Filed 9/26/14 P. v. Farmer CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)




THE PEOPLE,                                                                                  C072066

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F08000)

         v.

ENNIS ALONSO FARMER, JR.,

                   Defendant and Appellant.




         A jury found defendant Ennis Alonso Farmer, Jr., guilty of possession of heroin
for sale (Health & Saf. Code, § 11351; count 1); sale, transportation, or offer to sell
heroin (id., § 11352, subd. (a); count 2); possession of cocaine base for sale (id., §
11351.5; count 3); sale, transportation, or offer to sell cocaine base (id., § 11352, subd.
(a); count 4); possession of methamphetamine (id., § 11377, subd. (a); count 5);
possession of cocaine for sale (id., § 11351; count 6); sale, transportation, or offer to sell
cocaine (id., § 11352, subd. (a); count 7); driving with a suspended or revoked license


                                                             1
(Veh. Code, § 14601.1, subd. (a); count 8); and misdemeanor resisting, delaying, or
obstructing an officer (Pen. Code,1 § 148, subd. (a)(1); count 9). In a bifurcated
proceeding, the jury also found true allegations defendant had a prior drug conviction
(Health & Saf. Code, § 11370, subd. (c)) and had three prior strike convictions for
robbery while armed with a firearm (§§ 667, subds. (b)-(i); 1170.12).
        The trial court sentenced defendant to 100 years to life, plus three years in state
prison, consisting of four consecutive 25 years to life terms on counts 1, 3, 5, and 6 under
the three strikes law, plus a consecutive three years for the prior drug conviction. The
trial court stayed defendant’s sentences on counts 2, 4, and 7 pursuant to section 654 and
did not impose sentences on counts 8 and 9.
        Defendant appeals, contending (1) the trial court abused its discretion in refusing
to dismiss two of the three prior strike allegations; (2) the trial erred in failing to stay his
sentences on counts 3, 5, and 6 under section 654, or alternatively in failing to impose
concurrent, as opposed to consecutive, sentences on those counts; and (3) his sentence
must be vacated and the matter remanded for resentencing with directions that he be
sentenced as a “second striker” under the amended provisions of the three strikes law and
Proposition 36.
        Finding no error, we shall affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
        On November 25, 2011, at approximately 7:40 a.m., California Highway Patrol
(CHP) Officer Wesley Fish saw defendant run a red light. Fish followed defendant as
defendant proceeded onto the freeway. For safety reasons, Fish waited until defendant
exited the freeway before initiating a traffic stop. Defendant pulled into a gas station and




1   Further undesignated statutory references are to the Penal Code.



                                                2
stopped. Fish approached defendant’s car, told him the reason for the stop, and asked
him for his driver’s license, registration, and proof of insurance. Defendant told Fish he
did not have a driver’s license. Fish could smell “unburned marijuana.”
       Officer Fish returned to his motorcycle to contact dispatch and confirm defendant
did not have a driver’s license. As he did so, he observed defendant repeatedly looking
over his shoulder at Fish and reaching toward his car’s glove compartment. Fish could
not see what defendant was reaching for, and thus, had him step out of the car. Once
defendant was outside the car, Fish attempted to search him, but defendant ran away
before Fish was able to finish. As defendant ran, “a white object fell from the front of his
person . . . .” Fish pursued defendant and eventually took him into custody.
       Meanwhile, CHP Officer Rory Erdvig secured the area surrounding defendant’s
car and found a plastic bag on the ground about one foot from the left rear door. The
plastic bag contained smaller bags of what appeared to be narcotics. Forensic analysis
revealed that the larger plastic bag contained 18 individually wrapped bindles of heroin
with a combined weight of 13.7 grams, four individually wrapped bindles of rock cocaine
with a combined weight of 2.0 grams, one individually wrapped bindle of
methamphetamine weighing 0.5 grams, and a plastic bag of cocaine weighing 4.8 grams.
       Inside the glove compartment of defendant’s car, officers found a plastic bag
containing marijuana, several unused syringes, and a scale. They also found three cell
phones inside the car and a laptop computer in the trunk. Defendant dropped an
additional cell phone while he was running, which contained multiple text messages from
individuals requesting narcotics. The phone also contained a video of defendant
discussing various drugs, relating his phone number, and stating, “you need I got” and
“[y]ou can get your needs met, you know, it’s on wheels whatever you need it’s on
wheels.” A smashed glass methamphetamine pipe was found in the same place as the
cell phone defendant dropped while fleeing.
       Defendant had over $1,500 in various denominations in his possession.

