Filed 7/2/15




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                           S219454
           v.                        )
                                     )                     Ct.App. 2/3 B249651
TIMOTHY WAYNE JOHNSON,               )
                                     )                     Los Angeles County
           Defendant and Appellant.  )                   Super. Ct. No. YA038015
____________________________________)
                                     )
THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                           S219819
           v.                        )
                                     )                     Ct.App. 2/1 B249557
OSCAR MACHADO,                       )
                                     )                     Los Angeles County
           Defendant and Appellant.  )                   Super. Ct. No. YA036692
____________________________________)


        On November 6, 2012, the electorate passed Proposition 36, the Three
Strikes Reform Act of 2012 (Proposition 36 or the Act). Proposition 36 reduced
the punishment to be imposed with respect to some third-strike offenses that are
neither serious nor violent, and provided for discretionary resentencing in some
cases in which third-strike sentences were imposed with respect to felonies that are
neither serious nor violent.
        We granted review to resolve two issues related to the Act‟s resentencing
provisions. First, in People v. Johnson (S219454), we address for purposes of


                                         1
resentencing a defendant whether the classification of an offense as a serious or
violent felony is determined as of November 7, 2012, the effective date of
Proposition 36, or the law in effect when the offense was committed. Second, in
People v. Machado (S219819), we address whether an inmate who was convicted
of both a serious or violent felony and a felony that is neither serious nor violent is
eligible for resentencing with respect to the felony that is neither serious nor
violent. For the reasons set forth below, we hold that when a court resentences a
third-strike defendant the classification of the current offense is based on the law
as of the effective date of Proposition 36, and that the presence of a conviction of a
serious or violent felony does not disqualify an inmate from resentencing with
respect to a current offense that is neither serious nor violent.
                                      I. FACTS
       In 1998, a jury convicted Timothy Wayne Johnson of two counts of
attempting to dissuade a witness. (Pen. Code, § 136.1, subd. (a)(2); all further
statutory references are to the Penal Code unless otherwise noted.) The jury also
found that he had suffered three prior convictions — robbery (§ 211), first degree
burglary (§ 459), and assault with a firearm (§ 245, subd. (a)(2)). Based on
Johnson‟s prior convictions, the trial court sentenced him to two terms of 25 years
to life under the Three Strikes law (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)), to
be served concurrently, and an additional term of three years for the three prior
prison terms (§ 667.5, subd. (b)).
       In 1998, a jury convicted Oscar Machado of one count of first degree
burglary and one count of second degree burglary. (§§ 459, 460.) The trial court
found true the allegation that he had suffered two prior convictions, both for
robbery (§ 211), and sentenced him to two terms of 25 years to life, to be served
consecutively. (§§ 667, subds. (c)(6), (e)(2), 1170.12, subds. (a)(6), (c)(2).)



                                           2
       As noted, in 2012, the electorate passed Proposition 36. The Act authorizes
prisoners serving third-strike sentences whose “current” offense (i.e., the offense
for which the third-strike sentence was imposed) is not a serious or violent felony
to petition for recall of the sentence and for resentencing as a second-strike case.
(§ 1170.126, subd. (f); see §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).)
       Following the enactment of Proposition 36, Johnson filed a petition for
recall of his sentence. The trial court denied his petition on the ground that his
current offenses are serious or violent felonies, rendering him ineligible for recall
of his sentence. Although his current offenses were not classified as serious or
violent felonies when he committed them in 1998, the crime of intimidating a
victim or witness (§ 136.1) was subsequently classified as a serious and violent
felony by Proposition 21, the Gang Violence and Juvenile Crime Prevention Act
of 1998, which the voters approved in 2000. (§§ 667.5, subd. (c)(20), 1192.7,
subd. (c)(37).) The Court of Appeal agreed that a prisoner whose current offense
was a serious or violent offense on November 7, 2012, the effective date of
Proposition 36, is not eligible for resentencing, and affirmed the order.
       Machado filed a petition for recall of his sentence for second degree
burglary. The trial court denied his petition on the ground that his conviction for
first degree burglary, which is a serious felony, rendered him ineligible for
resentencing with respect to his second degree burglary conviction, which is
neither serious nor violent. The Court of Appeal reversed that judgment, and
directed the trial court to reconsider his eligibility for resentencing with respect to
his conviction for second degree burglary.
       For the reasons set forth below, we hold that when a court resentences a
third-strike defendant the classification of an offense as serious or violent is based
on the law as of November 7, 2012, the effective date of Proposition 36, and that
the presence of a current offense that is serious or violent does not disqualify an

                                           3
inmate from resentencing with respect to a current offense that is neither serious
nor violent. Therefore, we affirm the appellate court judgments in both of these
cases.
                                  II. DISCUSSION

         A. The Act
         Prior to its amendment by the Act, the Three Strikes law required that a
defendant who had two or more prior convictions of violent or serious felonies
receive a third-strike sentence of a minimum of 25 years to life for any current
felony conviction, even if the current offense was neither serious nor violent.
(Former §§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A).)1 The Act
amended the Three Strikes law with respect to defendants whose current
conviction is for a felony that is neither serious nor violent. In that circumstance,
unless an exception applies, the defendant is to receive a second-strike sentence of
twice the term otherwise provided for the current felony, pursuant to the
provisions that apply when a defendant has one prior conviction for a serious or
violent felony. (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C); see §§ 667.5,
subd. (c) [list of violent felonies], 1192.7 [list of serious felonies], 1192.8
[additional serious felonies for purposes of § 1192.7].)
         The Act‟s exceptions to the new sentencing provisions relate to a
defendant‟s current offense and prior offenses. If the current offense involves
controlled substances and specified findings are made concerning the quantity of
controlled substances involved, or if the current offense is among specified sex


1      The Three Strikes law was enacted twice in 1994, first by the Legislature
(§ 667, subds. (b)-(i); Stats. 1994, ch. 12, § 1, p. 71), and thereafter by the voters
by way of Proposition 184 (§ 1170.12; see People v. Superior Court (1996) 13
Cal.4th 497, 504 (Romero)).



