Filed 11/5/13 P. v. Zarate CA4/2


                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E054970

v.                                                                       (Super.Ct.No. INF10002307)

TOMMY PETE ZARATE,                                                       OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge.

Affirmed with directions.

         Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Steve Oetting, Michael Pulos

and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
                                   I. INTRODUCTION

       Defendant Tommy Pete Zarate appeals from his conviction of being a felon in

possession of a firearm (Pen. Code,1 former § 12021, subd. (a)(1); count 1), carrying a

concealed weapon (former § 12025, subd. (b)(1); count 2), and being a felon in

possession of ammunition (former § 12316, subd. (b)(1); count 3), along with true

findings on enhancement allegations of two prior strike convictions (§§ 667, subds. (b)-

(i), 1170.12, subds. (a)-(d)).

       Defendant contends the trial court erred in (1) refusing to allow him to call a

witness to testify about statements against interest made by a third party that supported

the defense of third party culpability; (2) denying his motion to suppress the evidence of

the firearm found in his vehicle because he had a reasonable expectation of privacy in the

contents of the searched vehicle, and the scope of the search exceeded the parameters of a

legitimate probation search; (3) failing to traverse the search warrant and suppress

evidence of the ammunition found in his motel room because the search warrant affidavit

was based on the illegally obtained evidence found in his car, or, in the alternative, he

was denied effective assistance of counsel; and (4) denying the motion for a new trial

based on newly discovered evidence that a third party had confessed to possessing the

firearm and ammunition. He further contends his sentence of life imprisonment was




       1 All further statutory references are to the Penal Code except as otherwise
indicated.

                                              2
cruel and unusual punishment.2 In a supplemental brief, he argues his sentence should be

vacated and the case remanded for resentencing under recent amendments to sections 667

and 1170.12. We agree that defendant’s sentence should be vacated and the case

remanded for resentencing. We find no other error.

                  II. FACTS AND PROCEDURAL BACKGROUND

       On October 22, 2010, Officer Bryan Traynham pulled defendant over because the

car defendant was driving had a broken brake light. Louie Aguilar was a front seat

passenger in the car. The officer submitted defendant’s and Aguilar’s information to the

dispatcher and learned that Aguilar had a warrant for his arrest and was “on probation

with full search terms.”

       Officer Traynham told defendant and Aguilar that he was going to search Aguilar

and the areas of the car within his immediate control. Defendant objected to the search.

The officer searched the passenger seat, glove box, passenger side door, and center

console. In the center console, he found a loaded .357 revolver and an envelope with the

name “Tommy” on it.

       Defendant and Aguilar were both arrested and taken to the police station.

Defendant asked if he could talk to Aguilar so they could “get their stories on the same

page,” or get their stories straight, but Officer Traynham did not allow it. Defendant was

later released while Aguilar remained in custody.


       2 Defendant initially asserted that the judgment should be modified to award him
presentence custody credits; however, he has withdrawn that contention.

                                            3
      While defendant was out of custody, he talked to Victor Diego, the manager of the

motel where he lived. He told Diego the police had pulled him over and found the gun in

his car. He said he was going to get another gun but could not do so legally because he

had a criminal record.

      Based on the gun found in defendant’s car, the police obtained a search warrant

for the motel room where he lived. On October 28, 2010, the officers executed the search

warrant. They found a box of .357 ammunition and 17 rounds of .38 Special ammunition

in the room’s main dresser. They also found two boxes of 12-gauge shotgun

ammunition, several boxes of nine-millimeter ammunition, one box of .22-caliber

ammunition, and a .50-caliber bullet in a bag on top of a television stand. They found

two documents bearing defendant’s name and one document bearing Aguilar’s name in

the room.

      Defendant was arrested for possession of ammunition. After he was given

Miranda3 warnings, he told the police that the ammunition found in his motel room

belonged to him, but he did not know it was illegal for him to have it. He said he was the

only one who lived in the motel room. The officer asked about the bullets in the gun that

had been found in his car, and defendant responded that he did not want to answer

because his “friend” was going to “take that charge.”

      Defendant testified in his own behalf. He denied making admissions to the police

or making the statements to Diego. He had registered himself and his three children as

      3   Miranda v. Arizona (1966) 384 U.S. 436.

                                            4
residents of the motel room, and Aguilar lived there too. He did not know that

ammunition was in the dresser drawers, and the ammunition did not belong to him. The

.50-caliber round found in the motel room was a souvenir dummy round he had bought at

a yard sale. He also did not know that Aguilar had a gun in the car, and he had never

seen the gun.

       Defendant’s sister and brother testified that Aguilar stayed with defendant in the

motel room and kept his belongings there.

       The jury found defendant guilty of being a felon in possession of a firearm (former

§ 12021, subd. (a)(1); count 1), carrying a concealed weapon (former § 12025, subd.

(b)(1); count 2), and being a felon in possession of ammunition (former § 12316, subd.

