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Superior Court of Los Angeles County, Nos. YA038015,
YA036692, William C. Ryan, Judge.
Court of Appeal, Second Appellate District, Division
Three, No. B249651 & Division One, No. B249557.
Suzan E. Hier, under appointment by the Supreme Court, for Defendant and Appellant Timothy Wayne Johnson.
Larry Pizarro, under appointment by the Supreme Court, for Defendant and Appellant Oscar Machado.
Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson, Shawn McGahey Webb, Noah P. Hill, Jonathan J. Kline and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Cantil-Sakauye, C. J., with Werdegar, Chin, Corrigan, Liu, Cué llar, and Kruger, JJ., concurring.
[189 Cal.Rptr.3d 795] [352 P.3d 367]
CANTIL-SAKAUYE, C. J.
On November 6, 2012, the electorate passed Proposition 36, the Three Strikes Reform Act of 2012 (Proposition 36 or the Act). Proposition 36 reduced the punishment to be imposed with respect to some third strike offenses that are neither serious nor violent, and provided for discretionary resentencing in some cases in which third strike sentences were imposed with respect to felonies that are neither serious nor violent.
We granted review to resolve two issues related to the Act's resentencing provisions. First, in People v. Johnson (S219454), we address for purposes of resentencing a defendant whether the classification of an offense as a serious or violent felony is determined as of November 7, 2012, the effective date of Proposition 36, or the law in effect when the offense was committed. Second, in People v. Machado (S219819), we address whether an inmate who was convicted of both a serious or violent felony and a felony that is neither serious nor violent is eligible for resentencing with respect to the felony that is neither [189 Cal.Rptr.3d 796] serious nor violent. For the reasons set forth below, we hold that when a court resentences a third strike defendant the classification of the current offense is based on the law as of the effective date of Proposition 36, and that the presence of a conviction of a serious or violent felony does not disqualify an inmate [189 Cal.Rptr.3d 797] from resentencing with respect to a current offense that is neither serious nor violent.
In 1998, a jury convicted Timothy Wayne Johnson of two counts of attempting to dissuade a witness. (Pen. Code, § 136.1, subd. (a)(2); all further statutory references are to the Penal Code unless otherwise noted.) The jury also found that he had suffered three prior convictions--robbery (§ 211), first degree burglary (§ 459), and assault with a firearm (§ 245, subd. (a)(2)). Based on Johnson's prior convictions, the trial court sentenced him to two terms of 25 years to life under the " Three Strikes" law (§ § 667, subd. (e)(2), 1170.12, subd. (c)(2)), to be served concurrently, and an additional term [352 P.3d 368] of three years for the three prior prison terms (§ 667.5, subd. (b)).
In 1998, a jury convicted Oscar Machado of one count of first degree burglary and one count of second degree burglary. (§ § 459, 460.) The trial court found true the allegation that he had suffered two prior convictions, both for robbery (§ 211), and sentenced him to two terms of 25 years to life, to be served consecutively. (§ § 667, subds. (c)(6), (e)(2), 1170.12, subds. (a)(6), (c)(2).)
As noted, in 2012, the electorate passed Proposition 36. The Act authorizes prisoners serving third strike sentences whose " current" offense (i.e., the
offense for which the third strike sentence was imposed) is not a serious or violent felony to petition for recall of the sentence and for resentencing as a second strike case. (See § 1170.126, subd. (f); see also § § 667, subd. (e)(1), 1170.12, subd. (c)(1).)
Following the enactment of Proposition 36, Johnson filed a petition for recall of his sentence. The trial court denied his petition on the ground that his current offenses are serious or violent felonies, rendering him ineligible for recall of his sentence. Although his current offenses were not classified as serious or violent felonies when he committed them in 1998, the crime of intimidating a victim or witness (§ 136.1) was subsequently classified as a serious and violent felony by Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, which the voters approved in 2000. (§ § 667.5, subd. (c)(20), 1192.7, subd. (c)(37).) The Court of Appeal agreed that a prisoner whose current offense was a serious or violent offense on November 7, 2012, the effective date of Proposition 36, is not eligible for resentencing, and affirmed the order.
Machado filed a petition for recall of his sentence for second degree burglary. The trial court denied his petition on the ground that his conviction for first degree burglary, which is a serious felony, rendered him ineligible for resentencing with respect to his second degree burglary conviction, which is neither serious nor violent. The Court of Appeal reversed that judgment, and directed the trial court to reconsider his eligibility for resentencing with respect to his conviction for second degree burglary.
For the reasons set forth below, we hold that when a court resentences a third strike defendant the classification of an offense as serious or violent is based on the law as of November 7, 2012, the effective date of Proposition 36, and that the presence of a current offense that is serious or violent does not disqualify an inmate from resentencing with respect to a current offense that is neither serious nor violent. Therefore, we affirm the appellate court judgments in both of these cases.
A. The Act
Prior to its amendment by the Act, the Three Strikes law required that a defendant who had two or more prior convictions of violent or serious felonies receive a third strike sentence of a minimum of 25 years to life for any current felony conviction, even if the current offense was neither serious nor ...