Supreme Court of California Justia
Docket No. S211275

People v. Conley

Filed 6/30/16

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S211275
v.
Ct.App. 3 C070272
PATRICK LEE CONLEY,
Yolo County
Defendant and Appellant.
Super. Ct. No. CRF113234

Under the ―Three Strikes‖ law as originally enacted in 1994, an individual
convicted of any felony offense following two prior convictions for serious or
violent felonies was subject to an indeterminate term of life imprisonment with a
minimum term of no less than 25 years. (Pen. Code, former §§ 667, subds. (b)-(i),
1170.12, subd. (c)(2).) In 2012, the electorate passed the Three Strikes Reform
Act of 2012 (Reform Act or Act) (Prop. 36, as approved by voters, Gen.
Elec. (Nov. 6, 2012)), which amended the law to reduce the punishment prescribed
for certain third strike defendants. The electorate also authorized persons
―presently serving‖ an indeterminate term of life imprisonment imposed under the
prior version of the law to seek resentencing under the amended penalty scheme
by filing a petition for recall of sentence. (Pen. Code, § 1170.126, subd. (a).)
Under the Act, a court must grant a recall petition unless it determines that
resentencing the petitioner ―would pose an unreasonable risk of danger to public
safety.‖ (§ 1170.126, subd. (f).)
SEE CONCURRING OPINION
1


The Reform Act took effect on November 7, 2012. The question in this
case is whether third strike defendants who were sentenced under the Three
Strikes law before November 7, 2012, but whose judgments were not yet final as
of that date, are entitled to automatic resentencing under the revised penalty
provisions of the Reform Act. We conclude that these defendants are not entitled
to automatic resentencing, but instead may seek resentencing by petitioning for
recall of sentence under section 1170.126.
I.
A.
Enacted ―to ensure longer prison sentences and greater punishment for
those who commit a felony and have been previously convicted of serious and/or
violent felony offenses‖ (Pen. Code, former § 667, subd. (b), as amended by Stats.
1994, ch. 12, § 1, pp. 71, 72), the Three Strikes law ―consists of two, nearly
identical statutory schemes.‖ (People v. Superior Court (Romero) (1996) 13
Cal.4th 497, 504 (Romero).) The first of these schemes was enacted by the
Legislature in March 1994. (Pen. Code, former § 667, subds. (b)-(i).) The second
was enacted by ballot initiative in November of the same year. (Pen. Code, former
§ 1170.12, added by Prop. 184, as approved by voters, Gen. Elec. (Nov. 8, 1994)
(Proposition 184).) The two statutes differ only in minor respects not relevant
here. (Accord, Romero, at p. 505.)1
Under the Three Strikes law as originally enacted, a felony defendant who
had been convicted of a single prior serious or violent felony (a second strike
defendant) was to be sentenced to a term equal to ―twice the term otherwise

1
For convenience, we therefore refer in this opinion to the version enacted
by Proposition 184. Our decision, however, applies equally to both.
2