                                            4
offenses, a defendant with two or more strikes must be sentenced to a term of at
least 25 years to life.2 (§§ 667, subd. (e)(2)(C)(i)-(ii), 1170.12, subd. (c)(2)(C)(i)-
(ii).) A third-strike sentence is also required if, “[d]uring 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.” (§§ 667,
subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) Finally, a defendant will be
excluded from the new sentencing provisions if he or she suffered a prior
conviction for specified sex offenses,3 any homicide offense or attempted
homicide offense defined in sections 187 through 191.5, solicitation to commit
murder, assault with a machine gun on a peace officer or firefighter, possession of


2      The exceptions regarding controlled substances refer to Health and Safety
Code section 11370.4, which imposes additional terms for possession,
transportation or sale of controlled substances, based on findings concerning the
kilograms of drugs involved, and Health and Safety Code section 11379.8, which
imposes additional terms for the manufacture of controlled substances, based on
findings of gallons or pounds of specified substances.
       The specified current sex offenses are unlawful sexual intercourse with a
minor under 16 years of age by a person 21 years of age or older (§ 261.5,
subd. (d)); rape of a spouse (§ 262); and any felony that results in mandatory
registration as a sex offender under section 290, subdivision (c), except violations
of section 266 (enticement of an unmarried minor female for prostitution, and
aiding and abetting procurement of a female for illicit intercourse), section 285
(incest), section 286, subdivision (b)(1) (sodomy with a person under 18 years of
age), section 288a, subdivisions (b)(1) (oral copulation with a person under 18
years of age) and (e) (oral copulation while confined in state prison or local
detention facility), section 311.11 (possession of child pornography), and section
314 (lewd or obscene conduct).
3      The specified prior sex offenses are a “sexually violent offense” (see Welf.
& Inst. Code, § 6600, subd. (b)); specified sex crimes with a child under 14 years
of age who is more than 10 years younger than the defendant (§§ 286 [sodomy],
288a [oral copulation], 289 [sexual penetration]); and a lewd or lascivious act
(§ 288) with a child under 14 years of age.




                                           5
a weapon of mass destruction, or any serious or violent felony punishable in
California by life imprisonment or death. (§§ 667, subd. (e)(2)(C)(iv), 1170.12,
subd. (c)(2)(C)(iv).) These prior convictions are sometimes referred to as “super
strikes.” (See, e.g., People v. Rivera (2015) 233 Cal.App.4th 1085, 1092.)
       In addition to reducing the sentence to be imposed for some third-strike
felonies that are neither violent nor serious, the Act provides a procedure by which
some prisoners already serving third-strike sentences may seek resentencing in
accordance with the new sentencing rules. (§ 1170.126.) “An inmate is eligible
for resentencing if [¶] . . . [t]he inmate is serving an indeterminate term of life
imprisonment imposed pursuant to [the Three Strikes law] for a conviction of a
felony or felonies that are not defined as serious and/or violent . . . .” (§ 1170.126,
subd. (e)(1).) Like a defendant who is being sentenced under the new provisions,
an inmate is disqualified from resentencing if any of the exceptions set forth in
section 667, subdivision (e)(2)(C) and section 1170.12, subdivision (c)(2)(C) are
present. (§ 1170.126, subd. (e).) In contrast to the rules that apply to sentencing,
however, the rules governing resentencing provide that an inmate will be denied
recall of his or her sentence if “the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public
safety.” (§ 1170.126, subd. (f).)
       In construing statutes adopted by the voters, we apply the same principles
of interpretation we apply to statutes enacted by the Legislature. (People v. Park
(2013) 56 Cal.4th 782, 796.) “ „The fundamental purpose of statutory construction
is to ascertain the intent of the lawmakers so as to effectuate the purpose of the
law.‟ ” (Horwich v. Superior Court (1999) 21 Cal.4th 272, 276.) We begin with
the language of the statute, to which we give its ordinary meaning and construe in
the context of the statutory scheme. If the language is ambiguous, we look to



                                           6
other indicia of voter intent. (People v. Park, supra, at pp. 796-798; People v.
Briceno (2004) 34 Cal.4th 451, 459.)

