Filed 4/3/14 P. v. Granado CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065908
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MCR041744)
                   v.

GARY DEL GRANADO,                                                                        OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Madera County. Mitchell C.
Rigby, Judge.
         Peter Dodd, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jesse
Witt, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       In this Three Strikes case, defendant Gary Del Granado received a sentence of
25 years to life after being convicted of possessing methamphetamine with four prior
strike convictions. He now argues: (1) statements were obtained from him in violation
of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) the prosecutor committed
misconduct in his questioning of a defense witness; (3) the trial court abused its
discretion in allowing a 20-year-old domestic battery conviction to be used to impeach a
defense witness; (4) the jury instructions and verdict forms used for finding the prior
strike allegations to be true were erroneous; and (5) the matter should be remanded for
resentencing under the Three Strikes Reform Act of 2012 (Proposition 36), which
became effective after Granado was sentenced. We affirm.
                        FACTS AND PROCEDURAL HISTORY
       Around 11:00 p.m. on August 22, 2011, a Ms. Garcia called the Madera Police
Department to say a man was refusing to leave her home. Officers Alva and Tuckness
were dispatched to Garcia’s house. Granado, who matched a description given by
Garcia, was sitting in a minivan parked in front of the house. Officer Alva parked, got
out, and walked over to Granado. Granado was moving around inside the minivan, and
Alva asked him to step out to talk. He stepped out and Alva asked what he was doing
there. Granado said he was visiting his ex-girlfriend to bring her a box of earrings. Alva
observed that Granado was fidgety, spoke very quickly and did not make eye contact.
When Granado spoke, Alva smelled a chemical odor she had often noticed during drug
arrests and that she associated with methamphetamine. She suspected he was under the
influence of drugs. She shined a flashlight in his eyes and observed eyelid tremors and
rebounding pupils, symptoms that confirmed her suspicion. Alva asked whether he had
used drugs recently, and Granado said he had smoked methamphetamine a few hours
earlier. Then she asked whether he had any drugs or weapons. He said no and consented
to a search of his person. The search turned up nothing. Alva did not arrest or handcuff
Granado, but asked him to sit on the curb while she went to the house to speak to Garcia.

                                             2.
       Garcia told Alva she wanted Granado to leave. Alva went back to Granado, said
she would not allow him to drive in his condition and asked if there was someone he
could call to come drive him home. Granado said he would call someone. Alva asked
him whether there was anything illegal in the van. Granado said no and told Alva she
could check. As Alva was getting ready to do so, Garcia insisted that the van be moved
off the property. Granado gave his permission to Officer Tuckness to drive the van out of
the driveway.
       After moving the van onto the street, Tuckness told Alva there was something of
interest on the van’s passenger seat. Alva asked Granado if he had anything to say about
that. Granado became agitated, rocking and clenching his fists. Alva handcuffed him
and they walked to the van together. On the seat was a small yellow plastic bag tied in a
knot. Granado then declared that it was not his van and that Alva had not seen him
driving it. From the packaging and the feel of the contents through the bag, Alva
believed methamphetamine was inside. She opened the bag and found small crystals,
which were later determined to be 0.1 grams of methamphetamine. Alva placed Granado
under arrest.
       The district attorney filed an information charging Granado with one felony count
of methamphetamine possession. (Health & Saf. Code, § 11377, subd. (a).) The
information also alleged that Granado had five prior strike convictions: one burglary
(Pen. Code, § 459)1 in 1988; three rapes in 1993 of a person incapable of giving legal
consent because of a mental disorder or a developmental or physical disability (§ 261,
subd. (a)(1)); and an assault in 1998 with intent to commit mayhem, rape, sodomy, oral
copulation or another specified offense (§ 220). The burglary allegation was later
stricken at the request of the prosecution because the offense was committed when
Granado was a juvenile and was not an offense eligible to be treated as a juvenile strike.