provided as punishment for the current felony conviction.‖ (Pen. Code, former
§ 1170.12, subd. (c)(1).) By contrast, a defendant who had been convicted of two
or more prior serious or violent felonies (a third strike defendant) was to be
sentenced to ―an indeterminate term of life imprisonment with a minimum term
of‖ at least 25 years. (Pen. Code, former § 1170.12, subd. (c)(2).)
The Reform Act changed the sentence prescribed for a third strike
defendant whose current offense is not a serious or violent felony. (See Teal v.
Superior Court (2014) 60 Cal.4th 595, 596-597.) Under the Reform Act‘s revised
penalty provisions, many third strike defendants are excepted from the provision
imposing an indeterminate life sentence (see Pen. Code, § 1170.12, subd.
(c)(2)(A)) and are instead sentenced in the same way as second strike defendants
(see id., subd. (c)(2)(C)): that is, they receive a term equal to ―twice the term
otherwise provided as punishment for the current felony conviction‖ (id., subd.
(c)(1)). A defendant does not qualify for this ameliorative change, however, if his
current offense is a controlled substance charge involving large quantities (id.,
subd. (c)(2)(C)(i)), one of various enumerated sex offenses (id., subd.
(c)(2)(C)(ii)), or one in which he used a firearm, was armed with a firearm or
deadly weapon, or intended to cause great bodily injury (id., subd. (c)(2)(C)(iii)).
The ameliorative provisions of the Reform Act also do not apply in cases in which
the defendant was previously convicted of certain enumerated offenses, including
those involving sexual violence, child sexual abuse, homicide or attempted
homicide, solicitation to commit murder, assault with a machine gun on a peace
officer or firefighter, possession of a weapon of mass destruction, or any serious or
violent felony punishable by life imprisonment or death. (§ 1170.12, subd.
(c)(2)(C)(iv)(I)-(VIII).) The Act provides that these disqualifying factors must be
pleaded and proved by the prosecution. (§ 1170.12, subd. (c)(2)(C).)
3
In the Reform Act, the voters also established a procedure for ―persons
presently serving an indeterminate term of imprisonment‖ under the prior version
of the Three Strikes law to seek resentencing under the Reform Act‘s revised
penalty structure. (Pen. Code, § 1170.126, subd. (a).) Under section 1170.126,
―within two years after the effective date of the act . . . or at a later date upon a
showing of good cause,‖ such persons can file a petition for a recall of sentence
before the trial court that entered the judgment of conviction. (Id., subd. (b).) If
the petitioner would have qualified for a shorter sentence under the Reform Act
version of the law, taking into consideration the disqualifying factors (§ 1170.126,
subds. (e), (f)), section 1170.126 provides that he ―shall be resentenced pursuant to
[the Reform Act] unless the court, in its discretion, determines that resentencing
the petitioner would pose an unreasonable risk of danger to public safety‖ (id.,
subd. (f)). In exercising this discretion, the court may consider the defendant‘s
criminal conviction history, the defendant‘s disciplinary record and record of
rehabilitation while incarcerated, and ―[a]ny other evidence the court . . .
determines to be relevant.‖ (Id., subd. (g).)
B.
In October 2010, a California Highway Patrol officer observed defendant
Patrick Lee Conley retrieving tools from the middle of a county road.2
Defendant‘s pickup truck was parked nearby, partially blocking a lane of the road.
Defendant appeared to be intoxicated and smelled of alcohol. At first, defendant
claimed that his son had been driving the truck and had gone to get gas, but later
defendant admitted that he had been the driver. Defendant also admitted that he
had consumed a few cans of malt liquor at his son‘s house. After defendant failed

2
We take the facts from the opinion of the Court of Appeal.
4


a series of field sobriety tests, the highway patrol officer arrested him.
Defendant‘s blood was drawn at a hospital approximately an hour after he was
first stopped. Testing showed defendant‘s blood alcohol content (BAC) was 0.19
percent.
Following a jury trial, defendant was convicted of driving under the
influence of alcohol (Veh. Code, § 23152, subd. (a)) and driving with a BAC level
of 0.08 percent or more (id., § 23152, subd. (b)), with enhancements for refusing
to take a chemical test (id., § 23578).3 The jury also found true allegations that
defendant had four prior convictions for driving under the influence of alcohol
(see Veh. Code, § 23550), that he had served three prior prison terms (Pen. Code,
§ 667.5), and that he had two prior convictions that qualified as strikes under the
Three Strikes law (Pen. Code, § 1170.12). The first prior strike conviction was for
a residential burglary in which defendant — then on parole for a different first
degree burglary that he committed as a juvenile — entered a home, while armed
and wearing a stocking over his face, and assaulted and bound the occupant. The
second prior strike conviction was for a physical altercation in which defendant
stabbed his opponent multiple times. On January 23, 2012, the trial court denied
defendant‘s motion to dismiss one or both strike allegations (see Romero, supra,
13 Cal.4th at p. 504), citing the details of defendant‘s prior offenses, his poor
parole record, and his attempt to evade responsibility for his current offense by
shifting the blame to his son. The court sentenced defendant under the Three
Strikes law to an indeterminate term of 25 years to life (Pen. Code, former

3
Defendant also pleaded no contest to driving with driving privilege
suspended due to a driving-under-the-influence conviction (with three prior
violations within the preceding five years) (Veh. Code, § 14601.2, subd. (a)),
failure to provide proof of insurance (id., § 16028), and driving an unregistered
vehicle (id., § 4000, subd. (a)(1)).
5