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                                        DISCUSSION
                                           I
 The Trial Court Did Not Abuse Its Discretion in Refusing to Dismiss Two of the Three
                              Prior Strike Allegations
       Defendant contends the trial court abused its discretion in refusing to dismiss two
of the three prior strike allegations. More particularly, he asserts “the trial court . . .
abused its discretion by placing too much emphasis on [his] prior criminal history, and by
not giving enough consideration to the fact that all of [his] current felony convictions
were for nonviolent drug-related crimes.” We are not persuaded.
       Before trial, defendant requested that the trial court exercise its discretion to
dismiss two of the three prior strike allegations, noting that each of the prior strikes arose
from a “single incident” and that he had remained “relatively free from arrests” after he
was released from prison in 2004. The trial court acknowledged defendant’s prior strikes
arose from a single incident during which defendant, a felon armed with a firearm,
robbed 17 patrons of a bar and attempted to rob three others, but noted that the
circumstances of defendant’s prior strike convictions was only one of the factors it must
consider. The court asked defendant about his family and job prospects, and defendant
indicated that he had an 18-year-old daughter and that he had “walked away” from his
job at a machine shop and studying to be a counselor and a minister six or seven months
before his arrest on the current offenses. The court also considered the nature and
circumstances of defendant’s current offenses, which it found involved planning and
professionalism insofar as defendant possessed various narcotics, large amounts of cash,
multiple cell phones, a laptop computer, a digital scale, and multiple syringes. In
addition, the court noted that defendant had numerous prior convictions, had served




                                                4
multiple prison terms, and his performance on parole had been unsatisfactory.2 Based on
the above and the lack of any mitigating factors, the court found defendant was not
outside the spirit of the three strikes law and denied his motion to strike two of his prior
strike convictions.
       A trial court has discretion under the three strikes law to dismiss prior conviction
allegations in the furtherance of justice. (§ 1385, subd. (a); People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 529-530 (Romero).) In exercising this power, the trial
court “must consider whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside the scheme’s
spirit, in whole or in part, and hence should be treated as though he had not previously
been convicted of one or more serious and/or violent felonies.” (People v. Williams
(1998) 17 Cal.4th 148, 161 (Williams).) We defer to the trial court’s exercise of its
discretion; we will not reverse the court’s denial of a Romero motion “unless its decision
is so irrational or arbitrary that no reasonable person could agree with it.” (People v.
Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
       The three strikes law “not only establishes a sentencing norm, it carefully
circumscribes the trial court’s power to depart from this norm and requires the court to
explicitly justify its decision to do so. In doing so, the law creates a strong presumption
that any sentence that conforms to these sentencing norms is both rational and proper. [¶]
In light of this presumption, a trial court will only abuse its discretion in failing to strike a
prior felony conviction allegation in limited circumstances,” such as where the court was
not aware of its discretion or considered impermissible factors. (Carmony, supra, 33


2 The parties stipulated that the court could consider defendant’s section “969(b)
package” and rap sheet in deciding the motion to dismiss.



                                                5
Cal.4th at p. 378.) Only in “extraordinary” circumstances, “where no reasonable people
could disagree that the criminal falls outside the spirit of the three strikes scheme,” would
the trial court’s failure to strike a strike constitute an abuse of discretion. (Ibid.) This is
not such a case.
       Defendant claims the trial court abused its discretion “by placing too much weight
on [his] prior convictions and by ignoring the mitigating factors in his favor.” More
particularly, he asserts that the trial court ignored the following facts and circumstances:
(1) all of his prior strikes arose from a single incident, (2) his “non-strike priors,” which
included commercial burglary, drug offenses, and driving under the influence, “were all
nonviolent,” and (3) his “current convictions were all nonviolent felonies that arose from
a single aberrant period of behavior.”
       The trial court did not ignore the facts and circumstances cited by defendant;
rather, it found they were insufficient to take defendant outside the spirit of the three
strikes law. The court acknowledged that “all [of the prior strikes] stem from one event,”
and correctly noted that it must consider additional factors, including defendant’s past
criminal record, the nature and circumstances of the current offenses, the factors in
mitigation and aggravation, and defendant’s background, character, and prospects.
(Williams, supra, 17 Cal.4th at p. 161.) As set forth above, the trial court considered
these factors and concluded defendant did not fall outside the spirit of the three strikes
law. While it did not expressly state that defendant’s current offenses were nonviolent,
the court plainly was aware of the nature of those offenses when it made its
determination.
       Contrary to defendant’s assertion, his current offenses for possessing heroin,
cocaine, and cocaine base for sale can hardly be described as arising from “a single
aberrant period of behavior.” “Aberrant behavior” means “[a] single act of unplanned or
thoughtless criminal behavior.” (Garner, Black’s Law Dict. (9th ed. 2009) p. 4.)
Defendant’s lengthy criminal history includes a 1991 conviction for possession of rock

