Filed 12/16/13 P. v. Moreno CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H039087
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS111435)

         v.

FERNANDO MORENO,

         Defendant and Appellant.


         Defendant Fernando Moreno pleaded guilty to possession of a weapon by a
prisoner. (Pen. Code, § 4502, subd. (a).)1 Moreno admitted two prior strike convictions,
and the trial court sentenced him to an indeterminate term of 25 years to life pursuant to
the Three Strikes law. The court also imposed what it referred to as “the minimum
Restitution Fund fine of $240” pursuant to section 1202.4, subdivision (b)(1), and a $240
parole revocation fine pursuant to section 1202.45.
         On appeal, Moreno contends the trial court erred by imposing restitution and
parole fines in the amount of $240 because the minimum fine at the time he was
sentenced was $200. Moreno also maintains that he is entitled to automatic resentencing
under Proposition 36, a voter initiative passed after he was sentenced that enacted the
Three Strikes Reform Act of 2012 (The Reform Act). The government concedes the
former point but not the latter. We affirm the judgment as modified herein.



         1
             Further unspecified statutory references are to the Penal Code.
I.     FACTUAL AND PROCEDURAL BACKGROUND
       Defense counsel stipulated that on January 30, 2011, “Mr. Moreno, while housed
in a California penal institution, was in possession of a sharp instrument and without
lawful purpose.” On October 10, 2012, Moreno pleaded guilty to possession of a weapon
by a prisoner and to having two or more prior serious and/or violent felony convictions.
The trial court imposed a sentence of 25 years to life pursuant to section 1170.12,
subdivision (c)(2), the Three Strikes law. The court also imposed a restitution fine of
$240 and a parole revocation fine in the same amount. At the sentencing hearing, the
court indicated that it was imposing “the minimum Restitution Fund fine of $240.”
II.    DISCUSSION
       A.     Restitution and Parole Revocation Fines
       Moreno argues, and the government concedes, that the restitution and parole
revocation fines the court imposed must be reduced to avoid running afoul of the
prohibition against ex post facto laws.
       Section 1202.4, subdivision (b), provides that, “[i]n every case where a person is
convicted of a crime, the court shall impose a separate and additional restitution fine,
unless it finds compelling and extraordinary reasons for not doing so, and states those
reasons on the record.” At the time of Moreno’s offense on January 30, 2011, the
minimum restitution fine was $200. (Former § 1202.4; Stats. 2009, ch. 45, § 1.) The
minimum restitution fine increased to $240 on January 1, 2012. (§ 1202.4, subd. (b)(1).)
Applying a later version of section 1202.4 constitutes an error and an ex post facto
violation. (See People v. Saelee (1995) 35 Cal.App.4th 27, 30 [“A restitution fine
qualifies as punishment for purposes of the prohibition against ex post facto laws.”].)
       At sentencing, the court stated that it was imposing “the minimum Restitution
Fund fine,” but it imposed a fine of $240, $40 over the applicable minimum. Like the
parties, we conclude from our review of the record that the trial court intended to impose



                                             2
the minimum restitution fine, and we modify the judgment to reduce the restitution fine
from $240 to $200.
       The court also imposed a parole revocation fine as required by section 1202.45.
That section provides that where the “sentence includes a period of parole, the court shall
. . . assess an additional parole revocation restitution fine in the same amount as [the
restitution fine] imposed pursuant to subdivision (b) of Section 1202.4.” (§ 1202.45.)
Because the restitution fine must be reduced to $200, the parole revocation fine likewise
must be reduced to $200 so that the fines are “ ‘in the same amount’ ” as required by
section 1202.45. (People v. Smith (2001) 24 Cal.4th 849, 851.)
       B.     Resentencing Under The Three Strikes Reform Act
              1.      The Three Strikes Reform Act
       In the November 6, 2012 election, California voters approved Proposition 36, the
Three Strikes Reform Act of 2012. Prior to the passage of Proposition 36, the Three
Strikes law (§§ 667, subds. (b)-(i), 1170.12) required that a defendant convicted of two
prior serious or violent felonies be subject to a sentence of 25 years to life upon
conviction of a third felony. As amended by the Reform Act, section 1170.12,
subdivision (c)(2)(C), and section 667, subdivision (e)(2)(C), now mandate that a
defendant with two or more strikes who is convicted of a felony that is not serious or
violent be sentenced as a second strike offender (unless certain exceptions apply).
       The Reform Act also added section 1170.126, which allows eligible prisoners who
are currently subject to 25-years-to-life sentences under the Three Strikes law to petition
the court for resentencing. An eligible prisoner shall be resentenced as a second strike
offender unless the court determines that resentencing him or her “would pose an
unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)
       Moreno contends that the Reform Act’s amendments to sections 667 and 1170.12
are applicable to all cases that are not yet final on appeal, such that he is entitled to
automatic resentencing. The government responds that those amendments apply