§ 1170.12, subd. (c)(2)), plus three consecutive one-year terms for his three prior
prison terms (Pen. Code, § 667.5).
Defendant appealed, raising no issues but asking the Court of Appeal to
independently review the record under People v. Wende (1979) 25 Cal.3d 436.
While defendant‘s appeal was pending, the voters enacted the Reform Act on
November 6, 2012. Two days later, the Court of Appeal issued an opinion
affirming defendant‘s conviction.
Defendant petitioned for rehearing, asking the Court of Appeal to vacate his
sentence and remand the matter to the trial court for resentencing under the new
sentencing provisions of the Three Strikes law. Although the Court of Appeal
initially denied the petition, it later granted rehearing on its own motion to more
fully explain its reasoning. The court noted that, under In re Estrada (1965) 63
Cal.2d 740 (Estrada), courts ordinarily presume that newly enacted legislation
lessening a criminal punishment is intended to apply ―to all cases not yet reduced
to final judgment on the statute‘s effective date.‖ The court concluded, however,
that the Estrada presumption is inapplicable here because the Reform Act includes
a procedure whereby ―persons presently serving an indeterminate term of
imprisonment [under the Three Strikes law]‖ (Pen. Code, § 1170.126, subd. (a))
may file a petition for recall of sentence. Observing that this provision does not
distinguish between persons serving final sentences and those serving nonfinal
sentences, the court concluded that ―[t]hose already sentenced and serving an
indeterminate term of imprisonment must petition the trial court for a recall of
sentence regardless of whether or not their judgment is final.‖
We granted defendant‘s petition for review to resolve a conflict in the
Courts of Appeal about the application of the Reform Act to defendants who had
been sentenced to indeterminate life terms under the previous version of the Three
Strikes law but whose sentences were not yet final when the Act took effect.
6
II.
In answering the question presented, we begin by identifying common
ground. Defendant is a ―person[] presently serving an indeterminate term of
imprisonment‖ under the prior version of the Three Strikes law. (Pen. Code,
§ 1170.126, subd. (a); see, e.g., People v. Buckhalter (2001) 26 Cal.4th 20, 30-31
[a defendant‘s sentence of imprisonment begins to run upon the delivery of the
defendant to the custody of the Director of Corrections], citing Pen. Code, § 2900,
subds. (a), (c).) Therefore, under the plain language of the Reform Act, defendant
is entitled to seek the benefit of the Act‘s reduced penalties by filing a petition to
recall his sentence and requesting resentencing under the new law. (Pen. Code,
§ 1170.126, subd. (b).)
Defendant argues, however, that he and others whose judgments were not
yet final as of the effective date of the Reform Act are entitled to automatic
resentencing under the revised penalty provisions of the Act, without the need to
file a recall petition under Penal Code section 1170.126, and thus without regard
to whether the trial court determines that resentencing the defendant would pose
―an unreasonable risk of danger to public safety.‖ (Id., subd. (f).) He relies for his
argument on this court‘s decision in Estrada, supra, 63 Cal.2d 740, which held
that new laws that reduce the punishment for a crime are presumptively to be
applied to defendants whose judgments are not yet final.
In Estrada, we considered the retroactive application of a statutory
amendment that reduced the punishment prescribed for the offense of escape
without force or violence. ―The problem,‖ we explained, ―is one of trying to
ascertain the legislative intent — did the Legislature intend the old or new statute
to apply? Had the Legislature expressly stated which statute should apply, its
determination, either way, would have been legal and constitutional.‖ (Estrada,
supra, 63 Cal.2d at p. 744.) But in the absence of any textual indication of the
7
Legislature‘s intent, we inferred that the Legislature must have intended for the
new penalties, rather than the old, to apply. (Id. at pp. 744-745.) We reasoned
that when the Legislature determines that a lesser punishment suffices for a
criminal act, there is ordinarily no reason to continue imposing the more severe
penalty, beyond simply ― ‗satisfy[ing] a desire for vengeance.‘ ‖ (Id. at p. 745,
quoting People v. Oliver (1956) 1 N.Y.2d 152, 160.) Thus, we concluded, ―[i]t is
an inevitable inference that the Legislature must have 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 ―to acts committed
before its passage[,] provided the judgment convicting the defendant of the act is
not final.‖ (Estrada, supra, 63 Cal.2d at p. 745.)
Because the Estrada rule reflects a presumption about legislative intent,
rather than a constitutional command, the Legislature (or here, the electorate) may
choose to modify, limit, or entirely forbid the retroactive application of
ameliorative criminal-law amendments if it so chooses. Thus, as we explained in
Estrada, the presumption does not govern when the statute at issue includes a
―saving clause‖ providing that the amendment should be applied only