                                               6
cocaine for which he was sentenced to two years in state prison, and a 1993 conviction
for transporting cocaine base for which he was sentenced to three years in state prison.
He suffered his prior strike convictions in 1997 and spent most of the next decade in
prison. Moreover, the evidence recovered from defendant’s car and surrounding area
indicates his current offenses did not arise from an unplanned or thoughtless act of
criminal behavior. To the contrary, the multiple packages of various narcotics, the
presence of a scale and large amount of cash, and the text messages and video found on
defendant’s cell phone indicate defendant was in the business of selling drugs.
       The trial court acted well within its discretion in refusing to dismiss two of the
three prior strike allegations.3




3       While this case was pending on appeal, our Supreme Court decided People v.
Vargas (2014) 59 Cal.4th 635 (Vargas), holding that the trial court was required to
dismiss one of the defendant’s two prior strike convictions (robbery & carjacking)
because they were based on the defendant’s commission of the same act (forcibly taking
the victim’s car). The court found that “the trial court’s failure in these circumstances to
dismiss one of defendant’s two prior strike convictions, and instead to treat her as a third-
strike offender, was inconsistent with the intent underlying both the legislative and
initiative versions of the Three Strikes law,” (id. at p. 645) which suggested a defendant
“would have three chances–three swings of the bat, if you will–before the harshest
penalty could be imposed.” (Id. at p. 646.) Following our Supreme Court’s decision in
Vargas, we asked the parties to file supplemental letter briefs addressing the following
issue: “Do defendant’s three prior strike convictions arise out of a ‘single act’ within the
meaning of People v. Vargas (Jul. 10, 2014, S203744)?” Having reviewed the parties’
briefs, we find that, unlike Vargas, defendant’s three prior strike convictions (each for
robbery) do not arise out of a single act. While the convictions arise out of a single
incident; each involves a separate criminal act. Defendant along with two other
individuals entered a bar. Defendant went straight to the bar area, pointed a gun at the
bartender’s stomach, and told him to give him his wallet and open the register.
Meanwhile, the other individuals went from patron to patron, demanding money and
jewelry.

                                              7
                                            II
The Trial Court Did Not Err in Failing to Stay Defendant’s Sentences on Counts 3, 5, and
 6, or in Directing That the Sentences on Those Counts Be Consecutive to His Sentence
                                       on Count 1
       Defendant contends the trial court erred in failing to stay his sentences on counts 3
(possession of cocaine base for sale), 5 (possession of methamphetamine), and 6
(possession of cocaine for sale) under section 654 “because all of [his] convictions were
based on a single act of possessing multiple types of drugs in a single bag.”
Alternatively, he contends the trial court erred in directing that his sentences on those
counts be consecutive to, rather than concurrent with, his sentence on count 1 (possession
of heroin for sale). We disagree with both contentions.
       As relevant to our analysis here, defendant was convicted of possession of heroin
for sale (count 1), possession of cocaine base for sale (count 3), possession of
methamphetamine (count 5), and possession of cocaine for sale (count 6), and was
sentenced to four consecutive terms of 25 years to life in state prison as a result. The trial
court declined to stay defendant’s sentences on counts 3, 5, and 6 pursuant to section 654
because “the evidence . . . supports the conclusion that [defendant] intended multiple
sales of the various types of narcotics to different customers. [¶] There was a scale that
was found where the narcotics were recovered in the case. He possessed multiple unused
syringes. Much of the narcotics were packaged for individual sales. And his -- I don’t
know how to describe it -- the self-produced cell phone video, he, . . . himself describes
his involvement in drug sales.” The court declined to exercise its discretion to run
defendant’s sentences on those counts concurrent with defendant’s sentence on count 1
“because the crimes and their objectives were predominantly independent of each other
and pursuant to California Rule of Court 4.425(b).” The court also noted that it had
“considered the aggravated factors under California Rule of Court 4.421 as delineated at
page 11 of the probation report.”