(b)(1); count 3). The trial court found true enhancement allegations of two prior strike

convictions. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)

       The trial court sentenced defendant to consecutive terms of 25 years to life for

each of counts 1 and 3. The court stayed the term for count 2 under section 654.

       Additional evidence is set forth in the discussion of the issues to which it pertains.

                                      III. DISCUSSION

       A. Exclusion of Evidence

       Defendant contends the trial court erred in refusing to allow him to call a witness

to testify about statements against interest made by a third party that supported the

defense of third party culpability.




                                              5
              1. Additional Background

       Aguilar invoked his Fifth Amendment privilege against self-incrimination and

refused to testify. The trial court found him unavailable as a witness. The trial court then

conducted a hearing under Evidence Code section 402 to determine whether defense

witness Branden Mays would be permitted to testify about a conversation with Aguilar

about a month before the traffic stop; defendant argued Aguilar’s statements to Mays

were admissible as against his penal interest under Evidence Code section 1230.

       Mays testified out of the presence of the jury that he knew defendant and had

known Aguilar since junior high school. A month or two before Halloween in 2010,

Aguilar approached Mays at his work, said he was trying to get rid of a firearm, and

asked if Mays was interested in purchasing a firearm or knew anyone else who was

interested. Aguilar said the firearm was a revolver, but he did not show Mays the firearm

or further describe it. Mays was not interested.

       The trial court found Mays’s testimony credible, but ruled that Aguilar’s

statements to him did not qualify as a declaration against penal interest, and Mays’s

testimony about Aguilar’s statements was therefore inadmissible.

              2. Analysis

       “A criminal defendant may introduce evidence of third party culpability if such

evidence raises a reasonable doubt as to his guilt . . . .” (People v. Abilez (2007) 41

Cal.4th 472, 517.) However, “to be admissible, evidence of the culpability of a third

party offered by a defendant to demonstrate . . . a reasonable doubt . . . must link the third


                                              6
person either directly or circumstantially to the actual perpetration of the crime.” (People

v. McWhorter (2009) 47 Cal.4th 318, 367.)

       Here, defendant’s proffered evidence—statements Aguilar purportedly made to

Mays—was hearsay. Defendant argues the evidence was admissible under the exception

to the hearsay rule for statements against the declarant’s interest. (Evid. Code, § 1230.)4

“Whether a statement is one against penal interest is a preliminary fact to be determined

under [Evidence Code] section 405. [Citation.] The test imposed is an objective one—

would the statement subject its declarant to criminal liability such that a reasonable

person would not have made the statement without believing it true.” (People v. Jackson

(1991) 235 Cal.App.3d 1670, 1678, fn. omitted.)

       The first element of admissibility under Evidence Code section 1230 was

established—the trial court found Aguilar was unavailable as a witness. However, as the

trial court pointed out, there was no evidence that Aguilar actually possessed a gun when

he asked if Mays was interested in purchasing a gun. For a statement to be admissible

under Evidence Code section 1230, it must be “‘distinctly’ against the declarant’s penal




       4  “Evidence of a statement by a declarant having sufficient knowledge of the
subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a
witness and the statement, when made, was so far contrary to the declarant's pecuniary or
proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so
far tended to render invalid a claim by him against another, or created such a risk of
making him an object of hatred, ridicule, or social disgrace in the community, that a
reasonable man in his position would not have made the statement unless he believed it to
be true.” (Evid. Code, § 1230.)

                                              7
interest,” not just possibly against his interest. (People v. Jackson, supra, 235

Cal.App.3d at p. 1677, italics added.)

       Moreover, even if Aguilar did possess a firearm at the time of his conversation

with Mays, there was no evidence it was the same firearm found in defendant’s car one or

two months later. We conclude the trial court did not abuse its discretion in excluding

Mays’s testimony about his conversation with Aguilar.

       B. Denial of Motion to Suppress Evidence Found in Defendant’s Vehicle

       Defendant contends the trial court erred in denying his motion under section

1538.5 to suppress the evidence of the firearm found in his vehicle because he had a

reasonable expectation of privacy in the contents of the searched vehicle, and the scope

of the search exceeded the parameters of a legitimate probation search.

              1. Additional Background

       Defendant moved before trial to suppress evidence seized from his vehicle

following the traffic stop and evidence later seized from his motel room. Officer

Traynham testified that he conducted the traffic stop of defendant’s vehicle about 9:32

p.m. on October 22, 2010, because a brake light was out. Defendant was driving, and

Aguilar was sitting in the front passenger seat. Both defendant and Aguilar identified

themselves, and the officer conducted a records check of them. He learned that Aguilar

was on felony probation with “full search terms.” Officer Traynham testified he believed

that meant “immediate search of the person, anything he’s in control of, whether it is his

place of residency, vehicle, . . . anything he’s in immediate control of.” The officer


                                              8
informed defendant and Aguilar that he was going to search the area where Aguilar was

sitting, and defendant protested. The officer asked defendant to get out of the vehicle,

asked if he had any illegal weapons, and searched defendant’s person after obtaining his

permission to do so. Meanwhile, the officer learned that Aguilar had a felony warrant for

his arrest; Aguilar was taken into custody and placed in the patrol car.

