P. v. Mallett

 

 

 

 

 

 

 

 

 

 

 

 

 

Filed 10/1/13  P. v. Mallett CA4/3

 

 

 

 

 

 

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for 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opinion has not been certified for publication or ordered published for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

 

FOURTH
APPELLATE DISTRICT

 

DIVISION THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,               v.   CLYDE LEE MALLETT,         Defendant and Appellant.

G047080            (Super. Ct. No. RIF127195)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County, John D. Molloy, Judge. 
Affirmed in part, reversed in part and remanded for resentencing.

                        Dennis L. Cava, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Steve Oetting and Laura A. Glennon, Deputy
Attorneys General, for Plaintiff and Respondent.

*                    *                    *

I

INTRODUCTION

                        In
defendant Clyde Lee Mallett’s original appeal from his conviction for
possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), we rejected
his contention that his sentence of 28 years to life under the “Three Strikes”
law constituted cruel and unusual punishment. 
However, we conditionally reversed the judgment and remanded the matter
to the superior court with directions to conduct another in camera hearing on
defendant’s Pitchesshref="#_ftn1" name="_ftnref1" title="">[1]> motion and to create a record of the
files reviewed.  (People v. Mallett (Dec.
22, 2011, G045094) [nonpub. opn.].) 
On remand, the trial court held the in camera hearing and found no
discoverable information.  The court then
reinstated the judgment.  Defendant again
appeals and asks that we independently review the in camera hearing to
determine whether the trial court properly denied his Pitchess motion.  We conclude
the trial court did not abuse its discretion in finding no discoverable
material in the officers’ personnel files.

                        Defendant
also argues he is entitled to be resentenced under the Three Strikes Reform Act
of 2012 (Reform Act), enacted as part of Proposition 36, because his conviction
was not final at the time the Reform Act became effective and the offense for
which he was convicted is neither a serious nor violent felony.  The Reform Act amended the Three Strikes law
to generally require a new felony offense (the commitment offense) must be a
serious or violent felony before a defendant may be sentenced to an
indeterminate term of 25 years to life in state prison under the Three Strikes
law.  (Pen. Code, §§ 667, subd.
(e)(2)(A), (C), 1170.12, subd. (c)(2)(A), (C); all statutory references are to
the Penal Code unless otherwise stated.) 
The Attorney General counters that defendant was serving an
indeterminate life term under the Three Strikes law at the time

the Reform Act was enacted and
must therefore petition the trial court to recall his sentence pursuant to
section 1170.126, also enacted as part of the Reform Act.

                        If
defendant is correct, he is entitled to be resentenced and rather than an
indeterminate life sentence under the Three Strikes law, he is subject to the
court selecting one of three terms provided for possessing cocaine (16 months,
two years, or three years), doubled (§§ 667, subd. (e)(1), (2)(C), 1170.12,
subd. (c)(1), (2)(C)), plus any applicable enhancements.  If the Attorney General is correct and
defendant must petition the trial court to recall his sentence, the court has
discretion to refuse to resentence defendant if it finds he poses “an
unreasonable risk of danger to public safety.” 
(§ 1170.126, subd. (f).)  This
issue is presently pending before the Supreme Court in People v. Lewis (2013) 216 Cal.App.4th 468, review granted August
14, 2013, S211494 and People v. Conley
(2013) 215 Cal.App.4th 1482, review granted August 14, 2013, S211275.  We conclude defendant is entitled to be
resentenced because his judgment was not final at the time the Reform Act was
enacted, and remand the matter for resentencing.

II

DISCUSSION

A.  The Pitchess> Hearing

                        “A
trial court’s ruling on a motion for access to law enforcement personnel
records is subject to review for abuse of discretion.  (Pitchess
v. Superior Court (1974) 11 Cal.3d 531, 535.)”  (People
v. Hughes (2002) 27 Cal.4th 287, 330.) 
A sealed transcript of the in camera hearing held below was made part of
the appellate record.  We reviewed the
transcript and conclude the trial court did not abuse its discretion in
refusing to disclose the contents of the officers’ personnel files.  (Ibid.)

