Filed 10/25/13 P. v. Mueck CA3
                                           NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

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



THE PEOPLE,                                                                                  C071720

                   Plaintiff and Respondent,                                    (Super. Ct. No. NCR81726)

         v.

STEVEN WERNER MUECK,

                   Defendant and Appellant.




         Defendant Steven Werner Mueck pleaded guilty to bribing a witness and admitted
to previously being convicted of two serious or violent felonies. After a motion to
withdraw his plea was denied, defendant was sentenced to an indeterminate term of 25
years to life in state prison in accordance with his plea. Defendant’s sole claim on appeal
is that he is entitled to benefit from the change in law enacted by Proposition 36 because
the judgment in his case is not yet final. He asks us to vacate his sentence and remand
this matter to the trial court for a new sentencing hearing. We affirm the judgment.




                                                             1
                                       DISCUSSION
       While defendant's appeal was pending, the voters passed Proposition 36, limiting
three strike sentences to current convictions for serious or violent felonies, or a limited
number of other felonies that are not relevant here. (See Pen. Code, §§ 1170.12, subd. (c),
667, subd. (c).)1 If defendant had been sentenced today, he would not be subject to an
indeterminate life term.
       Proposition 36 also added section 1170.126, which creates a postconviction
release proceeding “intended to apply exclusively to persons presently serving an
indeterminate term of imprisonment pursuant to paragraph (2) of subdivision (e) of
Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, whose sentence under
this act would not have been an indeterminate life sentence.” (§ 1170.126, subd. (a).) A
prisoner is eligible for resentencing under section 1170.126 as a second strike offender if
certain requirements are met. (§ 1170.126, subd. (e).)
       In asking us to vacate his sentence and remand the matter, defendant relies on In
re Estrada (1965) 63 Cal.2d 740 (Estrada). Under Estrada, a statute lessening
punishment is presumed to apply to all cases not yet reduced to final judgment on the
statute's effective date unless there is a savings clause or its equivalent providing for
prospective application. (Id. at pp. 744-745, 747-748; People v. Brown (2012) 54 Cal.4th
314, 322, 328 [Estrada principles did not require retroactive application of section 4019
amendments concerning presentence conduct credits].) Defendant contends the holding
in Estrada applies to him and under the amended law he must be automatically
resentenced to a determinate term (rather than merely remanded for a discretionary
resentencing hearing pursuant to section 1170.126).




1      Further citations to an unspecified code are to the Penal Code.

                                              2
       Recently, the Court of Appeal, Fifth Appellate District, concluded in People v.
Yearwood (2013) 213 Cal.App.4th 161 (Yearwood) that the Proposition-36 added section
1170.126 is the equivalent of a “saving clause” and defeats the presumption of
retroactivity set forth in Estrada. (Yearwood, supra, at pp. 172, 176.)
       Section 1170.126, as noted, applies to “persons presently serving” a three strikes
sentence of 25 years to life; under it, such a person “may file [in the trial court] a petition
for a recall of sentence” to request resentencing under Proposition 36; and, if the person
is eligible under Proposition 36, the trial court will resentence the person “unless the
court, in its discretion, determines that resentencing the [person] would pose an
unreasonable risk of danger to public safety.” (§ 1170.126, subds. (a), (b), (f); see id.,
subds. (e), (g).) Consequently, those already sentenced and serving a 25-year-to-life
sentence under the “Three Strikes” law, like defendant here, must petition the trial court
under section 1170.126 for a recall of sentence regardless of whether their judgment is
final. (Yearwood, supra, 213 Cal.App.4th at p. 168.)
       Moreover, whereas the Proposition 36-amended sections 667 and 1170.12 require
nondiscretionary resentencing, the Proposition 36-enacted section 1170.126 gives the
trial court discretion not to resentence a person who “would pose an unreasonable risk of
danger to public safety.” (Compare §§ 667, subd. (e) & 1170.12, subd. (c) with §
1170.126, subd. (f).) For the reasons set forth in Yearwood, defendant is not entitled to a
remand from this court for resentencing in the trial court under amended sections 667 and
1170.12; defendant's recourse is to petition the trial court for a recall of sentence under
section 1170.126. (Yearwood, supra, 213 Cal.App.4th at pp. 171-172, 176.)
       Defendant also contends that retroactive application of Proposition 36 is
compelled by equal protection. His contention lacks merit. To the extent Proposition 36
applies prospectively, prospective application of a statute that lessens punishment does
not violate equal protection. (People v. Floyd (2003) 31 Cal.4th 179, 188-189; People v.
Lynch (2012) 209 Cal.App.4th 353, 360-361.)

                                               3
                                 DISPOSITION
     The judgment is affirmed.



                                      NICHOLSON   , Acting P. J.



We concur:



        HULL           , J.



        MURRAY         , J.




                                      4