prospectively. (Estrada, supra, 63 Cal.2d at p. 747; see People v. Floyd (2003) 31
Cal.4th 179, 184-188.) And we have since made clear that, while such express
statements unquestionably suffice to override the Estrada presumption, the
―absence of an express saving clause . . . does not end ‗our quest for legislative
intent.‘ ‖ (People v. Nasalga (1996) 12 Cal.4th 784, 793, quoting In re Pedro T.
(1994) 8 Cal.4th 1041, 1049 (Pedro T.).) Our cases do not ―dictate to legislative
drafters the forms in which laws must be written‖ to express an intent to modify or
limit the retroactive effect of an ameliorative change; rather, they require ―that the
Legislature demonstrate its intention with sufficient clarity that a reviewing court
8
can discern and effectuate it.‖ (Pedro T., supra, 8 Cal.4th at pp. 1048-1049;
accord, Nasalga, supra, 12 Cal.4th at p. 793.)
In Pedro T., for example, we concluded that the Estrada presumption did
not govern the interpretation of a ― ‗sunset‘ ‖ provision attached to legislation
increasing the maximum punishment for vehicle theft. (Pedro T., supra, 8 Cal.4th
at p. 1045.) Although the legislation contained no express saving clause, we
concluded that the presumption did not control where the overarching purpose of
the legislation was to temporarily increase, rather than to decrease, the penalties
for the offense. We reaffirmed that, ―[o]rdinarily when an amendment lessens the
punishment for a crime, one may reasonably infer the Legislature has determined
imposition of a lesser punishment on offenders thereafter will sufficiently serve
the public interest.‖ (Ibid.) But we concluded that ―[i]n the case of a ‗sunset‘
provision attached to a temporary enhancement of penalty, the same inference
cannot so readily be drawn.‖ (Ibid.; see id. at pp. 1045–1046.) We further
reasoned that giving controlling weight to the Estrada presumption would have
―practical effect[s]‖ the Legislature could not have intended: It would both
undermine ―[t]he utility of a three-year legislative experiment in enhanced
penalties‖ and ―provide a motive for delay and manipulation in criminal
proceedings.‖ (Pedro T., at pp. 1046–1047.)
Here, a similar set of interpretive considerations persuades us that the
voters who passed the Reform Act did not intend to authorize automatic
resentencing for third strike defendants serving nonfinal sentences imposed under
the former version of the Three Strikes law. First, unlike the statute at issue in
Estrada, supra, 63 Cal.2d 740, the Reform Act is not silent on the question of
retroactivity. Rather, the Act expressly addresses the question in section
1170.126, the sole purpose of which is to extend the benefits of the Act
retroactively. Section 1170.126 creates a special mechanism that entitles all
9
persons ―presently serving‖ indeterminate life terms imposed under the prior law
to seek resentencing under the new law. By its terms, the provision draws no
distinction between persons serving final sentences and those serving nonfinal
sentences, entitling both categories of prisoners to petition courts for recall of
sentence under the Act.
The Estrada rule rests on an inference that, in the absence of contrary
indications, a legislative body ordinarily intends for ameliorative changes to the
criminal law to extend as broadly as possible, distinguishing only as necessary
between sentences that are final and sentences that are not. (See Estrada, supra,
63 Cal.2d at p. 745.) In enacting the recall provision, the voters adopted a
different approach. They took the extraordinary step of extending the retroactive
benefits of the Act beyond the bounds contemplated by Estrada — including even
prisoners serving final sentences within the Act‘s ameliorative reach — but
subject to a special procedural mechanism for the recall of sentences already
imposed. In prescribing the scope and manner of the Act‘s retroactive application,
the voters did not distinguish between final and nonfinal sentences, as Estrada
would presume, but instead drew the relevant line between prisoners ―presently
serving‖ indeterminate life terms — whether final or not — and defendants yet to
be sentenced.
Second, the nature of the recall mechanism and the substantive limitations
it contains call into question the central premise underlying the Estrada
presumption: that when an amendment lessens the punishment for a crime, it is
reasonable to infer that the enacting legislative body has categorically determined
that ―imposition of a lesser punishment‖ will in all cases ―sufficiently serve the
public interest.‖ (Pedro T., supra, 8 Cal.4th at p. 1045.)
There can be no doubt that the Reform Act was motivated in large measure
by a determination that sentences under the prior version of the Three Strikes law
10
were excessive. As the ballot materials argued, ―[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), rebuttal to argument against
Prop. 36, p. 53.) But voters were motivated by other purposes as well, including
the protection of public safety. The ballot materials explained that ―dangerous
criminals are being released early from prison because jails are overcrowded with
nonviolent offenders who pose no risk to the public.‖ (Ibid.) Voters were told