       Officer Traynham searched the front passenger area of defendant’s car where

Aguilar had been sitting, including the glove box and center console. In the center

console, he found a Ruger revolver. The officer testified, based on his training and

experience, that he believed Aguilar might have put something in the center console

because it was a high crime area, Aguilar was on probation and had a felony warrant for

drugs, and Aguilar likely realized the chance of his getting searched was high.

       Officer Patrick Biggers testified that on October 28, 2010, he had executed a

search warrant on defendant’s motel room. He had obtained the warrant “to look for

further evidence of the handgun that Officer Traynham found in [defendant’s] vehicle.”

The officers found several hundred rounds of ammunition of various calibers in the room;

some of the ammunition would fit the handgun found in defendant’s car. The

ammunition was found in a dresser drawer and on top of a television stand. The officers

found “one or two items of dominion” that indicated defendant lived there, and they also

found one letter belonging to Aguilar. Officer Biggers arrested defendant for possession

of the ammunition. Defendant agreed to speak to the officer after receiving his Miranda

admonitions. He told the officer “he didn’t know that it was illegal for him to possess the


                                             9
ammunition and that he didn’t believe that . . . he would be charged with possession of

the gun based on the ammunition, because his friend, Mr. Aguilar, who was in the car,

had agreed to take responsibility for the gun.”

              2, Analysis

       We review challenges to the admissibility of evidence obtained by a police search

and seizure under federal constitutional standards. (People v. Schmitz (2012) 55 Cal.4th

909, 916.) “A warrantless search is unreasonable under the Fourth Amendment unless it

is conducted pursuant to one of the few narrowly drawn exceptions to the constitutional

requirement of a warrant. [Citations.] California’s parole search clause is one of those

exceptions.” (Ibid.) In Schmitz, the court addressed “the permissible scope of a parole

search that infringes on the privacy of a third party driving a car with a parolee

passenger,” including “the permissible scope of the search of the car’s interior” and “the

permissible scope of a search of property located in the car.” (Id. at p. 917.) The court

held that “a vehicle search based on a passenger’s parole status may extend beyond the

parolee’s person and the seat he or she occupies. Such a search is not without limits,

however. The scope of the search is confined to those areas of the passenger

compartment where the officer reasonably expects that the parolee could have stowed

personal belongings or discarded items when aware of police activity. Within these

limits, the officer need not articulate specific facts indicating that the parolee has actually

placed property or contraband in a particular location in the passenger compartment

before searching that area. Such facts are not required because the parole search clause


                                              10
explicitly authorizes a search ‘without cause.’” (Id. at p. 926, fn. omitted.) The court

noted, however, that the facts did not involve “a search of closed compartments of the car

like the glove box, center console, or trunk,” and the court “express[ed] no opinion on

whether a search of such closed-off areas could be based solely on a passenger’s parole

status. The reasonableness of such a search must necessarily take into account all the

attendant circumstances, including the driver’s legitimate expectation of privacy in those

closed compartments, the passenger’s proximity to them, and whether they were locked

or otherwise secured.” (Id. at p. 926, fn. 16.) The court further stated there was “no . . .

reason to limit a parole search to the area within the parolee’s reach at the moment of the

search. [Rather], an officer has a compelling interest in detecting criminal activity by a

parolee regardless of whether the parolee has been safely removed from the car and

secured.” (Id. at pp. 927-928, fn. 19.)

       Because Schmitz dealt with a parole search rather than a probation search and

because the court expressly did not address the search of a closed compartment within a

vehicle, the case provides only general guidance rather than a direct resolution of the

issue before us. In People v. Baker (2008) 164 Cal.App.4th 1152, 1159, the court stated

the following principles: “When executing a parole or probation search, the searching

officer may look into closed containers that he or she reasonably believes are in the

complete or joint control of the parolee or probationer. [Citations.] This is true because

the need to supervise those who have consented to probationary or parolee searches must

be balanced against the reasonable privacy expectations of those who reside with, ride


                                             11
with, or otherwise associate with parolees or probationers. . . . While those who associate

with parolees or probationers must assume the risk that when they share ownership or

possession with a parolee or probationer their privacy in these items might be violated,

they do not abdicate all expectations of privacy in all personal property. The key

question remains: whether there is joint ownership, control, or possession over the

searched item with the parolee or probationer. [Citations.]”

       We conclude the officer properly searched the center console as part of his valid

probation search of Aguilar. The center console was under the control of and easily

accessible to both defendant and Aguilar, defendant’s front seat passenger. Indeed,

defendant’s primary defense, that the handgun found in the console belonged to Aguilar,

fundamentally depended on Aguilar’s having joint control of the console. The trial court

did not err in admitting into evidence the gun found during that search.

