PEOPLE v. CONLEY

Appellant’s Petition for Review

Cal.June 10, 2013

$211275 IN THE SUPREME COURT OF THESTATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, VS. PATRICK LEE CONLEY, Defendant and Appellant. ) SUPREME COURT FILED Ss JUN 10 2013 Court of Appealx_nina Frank A. McGuire Clerk ) Deputy ) Superior Court No. [ ) CRF113234 ) On Appeal from the Judgment and Orderofthe Superior Court of California, Yolo County Honorable Stephen L. Mock, Judge PETITION FOR REVIEW After Decision by the Court ofAppeal Third Appellate District Filed and Certified for Partial Publication on May 2, 2013 . CENTRAL CALIFORNIA APPELLATE PROGRAM George Bond Executive Director Carol Foster Staff Attorney State Bar No. 127962 2407 J Street, Suite 301 Sacramento, CA 95816 Tel: (916) 441-3792 Email: cfoster@capcentral.org Attorneys for Appellant/Petitioner IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, ~ Plaintiff and Respondent, vs. PATRICK LEE CONLEY, Defendant and Appellant. Ss Court of Appeal No. C070272 Superior Court No. CRF113234 On Appeal from the Judgment and Orderofthe Superior Court of California, Yolo County Honorable Stephen L. Mock, Judge PETITION FORREVIEW After Decision by the Court of Appeal Third Appellate District Filed and Certified for Partial Publication on May2, 2013 CENTRAL CALIFORNIA APPELLATE PROGRAM George Bond Executive Director Carol Foster Staff Attorney State Bar No. 127962 2407 J Street, Suite 301 Sacramento, CA 95816 Tel: (916) 441-3792 Email: cfoster@capcentral.org Attorneys for Appellant/Petitioner TABLE OF CONTENTS Page PETITION FOR REVIEW ...... 0. ccc cc eee ee eee ees 1 ISSUE PRESENTED ........ 0-00 cece eee eee eee eee e ee eens 1 NECESSITY FOR REVIEW ......... 0.0 c cece ee eee eee eee neces 2 STATEMENT OF CASE ....... 0. cece eee eee enter ene 3 STATEMENT OF FACTS ........ 00. cece cee eee een ee eens 4 ARGUMENT ....... ccc cece ee ect eee eee erent eee eee nee 5 I. The Ameliorative Amendments To Sections 667 And 1170.12 Apply To Criminal Judgments Which Were Not Yet Final As OfThe Three Strikes Reform Act’s Effective Date .... 0...eeeee eens 5 A. Background. ...........0 0c eee teen eee eee es 5 B. Underthe Estrada rule, sections 667(e)(2)(C) and 1170.12 (c)(2)(C) apply to defendants whose judgments werenot yet final on the effective date ofthe Act 00... . ccc eee eee eee eee 6 C. Sections 667 and 1170.12 do not contain express savings clauses precluding application ofEstrada to nonfinal cases. ....... cee eee cee eee eee 8 D. Section 1170.126 and the Estrada rule are not mutually exclusive, incompatable remedies ........ 9 E, Subdivision (k) of Section 1170.126 explicitly preserves application of the Estrada rule ......... 14 TABLE OF CONTENTS(cont) Page F, Thelegislative history of the 2012 Three Strikes Reform Act contains a clear expression of voter intent that the Estrada rule should apply to criminal judgmentsthat were notfinal as of the Act’s effective date 2.0... ice eee ee eens 15 CONCLUSION ......... cece cee eee ee een en een ne eens 19 Certificate of Appellate Counsel Pursuant to rule 8.204 (c)(1) of the California Rules of Court ......... 21 ii TABLE OF AUTHORITIES Page CASES City ofSan Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597 2...ceette eens 9 Curle v. Superior Court. (2001) 24 Cal.4th 1057 2...ceeee eee 15 In re Estrada (1965) 63 Cal.2d 740. 0... 0. eeeeee ee 1, passim In re Lance W. (1985) 37 Cal.3d 873, 890 .... eee ee eee eee 16 People v. Brown (2012) 54 Calh4" 314 ooc ec ecee ee e eee ee eee 7 People v. Floyd (2003) 31 Cal.47 179 oo.ccceee eee ee 8,9, 16 People v. Gilbert (1969) 1 Cal.3d 475 2...cece ee eee 15 People v. Hernandez . (2003) 30 Cal.4th 835 2...eeeee ce eee 9 People v. Lewis (2013) _Cal.App.4th____ [Slip Opn. 9-18] ........... 2, passim People v. Nasalga (1996) 12 Cal. 4" 784 2...ccceee 7, passim People v. Wende ee eeeee 4(1979) 25 Cal.3d 436... cece cece e eee ee eee es ili TABLE OF AUTHORITIES(cont) Page People v. Wright (2006) 40 Cal.4™ 81, 1... ccc cece eee ee eee e teen ee .8 People v. Yearwood (2013) 213 Cal.App.4th 161.0... 0. cee ee eee 2, passim Teague v. Lane (1989) 489 U.S. 288 2.6ceeee ene 8 STATUTES Penal Code I7 01,passim § 667, subd. (d) 2... eee ccc cc eee teen eens 3 § 667, subd. (€).. 2... eee ee eeeeee ee een ene e eens 3 § 667, subds. (€)(1) .... eeeee cee eee eee eens 6 § 667, subd. (€)(2) .cceecccceeceeeeees acne ee eee eee e ens 10 § 667, subds. (e)(2)(C) oecee eee eee eee 5, passim § 667.5 Loc ccc ec ence eee teen ene n eee enee 3, 19 SCUs1,passim §1170.12, subds. (C)(1) 2... ceeeeeeee eee eee 6 iv TABLE OF AUTHORITIES(cont) Page § 1170.12, subds. (c)(2)(C) cee cece cence tne eenees 5, passim § 1170.126 2.cccece eee en eeee 2, passim § 1170.126, subd. (a) 2...cece eee eee eee 10 § 1170.126, subd. (b) 2...ccc eee eee eee 11 § 1170.126, subd. (b)-(g) 2...cc cee ence eens 14 § 1170.126, subd. (kK) ............00..eee eee eee 14, 15, 19 Vehicle Code § 23152, subd. (a)...eee eee eee een eens 3,5 § 21351, subd. (b) 0.eeeec eee nee 5-6 § 23550.ceeete eee eee een een eees 3 § 23578occee eee eecece eee tence eee eees 3 RULES California Rules of Court rule 8.204 (c)(1) 2... eeecece ce eee een eee ees 21 tule 8.500(b)(1) «1.2... cece eee eeecece eee cece e eee ee ens 2 OTHER AUTHORITY Voter Information Guide, Gen. Elec. (Nov. 6, 2012) .............. 5, 18 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE ) OF CALIFORNIA, ) ) Plaintiff and Respondent, ) S ) vs. ) Court of Appeal ) No. C070272 PATRICK LEE CONLEY, ) ) Superior Court No. Defendant and Appellant. ) . CRF113234 PETITION FOR REVIEW TO: THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Appellant, Patrick Lee Conley, by and through his counsel, petitions this court for review of the above entitled matter after decision, certified for partial publication, rendered by the Court of Appeal, Third Appellate District, on May 2, 2013. A copy of the opinion of the court of appealis attached as Attachment A (Conley). ISSUE PRESENTED Underthe Estrada’ rule, do the ameliorative amendments to Penal Code sections 667 and 1170.12, enacted by the2012 Three Strikes Reform ' Inre Estrada (1965) 63 Cal.2d 740. 