that the Reform Act would protect public safety by ―prevent[ing] dangerous
criminals from being released early‖ (ibid.) and would have no effect on ―truly
dangerous criminals‖ (id., argument in favor of Prop. 36, p. 52).
The recall procedures in Penal Code section 1170.126 were designed to
strike a balance between these objectives of mitigating punishment and protecting
public safety by creating a resentencing mechanism for persons serving
indeterminate life terms under the former Three Strikes law, but making
resentencing subject to the trial court‘s evaluation of whether, based on their
criminal history, their record of incarceration, and other relevant considerations,
their early release would pose an ―unreasonable risk of danger to public safety.‖
(Id., subd. (f).)
Where, as here, the enacting body creates a special mechanism for
application of the new lesser punishment to persons who have previously been
sentenced, and where the body expressly makes retroactive application of the
lesser punishment contingent on a court‘s evaluation of the defendant‘s
dangerousness, we can no longer say with confidence, as we did in Estrada, that
the enacting body lacked any discernible reason to limit application of the law
with respect to cases pending on direct review. On the contrary, to confer an
automatic entitlement to resentencing under these circumstances would undermine
the apparent intent of the electorate that approved section 1170.126: to create
11
broad access to resentencing for prisoners previously sentenced to indeterminate
life terms, but subject to judicial evaluation of the impact of resentencing on
public safety, based on the prisoner‘s criminal history, record of incarceration, and
other factors. This public safety requirement must be applied realistically, with
careful consideration of the Reform Act‘s purposes of mitigating excessive
punishment and reducing prison overcrowding. But given that section 1170.126,
by its terms, applies to all prisoners ―presently serving‖ indeterminate life terms,
we can discern no basis to conclude that the electorate would have intended for
courts to bypass the public safety inquiry altogether in the case of defendants
serving sentences that are not yet final.
Finally, unlike in Estrada, the revised sentencing provisions at issue in this
case do more than merely reduce previously prescribed criminal penalties. They
also establish a new set of disqualifying factors that preclude a third strike
defendant from receiving a second strike sentence. (See Pen. Code, § 1170.12,
subd. (c)(2)(C).) The sentencing provisions further require that these factors be
―plead[ed] and prove[d]‖ by the prosecution. (Ibid.)
These provisions add an additional layer of complexity to defendant‘s
request for automatic resentencing under the revised penalty scheme. In cases
arising after the Reform Act‘s effective date, operation of the pleading-and-proof
requirements is straightforward enough. But for defendants who have already
been tried and sentenced, the matter would be considerably more complicated.
Before the Reform Act, prosecutors may have had no reason to plead and prove
the new disqualifying factors in a particular case. Take, for example, the
application of the ―armed with a firearm‖ disqualifying factor (Pen. Code,
§ 1170.12, subd. (c)(2)(C)(iii)) in the case of a prisoner serving an indeterminate
life term for possessing a firearm as a felon. (Pen. Code, § 29800, subd. (a); cf.
People v. White (2014) 223 Cal.App.4th 512.) Case law holds that possession of a
12
firearm does not necessarily imply being armed; ―a convicted felon may be found
to be a felon in possession of a firearm if he or she knowingly kept a firearm in a
locked offsite storage unit even though he or she had no ready access to the
firearm and, thus, was not armed with it.‖ (White, at p. 524.) Before the Reform
Act, the prosecution ordinarily would have had no reason to plead and prove that
the defendant was actually armed with, not merely in possession of, the firearm;
arming is not an element of the offense, and case law suggests that the armed-
with-a-firearm enhancement (Pen. Code, § 12022, subd. (a)) does not apply to the
offense of felon in possession of a firearm (see People v. Hicks (2014) 231
Cal.App.4th 275, 283-284). Thus, if the Reform Act version of the Three Strikes
law applied retroactively to a defendant who was appealing a felon-in-possession
conviction, then the defendant might receive a second strike sentence without the
prosecution ever having had occasion to plead and prove that the defendant was
disqualified from receiving that sentence on account of being armed with, not just
in possession of, the firearm.
Similar difficulties would arise in applying the ―intent to cause great bodily
injury‖ disqualifying factor. (Pen. Code, § 1170.12, subd. (c)(2)(C)(iii).) Before
the Reform Act became law, the prosecution ordinarily would have had no reason
to plead and prove a defendant‘s intent to cause great bodily injury. (Cf. Pen.
Code, § 12022.7 [creating an enhancement for inflicting great bodily injury].)4
Thus, much as in the case of the ―armed with a firearm‖ factor, if the Reform Act
version of the Three Strikes law applied retroactively to a defendant who was