       C. Denial of Motion to Suppress Evidence Found in Defendant’s Motel Room

       Defendant next contends the trial court erred in failing to traverse the search

warrant and suppress evidence of the ammunition found in his motel room because the

search warrant affidavit was based on the illegally obtained evidence found in his car, or,

in the alternative, he was denied effective assistance of counsel because his counsel failed

to move to suppress evidence of the ammunition. Because we have concluded that the

evidence found in his car was legally obtained, we reject both contentions.




                                             12
       D. Denial of Motion for New Trial

       Defendant contends the trial court erred in denying the motion for a new trial

based on newly discovered evidence that a third party had confessed to possessing the

firearm and ammunition.

              1. Additional Background

       Defendant moved for a new trial on the ground of newly discovered evidence. In

support of the motion, defendant submitted the declaration of Jesus Cruz Valenzuela.

The declaration stated that Valenzuela had been in custody in the Indio jail and had been

housed for three months with Aguilar. Aguilar told Valenzuela details of his and

defendant’s arrest and the charges pending against defendant. Aguilar “specifically said

to [Valenzuela] that the firearm located by police in the center console of [defendant’s]

car belong[ed] to him, Mr. Aguilar. He said further that when the police initiated the

traffic stop, it was his intention to run. He informed [defendant] that he was going to run.

[Defendant] told him not to run. He then told [defendant] that and said, ‘But I got this,’

indicating the gun. Mr. Aguilar then placed the gun . . . in the center console before the

police officer approached the vehicle.”

       Valenzuela further declared that Aguilar said that “the ammunition from the motel

room also belonged to him.” Aguilar expected defendant to bail him out, and when

defendant failed to do so after several weeks, Aguilar “became frustrated, and decided he

had no reason to own up to the gun and ammunition possession charges because




                                            13
[defendant] was the only one charged.” Aguilar told Valenzuela that he had obtained the

weapon in exchange for a tattoo he had done for someone.

       Valenzuela was represented by the same attorney as defendant and performed yard

work for the attorney after being released from custody in March 2011. On May 8, 2011,

Valenzuela asked the attorney about defendant’s case and learned that the jury had found

defendant guilty. Valenzuela “then told [the attorney] about [his] jail contacts with

Mr. Aguilar, and the statements Mr. Aguilar made about his role in the incidents.”

       Following a hearing, the trial court denied the motion.

              2. Standard of Review

       This court reviews the trial court’s ruling on a motion for new trial under the

deferential abuse of discretion standard. (People v. Howard (2010) 51 Cal.4th 15, 43.)

              3. Analysis

       The trial court may grant a new trial “[w]hen new evidence is discovered material

to the defendant, and which he could not, with reasonable diligence, have discovered and

produced at the trial.” (§ 1181, cl. (8).) “In ruling on a motion for new trial based on

newly discovered evidence, the trial court considers the following factors: ‘“1. That the

evidence, and not merely its materiality, be newly discovered; 2. That the evidence be

not cumulative merely; 3. That it be such as to render a different result probable on a

retrial of the cause; 4. That the party could not with reasonable diligence have

discovered and produced it at the trial; and 5. That these facts be shown by the best

evidence of which the case admits.”’ [Citations.]” (People v. Delgado (1993) 5 Cal.4th


                                             14
312, 328.) The trial court may consider the credibility of the evidence was well as its

materiality in determining whether introducing the evidence in a new trial would make a

different result reasonably probable. (People v. Howard, supra, 51 Cal.4th at p. 43.)

       Assuming for purposes of argument that the evidence was newly discovered and

could not with reasonable diligence have been discovered earlier and produced at trial,

the trial court nonetheless found that Valenzuela’s declaration was not credible, and

moreover, it was inconsistent with stronger evidence that supported the verdict.

Specifically, the trial court found that Valenzuela’s declaration was inconsistent with

Diego’s trial testimony that defendant admitted the gun was his, with police testimony

that defendant admitted the ammunition was his, and with defendant’s history of firearms

that undermined any suggestion that defendant would have had no idea there was a

significant amount of ammunition in the small motel room. Thus, the trial court found it

not reasonably probable that a new trial would yield a different result.

       We conclude the trial court did not abuse its discretion in denying the motion for

new trial.

       E. Effect of Recent Amendments to Three Strikes Laws

       Defendant contends his sentence should be vacated and the case remanded for

resentencing under the recently enacted Proposition 36, the Three Strikes Reform Act of

2012 (the Reform Act). Relying on In re Estrada (1965) 63 Cal.2d 740 (Estrada),

defendant contends he is entitled to resentencing because his convictions are not yet final

and the Reform Act provides for reduced punishment. The People oppose the request,


                                             15
arguing that the Reform Act allows persons like defendant, who are presently serving an

indeterminate sentence but whose sentence under the act would not have been an

indeterminate sentence, to file a petition for recall in the trial court.

               1. Proposition 36

       Under the Three Strikes law as it existed before the passage of the Reform Act, a

defendant with two or more strike priors who is convicted of any new felony would

receive a sentence of 25 years to life. (Former § 667, subd. (e)(2)(A).) As amended,

section 667 provides that a defendant who has two or more strike priors is to be sentenced

pursuant to paragraph 1 of section 667, subdivision (e)—i.e., as though the defendant had

only one strike prior—if the current offense is not a serious or violent felony as defined in

section 667.5, subdivision (c) or section 1192.7, subdivision (c), unless certain

disqualifying factors are pleaded and proven.5 (§§ 667, subds. (d)(1), (e)(2)(C).)