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prospectively only, and that Moreno must request resentencing pursuant to section
1170.126.
               2.     Standard of Review and Principles of Statutory Construction
       The question whether the Reform Act’s amendments to sections 667 and 1170.12
are properly applied prospectively is a question of law that we review de novo. (People
v. Failla (2006) 140 Cal.App.4th 1514, 1520.)
       In interpreting a voter initiative, such as Proposition 36, we apply the principles
that govern statutory construction. (Robert L. v. Superior Court (2003) 30 Cal.4th 894,
900-901.) The rules of statutory construction are well settled. “Our first task is to
examine the language of the statute enacted as an initiative, giving the words their usual,
ordinary meaning. [Citations.] If the language is clear and unambiguous, we follow the
plain meaning of the measure. [Citations.] ‘[T]he “plain meaning” rule does not prohibit
a court from determining whether the literal meaning of a measure comports with its
purpose or whether such a construction of one provision is consistent with other
provisions of the statute.’ ” (People v. Canty (2004) 32 Cal.4th 1266, 1276.) “The
language is construed in the context of the statute as a whole and the overall statutory
scheme, and we give ‘significance to every word, phrase, sentence, and part of an act in
pursuance of the legislative purpose. [Citation.]’ [Citations.] The intent of the law
prevails over the letter of the law, and ‘ “the letter will, if possible, be so read as to
conform to the spirit of the act.” ’ ” (Id. at pp. 1276-1277.)
               3.     Applicability of the Estrada Rule
       Moreno argues he is entitled to automatic resentencing under the Reform Act
because--as the government concedes--his current offense is not a violent or serious
felony, and because his judgment of conviction was not yet final when the Reform Act
went into effect on November 7, 2012. (In re Pine (1977) 66 Cal.App.3d 593, 594
[judgment of conviction is not final so long as remedy may be provided on direct
appeal].) For his argument that the Reform Act should be applied retrospectively,

                                                4
Moreno relies on the rule announced in In re Estrada (1965) 63 Cal.2d 740 (Estrada):
“[w]hen the Legislature has amended a statute to reduce the punishment for a particular
criminal offense, we will assume, absent evidence to the contrary, that the Legislature
intended the amended statute to apply to all defendants whose judgments are not yet final
on the statute’s operative date.” (People v. Brown (2012) 54 Cal.4th 314, 323, fn.
omitted (Brown).)
       We conclude that the Estrada rule does not compel retroactive application of the
Reform Act’s amendments for three reasons. First, Estrada is “specifically directed to a
statute that represents ‘ “a legislative mitigation of the penalty for a particular crime.” ’ ”
(Brown, supra, 54 Cal.4th at p. 325 [holding Estrada does not extend to a law rewarding
a prisoner’s good conduct while incarcerated].) The Reform Act does not mitigate the
penalty for a specific crime, but rather adjusts the sentencing scheme applicable to
multiple crimes.
       Second, the Estrada rule applies only where “there is no saving clause.” (Estrada,
supra, 63 Cal.2d at p. 748.) Section 1170.126 is equivalent to a saving clause because it
essentially applies the amendments prospectively by providing a mechanism for
resentencing inmates who were sentenced prior to the effective date of the Reform Act.
Thus, it renders Estrada inapplicable. (See People v. Nasalga (1996) 12 Cal.4th 784, 793
[holding Estrada rule inapplicable to statutes with an express saving clause or its
equivalent].)
       Third, applying the Reform Act prospectively comports with voter intent in
passing Proposition 36. (See Robert L. v. Superior Court, supra, 30 Cal.4th at p. 901
[where language is ambiguous we must reference “ ‘ “other indicia of the voters’ intent,
particularly the analyses and arguments contained in the official ballot pamphlet.” ’ ”].)
One of the primary arguments advanced in favor of Proposition 36 was that it would not
endanger public safety. (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) Rebuttal to
Argument Against Proposition 36 [“Prop. 36 prevents dangerous criminals from being

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released early.”].)2 Prospective application of the Reform Act safeguards public safety
by ensuring that only those prisoners who do not pose “an unreasonable risk of danger to
public safety” receive reduced sentences. (§ 1170.126, subd. (f).) But allowing
defendants to circumvent the section 1170.126 recall provision--and the associated
judicial review of safety risks--could endanger the public. It is true that amended
sections 667 and 1170.12 do not provide the trial court with any discretion to impose a
third strike sentence based on a finding of current dangerousness. However, “[d]uring
the pretrial, trial and sentencing phases of the criminal justice system, various
discretionary decisions are available to the prosecutor and the trial court that can result in
a shorter or longer term of imprisonment (e.g., selection of the appropriate base term,
concurrent/consecutive sentencing, dismissal of a strike in the interests of justice).”
(People v. Yearwood (2013) 213 Cal.App.4th 161, 176.) That discretion can be exercised
to keep dangerous criminals off the streets. But “[o]nce the defendant is sentenced,
prosecutorial and judicial discretion are effectively exhausted.” (Ibid.)
       For the foregoing reasons, we conclude that the Estrada rule is not applicable to
the Reform Act and that Moreno is not entitled to automatic resentencing.3
III.   DISPOSITION
       The judgment is modified to reduce the restitution and parole revocation fines
from $240 each to $200 each. The clerk of the superior court is directed to amend the
abstract of judgment in accordance with this disposition and transmit the amended
       2
         We take judicial notice of the pertinent portions of the Voter Information Guide
discussing Proposition 36 (<http://voterguide.sos.ca.gov/propositions/36/> [as of Dec. 16,
2013]). (Evid. Code, §§ 452, subd. (c), 459.)
       3
         Our colleagues at the Fifth and Third Appellate Districts reached the same
conclusion in People v. Yearwood, supra, 213 Cal.App.4th 161 and People v. Conley
(2013) 215 Cal.App.4th 1482, respectively. Our colleagues at the Fourth Appellate
District reached the contrary conclusion in People v. Lewis (2013) 216 Cal.App.4th 468.
The California Supreme Court has granted review in People v. Conley, 160 Cal.Rptr.3d
408 (rev. granted Aug. 12, 2013, S211275) and People v. Lewis, 160 Cal.Rptr.3d 409
(rev. granted Aug. 12, 2013, S211494).

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abstract to the Department of Corrections and Rehabilitation. As so modified, the
judgment is affirmed.




                                                            Premo, J.




      WE CONCUR:




             Rushing, P.J.




             Márquez, J.




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