1 Act, apply to criminal judgments which werenotyet final as of the Act’s effective date? NECESSITY FOR REVIEW A grant of review is necessary for this court to secure uniformity of decision and to settle an important question of law, pursuant to California Rules of Court, rule 8.500(b)(1). On May2, 2013, the Court of Appeal, Third Appellate District, in Conley held that even though his judgmentwasnotyetfinal, appellantis not entitled to have his sentence vacated and his case remanded for resentencing under the 2012 Three Strikes Reform Act’s ameliorative amendmentto section 1170.12. Instead, his recourse is to petition for recall under the Act’s newly added Penal Code section 1170.126, because this section acts to preclude application of the Estrada rule. (Conleyat pp. 7-14.) [Agreeing with People v. Yearwood (2013) 213 Cal.App.4th 161 (Yearwood), review denied May 1, 2013, S209069.] Reaching an opposite conclusion on the same point, on May 15, 2013, in People v. Lewis (2013)_Cal.App.4th__ [Slip Opn. 9-18] (Lewis), certified for partial publication, the Court of Appeal, Fourth District, Division Two, held that under the Estrada rule, section 667, applies to defendants whose judgments werenotyet final on the effective date of the Act. (Lewis at pp. 4-9.) To prevent conflicting results throughoutthe state based solely on the appellate district in which a defendant was sentenced, this court must determine whether underthe Estrada rule qualifying defendants whose judgments werenotyetfinal of the effective date of the Actare entitled to havetheir sentencesvacated and their cases remanded with direction to impose the lesser sentence authorized in amended Penal Codesections 667 and 1170.12. STATEMENT OF CASE On October 28, 2011, appellant was convicted of driving underthe influence of alcohol (Veh. Code, sec. 23152, subd. (a)) and driving with a blood alcohol content of .08 percent or more (Veh. Code, sec. 23152, subd. (b)), with enhancementsfor refusing to take a chemical test (Veh. Code, sec. 23578). (CT 203; RT 581-583.) The jury also sustained allegations that appellant had four prior convictions for violating Vehicle Code section 23152 (Veh. Code, sec. 23550), three prior prison terms (Pen. Code,sec. 667.5), and two prior strike convictions (Pen. Code, secs. 667, subds. (d) and (e), 1170.12). (CT 205, 213-221; RT 618-622.) OnJanuary 3, 2012, the trial court denied appellant’s motion to | dismiss one or both strike allegations and sentenced appellant to 25 years to life plus three consecutive one-year terms. (CT 275; RT 649-650.) On January 24, 2012, appellantfiled a timely notice of appeal. (CT 279.) Appellant’s counsel filed an opening brief asking the court of appealto independently review the record and determine whether there were any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) (Conley at p. 2.) On November6, 2012, California voters passed the Three Strikes Reform Act (“Act”) which becameeffective the following day, November7, 2012. On November8, 2012, the court of appealfiled its opinion affirming appellant’s judgment. (Conleyat p. 2.) On November21, 2012, appellantfiled a petition for rehearing asking the court of appeal to vacate his sentencing and remandhiscase for sentencing under the Act’s ameliorative sentencing amendments. The court of appealinitially denied the petition, concluding that appellant was not entitled to sentencing under the Act’s amendments to Penal Code section 1 170.12, but then granted the rehearing on its own motion to more fully explain its reasoning. (Conley.at p. 2.) STATEMENTOF FACTS The facts from the court of appeal’s decision are incorporated herein. (See Conley at p. 2-4.) ARGUMENT I, The Ameliorative Amendments ToSections 667 And 1170.12 Apply To Criminal Judgments Which Were Not Yet Final AsOf The Three Strikes Reform Act’s Effective Date. A. Background. On November6, 2012, California voters approved Proposition 36, the “Three Strikes Reform Act of 2012,” which enacted several changesto California’s Three Strikes sentencing scheme. (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012).) Most significant were the Act's amendments to sections 667 and 1170.12, which now state that a life sentence can be imposed only if: (1) a appellant’s third strike is for a violent or serious felony conviction or one of several enumerated offenses, or (2) one of appellant’s priorstrikes is for a convictionlisted in section 667, subdivision (e)(2)(C) or section 1170.12, subdivision (c)(2)(C). The Act becameeffective on November 7, 2012. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, sec. 10, at p. 109.) Prior to the Act’s effective date ofNovember 7, 2012, appellant was convicted ofthe non-serious and non-violent offenses of driving under the influence of alcohol (Veh. Code, sec. 23152, subd. (a)) and driving with a blood alcohol content of .08 percent or more (Veh. Code, sec. 21351, subd. (b)). The court imposed a term of 25 years to life under the then existing Three Strikes Law for these crimes. Appellant’s case was pending on appeal on the Act’s effective date. Underthe statutes amended by the Act, appellant’s most recent convictions would not subject him to an indeterminate term. Appellant does not have any ofthe disqualifying convictionslisted in sections 667, ~ subdivision (e)(2)(C) or 1170.12, subdivision (c)(2)(C). If the Act’s amendments to sections 667 and 1170.12 are applied to appellant, appellant’s sentence would not be 25 yearsto life, but “twice the term otherwise provided as punishmentfor [his] current felony conviction.” (Secs. 667, subds. (e)(1), (e)(2)(C), 1170.12, subds. (c)(1), (c)(2)(C).) Theinstant case presents the question of whether appellantis entitled to resentencing under Estrada because his judgment was notyet final on the Act’s effective date. B. / Underthe Estrada rule, sections 667(e)(2)(C) and 1170.12 (c)(2)(C) apply to defendants whose judgments werenotyetfinal on the effective date of the Act. In In re Estrada (1965) 63 Cal.2d. 740, this court held that when a criminal statute is amended to lessen the punishmentfor an offense, the lesser punishment should be imposed in cases where judgmentis not yet final. This court reasoned that when the Legislature amendsa statute to 6 lessen the punishment for an offense, it has expressly determinedthat the former punishmentwas toosevere and a lighter punishmentis sufficient to satisfy the legitimate ends of law. (/d. at 745.) Unless thereis a clear indication that the Legislature intended the amendmentto apply prospectively only, it must be presumed that the Legislature intended the mitigated punishmentto apply to all judgments notyetfinal as ofthe effective date of the amendedstatute. (id. at pp. 744-747.) Estrada created a limited exception to Penal Code section 3, which providesthat no part of a statute is retroactive unless expressly so declared. (Peoplev. Brown (2012) 54 Cal.4" 314, 324.) The Legislature has never abrogated the Estrada rule. (See People v. Nasalga (1996) 12 Cal. 4" 784, 792, fn. 7.) This rule was restated bythis court last year. “Estrada is today properly understood, not as weakening or modifying the default rule of prospective operation codified in section 3, butrather as informingthe rule’s application in a specific context by articulating the reasonable presumption thata legislative act mitigating the punishmentfora particular criminal offense is intended to apply to all nonfinal judgments.” (People v. Brown, supra, 54 Cal.4" 314, 324, citing Peoplev. Nasalga, supra, 12 Cal.4" at p. 792, fn. 7.) “T]he key date is the date offinal judgment. If the amendatory statute lessening punishment becomeseffective prior to the date the judgmentof conviction becomesfinal then, in our opinion,it, and not the old statute in effect when the prohibited act was committed, applies.” (Jn re Estrada, supra, 63 Cal.2d at p. 744; see also, People v. Wright (2006) 40 Cal.4™ 81, 90; People v. Floyd (2003) 31 Cal.4" 179, 184 [“the amendatory statute lessening punishmentis presumedto apply in all cases notyet reducedto final judgmentas of the amendatory statute’s effective date”].) A caseis not reducedto final