1      Subsequent statutory references are to the Penal Code unless noted otherwise.



                                              3.
       At trial, Granado’s defense was that the methamphetamine belonged to his father,
Raymond Granado. Raymond testified that on the night of the arrest, he bought a yellow
plastic bag of methamphetamine for $10. He planned to sprinkle the methamphetamine
in coffee later in the evening to give him energy to pick up cans. He put the bag in the
shirt pocket where he kept his cigarettes. Around 9:00 or 10:00 p.m., he walked to his
son’s trailer. When he got there, he asked his son for a ride to a store to buy the coffee.
They drove there in the brown van. After his son dropped him off at the store, he realized
the methamphetamine was missing. He concluded it must have fallen out of his pocket
inside the van when he got the cigarettes out. His son had driven off and did not have a
phone. Raymond found out about the arrest the next day.
       For purposes of impeachment, the jury was presented with a stipulation that
Raymond was convicted in 1992 on a felony charge of violating section 273.5, willful
infliction of corporal injury on a spouse or cohabitant.
       The jury found Granado guilty as charged. It also found true the four allegations
of prior strike convictions.
       At the sentencing hearing, Granado made a motion to strike all but one of the prior
strikes and impose a determinate term. The People opposed the motion, saying that
although the present case involved possession of only a small amount of drugs,
Granado’s history of recidivism meant his case was within the spirit of the Three Strikes
Law. The prosecutor described the three section 261 convictions as forcible rapes of
Granado’s disabled cousin. She also mentioned Granado’s six parole violations. The
court described the section 220 violation as an assault with intent to commit rape. In his
comments to the court, Granado stated that the parole violations arose from visits to his
father’s house. The rape victim lived with his father, so he was forbidden to go there.
       The court denied the motion and imposed a sentence of 25 years to life.




                                             4.
                                       DISCUSSION
I.     Miranda
       Granado made a motion in limine to exclude the statement he made to the police
before he was arrested that he had used methamphetamine a few hours earlier. He
contended that the conversation with Officer Alva in which he made this statement was a
custodial interrogation before which he was not advised of his rights, so admission of the
statement would violate the Miranda rule. The court denied the motion and Granado
renews the argument now.2
       When reviewing a Miranda ruling, we accept the facts as found by the trial court if
supported by substantial evidence and we review independently the question of whether,
in light of those facts, the statement at issue was obtained in violation of the Miranda
rule. (People v. Wash (1993) 6 Cal.4th 215, 235-236; People v. Ochoa (1998) 19 Cal.4th
353, 402.)
       The question in this case is whether Granado was in custody when Alva asked
whether he had used drugs recently. Miranda warnings are required only for custodial
interrogations, not for every instance of police questioning. (Oregon v. Mathiason (1977)
429 U.S. 492, 495; People v. Ochoa, supra, 19 Cal.4th at p. 401.) A suspect is in custody
if a reasonable person under the circumstances would believe his or her freedom of
movement is restrained to the same extent as in a formal arrest. (California v. Beheler
(1983) 463 U.S. 1121, 1125.)

2       In his appellate brief, Granado claims his statements that the van was not his and the
police had not seen him drive it also should have been excluded. Granado was handcuffed at the
time he made those statements, but in the trial court, defense counsel orally conceded that the
statements were admissible under Miranda because they were spontaneous. Granado points out
that his written motion requested exclusion of all statements he made before being Mirandized,
but we do not see how this would preserve the issue when he expressly disclaimed any intent to
challenge the admission of the statements about the van in open court afterwards. Consequently,
the Miranda issue has not been preserved for appellate review with respect to those statements
and we will not consider them further. (People v. Gurule (2002) 28 Cal.4th 557, 602.)