                                              8
          Section 654, subdivision (a) provides: “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” Section 654 bars multiple
punishments for both a single act that violates more than one criminal statute and for
multiple acts, where those acts comprise an indivisible course of conduct incidental to a
single criminal objective and intent. (People v. Latimer (1993) 5 Cal.4th 1203, 1208;
Neal v. State of California (1960) 55 Cal.2d 11, 19.) “Whether a course of conduct is
indivisible depends upon the intent and objective of the actor. [Citation.] If all the
offenses were incident to one objective, the defendant may be punished for any one of
such offenses but not for more than one. [Citation.]” (People v. Perez (1979) 23 Cal.3d
545, 551.) “On the other hand, if the evidence discloses that a defendant entertained
multiple criminal objectives which were independent of and not merely incidental to each
other, he may be punished for the independent violations committed in pursuit of each
objective even though the violations were parts of an otherwise indivisible course of
conduct.” (Ibid., fn. omitted.) Multiple criminal objectives may “be a predicate for
multiple punishment only in circumstances that involve, or arguably involve, multiple
acts. The rule does not apply where . . . the multiple convictions at issue were
indisputably based upon a single act.” (People v. Mesa (2012) 54 Cal.4th 191, 199.)
          We review the trial court’s factual findings in imposing multiple punishment for
substantial evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) In doing so,
we view the record in the light most favorable to the trial court’s findings and presume
the existence of every fact the trial court could reasonably deduce from the evidence.
(Ibid.)
          Courts, including this one, have long held that “[t]he act of possession cannot be
conceptualized as a single ‘act’ covering possession of two kinds of illicit drugs. Thus
[a] defendant may be separately punished for the criminal act of possessing [two different

                                                9
kinds of contraband], although both acts occurred simultaneously and both drugs were
found at the same place.” (People v. Fusaro (1971) 18 Cal.App.3d 877, 893, disapproved
of on another ground in People v. Brigham (1979) 25 Cal.3d 283, 292; see also In re
Adams (1975) 14 Cal.3d 629, 635; People v. Schroeder (1968) 264 Cal.App.2d 217, 228;
People v. Lockwood (1967) 253 Cal.App.2d 75, 82-83; People v. Lopez (1959) 169
Cal.App.2d 344, 350-351; People v. Mandell (1949) 90 Cal.App.2d 93, 98-99.) Our
Supreme Court recently approved of such holdings in People v. Jones (2012) 54 Cal.4th
350, stating: “We recognize that what is a single physical act might not always be easy to
ascertain. In some situations, physical acts might be simultaneous yet separate for
purposes of section 654. For example, in [In re] Hayes [(1969) 70 Cal.2d 604], both the
majority and the dissenters agreed that, to use Chief Justice Traynor’s words,
‘simultaneous possession of different items of contraband’ are separate acts for these
purposes. (Hayes, supra, 70 Cal.2d at p. 612 (dis. opn. of Traynor, C. J.); see id. at pp.
606–607 (maj. opn.).) As Chief Justice Traynor explained, ‘the possession of one item is
not essential to the possession of another separate item. One does not possess in the
abstract; possession is meaningless unless something is possessed. The possession of
each separate item is therefore a separate act of possession.’ (Id. at p. 613 (dis. opn. of
Traynor, C. J.).) We do not intend to cast doubt on the cases so holding.” (Id. at p. 358,
fn. omitted.) Here, defendant’s simultaneous possession of different items of contraband
constituted separate acts under section 654.
       We next consider whether defendant’s multiple acts of possession comprised an
indivisible course of conduct incidental to a single criminal objective and intent. (People
v. Latimer, supra, 5 Cal.4th at p. 1208.) Our decision in People v. Blake (1998) 68
Cal.App.4th 509 (Blake) is instructive. There, the defendant was convicted of
transportation of methamphetamine and transportation of marijuana. (Id. at p. 510.) On
appeal, he argued the trial court erred in imposing sentences for both convictions
“because he transported both drugs in his car at the same time . . . .” (Ibid.) In rejecting