judgmentuntil the time for petitioning for a writ ofcertiorari in the United States Supreme Court has passed. (Teaguev. Lane (1989) 489 U.S. 288, 295-296; People v Nasalga, supra, 12 Cal.4" 784, 789, fn 4.) “Cases in which judgmentis notyet final include those in which a conviction has been entered and sentence imposed but an appealis pending when the amendment becomeseffective.” (In re N.D. (2008) 167 Cal.App.4" 885, 891.) C. Sections 667 and 1170.12 do not contain express savings clauses precluding application ofEstrada to nonfinal cases. _ As the three courts of appeal in Conley, Yearwood and Lewis agree, the Act contains no express savings clause. (Conley at p 8; People v. Lewis (May 15, 2013, E055569) _Cal.App.4"__ [Slip Opn.at p 11]; People v. Yearwood (2013) 213 Cal.App.4th 161, 175.) Had there been an express savings clause, of course, Estrada, would not apply. (In re Estrada, supra, 63 Cal.2d at pp. 744-745.) A savings clause is a provisionthatstates “the old law should continue to operate as to past acts.” (/d. at p. 747.) In People v. Floyd, supra, 31 Cal.4" 179, this court addressed an amendedstatute that expressed a clear savings clause: “Except as otherwise provided, the provisionsofthis act shall becomeeffective July 1, 2001, and its provisions shall be applied prospectively.” (Ud. at 182.) Nothingin the Act even remotely resembles the clear expression of intent. D. Section 1170.126 and the Estrada rule are not mutually exclusive, incompatable remedies. Yearwood and Conley both err in characterizing section 1170.126 as the functional equivalentof a savings clause and in concludingthatrelief under Estrada is excluded. (Conley at pp. 9-10; People v. Yearwood, supra, 213 Cal.App.4th 161.) An enacting body is presumed to know about existing relevant judicial decisions, and that applies to the electorate as well as to a formal legislative body. (People v. Hernandez (2003) 30 Cal.4th 835, 867; City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 606.) Althoughthe electorate enacted 1170.126, there is nothing in the Act that indicates that the electorate intended it to be the exclusive method to obtain relief. Presumed to have been aware ofthe Estrada principles, the Act would have included limiting language hadit intended section 1170.126 to be the sole meansof seeking resentencing. Therule in Estrada applies unless “. . . the Legislature clearly signals its intent to make the amendmentprospective, by the inclusion of either an express savings clause orits equivalent.” (People v. Nasailga, supra, 12 Cal.4* 784, 793.) “’[W]hat is required is that the Legislature demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it.’” (/bid.) Section 1170.126 provides for the discretionary resentencing of “persons presently serving an indeterminate term of imprisonment pursuant to paragraph (2) of subdivision (e) of section 667 or paragraph (2) of subdivision (c) of section 1170.12, whose sentence underthis act would not have been an indeterminate life sentence.” ((Sec. 1170.126, subd. (a).) A person serving a three strikes sentence for a current conviction that is not a serious or violent felony “mayfile a petition for a recall of sentence, within twoyearsafter the effective date of the act that added this section orat a later date upon a showing of good cause, before the trial court that entered 10 the judgment of conviction in his or her case, to request resentencing in accordance with” the Act. (Sec. 1170.126, subd. (b).) A inmateis eligible for resentencing unless he has prior convictions for certain specified offenses. (Id. at subd.(e).) If eligible, then the trial court will resentence the defendant “unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (Jd. at subd. (f).) (Conley at p. 9.) Because the electorate was presumed to be aware of the Estrada principles and did not included language that section 1170.126 applied to both nonfinal andfinal judgments, section 1170.126 can only be interpreted to apply to those defendants whose judgments are final and is therefore not a mutually exclusive, incompatable remedy to Estrada. In their statutory interpretation, Conley and Yearwoodfail to address the rule that the electorate is presumed to be awareofthe Estrada ~ presumption at the time ofthe enactment of the Act. Instead, Conley and Yearwood circumventthis rule of statutory construction and erroneously hold that section 1170.126 precludes application of the Estrada rule in appellant’s case becauseits plain language providesfor limited sentencing application of sections 667 and 1170.126 in regards to a person such as appellant whois “presently serving an indeterminate term” underthe former ll Three Strikes Law. (Conley at pp. 9-10; People v. Yearwood, supra, 213 Cal.App.4th at pp. 167-169; compare People v. Lewis, supra, at p. 16.) Conley wrongly reasonedthat in order forEstrada to apply in appellant’s situation, it would haveto insert language thatthe statute “is meant to apply only to those serving a term of imprisonment under a final judgment.” (Conley at p. 10.) Because Estrada is presumedto apply unless otherwise clearly indicated. Whatthe electorate would have done if it intended to preclude Estradais clearly indicate that the presumption does not apply by including language that section 1170.126 was meantto apply whetheror not the judgmentis final. Theplain language used to craft the postconviction release proceeding set forth in section 1170.126 of the Act cannot be construed as an equivalent to a savings clause so as to preclude application ofthe Estrada rule for another reason. In order to defeat the Estrada rule, a savings clause, an equivalent to a savings clause, or a voter intent of prospective application must clearly provide that “the old law should continue to operate as to past acts.” (In re Estrada, supra, 63 Cal. 2d. at p. 746-747, emphasis added.) In its determination that section 1170.126 clearly precludes the Estrada presumption in appellant’s case, Conley does not rely on the date 12 of appellant’s past acts or offenses, butincorrectly relies on the date of appellant’s sentencing, as a reference point as to whether or not the Estrada rule is precluded by.a clear intent for prospective application. (Conley at p. 9.) It was in this false context that Conley determined the plain language of section 1170.126, specifically the language “persons presently serving an indeterminate term of imprisonment” defeated the Estrada presumption of giving the retroactive benefit of the mitigated punishment in amended sections 667 and 1170.12 in appellant’s case. (Conley at p. 9.) After determining section 1170.126 defeats the Estrada presumption in appellant’s case, because he was already sentenced, Conley then goes on to state that the Estrada rule does apply to provide the lessened punishment under ameliorative amendments but “only to those people notyet convicted or not yet sentenced.” (Conley at p. 9, italics added.) Conley cites no authorityfor this concept of partial retroactivity. The question of whether a statutory amendmentlessening punishmentis to be given retroactive effect or is prospective only, the question