                                              5.
       The Supreme Court has held that questioning during a typical traffic stop or a
detention like the one at issue in Terry v. Ohio (1968) 392 U.S. 1—that is, a brief
detention for the purpose of investigating an officer’s reasonable suspicion of criminal
wrongdoing—is not a custodial interrogation:

       “[T]he usual traffic stop is more analogous to a so-called ‘Terry stop,’ see
       [Terry v. Ohio, supra, 392 U.S. 1], than to a formal arrest. Under the
       Fourth Amendment, we have held, a policeman who lacks probable cause
       but whose ‘observations lead him reasonably to suspect’ that a particular
       person has committed, is committing, or is about to commit a crime, may
       detain that person briefly in order to ‘investigate the circumstances that
       provoke suspicion.’ [Citation.] ‘[The] stop and inquiry must be
       “reasonably related in scope to the justification for their initiation.”’
       [Citations.] Typically, this means that the officer may ask the detainee a
       moderate number of questions to determine his identity and to try to obtain
       information confirming or dispelling the officer’s suspicions. But the
       detainee is not obliged to respond. And, unless the detainee’s answers
       provide the officer with probable cause to arrest him, he must then be
       released. The comparatively nonthreatening character of detentions of this
       sort explains the absence of any suggestion in our opinions that Terry stops
       are subject to the dictates of Miranda. The similarly noncoercive aspect of
       ordinary traffic stops prompts us to hold that persons temporarily detained
       pursuant to such stops are not ‘in custody’ for the purposes of Miranda.”
       (Berkemer v. McCarty (1984) 468 U.S. 420, 439-440, fns. omitted.)
       Officer Alva’s actions were indistinguishable from a Terry stop or a typical traffic
stop. Having been dispatched on a report of a man refusing to leave a house, she found
Granado, a man matching the description given, in a car outside the house. She did not
yet have probable cause to arrest him, but she had reasonable suspicion supporting a brief
detention for questioning. Her observations during this detention justified the question
that led to the incriminating statement, a question she asked only a few minutes after the
detention began. She did not draw her gun, use her car’s siren or flashing lights, or tell
Granado he was under arrest. Her testimony was that she asked Granado to get out of the
van to talk, not that she ordered him out. Before finding the methamphetamine, Alva
made it clear she was prepared to release Granado if someone would come to drive him


                                             6.
home. We conclude that a reasonable person in this situation would not believe his
freedom of movement was restrained to the same degree as it would have been in an
arrest.
          Granado emphasizes the facts that Alva arrived in a marked car and was armed
and in uniform and that Officer Tuckness had also arrived in another marked car. A
Terry stop and a typical traffic stop, however, are ordinarily carried out by uniformed,
armed officers and officers in police cars. This alone is not a sufficient show of authority
to render a detention equivalent to an arrest.
          Granado also stresses that he was told to sit on the curb at one point, that the
conversation was dominated by the officer, that it was apparent during the questioning
that Granado was a potential suspect, and that he was arrested shortly after making the
statement at issue. We agree that these are factors supporting Granado’s view, but they
are outweighed by the other factors we have discussed. For all of the above reasons, we
conclude that the brief detention and questioning leading to Granado’s admission that he
had used methamphetamine were not a custodial interrogation.
II.       Prosecutorial misconduct
          The prosecutor questioned Raymond Granado about the source of the
methamphetamine he claimed was his. Raymond declined to name the seller:

                    “Q   And where did you get it from?

                    “A   I got it from a person that had some, but I can’t tell you who
          it was.

                    “Q   Why not?

                    “A   I just can’t.

                    “Q   Why not?

                    “A   Huh?

                    “Q   Why not?