                                               10
that argument and concluding that “the evidence supports a reasonable inference that
defendant had separate objectives in transporting the methamphetamine and marijuana in
that he intended to sell them to different customers,” (ibid.) we relied on the following
facts: “(1) the marijuana and methamphetamine were stored in separate containers in
different concealed compartments of the car; (2) the marijuana was packaged in a manner
consistent with multiple, individual sales; (3) the amounts of marijuana and
methamphetamine were consistent with delivery to more than one individual; (4) the
difference between the drugs suggests they were ‘directed at different buyers’ [citation],
and (5) the presence of a ‘pay-owe’ sheet with multiple entries, a police scanner, baby
wipes, and a scale indicates defendant was engaged in an elaborate drug trafficking
operation involving multiple sales to different individuals, rather than one single
delivery.” (Id. at p. 512, fn. omitted; see also People v. Briones (2008) 167 Cal.App.4th
524, 529-530 [“There were two types of drugs in large amounts. This supports the
inference Briones intended multiple sales to different customers.”].)
       The record in this case likewise supports an inference defendant intended multiple
sales to different customers. Although the heroin, cocaine base, cocaine, and
methamphetamine were contained in a single plastic bag, the heroin was further divided
into 18 smaller bindles and the rock cocaine (base) into four smaller bindles. While the
4.8 grams of powdered cocaine was not divided into smaller bindles, defendant had a
scale in his glove compartment. Defendant also had multiple cell phones and a large
amount of cash in numerous denominations. Perhaps most tellingly, the cell phone
defendant dropped as he fled from Officer Fish contained multiple text messages from
individuals requesting narcotics, and a video of defendant discussing various drugs and
stating, “you need I got” and “[y]ou can get your needs met, you know, it’s on wheels
whatever you need it’s on wheels.” Only one individually wrapped bindle of
methamphetamine weighing 0.5 grams was found in the bag and a smashed glass
methamphetamine pipe was found near the cell phone defendant dropped while fleeing.

                                             11
Defendant was charged and convicted of simple possession, as opposed to possession for
sale. The record supports a reasonable inference that defendant possessed the
methamphetamine for personal use. Because the evidence supports a reasonable
inference that defendant had separate objectives in possessing the various narcotics, the
trial court did not err in failing to stay defendant’s sentences on counts 3, 5, and 6.
       Defendant also contends the trial court erred in directing that his sentences on
counts 3, 5, and 6 run consecutive to, as opposed to concurrent with, his sentence on
count 1. More specifically, defendant argues the trial court was required to determine
whether defendant was eligible for concurrent sentencing under section 667, subdivision
(c)(6) before applying the relevant criteria under California Rules of Court, rule 4.425. In
addition, citing his previous arguments, he claims “the trial court . . . did not properly
apply all of the relevant criteria of [California Rules of Court,] rule 4.425 . . . .”
       Section 667, subdivision (c)(6) states: “If there is a current conviction for more
than one felony count not committed on the same occasion, and not arising from the same
set of operative facts, the court shall sentence the defendant consecutively on each count
pursuant to subdivision (e).” “By implication, consecutive sentences are not mandatory
under subdivision (c)(6) if the multiple current felony convictions are ‘committed on the
same occasion’ or ‘aris[e] from the same set of operative facts.’” (People v. Hendrix
(1997) 16 Cal.4th 508, 512-513.) The trial court here plainly was aware of its discretion
to direct that the sentences run concurrent. At sentencing, defendant requested
concurrent sentencing on counts 3, 5, and 6 pursuant to section 1170.12, subdivision
(a)(6), which is virtually identical to section 667, subdivision (c)(6),4 because “[t]his is




4 Section 1170.12, subdivision (a)(6) states: “If there is a current conviction for more
than one felony count not committed on the same occasion, and not arising from the same
set of operative facts, the court shall sentence the defendant consecutively on each count
pursuant to this section.”

                                               12
basically one event where [defendant’s] possessing multiple drugs.” In denying his
request, the court indicated it “would not exercise the discretion to sentence him
concurrently . . . .”
       With respect to defendant’s claim that “the trial court . . . did not properly apply
all of the relevant criteria of [California Rules of Court,] rule 4.425,” defendant forfeited
any claim of error on appeal by failing to raise the issue in the trial court. (People v.
Scott (1994) 9 Cal.4th 331, 353.) Even assuming the issue was preserved for review,
California Rules of Court, rule 4.425 only applies to determinate sentences. (People v.
Murray (1990) 225 Cal.App.3d 734, 750.) Defendant was sentenced to indeterminate
terms of 25 years to life on counts 1, 3, 5, and 6. Thus, the trial court had full discretion
to impose consecutive sentences under the indeterminate sentencing law without stating
its reasons for doing so. (Id. at p. 750; see also People v. Black (2005) 35 Cal.4th 1238,
1262, fn. 17 [“No reason need be stated on the record for directing that indeterminate
terms run consecutively to one another.”], disapproved on other grounds in Cunningham
v. California (2007) 549 U.S. 270 9166 L.Ed.2d 856].)
       Here, while not required to do so, the trial court set forth numerous reasons for
imposing consecutive sentences on counts 3, 5, and 6. The trial court stated that it was
imposing consecutive sentences because “the crimes and their objectives were
predominantly independent of each other and pursuant to California Rule of Court
4.425(b).” It also indicated that it had considered the “aggravated factors under
California Rule of Court 4.421 as delineated at page 11 of the probation report,” which
lists the following circumstances in aggravation under California Rules of Court, rule
4.421: “(a)(8) The manner in which the crimes were carried out indicates planning. [¶]
(b)(1) The defendant has engaged in prior violent conduct which indicates a serious
danger to society. [¶] (b)(2) The defendant’s prior convictions as an adult are numerous.
[¶] (b)(3) The defendant has served multiple prior prison terms. [¶] (b)(5) The
defendant’s prior performance on parole appears to have been unsatisfactory.”