4
Penal Code section 12022.7 at one time included a specific intent
requirement (see People v. Colantuono (1994) 7 Cal.4th 206, 222), but that
requirement was deleted from the statute in 1995 (Stats. 1995, ch. 341, § 1,
p. 1851).
13


appealing a conviction involving the infliction of great bodily injury, the defendant
might receive a second strike sentence without the prosecution ever having had
occasion to plead and prove that the defendant was actually disqualified from
receiving that sentence under section 1170.12, subdivision (c)(2)(C).
In short, application of the Reform Act‘s revised sentencing scheme would
not be so simple as mechanically substituting a second strike sentence for a
previously imposed indeterminate life term. Unless defendants were to be
resentenced solely based on the existing trial court record — leaving the
prosecution without the opportunity to plead and prove the presence of
disqualifying factors or offenses that have become newly relevant under the Act
— trial courts presumably would have to permit prosecutors to hold mini-trials for
the sole purpose of determining whether, for example, the defendant‘s offense of
conviction involved arming with a firearm or an intent to cause great bodily injury
(see Pen. Code, § 1170.12, subd. (c)(2)(C)(iii)).
As defendant points out, such single-issue trials would not be
unprecedented. (See People v. Figueroa (1993) 20 Cal.App.4th 65 [setting aside
the jury‘s true finding on an enhancement after an amendment to the law narrowed
the enhancement‘s scope, but remanding to permit the prosecution to prove the
enhancement as more narrowly defined].) But the question before us is not
whether such trials are possible. The question is whether this is the system the
voters intended to create, though no provision of the Act contains any affirmative
indication to that effect. We find it difficult to escape the conclusion that the Act
does not address the complexities involved in applying the pleading-and-proof
requirements to previously sentenced defendants precisely because the electorate
did not contemplate that these provisions would apply. Rather, voters intended for
previously sentenced defendants to seek relief under section 1170.126, which
14
contains no comparable pleading-and-proof requirements. (See Pen. Code,
§ 1170.126, subd. (e)(2), (3).)
III.
Defendant objects that this analysis is inconsistent with Estrada, supra, 63
Cal.2d 740, which he reads to mean that ―a defendant whose judgment is not final
is entitled to the benefit of a lighter penalty in the absence of a clear indication to
the contrary.‖ Defendant argues that in the absence of an express statement that
section 1170.126 was meant to provide the exclusive means for defendants with
nonfinal sentences to seek resentencing under the Act, section 1170.126 should be
understood as supplementing, rather than supplanting, such defendants‘
entitlement to automatic resentencing. He further argues that the recall provision
expressly preserves this ―right‖ in subdivision (k), which states that ―[n]othing in
this section is intended to diminish or abrogate any rights or remedies otherwise
available to the defendant.‖ (Pen. Code, § 1170.126, subd. (k).) Neither argument
is persuasive.
As noted, our decision in Estrada, supra, 63 Cal.2d 740, recognizes that the
retroactive application of ameliorative changes to the criminal laws is ultimately
governed by the intent of the legislative body. And we have expressly rejected the
notion that Estrada ―dictate[s] to legislative drafters the forms in which laws must
be written to express the legislative intent.‖ (Pedro T., supra, 8 Cal.4th at
pp. 1048-1049.) ―[W]hat is required is that the Legislature demonstrate its
intention with sufficient clarity that a reviewing court can discern and effectuate
it.‖ (Id. at p. 1049.) As explained above, the text, structure, and purposes of the
Act all lead to the conclusion that the electorate meant what it said when it
approved section 1170.126: Prisoners presently serving indeterminate life terms
imposed under the prior version of the Three Strikes law, including those with
nonfinal judgments, may seek resentencing under the Act, but subject to judicial
15
determination of whether resentencing would pose an unreasonable danger to the
public.
That being the case, section 1170.126, subdivision (k) cannot help
defendant‘s argument. Subdivision (k) contains no indication that automatic
resentencing — as opposed to, for example, habeas corpus relief — ranks among
the ―rights‖ the electorate sought to preserve. A careful reading of the statute
points to the opposite conclusion: The voters authorized defendant and others
similarly situated to seek resentencing under the recall provisions of section
1170.126, but they did not intend to confer a right to automatic resentencing under
the amended penalty provisions of the Reform Act.5
IV.
We affirm the judgment of the Court of Appeal.
KRUGER, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.