                                                 7.
              “A     I don’t know. I just can’t tell you who it was.”
       Defense counsel did not make an objection. Later, the prosecutor asked whether
Raymond had ever bought drugs from the same seller on other occasions. Defense
counsel made a relevance objection, which was overruled. Raymond said no.
       In his closing argument, the prosecutor contended that these answers showed that
Raymond lacked credibility:

               “What was his attitude toward testifying, right? He’s willing to put
       himself in jeopardy to get his son out of trouble, but he’s not willing to tell
       us who he purchased the drugs from, which seems like it may make sense,
       but if that’s the person—if that’s what you need to do, if that’s what you’re
       really committed to testifying about, to, as he says, do the right thing and
       get your son out of something that he didn’t do, why not give us that
       answer?”
       Defense counsel did not object to the argument.
       Granado now argues that the prosecutor’s questions and argument on this topic
constituted misconduct because the question from whom Raymond bought the
methamphetamine was not relevant to Granado’s guilt. He says the prosecutor’s actions
unfairly damaged Raymond’s credibility and “only served to ‘smear’ [Raymond] by
emphasizing the sinister nature of his drug dealing.”
       Granado’s claims about the first question—who the seller was—and the closing
argument are forfeited because no objection was made in the trial court. (People v.
Brown (2003) 31 Cal.4th 518, 553 [“To preserve a claim of prosecutorial misconduct for
appeal, a criminal defendant must make a timely objection, make known the basis of his
objection, and ask the trial court to admonish the jury.”].)
       This leaves the claim about the question whether Raymond had ever bought drugs
from the same seller before. The only objection made to this question was a relevance
objection. There was no claim of prosecutorial misconduct and no request for an
admonition to the jury. It has been held that a relevance objection does not preserve for
appeal a claim that evidence should have been excluded as unduly prejudicial under


                                              8.
Evidence Code section 352. (People v. Alexander (2010) 49 Cal.4th 846, 905.) The
same principle applies here. Granado did not preserve a claim that the question was an
unfair inflammatory attack on the witness’s credibility by making a relevance objection.
This claim, therefore, is forfeited as well.
       Even if the claims had been preserved, we would not find reversible error. Our
Supreme Court set forth the federal and state standards for prosecutorial misconduct in
People v. Samayoa (1997) 15 Cal.4th 795, 841:

       “‘“A prosecutor’s … intemperate behavior violates the federal Constitution
       when it comprises a pattern of conduct ‘so egregious that it infects the trial
       with such unfairness as to make the conviction a denial of due process.’”’
       [Citations.] Conduct by a prosecutor that does not render a criminal trial
       fundamentally unfair is prosecutorial misconduct under state law only if it
       involves ‘“‘the use of deceptive or reprehensible methods to persuade either
       the court or the jury.’”’ [Citation.] … Additionally, when the claim focuses
       upon comments made by the prosecutor before the jury, the question is
       whether there is reasonable likelihood that the jury construed or applied any
       of the complained-of remarks in an objectionable fashion. [Citation.]”
       The questions and argument at issue here were not of this nature. At the very
least, there is a colorable claim that asking Raymond to add these details to his story was
a legitimate method of cross-examination. If the story were true, he would have the
details ready at hand; if not, he might stumble and hesitate. The jury could draw
legitimate inferences from his demeanor either way. The questions and argument at
issue, therefore, did not rise to the level of misconduct even if it was error to allow them.
III.   Impeachment
       Granado asserts that the court should not have permitted the use of Raymond’s
1992 felony violation of section 273.5 for impeachment. He says the conviction was too
old and had little probative value on the issue of Raymond’s credibility.
       A witness’s prior felony offenses of moral turpitude are admissible to impeach the
witness’s credibility. The trial court must apply Evidence Code section 352 and
determine whether the probative value of the impeachment is substantially outweighed by