       5 Section 667, subd. (e)(2)(C) provides that second strike sentencing does not apply if
the prosecution pleads and proves any of the following:
       “(i) The current offense is a controlled substance charge, in which an allegation under
Section 11370.4 or 11379.8 of the Health and Safety Code was admitted or found true.
       “(ii) The current offense is a felony sex offense, defined in subdivision (d) of Section
261.5 or Section 262, or any felony offense that results in mandatory registration as a sex
offender pursuant to subdivision (c) of Section 290 except for violations of Sections 266 and
285, paragraph (1) of subdivision (b) and subdivision (e) of Section 286, paragraph (1) of
subdivision (b) and subdivision (e) of Section 288a, Section 311.11, and Section 314.
       “(iii) During the commission of the current offense, the defendant used a firearm, was
armed with a firearm or deadly weapon, or intended to cause great bodily injury to another
person.
       “(iv) The defendant suffered a prior serious and/or violent felony conviction, as
defined in subdivision (d) of this section, for any of the following felonies:
       “(I) A ‘sexually violent offense’ as defined in subdivision (b) of Section 6600 of the
Welfare and Institutions Code.
                                                                     [footnote continued on next page]

                                               16
        The Reform Act also provides a procedure that allows a person who is “presently

serving” an indeterminate life sentence imposed pursuant to the Three Strikes law to

petition to have his or her sentence recalled and to be sentenced as a second strike

offender, if the current offense is not a serious or violent felony and the person is not

otherwise disqualified. The trial court may deny the petition even if those criteria are

met, if the court determines that resentencing would pose an unreasonable risk of danger

to public safety. (§ 1170.126, subds. (a)-(g).) Accordingly, under section 1170.126,

resentencing is discretionary even if the defendant meets the objective criteria

(§ 1170.126, subds. (f), (g)), while sentencing under section 667, subdivision (e)(2)(C) is

mandatory, if the defendant meets the objective criteria.




[footnote continued from previous page]

       “(II) Oral copulation with a child who is under 14 years of age, and who is more than
10 years younger than he or she as defined by Section 288a, sodomy with another person
who is under 14 years of age and more than 10 years younger than he or she as defined by
Section 286, or sexual penetration with another person who is under 14 years of age, and
who is more than 10 years younger than he or she, as defined by Section 289.
       “(III) A lewd or lascivious act involving a child under 14 years of age, in violation of
Section 288.
       “(IV) Any homicide offense, including any attempted homicide offense, defined in
Sections 187 to 191.5, inclusive.
       “(V) Solicitation to commit murder as defined in Section 653f.
       “(VI) Assault with a machine gun on a peace officer or firefighter, as defined in
paragraph (3) of subdivision (d) of Section 245.
       “(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of
subdivision (a) of Section 11418.
       “(VIII) Any serious and/or violent felony offense punishable in California by life
imprisonment or death.”

                                             17
       Had defendant been sentenced under the new version of the law, he would have

received a sentence of double the determinate term for his conviction of possessing

cocaine for sale. (§ 667, subds. (e)(1) & (e)(2)(C).) Defendant contends section 667,

subdivision (e)(2)(C) is an ameliorative sentencing statute which presumptively applies to

all criminal judgments which were not yet final as of its effective date, and that there is

nothing in the language of the Reform Act which overcomes the presumption.

              2. Section 667, subdivision (e)(2)(C) Applies to Defendants Whose

Judgments Were Not Yet Final on the Effective Date of the Reform Act.

       There is a general rule of statutory construction, embodied in section 3 of the

Penal Code, that “‘when there is nothing to indicate a contrary intent in a statute it will be

presumed that the Legislature intended the statute to operate prospectively and not

retroactively.’ [Citation.]” (People v. Floyd (2003) 31 Cal.4th 179, 184 (Floyd).) In

Estrada, supra, 63 Cal.2d 740, the California Supreme Court created a limited exception

to that presumption. In that case, the court held that where a statute has been amended to

lessen the punishment for an offense and there is no clear indication of an intent to apply

the amendment prospectively only, it must be presumed that the Legislature intended the

mitigated punishment to apply to all judgments not yet final as of the effective date of the

amended statute. (Id. at pp. 744-747.) The court held: ‘“A legislative mitigation of the

penalty for a particular crime represents a legislative judgment that the lesser penalty or

the different treatment is sufficient to meet the legitimate ends of the criminal law.”’

(Id. at 745.) From this, “[i]t is an inevitable inference that the Legislature must have


                                             18
intended that the new statute imposing the new lighter penalty now deemed to be

sufficient should apply to every case to which it constitutionally could apply,” including

those which are not yet final. (Ibid.)