addressed by the rule in Estrada,relates not to whether the sentencing predates the effective date of the Reform Act, but whether the offense predatesthe effective date of the Act. (In re Estrada, supra, 63 Cal.2d at pp 746-747, Tapia v. Superior Court (1991) 53 Cal.3d 282, 288- 13 291.) Because section 1170.126 relates to whether the sentencing predates the effective date of the Act, it is not a clear provision that “the old law should continue to operate as to past acts.” (In re Estrada, supra, 63 Cal. 2d. at p. 746-747, emphasis added.) It does not evidencea clear intent that sections 667 and 1170.12 should not be applied retroactively to offenses committed prior to the effective date of the Three Strikes Reform Act in cases where the judgmentis notyet final. Instead, it can only be reasonably interpreted to provide a recall procedure for those three-strike defendants whose judgmentsare final. E. Subdivision (k) of Section 1170.126 explicitly preserves application of the Estrada rule. Asfurther evidence that the Estrada rule to applies to the Act’s ameliorative amendments to sections 667 and 1170.12, subdivision (k) of section 1170.126 states: “Nothing is this section is intended to diminish or abrogate any rights or remedies otherwise available to the defendant.” (sec. 1170.126, subd. (k).) The inclusion of this subsection indicates that the discretionary post- conviction proceeding enacted by section 1170.126, subds. (b)-(g) is not the sole remedy for individuals whosethird-strike sentences are not yetfinal on appeal. Hadthe electorate intended for section 1170.126 to operate to 14 preclude application of the Estrada rule, subdivision (k) would not explicitly allow for defendants to seek other remedies. A court must giv{e] significance to every word, phrase, sentence and part of an act in pursuance ofthe legislative purpose.” (Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063.) A cardinalrule of constructionis that construction making some words surplusage is to be avoided. (People v. Gilbert (1969) 1 Cal.3d 475, 480.) Theplain language of subdivision (k) negates any theory that the subdivision (b) recall provision implies a voters’ intent to preclude retroactivity under Estrada. | F. Thelegislative history of the 2012 Three Strikes Reform Act contains a clear expression of voter intent that the Estrada rule should apply to criminal judgments that were notfinal as of the Act’s effective date. In People v. Lewis, (May 15, 2013) __Cal.App.4th___, the Fourth District Court of Appeal, Division Two, concludedthat in passing the 2012 Three Strikes Reform Act, the voters intended the mandatory sentencing provision of sections 667, subdivision (e)(2)(C) and 1170.12, subdivision (c)(2)(C) to apply to qualifying defendants whose judgments were not yet final on the effective date of the act. (People v. Lewis, supra, [Slp. Opn. At p. 12].) 15 “In enacting new laws, both the Legislature and the electorate are ‘presumedto be aware ofexisting laws and judicial construction thereof.’ | (in re Lance W. (1985) 37 Cal.3d 873, 890, fin. 11.) Accordingly, we presumethat in enacting the Reform Act, the electorate was aware of the Estrada presumption that a law ameliorating punishmentappliesto all judgments notyet final on appealon the effective date of the new statute, Wealso presumethat the electorate was awarethat a saving clause may be employed to makeit explicit that the amendmentis to apply prospectively only, and that in the absence of a saving clause or anotherclear signal of intent to apply the amendmentprospectively, the statute is presumed to apply to all nonfinal judgments. (Nasalga, supra, 12 Cal.4th at p. 793; Estrada, supra, 63 Cal.2d at p. 747.) Previous ballot initiatives have employed explicit language making an ameliorative statute prospective.” _ (People v. Lewis, May 15,2013) __Cal.App.4th___ [SIp Opn.Atp. 12.] citing People v. Floyd, supra, 31 Cal.4th at pp. 183-185 (“Except as otherwise provided,the provisions of this act [Proposition 36 of 2000] shall becomeeffective July 1, 2001, and its provisions shall be applied prospectively.”]) The Reform Acts absence of such language is persuasive evidencethat the voters did intent to apply sections 667 and 1170.12 to nonfinal judgments. (/bid.) 16 The ballot arguments in support of the Reform Actstated thatits purpose wasto ensurethat “[p]recious financial and law enforcement resources” were not diverted to imposelife sentences for some non-violent offenses, while assuring that violent repeat offenders are effectively punishedandnot released early. The proponents stated that the act would “help stop clogging overcrowdedprisons with non-violent offenders, SO we have room to keep violent felons off the streets” and “help[] ensure that prisons can keep dangerouscriminals behindbarsforlife.” An additional purpose wasto save taxpayers “$100 million every year” by ending wasteful spending on housing and health care costs for “non-violent Three Strikes inmates.” Moreover, the act would ensure adequate punishment of non-violent repeat offenders by doubling their state prison sentences. The proponents pointed out that dangerous criminals were being released early because “jails are overcrowded with non-violent offenders who pose norisk to the public.” And, the proponents stated that by passing Proposition 36, “California will retain the toughest recidivist Three Strikes law in the country but will be fairer by emphasizing proportionality in sentencing and will provide for more evenhanded application of this important law.” The proponents pointed out that “[p]eople convicted of shoplifting a pair of socks, stealing bread or baby formula [sic] don’t deserve life sentences.” 17 (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) argumentin favor of Prop. 36 and rebuttal to argument against Prop. 36. .) “Applying section 667(e)(2)(C) to nonfinal judgmentsis wholly consistent with these objectives, in that doing so would enhance the monetary savings projected by the proponents and would further serve the purposesofreducing the number of non-violent offenders in prison populations and of reserving the harshest punishmentfor recidivists with current convictions for serious or violent felonies, while still assuring public safety by imposing doubledprison termsonless serious repeat offenders.” (People v. Lewis, supra, at p. 13.) 18 CONCLUSION The Three Strikes Reform Act ameliorates the punishment for persons like the appellant, whose life sentence resulted from a conviction of a nonviolent, nonserious, felony. By providing a meansfor prisoners who would otherwise have no recourseto gain the benefit of the new provisions (through the sentencingrecall petition provisions of section 1170.126), the electorate has strongly indicated its intent that it wishes to apply the Actto as many people as possible. There is absolutely nothing in the Actthat supports any conclusion that the electorate intended to foreclose traditional meansofrelief for defendant's in appellant's position--those whose judgmentsare notyet final. Subdivision (k) ofthe recall petition statute specifically declares that nothing is intendedto abrogate a defendant's rights or remedies otherwise available. Underthe principles firmly established by In re Estrada, supra, 63 Cal.2d 740, more than 48 years ago, the appellant and those like him are entitled to resentencing in the trial court under the amendedprovisions of sections 667.5 and 1170.12. People v. Lewis (May 15, 2013) ___Cal.App.4th___[Slip Opn. 9-18], held defendants with nonfinal judgmentsare entitled to application ofthe Estrada rule and neednotresort to the petition for recall procedure set forth in section 1170.126. 