                                              13
Moreover, as set forth above, the trial court also was aware of the circumstances of
defendant’s prior strike convictions as well as his current convictions. On this record, we
cannot conclude that the trial court abused its discretion in imposing consecutive
sentences on counts 3, 5, and 6.
                                               III
                  Defendant is Not Entitled to Remand for Resentencing
       Finally, defendant contends that his “sentences should be vacated and remanded
for resentencing with directions to the trial court to sentence him as a ‘second striker’
under the amended provisions of the three strikes law and Proposition 36.” We disagree.
       Defendant was sentenced to four consecutive terms of 25 years to life under the
three strikes law for crimes that were not serious or violent felonies. (§§ 667.5, subd. (c),
1192.7, subd. (c).) While defendant’s appeal was pending, the voters passed Proposition
36 limiting three strikes sentences to current convictions for serious or violent felonies, or
a limited number of other 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-year-
to-life three strikes sentence on counts 1, 3, 5, or 6.
       Proposition 36 also added section 1170.126, which creates a postconviction
release proceeding “intended to apply exclusively to 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 under
this act would not have been an indeterminate life sentence.” (§ 1170.126, subd. (a).) A
prisoner is eligible for resentencing under section 1170.126 as a second strike offender if
certain requirements are met. (§ 1170.126, subd. (e).)
       In asking us to vacate his sentence and remand the matter, defendant relies on the
rule of retroactivity set forth in In re Estrada (1965) 63 Cal.2d 740 (Estrada). Under the
Estrada rule, a legislative amendment that lessens criminal punishment is presumed to
apply to all cases not yet final (the Legislature deeming its former penalty too severe),

                                               14
unless there is a “saving clause” providing for prospective application. (Id. at pp. 742,
745, 748.)
       In People v. Yearwood (2013) 213 Cal.App.4th 161 (Yearwood), the Fifth
Appellate District concluded section 1170.126 is the equivalent of a “saving[s] clause”
that defeats the presumption of retroactivity in Estrada for persons like defendant whose
appeals were pending when Proposition 36 became effective. (Yearwood, at pp. 172,
176.) Like Yearwood, we conclude Estrada does not apply and defendant’s only
recourse is to petition for a recall of sentence in the trial court pursuant to section
1170.126; he is not entitled to a remand for resentencing under the amendments to
sections 667 and 1170.12. (Yearwood, at pp. 171-172, 176.) Contrary to defendant’s
assertion, section 1170.126 is not ambiguous and applies to all prisoners serving
indeterminate life sentences imposed under the three strikes law, including those, like
defendant, whose judgments are not final and are subject to possible modification on
appeal. (Yearwood, at p. 177.)
       Defendant also contends that retroactive application of Proposition 36 is
compelled by equal protection. We reject that contention as well. “Prisoners are not a
suspect class. The status of being incarcerated is neither an immutable characteristic nor
an invidious basis of classification.” (Yearwood, supra, 213 Cal.App.4th at p. 178.)
Laws applicable to prisoners require only a rational basis. (Ibid.) To the extent
Proposition 36 applies prospectively, prospective application of a statute that lessens
punishment does not violate equal protection. (People v. Floyd (2003) 31 Cal.4th 179,
188-189; People v. Lynch (2012) 209 Cal.App.4th 353, 360-361.)




                                              15
                                    DISPOSITION
     The judgment is affirmed.


                                        BLEASE    , Acting P. J.


We concur:


        DUARTE                   , J.


        HOCH                     , J.




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