                                               9.
its prejudicial effect. We review for abuse of discretion the trial court’s decision to admit
evidence of a witness’s prior offenses for impeachment. (People v. Clark (2011) 52
Cal.4th 856, 931-932; Evid. Code, § 788.)
       The degree to which the prior offense reflects the witness’s dishonesty, the age of
the prior conviction and the witness’s record of criminal conduct in the interim are among
the factors to be considered. (People v. Clark, supra, 52 Cal.4th at p. 931; People v.
Burns (1987) 189 Cal.App.3d 734, 738; People v. Beagle (1972) 6 Cal.3d 441, 453.)
Although all crimes of moral turpitude are relevant for purposes of impeachment, it has
been held that a crime involving dishonesty, such as larceny, is more probative of
credibility than a crime involving violence, such as battery. (People v. Burns, supra, at
p. 738.)
       We have no doubt that a violation of section 273.5 is sufficiently probative on the
issue of credibility. The willful infliction of corporal injury on a spouse, cohabitant,
person with whom the offender is in a dating relationship, or parent of the offender’s
child, has a special status among crimes of violence:

       “To violate Penal Code section 273.5 the assailant must, at the very least,
       have set out, successfully, to injure a person of the opposite sex in a special
       relationship for which society rationally demands, and the victim may
       reasonably expect, stability and safety, and in which the victim, for these
       reasons among others, may be especially vulnerable. To have joined in,
       and thus necessarily to be aware of, that special relationship, and then to
       violate it willfully with intent to injure, necessarily connotes the general
       readiness to do evil that has been held to define moral turpitude.” (People
       v. Rodriguez (1992) 5 Cal.App.4th 1398, 1402.)
       The 20-year period between the offense and the trial was not so long as to
undermine the conviction’s probative value in this case because Raymond committed
numerous offenses in the interim. The felony section 273.5 conviction took place on
September 14, 1992, when Raymond was 43 years old. He was convicted of a
misdemeanor weapon possession offense in 1992 (former § 12021); falsely identifying



                                             10.
himself to a police officer in 1992 and again in 1994 (§ 148.9); resisting arrest in 1997
(§ 148); a misdemeanor section 273.5 violation in 1997; failure to appear on a DUI
charge in 2000; a misdemeanor assault with a deadly weapon in 2002 (§ 245); driving
with a suspended or revoked license in 2004 (Veh. Code, § 14601); and removing a
shopping or laundry cart in 2008 (Bus. & Prof. Code, § 22435.2). These were not all
serious offenses, but they certainly show that Raymond did not lead “‘a legally blameless
life’” (People v. Beagle, supra, 6 Cal.3d at p. 453) after committing the felony of moral
turpitude. The trial court did not abuse its discretion.
IV.    Instructions and forms for prior strike findings
       The question of whether Granado had sustained the four alleged prior strikes was
tried to the jury. The jury was provided with four verdict forms relating to the prior
strikes. Three of these pertained to the section 261 priors. The first gave the jury the
option of finding it true or not true that Granado committed one violation of section 261.
The second permitted the jury to find it true or not true that he committed two such
violations, and the third allowed the jury to find it true or not true that he committed
three. The foreperson circled “true” on the last of these forms and signed it. The fourth
form permitted the jury to find it true or not true that Granado committed the prior
section 220 offense. The foreperson circled “true” and signed the form.
       In accordance with CALCRIM Nos. 3101 and 221, the jury was instructed:

             “The People have alleged that the defendant was previously
       convicted of other crimes. It has already been determined that the
       defendant is the person named in the exhibit, Exhibit 4 [i.e., the record of
       Granado’s prior convictions provided by the Department of Corrections and
       Rehabilitation]. You must decide whether the evidence proves that the
       defendant was convicted of the alleged crimes. The People allege that the
       defendant has been convicted of:

              “2,    a violation of Penal Code Section 261, subdivision (a),
       subdivision (1) [sic], on August 30, 1993, in the Superior Court of
       California, County of Madera, case number 11286.



                                             11.
              “3,    a violation of Penal Code Section 261, subdivision (a),
       subdivision (1) [sic], on August 30, 1993, in the Superior Court of
       California, County of Madera, case number 11286.

              “4,    a violation of Penal Code section 261, subdivision (a),
       subdivision (1) [sic], on August 30, 1993, in the Superior Court of
       California, County of Madera, case number 11286.