19 Conley and Yearwoodheld to the contrary. This court must grant reviewto settle this point of law and secure uniformity of decision. DATED:June 7, 2013 Respectfully submitted, . CENTRAL CALIFORNIA APPELLATE PROGRAM George Bond Executive Director c —_— By Carol Foster Staff Attorney 20 Certificate of Appellate Counsel Pursuantto rule 8.204 (c)(1) of the California Rules of Court I, Carol Foster, appointed counselfor appellant, certify pursuant to rule 8.204 (c)(1) of the California Rules of Court, that I prepared this petition for rehearing on behalf of appellant, Mr. Patrick Lee. Conley, and that the word countforthis petition for review04,157. OG Dated:June 7, 2013 Qu.=OC (eeNa Carol Foster Attorney for Appellant 21 DECLARATION OF SERVICE I, the undersigned, declare as follows: I am a citizen of the United States, over the age of 18 years and not a party to the within action; my business address is 2407 J Street, Suite 301, Sacramento, CA 95816. On June 7, 2013, I served the attached PETITION FOR REVIEW by placing a true copy thereof in an envelope addressed to the person(s) named below at the address(es) shown, and bysealing and depositing said envelope in the United States Mail at Sacramento, California, with postage thereon fully prepaid. There is delivery service by United States Mail at each ofthe places so addressed,or there is regular communication by mail between the place of mailing and eachofthe places so addressed. Office of the Attorney General P.O. Box 944255 Sacramento, CA 94244 Patrick Lee Conley AK9239 PO Box 3030 (HDSP) A-4-203-U Susanville, CA 96130 Yolo County District Attorney 301 Second Street — Woodland, CA 95695 Yolo County Superior Court 725 Court Street Woodland, CA 95695 I declare under penalty ofperjury that the foregdiagas true and correct—Executed on June 7, 2015 at Sacramento, California. Co Sheila Brown ATTACHMENT A OPINION — FILEBiewh Fuld MAY -2 2973 CERTIFIED FOR PARTIAL PUBLICATION?3,2.Eo ~ TighsDISTRICTte eneaT, Gisris COPY. ——” IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA (F THIRD APPELLATE DISTRICT (Yolo) THE PEOPLE, Plaintiff and Respondent, C070272 v. | | (Super. Ct. No. CRF113234) PATRICK LEE CONLEY, Defendantand Appellant. APPEAL from a judgment of the Superior Court of Yolo County, Stephen L. Mock, Judge. Affirmed. Patrick Lee Conley,in pro. per.; and Carol Foster, underappointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent. Michael S. Romanofor Three Strikes Project, Stanford Law School, as Amicus Curiae on behalf of Defendant and Appellant. * Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of part I. Appointed counsel for defendant Patrick Lee Conley asked this court to review the record to determine whetherthere are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguableerror that wouldresult in a disposition more favorable to defendant, we will affirm the judgment. Wepartially publish this decision, however, to address issues raised in a petition for rehearing that are likely to recur. On November6,2012, California voters approved Proposition 36, which modifies the three strikes law. After we filed our decision in thi s case, defendantfiled a petition for rehearing seekingthe benefit of the change in law. He asked us to vacate his sentence underthe three strikes law and remandthe matter for a ‘new sentencing hearing. | Wedenied his petition for rehearing, concludingthat he is not entitled to be sentenced under amended Penal Code section 1170.12. We then granted rehearing on ou r own motion to more fully explain our reasoning. BACKGROUND Califormia Highway Patrol OfficerKeerat Lal observed defendant, at about 5:20 p.:m., picking up tools in the middle of County Road 27 in Yolo County. Defendant’s parked pickup truck and attached utility trailer partially blockeda lane ofthe two-lane road. Defendant appeared intoxicated. His eyes were red and watery and his gait was unsteady as he movedto pick upthe tools. Officer Lal estimated that defendant was about six feet tall and weighed 210 pounds. Officer Lal asked defendant to move to theside of the road, but had to ask three times before defendant complied. Defendantsaid his tool box fell from the bed ofhis truck. Officer Lal asked for defendant’s driver’s license, proof of insurance, and registration. Defendantsaid his license was suspended andhe did not have proof of insuranceor registration. Defendant’s speech wasslurred and Officer Lal could smell alcohol on defendant’s breath. Defendant claimed his son wasdriving the truck andleft to get gas when the truck ran out of fuel. When Officer Lal pointed outthat the truck wasstill running, defendant admitted he wasthe driver. Defendanttold the officer that he consumed three to four 8- ounce cans of Four Loko malt liquor at his son’s house, which was about 15 to 20 minutes away. Defendantfailed a series offield sobriety tests and also took twopreliminary alcoholscreeningtests. His breath samples revealed a blood-alcohol concentration (BAC) of .167 percent and .171 percent. Officer Lal arrested defendant for driving under the influence. Defendant refused to submit to a chemicaltest after he was arrested. His blood - was drawn at a hospital at around 6:19 p.m., and his BACatthe time of the draw was _ .19 percent. An expert testified that a six foottall, 210 pound person who consumed 3 to 4 Four Loko’s and had his last drink at 4:45 p.m. would have a BAC of .10 percent. A similar individual with a BAC of .19 percentat 6:19 p.m. would have a BAC well over .08 percent between 5:15 p.m. and 5:20 p.m. In a recordedcall from hisjail cell, defendanttold his girlfriend that he did not know whetherthe officer asked whyhis tools were in the middle of the road because defendant “was drunk as fuck right there.” | The prosecutor and defense counsel stipulated that undated Department of Motor Vehicle documents listed defendant’s height as six foot three inchestall and his weightas 180 pounds. A toxicologist testifying for the defense opined that if a six foot three inch tall and 180 pound person drank an entire 23.5 ounce Four Lokoat 5:19 p.m. and had a BACof .19 percentat 6:19 p.m., then his BAC before drinking the Four Lokoat 5:19 p.m. would be .08 percent with a margin of error. / Defendant pleaded no contest to driving with a suspended license with three prior violations within the last five years (Veh. Code, § 14601.2, subd.