automatic resentencing as a person with two strikes under the amendments to sections 667 and 1170.12 because: (1) statutory amendments mitigating punishment should be applied retroactively absent a savings clause or other indications of a different legislative intent; (2) denying him that benefit would violate his right to equal protection under the state and federal Constitutions; and (3) his sentence would otherwise be “unusual” under the California Constitution. We reject defendant’s contentions.
Shortly before oral argument, defendant submitted a letter brief, positing the question of whether the definition of an “unreasonable risk of danger to public safety” contained in the recently adopted initiative measure Proposition 47, effective November 5, 2014, the Safe Neighborhoods and Schools Act, applied to section 1170.126, subdivision (f). We ordered supplemental briefing on the issue, which the parties provided. ...