       B. For purposes of resentencing, what date determines the character
          of the current offense?
       For defendant Johnson, the question on review is: for purposes of recall of
a sentence under section 1170.126, is the classification of the current offense as a
serious or violent felony determined as of the date the current offense was
committed or as of November 7, 2012, the date Proposition 36 became effective?
Proposition 36 amended sections 667.1 and 1170.125 to provide that “for all
offenses committed on or after November 7, 2012, all references to existing
statutes in [the Three Strikes statutes] are to those sections as they existed on
November 7, 2012.” (§§ 667.1, 1170.125.) In the context of resentencing under
section 1170.126, however, we are concerned only with offenses committed
before November 7, 2012. As explained below, section 1170.126‟s use of the
present verb tense in describing the character of the current offense, the parallel
structure of the sentencing and resentencing provisions, and the ballot arguments
in support of Proposition 36 lead us to conclude that the classification of an
offense as serious or violent for purposes of resentencing is based on the law as of
November 7, 2012, the effective date of Proposition 36. Accordingly,
resentencing is not available with respect to Johnson‟s conviction for the crime of
attempting to dissuade a witness, which had been classified as a serious and
violent felony prior to November 7, 2012.
       Turning first to the statutory language, section 1170.126 describes those
who may file a petition for recall of sentence as any person serving a third-strike
sentence whose current conviction is for “a felony or felonies that are not defined
as serious and/or violent felonies.” (§ 1170.126, subd. (b), italics added.)
Similarly, in its description of who is eligible for resentencing, the statute refers to


                                           7
an inmate who is serving an indeterminate sentence for “a felony or felonies that
are not defined as serious and/or violent.” (§ 1170.126, subd. (e)(1), italics
added.) The drafters‟ use of the present tense indicates that the present
classification of felonies as serious or violent should control. (See People v.
Loeun (1997) 17 Cal.4th 1, 10-11.)
       Johnson notes that verb tense is not always determinative (see People v.
Jeffers (1987) 43 Cal.3d 984, 992), and he relies instead on the proposition that the
classification of prior offenses as serious or violent for purposes of three-strikes
sentencing is generally based on the classification as of the date the current
offense was committed. He contends that the same rule should apply in
resentencing. To address his contention, it is necessary to review the history of the
statutory provisions that set the date as of which the character of prior crimes as
serious or violent is determined for purposes of the Three Strikes law.
       As enacted in 1994, the Three Strikes law provided that references in that
law to the statutes classifying felonies as serious or violent would be to those
statutes as they existed as of June 30, 1993. (Prop. 184, enacted Nov. 8, 1994, § 2;
former § 667, subd. (h), amended by Stats. 1994, ch. 12, § 1, pp. 71-75.)
Thereafter, the Legislature classified additional crimes as serious or violent, but
did not amend the date provision to add convictions for these crimes for use as
strike priors under the Three Strikes law. Therefore, these additional serious or
violent crimes that resulted in conviction did not qualify as strike prior convictions
despite the fact that the current offense was committed after these particular prior
offenses had been classified as serious or violent. (Manduley v. Superior Court
(2002) 27 Cal.4th 537, 577, fn. 11.)
       In 2000, when Proposition 21, the Gang Violence and Juvenile Crime
Prevention Act of 1998, reclassified certain felonies as serious or violent, it
addressed this issue by also adding sections 667.1 and 1170.125 to the Penal Code.

                                           8
These statutes provided that, with respect to offenses committed on or after the
effective date of Proposition 21, references to existing statutes in the Three Strikes
law were to the statutes as they existed on March 8, 2000, the effective date of
Proposition 21. (Former §§ 667.1, 1170.125.) Consequently, a person being
sentenced with respect to a third felony offense committed on or after March 8,
2000, whose prior felonies had been reclassified by Proposition 21 as serious or
violent felonies, could be sentenced as a third-strike offender, despite the fact that
the prior offenses were not classified as serious or violent at the time they were
committed. (See People v. Superior Court (Andrades) (2003) 113 Cal.App.4th
817 [Prop. 21 determines whether a prior juvenile adjudication is a strike, even if
the prior offense predated Prop. 21]; People v. James (2001) 91 Cal.App.4th 1147
[Prop. 21 determines whether a prior felony is serious or violent for purposes of
sentencing under the Three Strikes law, even if the prior felony predated Prop.
21].)
        Subsequent amendments to sections 667.1 and 1170.125 also required, with
respect to crimes committed on or after the effective date of the amendments, that
the sentence be based on the law as of the effective date of the amendments.
When the Legislature enacted the Sex Offender Punishment, Control, and
Containment Act of 2006, it amended section 667.1 to provide that “for all
offenses committed on or after the effective date of this act, all references to
existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those
statutes as they existed on the effective date of this act . . . .” (Stats. 2006, ch. 337,
§ 29, p. 2634.) Similarly, when Proposition 36 reformed the Three Strikes law, it
amended sections 667.1 and 1170.125 to provide that, for offenses committed on
or after its effective date, references in the Three Strikes law to existing statutes
were to the statutes as they existed on November 7, 2012, the effective date of
Proposition 36.

                                            9
       As this history reflects, since the enactment of sections 667.1 and 1170.125,
sentencing under the Three Strikes law has been based on the status of prior
crimes as serious or violent felonies as of the date the current offense was
committed. In addition, as Johnson notes, when section 1170.125 was amended
by Proposition 36 to update the reference date to the effective date of the Act
(Nov. 7, 2012), the amendment expressly referred to section 1170.126, the
resentencing provision. Therefore, Johnson concludes, the resentencing court
should focus on the state of the law as of the date the current offense was
committed, which in this case was 1998. As explained below, however, section
1170.125 has no application to crimes committed prior to the effective date of
Proposition 36. In addition, Johnson‟s theory ignores the substantive effect of the
repeated updating of the reference date, and is inconsistent with the Act‟s structure
and purpose.
       We begin with section 1170.125‟s reference to section 1170.126: “for all
offenses committed on or after November 7, 2012 [the effective date of Prop. 36],
all references to existing statutes in Sections 1170.12 and 1170.126 are to those
sections as they existed on November 7, 2012.” (§ 1170.125, italics added.) This
reference to section 1170.126 is puzzling, because section 1170.125 concerns only
offenses committed after Proposition 36 became effective, and section 1170.126
concerns the recall of sentences imposed before Proposition 36 revised the Three
Strikes sentencing scheme. (See Couzens & Bigelow, Cal. Three Strikes
Sentencing (2014) § 3:1, p. 3-5 [“On its face, the amendment makes no sense”].)
       Johnson contends that because section 1170.125 continues to require that
the character of prior strikes be determined based on the date the current offense
was committed and expressly refers to section 1170.126, the two sections should
be read together to require a court considering a petition for resentencing under
section 1170.126 to apply the law in effect at the time of the commission of the