              “5,    a violation of Penal Code Section 220 on September 15,
       1998, in the Superior Court of California, County of Madera, case number
       14608.

              “In deciding whether the People have proved the allegations,
       consider only the evidence presented in this proceeding. Do not consider
       your verdict or any evidence from the earlier part of the trial. You may not
       return a finding that any alleged conviction has or has not been proved
       unless all 12 of you agree on that finding.

              “The People are required to prove the allegations beyond a
       reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you
       with an abiding conviction that the allegation is true. The evidence does
       not need to eliminate all possible doubt, because everything in life is open
       to some possible or imaginary doubt.

               “In deciding whether the People have proved an allegation beyond a
       reasonable doubt, you must impartially compare and consider all the
       evidence that was received during this phase of the trial. Unless the
       evidence proves an allegation beyond a reasonable doubt, you must find
       that the allegation has not been proved.”
       Granado argues that the instructions were erroneous because they did not state that
the jury must make a separate determination of the truth of each of the three convictions
under section 261. He maintains that the court ought to have crafted an instruction
analogous to CALCRIM No. 3515, which is applicable to the current charged offenses in
a case and states that multiple counts must be considered separately.
       Granado did not request an instruction of this kind in the trial court. Even
CALCRIM No. 3515 is not required to be given on the court’s own motion. (People v.
Beagle, supra, 6 Cal.3d at p. 456 [court not required to give equivalent CALJIC




                                            12.
instruction sua sponte].) The trial court could not have been expected to impose such a
requirement on itself, and the issue therefore is forfeited.
       Granado argues that if the issue is forfeited by trial counsel’s failure to request the
instruction, then trial counsel rendered ineffective assistance.
       To establish ineffective assistance of counsel, defendant must show that counsel’s
performance “fell below an objective standard of reasonableness,” and that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668,
688, 694; see also People v. Hester (2000) 22 Cal.4th 290, 296.) It is not necessary to
determine whether counsel’s challenged action was professionally unreasonable in every
case, however. If the reviewing court can resolve the ineffective assistance claim by
proceeding directly to the issue of prejudice—i.e., the issue of whether there is a
reasonable probability that the outcome would have been different absent counsel’s
challenged actions or omissions—it may do so. (Strickland v. Washington, supra, at
p. 697.)
       There is no reasonable probability that Granado would have obtained a better
outcome if an instruction of the kind he contemplates had been given. The jury was
simply presented with a record of the judgment showing the three section 261
convictions. There was no rational way in which the jury could have found some of the
convictions true and others not true.
       Granado also contends that the verdict forms were erroneous. He says, “The jury
was given only two verdict forms for the prior convictions: one to indicate whether the
prior Penal Code section 220 [conviction] was suffered, and one to indicate if the three
prior Penal Code section 261 convictions were suffered.” This is not correct. As we
have indicated, there were three verdict forms on the section 261 convictions, allowing
the jury to find one, two or three convictions, or to find all the allegations not true. This
alone defeats Granado’s contention that the forms did not give the jury any options but to

                                             13.
find all three section 261 convictions true or none of them. Further, any defect in the
forms was harmless for the reason we have already stated: There was no rational way for
the jury to review the record of the judgment in the rape case and find some but not all of
the convictions true.
       In his reply brief, Granado belatedly cites section 1158, which states that when
multiple prior convictions are alleged, “a separate finding must be made as to each.” He
says the findings made did not conform to this requirement.
       Arguments first made in a reply brief are forfeited. (People v. Tully (2012) 54
Cal.4th 952, 1075.) Even if we were to consider the argument, we would reject it, since
the three separate forms the jury was given for the rape convictions did in effect require it
to make separate findings about each. Finally, any error was harmless under any
standard, because, as we have said, in light of the evidence presented, there was no
rational way for the jury to find some but not all of the rape priors true.
V.     Three Strikes Reform Act of 2012
       On November 6, 2012, the voters passed the Three Strikes Reform Act of 2012,
Proposition 36, under which a nonserious, nonviolent felony like the simple possession
offense at issue here cannot be a third strike triggering a sentence of 25 years to life
unless certain findings were made that are not at issue here. (§ 1170.12, subd. (c)(2)(C).)
The Act became effective the day after its passage, November 7, 2012. (Prop. 36, § 10,
approved Nov. 6, 2012.)3
       Granado was sentenced on September 28, 2012. He argues that because his case
was pending on direct appeal when the new law took effect, it should be applied to him
and he must be resentenced. We rejected the same argument in People v. Yearwood