5
Defendants with nonfinal judgments who did not file petitions for recall of
sentence within the mandated two-year period (see Pen. Code, § 1170.126, subd.
(b)) because they were litigating the question of automatic resentencing will
generally have good cause for filing late petitions (ibid.), and therefore they will
not be deprived of the resentencing mechanism that the electorate created for
them.
16





CONCURRING OPINION BY WERDEGAR, J.
I concur in the court‘s decision that defendant, who was serving a third-strike
life term when the Three Strikes Reform Act of 2012 (Prop. 36, as approved by
voters, Gen. Elec. (Nov. 6, 2012) (Reform Act or act)) took effect, may seek relief
under the act only through the statutory procedure for recalling the sentence (Pen.
Code, § 1170.126)1 even though his judgment of conviction was not yet final.
Because I concur, I also necessarily agree that In re Estrada (1965) 63 Cal.2d 740
(Estrada) does not require a different result. As the author of the court‘s opinion
in In re Pedro T. (1994) 8 Cal.4th 1041 (Pedro T.), and the only current member
of the court who participated in that case, I write separately to explain its
significance.
To conclude that Estrada, supra, 63 Cal.2d 740, does not govern our
interpretation of the Reform Act is a relatively straightforward exercise. Estrada
articulates a presumption of statutory construction: ―[A]n amendatory statute
lessening punishment is presumed to apply in all cases not yet reduced to final
judgment as of the amendatory statute‘s effective date‖ (People v. Floyd (2003) 31
Cal.4th 179, 184, citing Estrada, at p. 744), unless the enacting body ―clearly
signals its intent to make the amendment prospective, by the inclusion of either an
express savings clause or its equivalent‖ (People v. Nasalga (1996) 12 Cal.4th

