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People v. Conley

Supreme Court of California

June 30, 2016

THE PEOPLE, Plaintiff and Respondent,
v.
PATRICK LEE CONLEY, Defendant and Appellant.

         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         Under the "Three Strikes" law as originally enacted in 1994, an individual convicted of any felony offense following two prior convictions for serious or violent felonies was subject to an indeterminate term of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 ...


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