       The Legislature has never abrogated the Estrada rule. (See People v. Nasalga

(1996) 12 Cal.4th 784, 792, fn. 7 (Nasalga).) The rule and its continued vitality were

most recently discussed by the California Supreme Court in People v. Brown (2012) 54

Cal.4th 314 (Brown).) In Brown, the court reiterated that Estrada “is today properly

understood, not as weakening or modifying the default rule of prospective operation

codified in section 3, but rather as informing the rule’s application in a specific context

by articulating the reasonable presumption that a legislative act mitigating the

punishment for a particular criminal offense is intended to apply to all nonfinal

judgments.” (Brown, supra, at p. 324, italics added.)

       Despite the Estrada presumption, however, a court interpreting a statute that

ameliorates punishment must nevertheless determine the intent of the Legislature or of

the electorate in enacting the statute. (Floyd, supra, 31 Cal.4th at p. 184.) To determine

intent, courts look first to the language of the provision, giving its words their ordinary

meaning. If that language is clear in relation to the problem at hand, there is no need to

go further. (Ibid.) If the language is not clear, the tools of statutory construction must be

applied, including but not limited to the Estrada rule. If necessary, the court must also

look to other extrinsic indicators of intention. (Nasalga, supra, 12 Cal.4th at p. 794.)




                                             19
        There is no question that section 667, subdivision (e)(2)(C) is an amendment

which ameliorates punishment under the Three Strikes law for those defendants who

meet its criteria. However, the Reform Act does not contain any explicit provision for

retroactive or prospective application, and it does not explicitly state what remedy—i.e.,

section 667, subdivision (e)(2)(C) or section 1170.126—applies to a person in

defendant’s position. Consequently, we must “look for any other indications” to

determine and give effect to the intent of the electorate. (Nasalga, supra, 12 Cal.4th at p.

794.)

        In enacting new laws, both the Legislature and the electorate are “presumed to be

aware of existing laws and judicial construction thereof.” (In re Lance W. (1985) 37

Cal.3d 873, 890, fn. 11.) Accordingly, we presume that in enacting the Reform Act, the

electorate was aware of the Estrada presumption that a law ameliorating punishment

applies to all judgments not yet final on appeal on the effective date of the new statute.

We also presume the electorate was aware that a saving clause may be employed to make

it explicit that the amendment is to apply prospectively only, and that in the absence of a

saving clause or another clear signal of intent to apply the amendment prospectively, 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. For example, the

California Supreme Court held that the previous Proposition 36, approved by voters on

November 7, 2000, applied prospectively only, despite its ameliorative effect, because it


                                             20
expressly stated, “‘Except as otherwise provided, the provisions of this act shall become

effective July 1, 2001, and its provisions shall be applied prospectively.’ [Citations.]”

(Floyd, supra, 31 Cal.4th at pp. 183-185.) The court in Floyd held that the plain

language of this saving clause trumped any other possible interpretation of the

proposition. (Id. at pp. 185-187.) In the Reform Act, in contrast, the absence of such

language is persuasive evidence that the electorate did intend to apply section 667,

subdivision (e)(2)(C) to nonfinal judgments.

       This construction, moreover, is fully consistent with the expressed purposes of the

Reform Act. In Floyd, supra, 31 Cal.4th at pages 187 through 188, the court found

further support in the ballot arguments in support of the proposition, which stated that

“‘[i]f Proposition 36 passes, nonviolent drug offenders convicted for the first or second

time after 7/1/2000, will get mandatory, court-supervised treatment instead of jail.’

(Ballot Pamp., Gen. Elec. (Nov. 7, 2000) argument in favor of Prop. 36, p. 26 . . . .”

(Italics added.) The ballot arguments in support of the Reform Act stated that its purpose

was to ensure that “[p]recious financial and law enforcement resources” were not

diverted to impose life sentences for some nonviolent offenses, while assuring that

violent repeat offenders are effectively punished and not released early. The proponents

stated that the act would “help stop clogging overcrowded prisons with non-violent

offenders, so we have room to keep violent felons off the streets” and “help[] ensure that

prisons can keep dangerous criminals behind bars for life.” An additional purpose was to

save taxpayers “$100 million every year” by ending wasteful spending on housing and


                                             21
health care costs for “non-violent Three Strikes inmates.” Moreover, the act would

ensure adequate punishment of nonviolent repeat offenders by doubling their state prison

sentences. The proponents pointed out that dangerous criminals were being released

early because “jails are overcrowded with nonviolent offenders who pose no risk 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 don’t deserve life

sentences.” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) argument in favor of

Prop. 36 and rebuttal to argument against Prop. 36, <http://voterguide.sos.ca.gov/

propositions/36/ arguments-rebuttals.htm> [as of September 9, 2013].) Applying section

667, subdivision (e)(2)(C) to nonfinal judgments is wholly consistent with these

objectives, in that doing so would enhance the monetary savings projected by the

proponents and would further serve the purposes of reducing the number of nonviolent

offenders in prison populations and of reserving the harshest punishment for recidivists

with current convictions for serious or violent felonies, while still assuring public safety

by imposing doubled prison terms on less serious repeat offenders.