1
All further statutory citations are to the Penal Code.


784, 793 (Nasalga), citing Estrada, at p. 747). A savings clause is a provision in
which the lawmakers articulate how the amended law is to apply, if at all, to cases
decided under the prior law. This is precisely the effect of the Reform Act‘s
provision for recalling sentences. The recall provision offers, to all ―persons
presently serving an indeterminate term of imprisonment‖ (§ 1170.126, subd. (a))
under the Three Strikes law (§§ 667, subds. (b)–(i), 1170.12), an opportunity to
seek sentence reductions, without regard to whether the judgments underlying
those sentences are final or not. (See maj. opn., ante, at pp. 7, 9–10.) Thus, the
recall provision both functions as a saving clause and clearly signals the drafters‘
intent that the revised penalty provisions apply prospectively. (See maj. opn.,
ante, at p. 10.)
In contrast to the Reform Act and the statute at issue in Estrada, supra, 63
Cal.2d 740, the law we construed in Pedro T., supra, 8 Cal.4th 1041, expressly
declared the Legislature‘s intention not to mitigate, but rather to ― ‗enhance . . .
penalties.‘ ‖ (Id. at p. 1046, quoting Stats. 1989, ch. 930, § 1, p. 3247, italics
added.) Enacted to support ―an experimental study of the deterrent effect of
enhanced penalties‖ (Pedro T., at p. 1046), the statute temporarily increased the
punishment for vehicle thefts committed within a three-year period, and then
automatically reinstated the prior, lower punishment for offenses committed
thereafter through a ― ‗sunset‘ ‖ provision. (Id. at p. 1043.) Asked whether
Estrada, supra, 63 Cal.2d 740, required retroactive application of the sunset
provision, we concluded it did not. The sunset provision did not include a savings
clause or its equivalent. But retroactive sentence reductions would have
compromised the experiment‘s validity, and thus defeated the statute‘s purpose, by
reducing the data set from a three-year sample of offenders to a smaller sample
―comprised only of those whose convictions happened to become final before the
sunset date of the increased penalties.‖ (Pedro T., at p. 1046.) In other words,
2
applying the Estrada presumption would have violated the important rule that we
do not interpret legislation in a manner that would render it ―an idle act‖ by the
Legislature or ―a nullity.‖ (California Teachers Assn. v. Governing Bd. of Rialto
Unified School Dist. (1997) 14 Cal.4th 627, 634.)
This was the context for our observation in Pedro T., supra, 8 Cal.4th 1041,
that, ―[d]espite broad language in Estrada regarding the necessity of express
saving clauses, . . . courts [cannot] dictate to legislative drafters the forms in which
laws must be written to express the legislative intent. Rather, what is required is
that the Legislature demonstrate its intention with sufficient clarity that a
reviewing court can discern and effectuate it.‖ (Pedro T., at pp. 1048–1049, fn.
omitted.) While we thus declined to apply the Estrada presumption to defeat the
purpose of a statute expressly intended to increase penalties, we did not abandon
the presumption or replace it with a holistic inquiry into legislative intent
concerning prospective versus retroactive operation. Indeed, just two years after
Pedro T., this court strongly reaffirmed Estrada and pointedly declined the
Attorney General‘s invitation to abrogate it. (Nasalga, supra, 12 Cal.4th at p. 792
& fn. 7.) Neither does today‘s decision abrogate Estrada.
Estrada, supra, 63 Cal.2d 740, has now governed our application of
statutes reducing punishment for half a century. Our consistent application of the
presumption articulated in that case assists the state‘s lawmakers in predicting and
controlling the manner in which statutes mitigating punishment are applied. As
explained above, I view the court‘s decision as consistent with our prior decisions
on the subject, and on that basis I concur.

WERDEGAR, J.
WE CONCUR:
LIU, J.
CUÉLLAR, J.

3


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

Name of Opinion People v. Conley
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 211 Cal.App.4th 953
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S211275
Date Filed: June 30, 2016
__________________________________________________________________________________

Court:

Superior
County: Yolo
Judge: Stephen L. Mock

__________________________________________________________________________________

Counsel:

Patrick Lee Conley, in pro. per.; and Carol Foster, under appointment by the Supreme Court, for Defendant
and Appellant.

Michael S. Romano for Three Strikes Project as Amicus Curiae on behalf of Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P.
Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan P. Marrs, Deputy Attorneys General,
for Plaintiff and Respondent.


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

Carol Foster
Central California Appellate Program
2407 J Street, Suite 301
Sacramento, CA 95816
(916) 441-3792

Ivan P. Marrs
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-0069


Opinion Information
Date:Docket Number:
Thu, 06/30/2016S211275