                                         10
current offense. In particular, he contends that the description in section 1170.126,
subdivision (a) of those persons to whom the resentencing provision are intended
to apply — persons serving a third-strike sentence “whose sentence under this act
would not have been an indeterminate life sentence” — should be read to refer to
those persons whose current sentence, when imposed, would not have been a third-
strike sentence under Proposition 36‟s provisions. He concludes that this
interpretation “clarifies why section 1170.125 includes 1170.126 along with
1170.12. For both, the determination of whether a second strike sentence is
applicable depends on the date of the commission of the offense being punished.”
       As noted, however, section 1170.125 expressly applies only to offenses
committed after the effective date of Proposition 36. It therefore does not apply to
offenses for which resentencing is sought, as all offenses for which resentencing
may be sought occurred prior to the effective date of Proposition 36. In addition,
although the history of sections 667.1 and 1170.125 reflects that sentencing courts
have historically been required to consider the law in effect at the time the current
offenses were committed, the substantive effect of these statutes has been to base
sentencing on the most recent classification of a defendant‟s prior convictions,
despite the fact that the prior convictions on which a sentence is based were not
serious or violent at the time they were committed. Therefore, this history does
not lead to the conclusion that in the context of resentencing, courts should look to
the law in effect when the current offense was committed.
       To resolve the ambiguity in the statutory language, we look to the Act as a
whole and to legislative intent. First, the parallel structure of the Act‟s
amendments to the sentencing provisions and the Act‟s resentencing provisions
reflects an intent that sentences imposed on individuals with the same criminal
history be the same, regardless of whether they are being sentenced or
resentenced. Both the sentencing scheme and the resentencing scheme provide for

                                          11
a second-strike sentence if the current offense is not a serious or violent felony,
and they set forth identical exceptions to the new sentencing rules. (§§ 667,
subd. (e)(2)(C), 1170.12, subd. (c)(2)(C), 1170.126, subd. (e)(2), (3).)
       To the extent the sentencing and resentencing provisions differ, the
difference supports the conclusion that resentencing is not authorized in cases in
which the current offense is now considered serious or violent. A court imposing
a sentence for a felony that is neither serious nor violent must sentence the
defendant in accordance with the second-strike provisions unless an exception
applies (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C)), but a court considering
a petition for resentencing with respect to such a felony has discretion to deny
resentencing if the court “determines that resentencing the petitioner would pose
an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) Thus,
the Act is more cautious with respect to resentencing. Given that the Act excludes
from its reforms defendants who are being sentenced in the first instance for the
same crime as petitioner‟s current offense, it would be incongruous to require a
court, absent an unreasonable risk of danger, to resentence an inmate such as
petitioner. (§ 1170.126, subd. (g)(1).)
       Second, interpreting the Act in a way that ignores the current classification
of the character of the petitioner‟s crimes is inconsistent with the intent expressed
in the arguments in support of Proposition 36. Those arguments reflect an intent
to “make the punishment fit the crime” and “make room in prison for dangerous
felons.” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012), argument in favor
of Prop. 36, p. 52, capitalization omitted (Voter Information Guide).) Given that
petitioner‟s current crimes are now considered serious and violent, the intent
reflected in the ballot arguments to “keep violent felons off the street” (ibid.) and
“prevent[] dangerous criminals from being released early” (id., rebuttal to
argument against Prop. 36, p. 53) would not be served by interpreting the Act to

                                          12
authorize a reduction in his sentence. There appears to be no reason that a three-
strikes sentence fits defendant‟s crime of attempting to dissuade a witness only if
the offense was committed after the enactment of Proposition 21, or that inmates
who committed offenses that are now considered serious or violent should be
given shorter sentences in order to make room for individuals who committed the
identical offenses after such crimes were reclassified as serious or violent.
       Johnson, however, reads the ballot materials to indicate that resentencing
would be allowed if a person‟s current offense was not a serious or violent felony
at the time it was committed. He cites the statement in the Attorney General‟s
Summary that Proposition 36 “[a]uthorizes re-sentencing for offenders currently
serving life sentences if third strike conviction was not serious or violent . . . .”
(Voter Information Guide, supra, Prop. 36, title and summary, p. 48, italics
added.) However, the ballot materials also included the Legislative Analyst‟s
statement that “[t]he measure limits eligibility for resentencing to third strikers
whose current offense is nonserious [and] non-violent . . . .” (Id., p. 50, italics
added.) Thus, the verb tense used in the Attorney General‟s summary does not
alter our conclusion.
       In summary, the use of the present tense in the provisions describing the
nature of the current conviction reflects an intent that the nature of the current
conviction as serious or violent is based on its characterization as of the date of
resentencing. In addition, the parallel structure of the Act‟s sentencing and
resentencing provisions appears to contemplate identical sentences in connection
with identical criminal histories, unless the trial court concludes that resentencing
would pose an unreasonable risk to public safety. Finally, interpreting the scheme
to allow resentencing despite the current classification of the offense as serious or
violent is not supported by the arguments set forth in the ballot pamphlet. For
these reasons, we hold that for purposes of resentencing under section 1170.126,

                                           13
the classification of the current offense as serious or violent is based on the law as
of November 7, 2012, the effective date of Proposition 36.