(a)), failure to provide 3 proofof insurance (Veh. Code, § 16028), and driving an unregistered vehicle (Veh. Code, § 4000, subd. (a)(1)). Following a jury trial, defendant was convicted of driving un der the influenceof alcohol (Veh. Code, § 23152, subd. (a)) and driving with a BAC of.08 percent or more (Veh. Code, § 23152, subd. (b)), with enhancements for refusing to take the chemical test (Veh. Code, § 23578). In a bifurcated proceeding, the jury sustained allegations that defendant had four prior convictions for violating Vehicle Code section 23152 (Veh. Code, § 23550), t hree prior prison terms (Pen. Code,§ 667.5), and twopriorstrike convictions (§§ 667, subds. (d) and (e), 1170.12). Thetrial court denied defendant’s motion to dismiss on e or both strike allegations and sentenced defendantto 25 years to life plus three consecu tive one-year terms. Thetrial court also awarded 697 days of presentencecredit (465 ac tual and 232 conduct) and imposed variousfines and fees. Appointed counselfiled an openingbrief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counse l of the right to file a supplemental brief within 30 days of the date offiling the openingbri ef. Defendantfiled a supplementalbrief. DISCUSSION I* In his supplementalbrief, it appears defendant contends the following: (A) the trial court erred in denying his suppression motion,(B)histrial counsel was ineffective , and (C) thereis insufficient evidence to support his convictions. We address each contention in turn. 1 Undesignated statutory references are to the Penal Code. 4 A Defendantfirst contendsthetrial court erred in denyinghis suppression motion. The magistrate denied defendant’s suppression motionfiled at the preliminary hearing. Defendant renewedthe issue in a section 995 motion seekingto set aside the charges, but the trial court denied that motion, too. Defendant contendsthe trial court should have granted his suppression motion because (1) he wasillegally detained when Officer Lal directed him to the side of the road, and (2) the probable causeto arrest is based on inadmissible hearsay and the circumstances observed by Officer Lal did not support probable cause to arrest defendant. | The following facts are taken from the preliminary hearing. Officer Lal saw defendantpicking up tools in the middle ofthe road, next to a truck partially obstructing one lane. Officer Lal noticed that defendant had red, watery eyes and lookedlike other intoxicated personshe had arrested. Smelling alcohol and noticing defendant’s staggered gait, Officer Lal asked defendant to moveto the sideofthe road. Officer Lal then commenced aninvestigation for driving under the influence. After defendantfailed various field sobriety tests and tested with a BAC of .167 and .171 percent, Officer Lal arrested him. i Defendant argueshe wasillegally detained when Officer Lal directed him to the side of the road. But “{tJhe Fourth Amendment doesnotproscribeall state-initiated searches andseizures; it merely proscribes those which are unreasonable. {Citation.]” (Florida v. Jimeno (1991) 500 U.S. 248, 250 [114 L.Ed.2d 297, 302].) “To test the detention against ‘the ultimate standard of reasonableness embodied in the Fourth Amendment’ [citation], we balance the extentofthe intrusion against the government interests justifying it,looking in the final and dispositive portion ofthe analysis to the individualized and objective facts that made those interests applicable in the circumstancesofthe particular detention.” (People v. Glaser (1995) 11 Cal.4th 354, 5 365.) In light of the brief intrusion on defendant’s liberty andt he clear threatto defendant’s and the public’s safety posed by an apparently in toxicated man in the middle of a public road, Officer Lal’s directive was reasonable andthe refore did not constitute an illegal detention. 2 Defendantnext argues that the probable causeto arrest is bas ed on inadmissible hearsay and the circumstances observed by Officer Lal did n ot support probable cause to arrest defendant. Defendant’s hearsay contention is based on Officer Lal’s testimony that hechanged the arrest from a misdemeanorto a felony after receiving a report from dispatch that defendant had four prior convictions for violatin g Vehicle Code section 23152. Defendant’s argumentis based on the rule that preclud es the prosecution from relying on hearsay information communicatedto the arresting officer “that is not sufficiently specific and fact based to be considered reliable.” (People v. Gomez (2004) 117 Cal.App.4th 531, 541.) But the probable cause supporting the arrest was not based on the prior-conviction information received bythe arresting officer (information that was subsequently confirmed whenthe People submitted certified copies of the p rior Vehicle Code section 23152 convictions at the preliminary hearing). Rather, probab le cause supporting the arrest was based on defendant’s red, watery eyes, slurred speec h, staggered gait, smell of alcohol, field sobriety test results, preliminary alcohol screeni ngtest results, his admission that he drove his truck, and the fact that the vehicle w as running and partially obstructing the road. | B Defendant claimshis trial counsel was ineffective for stipulat ing to his weight being 180 pounds when hein fact weighed 172 poundswithin five days ofhis arrest. He claimsthis prejudiced him because a lower body weight would have given him a lower blood-alcohol level according to the hypotheses presented by the prosecution and defense experts. “To establish entitlementto relief for ineffective assistance of counsel the burden is on the defendant to show(1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel’s failings. [Citations.]” (People v. Lewis (1990) 50 Cal.3d 262, 288.) Defendant does not point to anything in either expert’s testimony showingthat a lower body weight would result in a lower blood-alcohollevel. Defendant has not carried his burden of proving prejudice. C Defendant contends thereis insufficient evidence to support his convictions because no one saw him driving. But Officer Laltestified that defendant admitted driving the truck, the vehicle was running andit waspartially obstructing the road. Nothing moreis neededto establish that element ofdriving under the influence. Ul | After we filed our decision in this case, defendantfiled a petition for rehearing seeking the benefit of the change in law enacted by Proposition 36. He asked us to vacate his sentence underthethree strikes law and remand the matter to the trial court for a new sentencing hearing. Defendant was sentenced to 25 yearsto life under the three strikes law for a crime that was not a serious or violent felony. Proposition 36 limits three strikes sentencesto current convictions for seriousor violent felonies, or a limited numberofother felonies not relevant here. (See §§ 1170.12, subd. (c), 667, subd. (c).) If defendant had been sentenced today, he would not be subject to a 25 to life three strikes sentence. A: In asking us to vacate his sentence and remandthe matter, defendant relies on Jn re Estrada (1965) 63 Cal.2d 740 (Estrada). In Estrada, the California Supreme Courtstated: “Whenthe Legislature amends a statute so as to lessen the punishmentit has obviously expressly determined that its former penalty was too severe andthat a lighter punishment is proper as punishmentfor the commission