Yolo
County Super. Ct. No. CRF113234, Ct.App. 3 C070272
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.
Kruger, J.
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the "Three Strikes" law as originally enacted in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
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
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).)
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 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
§ 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 ...