       For both of these reasons—the absence of any expressed intent to apply the act

prospectively only and the stated intent underlying the proposition—we conclude that




                                             22
section 667, subdivision (e)(2)(C) applies to judgments which were not final as of its

effective date.

       The first published appellate decision that addresses this issue is People v.

Yearwood (2013) 213 Cal.App.4th 161 (Yearwood). In Yearwood, as in this case, the

defendant would have been entitled to second strike sentencing under the Reform Act if

he had been sentenced initially after the effective date of the Reform Act. He had already

been sentenced and his appeal was pending on the date the act became effective. The

court held that even though the judgment was not yet final, Yearwood’s only remedy was

to petition for recall of his sentence and for resentencing pursuant to section 1170.126.

(Yearwood, supra, at pp. 167, 168, 169.)

       The court concluded, as we have, that the Reform Act does not contain a saving

clause or refer to retroactive or prospective application or refer explicitly to persons in

Yearwood’s position. Nevertheless, the court held, section 1170.126 unambiguously

applies to prisoners whose judgments were not final on the Reform Act’s effective date,

because those prisoners were “presently serving” an indeterminate life term under the

Three Strikes law. (See § 1170.126, subd. (a).) The court further held that section

1170.126 therefore effectively operates as the functional equivalent of a saving clause

and, if section 667, subdivision (e)(2)(C) is read not in isolation but in the context of the

entire statutory scheme, it is clear that the mandatory sentencing provision of section 667,

subdivision (e)(2)(C) is intended to operate prospectively only. (Yearwood, supra, 213

Cal.App.4th at p. 175.)


                                              23
       Yearwood is correct that even in the absence of an express saving clause there may

be other reasons to determine that the enacting body intended the statute to apply

prospectively only. Brown, supra, 54 Cal.4th 314, provides an example. In that case, the

court held that an amendment to section 4019, which increased the rate at which

prisoners may earn credits for good behavior, applied prospectively only, despite the

absence of express language to that effect, because the purpose of section 4019 is to

provide an incentive for good behavior during incarceration. Accordingly, rather than

reflecting a determination that a reduced penalty for past criminal conduct satisfies the

legitimate ends of criminal law, section 4019 addresses “future conduct in a custodial

setting by providing increased incentives for good behavior.” (Brown, supra, at p. 325.)

Awarding the credit retroactively, for time spent in custody before the effective date of

the amendment, would not further that purpose. Consequently, the court held, there is no

logical basis for inferring that the Legislature intended the amended statute to apply

retroactively, and the Estrada rule does not apply. (Brown, supra, at p. 325 & fn. 15.)

The same is not true of the Reform Act, however. As we discussed above, retroactive

application of section 667, subdivision (e)(2)(C) is consistent with the proponents’ stated

objectives of reducing prison overcrowding, reducing the resources expended on third

strike offenders whose current and prior offenses are nonviolent and less serious, and

enhancing public safety by ensuring that the truly dangerous repeat offenders serve

indeterminate life terms. Accordingly, there is a logical basis for inferring that the

electorate intended the amendment to apply to nonfinal judgments.


                                             24
          Moreover, we do not agree with Yearwood that section 1170.126 unambiguously

applies to defendants who were serving nonfinal third strike sentences on the effective

date of the Reform Act. In light of the Estrada presumption and the absence of a saving

clause in section 667, subdivision (e)(2)(C), the provision that section 1170.126,

subdivision (a) applies “exclusively to persons presently serving” a third strike sentence

is ambiguous—does it refer only to prisoners serving sentences that are final, or does it

include those whose judgments are not final? It is certainly not so clear as to qualify as

the functional equivalent of a saving clause. In Nasalga, supra, 12 Cal.4th 784, the

California Supreme Court held that the rule of Estrada is “not implicated where the

Legislature clearly signals its intent” to make an amendment prospective, “by the

inclusion of either an express saving clause or its equivalent.” (Nasalga, supra, at p. 793,

italics added.) The court did not describe what constitutes an “equivalent” to an express

saving clause. However, the court stated that in the absence of an express saving clause,

the “‘quest for legislative intent’” requires that “‘the Legislature demonstrate its intention

with sufficient clarity that a reviewing court can discern and effectuate it.’ [Citation.]”

(Ibid.) In our opinion, the statutory language that Yearwood relies on does not meet that

requirement because it is ambiguous. We note, too, that Yearwood does not cite a single

case in which similarly ambiguous language was deemed to be the equivalent of a saving

clause.

          Yearwood finds support for its position in the ballot arguments in favor of the

Reform Act. It points out that enhancing public safety was a key purpose of the act.


                                               25
(Yearwood, supra, 213 Cal.App.4th at p. 175.) The court states that giving section 667,

subdivision (e)(2)(C) prospective-only application furthers that purpose by reducing the

likelihood that prisoners who are currently dangerous will be released from prison under

the Reform Act. In contrast with section 1170.126, section 667, subdivision (e)(2)(C)

does not provide the court with discretion to impose a third strike sentence if it finds that

the defendant poses an “unreasonable risk of danger to public safety.” (§ 1170.126, subd.