ofthe prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemedto be sufficient should apply to every case to whichit constitutionally could apply.” (Estrada, 63 Cal.2d at p. 745.) This includes “acts committed before its passage provided the judgment convicting the defendantofthe actis not final.” ([bid.) Accordingly, a statute lessening punishmentis presumedto applyto all cases notyet reduced to final judgment on thestatute’s effective date, unless there is a “saving clause” providing for prospective application. (Id. at pp. 744-745, 747-748.) | Section 1170.12 does not have an express saving clause. For example, it does not state that the mitigated punishmentshall only apply prospectively to those convicted or sentenced onor after the effective date of the act. But this does not end the inquiry. (People v. Nasalga (1996) 12 Cal.4th 784, 793.) The rule in Estrada does not apply “where the Legislature clearly signals its intent to make the amendment prospective, by the inclusion ofeither an express saving clause orits equivalent.” (People v. Nasalga, supra, 12 Cal.4th at p. 793, fn. omitted.) “ ‘[W]hatis required is that the Legislature demonstrateits intention with sufficient clarity that a reviewing court can discern and effectuate it.’ ” ([bid.) In construing voter initiatives enacted into law, we use the same principles applied - to statutes enacted by the Legislature. (People v. Elliot (2005) 37 Cal.4th 453, 478.) Statutes dealing with the same subject matter as the one being construed -- commonly referred to as statutes in pari materia -- should be construed together. (People v. Honig (1996) 48 Cal.App.4th 289, 327.) Application ofthis rule is most justified in cases where statutes relating to the same subject matter were passed at the same time. (Stickel v._ Harris (1987) 196 Cal.App.3d 575, 590.) Section 1170.126,a related statute added by Proposition 36, defeats the presumption of retroactivity set forth in Estrada. It authorizes limited application to prisoners serving three strikes sentences when the measure was enacted, andestablishes a specific procedure for defendantto follow in this case. In particular, section 1170.126 provides for the resentencing of “persons presently serving an indeterminate term of imprisonment pursuantto paragraph (2) of subdivision (e) of Section 667or paragraph(2) of subdivision (c) of Section 1170.12, whose sentence under this act would not have been an indeterminate life sentence.” (§ 1170.126, subd. (a).) A person serving a three strikes sentence for a current conviction that is not a serious or violent felony “mayfile a petition for a recall of sentence, within two years after the effective date of the act that added this section or at a later date upon a showing of good cause, before thetrial court that entered the judgment of conviction in his or her case, to request resentencing in accordance with” Proposition 36. (§ 1170.126, subd. (b).) An inmateis eligible for resentencing unless he has prior convictions for certain specified offenses. (Id. at subd. (e).) if the prisoneris eligible, then the trial court will resentence defendant“unless the court, in its discretion, determinesthat resentencing the petitioner would pose an unreasonablerisk of danger to public safety.” (Jd. at subd. (f).) The factors governing the exercise ofthe trial court's discretion -- the prisoner’s criminal history, record in prison and any other relevant evidence -- are set forth in section - 1170.126, subdivision (g). Because Proposition 36 provides for limited application to prisoners serving three strikes sentences when the measure was enacted, the presumption in Estrada doesnot apply as to them;it applies only to those people notyet convicted or not yet sentenced. Those already sentenced and serving an indeterminate term of imprisonment must petition the trial court for a recall of sentence regardless of whetherornot their judgment 9 is final. Nothing in section 1170.126 states that its reference to “persons presently serving an indeterminate term of imprisonment. . . whose sentence underthis act would not have been an indeterminatelife sentence” is meant to apply only to thoseserving a term of imprisonment undera final judgment. (§ 1170.126, subd. (a).) We may not insert such words becauseit is a cardinal rule of statutory construction that courts may not add provisionsto a statute. (Adoption ofKelsey S. (1992) 1 Cal.4th 816, 827; Code Civ. Proc., § 1858.) Defendant claims section 1170.126 cannot be construed as a savingclause because the resentencing provisions are impracticable for defendants who have appealed and whose judgments are not final. This is so, he maintains, because of the two-yeartime limit in section 1170.126, subdivision (b), and the fact the trial court loses jurisdiction once an appealhas been filed. It is the generalrule that the valid filing of an appeal vests jurisdiction of a cause in the appellate court until determination of the appeal and issuance ofthe remittitur. (People v. Sonoqui (1934) 1 Cal.2d 364; People v. Getty (1975) 50 Cal.App.3d 101, 107.) Ordinarily “ ‘the trial court loses jurisdiction during that period to do anything in connection with the cause which mayaffect the judgment.’ [Citations.]” (People v. Getty, supra, 50 Cal.App.3d at p. 107.) However,“a trial court is not divested ofits limited jurisdiction undersection 1170, subdivision (d) to recall a sentence for modification within 120 days ofthe defendant’s commitment by the filing of an appeal notice.” (Portillo v. Superior Court (1992) 10 Cal-App.4th 1829, 1836.) 2 Section 1170 provides in relevant part: “(d)(1) When a defendant subjectto this section or subdivision (b) of Section 1168 has been sentenced to be imprisonedin the state prison and has been committed to the custody ofthe secretary, the court may, within 120 days of the date of commitment on its own motion, . . . recall the sentence and commitmentpreviously ordered and resentence the defendant in the same mannerasifhe or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The court resentencing underthis subdivision shall apply the 10 Thus, at a minimum,those persons who have been sentenced recently maypetition the court to recall their sentence within 120 daysof the effective date of Proposition 36, evenifthey havefiled a notice of appeal. (§§ 1170, subd. (d), 1170.126, subd. (b).) Those who cannot meet the 120-day time limit can file a petition for recall of sentence in the trial court after their appeal is resolved and their judgmentis final. If their appeal results in the reversaloftheir third strike conviction, resentencing will be unnecessary. Andifthe appealis not decided and the judgment does not becomefinal until after the two-year period in section 1170.126, subdivision (b) is exceeded, defendant may assert “good cause”for filing a delayed petition for resentencing. Defendant maintains that our construction of subdivision (a) of section 1170.126 as a saving clause is at odds with subdivision (k) of the statute, which states: “Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the defendant.” He argues this language can only be reasonably