3       The full text of the initiative, including uncodified portions such as section 10, is available
at <http://vig.cdn.sos.ca.gov/2012/general/pdf/text-proposed-laws-v2.pdf#nameddest=prop36> (as
of Apr. __, 2012).



                                                 14.
(2013) 213 Cal.App.4th 161 (Yearwood). We adhere to that decision, which we will
briefly summarize.
       In In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that when a
statutory amendment reduces the punishment for an offense, the lighter punishment must
be applied to cases pending on direct appeal when the amendment takes effect. There is
an exception for statutes containing a saving clause. (Id. at pp. 745-748.) In Yearwood,
we held that this exception was applicable to the Three Strikes Reform Act of 2012
because it contains the effective equivalent of a saving clause. (Yearwood, supra, 213
Cal.App.4th at p. 175.) This equivalent is section 1170.126, which provides that a person
“serving an indeterminate term of life imprisonment” for a third strike conviction “may
file a petition for a recall of sentence.” (Id., subd. (b).)
       We interpreted the reference to those “serving” a three strikes sentence to include
those sentenced before the Three Strikes Reform Act of 2012 became effective but whose
cases were still pending on direct appeal on the effective date. (Yearwood, supra, 213
Cal.App.4th at p. 175.) We continue to be of the opinion that this provision expresses the
voters’ intention to apply the sentence-recall scheme, not the new criteria for imposing a
three-strikes sentence in the first place, to defendants already serving their sentences on
November 7, 2012. This is so even in the case of defendants whose appeals were
pending on that date.
       Section 1170.126, subdivision (k), is not to the contrary. That provision, stating
that the sentence-recall scheme does not abrogate other remedies available to a defendant,
protects prisoners from having to choose between using the sentence-recall scheme and
pursuing such remedies as a petition for habeas corpus. It does not create a right to
retrospective application of the new criteria for a three-strikes sentence. (Yearwood,
supra, 213 Cal.App.4th at p. 178.)
       We also held that the rule of lenity does not require the new criteria for a three-
strikes sentence to be applied to cases pending on appeal when the law took effect. That

                                               15.
rule requires an ambiguity in a statute regarding punishment to be resolved in a
defendant’s favor. The new law, and in particular the provision of section 1170.126
extending the sentence-recall scheme to persons serving their sentences, is not
ambiguous. (Yearwood, supra, 213 Cal.App.4th at p. 177.)
       Finally, we held that declining to apply the new sentencing criteria to defendants
sentenced before the law took effect is consistent with the equal protection provisions of
the state and federal Constitutions. We stated that requiring prisoners already serving
their sentences to use the sentence-recall scheme was rationally related to a legitimate
state interest: “It increases the likelihood that prisoners whose sentences are reduced or
who are released due to the [Three Strikes Reform] Act [of 2012] will not pose an
unreasonable risk of danger to the public.” (Yearwood, supra, 213 Cal.App.4th at
p. 179.)
       Nothing in Granado’s briefs persuades us to depart from these conclusions. The
issue is pending before our Supreme Court in People v. Conley, review granted
August 14, 2013, S211275.
                                     DISPOSITION
       The judgment is affirmed.


                                                                _____________________
                                                                        Kane, Acting P.J.
WE CONCUR:


 _____________________
Poochigian, J.


 _____________________
Franson, J.




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