         C. Is an inmate who is serving an indeterminate life sentence for a
             serious or violent felony eligible to petition for recall of an
             indeterminate sentence for a felony that is neither serious nor
             violent?
         As noted above, one of Machado‟s two indeterminate sentences was
imposed for first degree burglary, a serious felony, and one was imposed for
second degree burglary, a felony that is not classified as serious or violent
(§ 1192.7, subd. (c)(18)), and he was sentenced consecutively on the two counts.
(§§ 667, subd. (c)(6), 1170.12, subd. (a)(6).) For the reasons set forth below, we
conclude that the Act requires an inmate‟s eligibility for resentencing to be
evaluated on a count-by-count basis. So interpreted, an inmate may obtain
resentencing with respect to a three-strikes sentence imposed for a felony that is
neither serious nor violent, despite the fact that the inmate remains subject to a
third-strike sentence of 25 years to life.
         In support of their view that resentencing is allowed only if all of a
prisoner‟s current offenses are neither serious nor violent, the People rely
principally on subdivision (a) of section 1170.126, which states that the
resentencing provisions “are intended to apply exclusively to persons presently
serving an indeterminate term of imprisonment pursuant to [the third strike
sentencing requirements], whose sentence under this act would not have been an
indeterminate life sentence.” (§ 1170.126, subd. (a), italics added.) In the
People‟s view, “sentence” in subdivision (a) unambiguously refers to an inmate‟s
aggregate sentence. Applying the People‟s interpretation, petitioner‟s “sentence”
would remain an indeterminate life sentence. Therefore, he would not come
within the class of persons to whom the resentencing provisions are intended to
apply.

                                             14
       “Sentence” is not defined in either the Penal Code or in the Act. In the
context of the Three Strikes law, we have referred to both the term imposed for a
single crime and to the aggregate term imposed for multiple crimes as a
“sentence.” (See People v. Williams (2004) 34 Cal.4th 397, 400-401 [referring to
three concurrent “sentences” plus enhancements for prior convictions as an
“aggregate sentence,” which ran consecutively to a sentence in another case,
resulting in “an overall net sentence”]; People v. Garcia (1999) 20 Cal.4th 490,
495 (Garcia) [referring to the “sentence” with respect to a single crime and to the
“total sentence”].) Thus, “sentence” is ambiguous.
       Historically, sentencing under the Three Strikes law has focused on the
sentence to be imposed with respect to each count individually, as illustrated by
our cases addressing the trial court‟s authority to dismiss prior strikes. (See
Romero, supra, 13 Cal.4th 497 [Three Strikes law did not deprive trial courts of
their authority under § 1385 to dismiss prior convictions for serious or violent
felonies “in furtherance of justice”].) In People v. Williams (1998) 17 Cal.4th 148
(Williams), we reviewed the principles that guide the exercise of discretion to
dismiss strikes. We observed that the sentencing court must consider both the
defendant‟s constitutional rights and society‟s interest in the prosecution of
crimes. Therefore, a court may not dismiss a strike solely for judicial
convenience, in exchange for a guilty plea, or based on antipathy to the Three
Strikes law. Instead, in determining whether to strike a prior conviction, the trial
court must look to “factors intrinsic to the [Three Strikes] scheme.” (Id. at p. 161.)
It “must consider whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and the particulars of
his background, character, and prospects, the defendant may be deemed outside
the scheme‟s spirit, in whole or in part, and hence should be treated as though he



                                          15
had not previously been convicted of one or more serious and/or violent felonies.”
(Ibid.)
          Subsequently, in Garcia, supra, 20 Cal.4th 490, we held that a trial court
may exercise its discretion to dismiss a prior conviction allegation with respect to
fewer than all counts. We noted that when a court dismisses a prior conviction
allegation for purposes of sentencing, the action does not negate the conviction.
Therefore, “a court might strike a prior conviction allegation in one context, but
use it in another.” (Id. at p. 496.) We could “discern no reason for applying [this
principle] differently simply because two convictions are part of a single
proceeding rather than two different proceedings. Such a distinction finds no
support in logic, the language of section 1385, or any decision interpreting that
section.” (Id. at p. 499.)
          We found additional support for our holding in the standards we set forth in
Williams, supra, 17 Cal.4th 148, in which “we instructed trial courts to consider
among other things, „ “ „individualized considerations‟ ” ‟ [citation] „such as the
nature and circumstances of the defendant‟s present felonies‟ and his „prospects.‟
[Citation.] In many cases, „the nature and circumstances‟ of the various felonies
described in different counts will differ considerably. A court might therefore be
justified in striking prior conviction allegations with respect to a relatively minor
current felony, while considering those prior convictions with respect to a serious
or violent current felony.” (Garcia, supra, 20 Cal.4th at p. 499.) In response to
the Attorney General‟s contention that there is no basis for treating similar crimes
differently, we noted that “[e]ven if the current offenses are virtually identical, a
defendant‟s „prospects‟ [citation] will differ greatly from one count to another
because a Three Strikes sentence on one count will itself radically alter those
prospects.” (Id. at p. 500.) As an example, we noted that once the defendant in
Garcia received a term of 30 years to life on one of his burglary convictions, “his