(f).) Yearwood points out that several years may elapse between sentencing and finality,

and a defendant who might objectively qualify for second strike sentencing under section

667, subdivision (e)(2)(C) may have shown himself or herself to pose such a risk by

misconduct during postsentencing incarceration. (Yearwood, supra, at pp. 175-176.)

       This is arguably a valid concern. However, it is not reflected in the ballot

arguments in support of the Reform Act. We cannot say that a concern not expressed in a

ballot argument is a clear indication of voter intent, no matter how valid the concern may

be. Moreover, a defendant may also be incarcerated for many months before being

convicted and sentenced for a third strike offense. Such a defendant may also display a

propensity for violence or other conduct while incarcerated, which indicates that he or

she poses a risk to public safety. Nevertheless, any qualifying defendant convicted and

sentenced after the effective date of the Reform Act is entitled to sentencing under

section 667, subdivision (e)(2)(C), and the trial court has no discretion to impose a third

strike sentence even if the court has concerns about the defendant’s future dangerousness




                                             26
for any reason, including the defendant’s conduct while in custody. For this reason as

well, we do not find Yearwood’s analysis persuasive.

              3. Conclusion

       We conclude that in passing the Three Strikes Reform Act of 2012, the electorate

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. Hence, we vacate defendant’s sentence and

remand the matter to the trial court for resentencing.

       F. Cruel and Unusual Punishment

       Defendant contends his sentence of life imprisonment was cruel and unusual

punishment. Because we vacate defendant’s sentence and remand for resentencing,

defendant’s constitutional challenge to his punishment is moot.

                                       IV. DISPOSITION

       The determination of guilt is affirmed, but the sentence is vacated and the matter is

remanded for resentencing under section 667, subdivision (e)(2)(C) and/or section

1170.12, subdivision (c)(2)(C).

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               HOLLENHORST
                                                                        Acting P. J.
I concur:

       MCKINSTER
                                  J.


                                             27
MILLER, J., Concurring and Dissenting.

       I respectfully dissent on the issue of defendant’s sentence being vacated pursuant

to the Three Strikes Reform Act of 2012 (the “Reform Act”). In all other aspects, I

concur with the majority’s opinion. The interpretation of the Reform Act set forth in

People v. Yearwood (2013) 213 Cal.App.4th 161 (Yearwood) reflects the plain meaning

of the Reform Act’s language. In Yearwood, the Court of Appeal concluded the Reform

Act was intended to apply prospectively only and, therefore, people who were sentenced

prior to the effective date of the Reform Act, but whose cases were pending appeal after

the Reform Act became effective, could not automatically be resentenced (id. at p. 168);

rather, they would have to petition the trial court for a reduced sentence (id. at p. 179).

       In In re Estrada (1965) 63 Cal.2d 740, the court held that where a statute has been

amended to lessen the punishment for an offense and there is no clear indication of an

intent to apply the amendment prospectively only, it must be presumed that the

Legislature intended the mitigated punishment to apply to all judgments not yet final as

of the effective date of the amended statute. (Id. at pp. 744-747.) In Yearwood, the

appellate court concluded the Estrada rule is inapplicable to the Reform Act because the

Reform Act’s language is unambiguous, in that “voters intended a petition for recall of

sentence to be the sole remedy available under the Act for prisoners who were serving an

indeterminate life sentence imposed under the former three strikes law on the Act’s

effective date without regard to the finality of the judgment.” (Yearwood, supra, 213

Cal.App.4th at p. 172.)




                                              1
       I agree with the Yearwood opinion, in that the language of the Reform Act is

unambiguous and reflects an intent on the part of the electorate to have the law apply

prospectively only, thus making the Estrada rule inapplicable. I focus on the portion of

Proposition 36, which set forth: “[a]ny person serving an indeterminate term . . . may file

a petition for a recall of sentence, within two years after the effective date of the

act . . . .”1 (Italics added.) Given the “any person” language, it appears the electorate

intended for all people who were already committed to custody to proceed solely via the

petition process, not through appellate requests for vacated sentences and automatic

resentencing. (See People v. Alanis (2008) 158 Cal.App.4th 1467, 1475-1476 [a

defendant’s sentence commences after being sentenced by the trial court when s/he is

committed to custody]; see also People v. Howard (1997) 16 Cal.4th 1081, 1087-1088

[discussing the difference between pre-commitment and post-commitment time periods].)

       Thus, I conclude the Yearwood opinion is correct, in that the plain language of the

Reform Act makes it a prospective-only statute. Therefore, the Reform Act does not

provide defendant with automatic resentencing—he would need to petition the trial court

for a reduced sentence.

                                                          MILLER
                                                                                            J.




       1http://vig.cdn.sos.ca.gov/2012/general/pdf/text-proposed-laws-
v2.pdf#nameddest=prop36, as of October 30, 2013.

                                               2