interpreted to avail defendant, whose judgmentis not yetfinal, his right to relief and remedy underthe Estrada rule. We disagree. Subdivision (k) simply confirms that the resentencing provision is not intendedto prevent defendants from pursuing other substantive or procedural challengesto their three strike conviction, whether by direct appeal or petition for writ ofhabeas corpus. For example, section 1170.126 does not prevent a defendant from challenging on appeal the denial of a Romero motion to dismiss a priorstrike conviction (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), as an alternate method of demonstrating he should not be subject to life imprisonment. Defendant addsthat our interpretation of subdivisions (a) and (k) of section 1170.126 is contrary to Section 7 of Proposition 36, which states: “This act is an exercise _ ofthe public powerofthe people of the State of California for the protection ofthe sentencing rules of the Judicial Council so as to eliminate disparity of sentences andto promote uniformity of sentencing. Credit shall be given for time served.” 11 health, safety, and welfare of the people ofthe State of California, and shail be liberally construed to effectuate those purposes.” Hebelievesliberal construction requires that we interpret the resentencing provisions as applying only to those persons whoareserving a prison term pursuantto a final judgment. Again wedisagree. Liberal construction does not mean interpreting the applicable statutes in a manner contrary to the plain language used. The people of the State of California have decided to mitigate punishmentin all future three strike cases and, under the presumption in Estrada, some non-final current three strike cases as long as sentence has not been imposed. But they did not vote to immediately reducethe sentenceforall persons already serving a prison term underthe older version of the law. Rather, they directed the trial court to consider the defendant’s behaviorin prison, and any other evidencethat a | new sentence would result in an unreasonable risk of danger to public safety. (§ 1170.126, subd. (g).) Thus, it appears that despite the amendmentof section 1170.12, the public does not want three strike prisoners’ sentences reduced if their behaviorin prison establishes they are a danger to the public. This concern applies equally to those - defendants already serving a prison term pursuantto a judgmentthat is notyetfinal. Defendant arguesit is not clear that he is ‘presently serving an indeterminate term” because the phrase is ambiguous. In his view, the ambiguity arises because his judgmentis notfinal. He maintains this ambiguity must be resolvedin his favor under the rule of lenity. But the rule of lenity only applies when there is such egregious ambiguity and uncertainty that the court can do no more than guess whatthelegislative body intended. (People v. Avery (2002) 27 Cal.4th 49, 58.) The rule is not applicable “ “unless two reasonableinterpretations of the sameprovision standin relative equipoise, i.e., that resolution of the statute’s ambiguities in a convincing manneris impracticable.’ ” (d. at p. 58, quoting People v. Jones (1988) 46 Cal.3d 585, 599.) No such egregious ambiguity exists in the present case. Although defendant’s judgmentis not yetfinal, he is nonetheless presently serving an indeterminate term in prison. The 12 possibility that his conviction could be reversed in the future doe s not render the phrase ambiguous. Here, defendant is a “person[] presently serving an indeterminate term of imprisonmentpursuant to paragraph (2) of subdivision (e) of Sect ion 667 or paragraph (2) of subdivision (c) of Section 1170.12, whose sentence under this act would not have been an indeterminate life sentence.” (§ 1170.126, subd. (a).) Acco rdingly, he is not entitled to a remand for resentencing under amendedsection | 170. 12; defendant’s recourseis to petition for a recall of sentence under section 1170. 126. B In the alternative, defendant arguesin his petition for rehearing th at retroactive application of Proposition 36is compelled by equal protection. H is argument lacks merit. To the extent Proposition 36 applies prospectively, prospec tive application of a statute that lessens punishment doesnotviolate equal protection. ( People v. Floyd (2003) 31 Cal.4th 179, 182, 191 (Floyd); People v. Lynch (2012) 209 Ca l.App.4th 353, 360— 361.) Asthe California Supreme Court explained in Floyd, “ ‘the ability to ele ct to be sentenced under alaw enactedafter the date of the commission of a crimeis not a constitutional right but a benefit conferred solely by statute. It is n ot unconstitutional for the legislature to confer such benefit only prospectively, neither i s it unconstitutional for the legislature to specify “a classification between groups different ly situated, so long as a reasonable basis for the distinction exists.” [Citation.] In this s tance, the legislature distinguished between those defendants, on the one hand, who had not yet been accorded any sentencing hearings prior to the cut-off date, and those, on the other hand, whose sentences, already imposed, would require remandments for additi onal sentencing hearings. We find this to be a reasonable basis for distinctio n and, therefore, no constitutional denial of equal protection.’ ” (Floyd, supra, 31 Cal.4t h at pp. 189-190, _ quoting People v. Grant(Ill. 1978) 71 [ll.2d 551 [377 N.E.2d 4, 9].) 13 Here,all three strikes prisoners serving time for qualifying offenses are treated the’ samein that they must seek relief under section 1170.126. But those persons who have not yet been sentenced are entitled to the application of the mitigated punishmentin amended section 1170.12. This serves to promote judicial economyanddoesnot deprive defendant of any constitutionalrights. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. DISPOSITION The judgment is affirmed. MAURO iJ. Weconcur: RAYE »P.J. MURRAY J. 14 DECLARATION OF SERVICE I, the undersigned, declare as follows: I am a citizen of the United States, over the age of 18 years and not a party to the within action; my business address is 2407 J Street, Suite 301, Sacramento, CA 95816. On June 7, 2013, I served the attached PETITION FOR REVIEW by placing true copy thereof in an envelope addressed to the person(s) named below at the address(es) shown, and by sealing and depositing said envelope in the United States Mail at Sacramento, California, with postage thereon fully prepaid. There is delivery service by United States Mail at each ofthe places so addressed,or there is regular communication by mail betweenthe place of mailing and each of the places so addressed. U.S. Court of Appeal Third District Court of Appeal 914 Capitol Mall Sacramento, CA 95814 Office of the Attorney General P.O. Box 944255 Sacramento, CA 94244 Patrick Lee Conley AK9239 PO Box 3030 (HDSP) A-4-203-U Susanville, CA 96130 Yolo County District Attorney 301 Second Street Woodland, CA 95695 Yolo County Superior Court 725 Court Street Woodland, CA 95695 I declare under penalty of perjury that the forego: on June 7, 2013 at Sacramento, California. Sheila Brown