                                           16
„prospects‟ for committing future burglaries diminished significantly.” (Ibid.)
Not only is the defendant‟s sentence “a relevant consideration when deciding
whether to strike a prior conviction allegation[,] . . . it is the overarching
consideration because the underlying purpose of striking prior conviction
allegations is the avoidance of unjust sentences.” (Ibid.)
       Against this background, the voters approved Proposition 36‟s revisions to
the Three Strikes law. The Act amended the law to provide that if a defendant has
two or more prior strikes, “and the current offense is not a serious or violent felony
. . . , the defendant shall be sentenced pursuant to [the second-strike sentencing
requirements] unless the prosecution pleads and proves any of the [disqualifying
factors.]” (§ 667, subd. (e)(2)(C); accord, § 1170.12, subd. (c)(2)(C).) In listing
the disqualifying factors that relate to the current offense, it states that “[t]he
current offense is” a specified drug offense or a specified sex offense, or “[d]uring
the commission of the current offense,” the defendant took certain actions with a
firearm “or intended to cause great bodily injury.” (§§ 667, subd. (e)(2)(C)(i)-(iii),
1170.12, subd. (c)(2)(C)(i)-(iii).) Nothing in the statutory language suggests that
the sentencing revisions apply only if each of a defendant‟s current offenses is
neither serious nor violent. Thus, post-Proposition 36, a defendant convicted of a
serious or violent felony and a felony that is neither serious nor violent will
receive a sentence of at least 25 years to life for the former and, absent a statutory
exception, a more lenient two-strikes sentence for the latter.
       Proposition 36‟s focus on individual counts in its sentencing revisions is
consistent with the historical approach to sentencing under the Three Strikes law.
In addition, the Act‟s more lenient sentencing with respect to felonies that are
neither serious nor violent, despite a conviction of a serious or violent felony,
reflects recognition of the fact that when a defendant has received an
indeterminate life term on one count, the defendant‟s prospects for committing

                                           17
additional crimes is diminished significantly. (See Garcia, supra, 20 Cal.4th at
p. 500.) Finally, its focus on individual counts avoids the possibility that a
defendant‟s sentence will depend on whether his or her counts are tried together or
adjudicated in separate proceedings. As we observed in Garcia, there is “no
reason for applying [different sentencing rules] simply because two convictions
are part of a single proceeding rather than two different proceedings.” (Id. at
p. 499.)
       A count-by-count approach to sentencing is also consistent with
representations made to voters in support of the initiative. By focusing on each
count, the amendments “make the punishment fit the crime.” (Voter Information
Guide, supra, argument in favor of Prop. 36, p. 52, capitalization omitted.) This
approach also provides that “[r]epeat criminals will get life in prison for serious or
violent third strike crimes,” and “[r]epeat offenders of non-violent crimes will get
more than double the ordinary sentence.” (Ibid.) Because a person convicted of a
serious or violent felony will receive a minimum sentence of 25 years to life for
that offense (§§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A)), and will not be
granted parole if the Board of Parole Hearings determines that “consideration of
the public safety requires a more lengthy period of incarceration” (§ 3041, subd.
(b); see In re Vicks (2013) 56 Cal.4th 274, 294-295), “truly dangerous criminals
will receive no benefits whatsoever from the reform.” (Voter Information Guide,
supra, argument in favor of Prop. 36, p. 52.) And by reducing the sentence
imposed for a count that is neither serious nor violent, the amendments allow an
inmate who is also serving an indeterminate life term to be released on parole
earlier if the Board of Parole Hearings concludes he or she is not a threat to the
public safety, thereby “mak[ing] room in prison for dangerous felons” and saving
money that would otherwise be spent on incarcerating inmates who are no longer
dangerous. (Ibid.)

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       A contrary approach in the context of resentencing would constitute a
significant difference between the two schemes, but there is no mention of such a
distinction in the election materials. Also, except for the resentencing statute‟s
provision granting the trial court authority to deny resentencing if reducing the
sentence would pose a danger to the public, the resentencing statute‟s exceptions
to the new sentencing rules are the same factors that exclude a defendant from
being sentenced pursuant to Proposition 36‟s more lenient provisions.
(§ 1170.126, subd. (f); see §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) This
parallel scheme suggests that the sentencing rules are intended to be identical
except in that one respect. In addition, in the same ways that sentencing on a
count-by-count basis promotes the goals set forth in the ballot history of
Proposition 36, resentencing on a count-by-count basis promotes those goals.
Conversely, if a serious or violent count disqualified an inmate from resentencing
on counts that are not serious or violent, the goals of making the punishment fit the
crime, making room in prison for dangerous felons, and saving taxpayer money
would be frustrated. Finally, given the trial court‟s discretion to deny resentencing
if it finds that reducing a sentence would result in unreasonable risk to the public,
we discern no reason that the measure would be crafted to categorically exclude
inmates from its sentencing reforms solely because they committed serious or
violent crimes prior to the passage of Proposition 36.
       Rather than viewing the resentencing provisions in light of the historical
approach to sentencing and in the context of the entire Three Strikes law, the
People seek support for their position in other ambiguous language in section
1170.126. First, they cite subdivision (d), which states that the petition “shall
specify all of the currently charged felonies, which resulted in the sentence under
[the third-strike sentencing provisions], and shall also specify all of the prior
convictions alleged and proved . . . .” They note the use of the singular “sentence”

                                          19
in connection with the plural “felonies,” and urge us to apply the presumption that
“when a word is used in a particular sense in one part of a statute, it is intended to
have the same meaning if it appears in another part of the same statute.” (People
v. Dillon (1983) 34 Cal.3d 441, 468.) They also contend that the reason this
particular information is required to be included in the petition is to enable the trial
court to determine whether there are any serious or violent current offenses, the
presence of which will render an inmate ineligible for resentencing.
       Our review of the language employed in section 1170.126 reflects that the
drafters may not have intended the word “sentence” to have a singular meaning in
all contexts. The statute also uses the word “term” to refer to punishment, which
might suggest that “sentence” is employed to refer to the aggregate punishment,
but “term” is also linked to the phrase “a felony or felonies” (§ 1170.126,
subds. (b), (e)(1)), which might indicate that “term” refers to the aggregate term.
In subdivision (c), however, “term” is used to refer to only the portion of an
aggregate sentence imposed pursuant to the second-strike provisions of the Three
Strikes law. Because “term” and “sentence” have been used interchangeably, and
“term” clearly has more than one meaning in the statute, we cannot be confident
that “sentence” has a consistent meaning throughout the statute. In any event, the
presumption that a term has an identical meaning throughout a statute “is
rebuttable if there are contrary indications of legislative intent.” (Delaney v. Baker
(1999) 20 Cal.4th 23, 41-42.) As discussed above, the legislative history supports
the conclusion that resentencing is determined on a count-by-count basis.
       With respect to the purpose of subdivision (d) of section 1170.126, the
People assert that the list of current felonies allows the trial court to determine
whether there are any serious or violent felonies, the presence of which will
disqualify an inmate from resentencing. In our view, a more reasonable
explanation for the information required to be set forth in the petition is found by

                                          20
considering what has been proved and what remains to be proved. In prosecutions
for felonies committed after Proposition 36 was enacted, the prosecutor will prove
charged felonies, prior strikes, and, if the defendant has at least two prior strikes,
any of the exceptions to second-strike sentencing that may apply with respect to
felonies that are neither serious nor violent. (§§ 667, subd. (e)(2)(C), 1170.12,
subd. (c)(2)(C).) In contrast, in a proceeding seeking resentencing, when an
inmate prepares his or her petition, only the current offenses and the prior strikes
that the prosecutor chose to prove in prosecuting the current offenses have been
established, which is precisely the information required by subdivision (d). There
are other facts and circumstances relevant to the decision whether to resentence
the inmate, but these other facts and circumstances must be established in the
resentencing proceeding; they are not established based on the petition for
resentencing. Therefore, the fact that the statute requires a list of all current
offenses does not establish an intent to disqualify from resentencing any inmate
whose current offenses include one or more that are violent or serious.
       The People also rely on the references to “felony or felonies” in subdivision
(b) of section 1170.126, which describes who may request resentencing — “[a]ny
person serving an indeterminate term of life imprisonment imposed pursuant to
[the Three Strikes sentencing requirements] upon conviction . . . of a felony or
felonies that are not defined as serious and/or violent” (italics added) — and in
subdivision (e), which states that “[a]n inmate is eligible for resentencing if: [¶]
(1) The inmate is serving an indeterminate term of life imprisonment imposed
pursuant to [the Three Strikes sentencing requirements] for a conviction of a
felony or felonies that are not defined as serious and/or violent . . . .” (Italics
added.) This language might reflect an understanding that all of the third strikes
must be neither serious nor violent in order for an inmate to be eligible for
resentencing, as the People contend. Alternatively, inclusion of the plural

                                           21
“felonies” might reflect a recognition that some inmates‟ current offenses include
more than one that is neither serious nor violent and therefore might be subject to
recall. Given the detailed provisions restricting eligibility for resentencing, it
seems reasonable to assume that an intent to categorically prohibit resentencing if
any one of the inmate‟s current offenses is serious or violent would have been
expressly set forth in subdivision (e) rather than merely implied by ambiguous
references to “felonies.”
       The People also assert that the three parts of subdivision (e) of section
1170.126 can be harmonized only by interpreting subdivision (e)(1) to render an
inmate ineligible for resentencing if any current offense is serious or violent.
Subdivision (e)(1) sets forth the requirement that the “felony or felonies” be
neither serious nor violent; subdivision (e)(2) incorporates from the revised
sentencing provisions of sections 667 and 1170.12 the list of current offenses and
various circumstances (quantities of drugs, use of or arming with a firearm, and
intent to inflict great bodily injury) that are exceptions to the new sentencing rules;
and subdivision (e)(3) incorporates from sections 667 and 1170.12 the list of super
strikes that disqualify a defendant from being sentenced in accordance with the
new sentencing rules. (See ante, fns. 2 & 3.) The People assert that the presence
of any of the exceptions set forth in subdivision (e)(2) and (3) disqualifies an
inmate from resentencing on all counts, so the presence of any serious or violent
felony should likewise disqualify an inmate from resentencing on all counts.
       Clearly, if an inmate‟s prior convictions include any of the super strikes
that are incorporated into section 1170.126, subdivision (e)(3), he or she will be
disqualified from the resentencing provisions, because a prior offense is present as
to each current offense. But the People fail to establish that if any of an inmate‟s
current offenses is among the exceptions incorporated into subdivision (e)(2), the
inmate is ineligible for resentencing as to all current offenses. Subdivision (e)(2)

                                          22
sets forth as a condition for resentencing that “[t]he inmate‟s current sentence was
not imposed for any of the offenses” set forth in the new sentencing provisions‟
list of current offenses that disqualify a defendant from the revised sentencing
rules. This reference to the current “sentence” suffers from the same ambiguity as
other references to “sentence” in section 1170.126. For the same reasons that the
reference in subdivision (a) is to the sentence imposed with respect to a single
count, the reference in subdivision (e)(2) appears to be to the sentence imposed
with respect to an individual offense — sentencing has historically focused on
individual counts. In summary: Proposition 36‟s new sentencing provisions
address the eligibility for a more lenient sentence on a count-by-count basis; the
sentencing and resentencing provisions have a parallel structure; there is no
indication in the ballot materials that the presence of a current offense that does
not qualify for more lenient sentencing has a significantly different consequence in
the context of resentencing; evaluating eligibility for resentencing on a count-by-
count basis promotes sentencing that fits the crime and prevents a distinction in
punishment based solely on whether the counts were tried in the same prosecution;
and reducing the term imposed on a current offense that is not among the
exceptions to the revised sentencing rules, despite the presence of another current
offense for which a term of 25 years to life must be served, promotes the
legislative purposes of making room in prison for dangerous criminals while also
protecting the public safety.
       In support of their position, the People also cite an anomaly that results if
resentencing is allowed on a count-by-count basis. If one of an inmate‟s current
offenses is among the super strikes — those offenses that would disqualify the
inmate from resentencing if it were a prior conviction — resentencing will be
allowed with respect to counts that are neither serious nor violent despite the fact
that resentencing would not be allowed if that super strike offense were a prior

                                          23
offense instead of a current offense. This anomaly, however, is present in the
initial sentencing provisions as well (§§ 667, subd. (e)(2)(C), 1170.12,
subd. (c)(2)(C); see People v. Briceno, supra, 34 Cal.4th at p. 459 [statutory
language is to be construed in the context of the statutory scheme of which it is a
part]), and as noted above, it appears that the same sentencing rules are to apply in
both contexts. Moreover, the People‟s interpretation also has the potential for an
anomalous result. If the presence of a current offense that is serious or violent
disqualified an inmate from resentencing on a current offense that is neither
serious nor violent, an inmate who was prosecuted concurrently in separate
proceedings would be eligible for resentencing in the case involving a felony that
was not serious or violent, despite the fact of a conviction of a serious or violent
felony in the other proceeding. (See People v. Williams, supra, 34 Cal.4th at
p. 400 [same strikes applied in separate, unrelated cases].) No reason for this
distinction appears.
       In sum, section 1170.126 is ambiguous as to whether a current offense that
is serious or violent disqualifies an inmate from resentencing with respect to
another count that is neither serious nor violent. Considering section 1170.126 in
the context of the history of sentencing under the Three Strikes law and
Proposition 36‟s amendments to the sentencing provisions, and construing it in
accordance with the legislative history, we conclude that resentencing is allowed
with respect to a count that is neither serious nor violent, despite the presence of
another count that is serious or violent. Because an inmate who is serving an
indeterminate life term for a felony that is serious or violent will not be released
on parole until the Board of Parole Hearings concludes he or she is not a threat to
the public safety, resentencing with respect to another offense that is neither
serious nor violent does not benefit an inmate who remains dangerous. Reducing
the inmate‟s base term by reducing the sentence imposed for an offense that is

                                          24
neither serious nor violent will result only in earlier consideration for parole. If
the Board of Parole Hearings determines that the inmate is not a threat to the
public safety, the reduction in the base term and the resultant earlier parole date
will make room for dangerous felons and save funds that would otherwise be spent
incarcerating an inmate who has served a sentence that fits the crime and who is
no longer dangerous.
                                III. CONCLUSION
       In People v. Johnson (S219454), we hold that for purposes of resentencing
under section 1170.126, the characterization of the current offense as serious or
violent is based on the law as of the effective date of Proposition 36, November 7,
2012. In People v. Machado (S219819), we hold that an inmate is eligible for
resentencing with respect to a current offense that is neither serious nor violent
despite the presence of another current offense that is serious or violent.
Therefore, we affirm the judgment of the Court of Appeal in each case.
                                                         CANTIL-SAKAUYE, C. J.
WE CONCUR:

WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Johnson and People v. Machado
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 226 Cal.App.4th 620 & 226 Cal.App.4th 1044
Rehearing Granted

__________________________________________________________________________________

Opinion No. S219454 & S219819
Date Filed: July 2, 2015
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: William C. Ryan

__________________________________________________________________________________

Counsel:

Suzan E. Hier, under appointment by the Supreme Court, for Defendant and Appellant Timothy Wayne
Johnson.

Larry Pizarro, under appointment by the Supreme Court, for Defendant and Appellant Oscar Machado.

Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson, Shawn McGahey Webb, Noah
P. Hill, Jonathan J. Kline and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.




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Counsel who argued in Supreme Court (not intended for publication with opinion):

Suzan E. Hier
California Appellate Project
520 S. Grand Avenue, 4th Floor
Los Angeles, CA 90071
(213) 243-0300

Larry Pizarro
California Appellate Project
520 S. Grand Avenue, 4th Floor
Los Angeles, CA 90071
(213) 243-0300

Carl N. Henry
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2055

Jonathan J. Kline
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 576-1341




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