 

B.  Must
Defendant be Resentenced or is a Petition for Resentencing Required?

                        The
trial court found defendant was convicted of robbery in 1992, and attempted
robbery in 1994.  These convictions
qualify as prior “strikes” under
section 667, subdivision (d)(1) and section 1170.12, subdivision (b)(1).  (See §§ 667.5, subd. (c)(9) [robbery as
violent felony], 1192.7, subd. (c)(19) [robbery as serious felony], (39)
[attempted robbery as serious felony].) 
At the time defendant possessed cocaine in this matter—as well as the
time when the court originally imposed sentence and when the court reinstated
the judgment on remand—the Three Strikes Law authorized a sentence of 25 years
to life on defendant’s conviction. 
(Former §§ 667, subd. (e)(2), 1170.12, subd. (c)(2).)href="#_ftn2" name="_ftnref2" title="">[2]  Prior to his conviction in the present case
becoming final—indeed, it has not yet become final (In re Richardson (2011) 196 Cal.App.4th 647, 664 [judgment is final
for purposes of determining retroactivity when “‘the courts can no longer
provide a remedy on direct review’”])—the electorate approved Proposition 36 on
November 6, 2012. 

                        The
Reform Act amended the three strikes statutes (§§ 667, 1170.12) to require that
before a defendant may be sentenced to an indeterminate life term in prison
under the Three Strikes law, the new felony (the commitment offense) must
generally qualify as a serious or violent felony.  (§§ 667, subd. (e)(2)(A), (C), 1170.12, subd.
(c)(2), (C).)href="#_ftn3" name="_ftnref3"
title="">[3]  With the enactment of the Reform Act, a
defendant with two or more prior convictions for serious or violent felonies is
generally subject to incarceration in state prison for twice the term otherwise
provided by law, unless the new felony is a serious or violent felony, in which
case the defendant is subject to at a minimum an indeterminate term of 25 years
to life in state prison.  (§§ 667, subd. (e)(1), (2)(C), 1170.12, subd.
(c)(1), (2)(C).)

                        In
addition to this change, the Reform Act also enacted section 1170.126.  This new statute’s “resentencing provisions .
. . are 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 [the Reform Act] would not have been an indeterminate life
sentence.”  (§ 1170.126, subd. (a).)  Section 1170.126 permits a defendant “serving
an indeterminate term of life imprisonment imposed” under the earlier version of
the three strikes law and who would not be eligible for such a sentence under
the Reform Act, to “file a petition for a recall of sentence” within two years
of the statute’s enactment, or at a later date if good cause justifies the
delay.  (§ 1170.126, subd. (b).)  In enacting section 1170.126, the electorate
provided a potential remedy for individuals sentenced to indeterminate life
terms under the Three Strikes law as far back as 1994, when the Three Strikes
law was first enacted.  (See Stats. 1994,
ch. 12, § 1, eff. March 7, 1994.)

The issue
presented is whether defendant, whose judgment was not final at the time the
Reform Act was enacted, is entitled to resentencing under principles announced
in In re Estrada (1965) 63 Cal.2d 740
(Estrada), or whether he must
petition the trial court to recall his sentence under section 1170.126 in order
to obtain relief.  If he is entitled to
resentencing under Estrada, he is not
subject to an indeterminate sentence.  On
the other hand, if he is not entitled to resentencing and must instead petition
the trial court to recall his sentence, the trial court has discretion to
decide whether to recall his sentence and may decline to do so if the court
“determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety.”  (§ 1170.126,
subd. (f).)

 

1.  Estrada and
its Progeny

                        In Estrada, supra, 63 Cal.2d
740, the defendant escaped from the California Rehabilitation Center and was
convicted of violating section 4530.  A
conviction under section 4530 required at least a one-year commitment
commencing from the time the prisoner would otherwise have been discharged from
prison.  Additionally, section 3044
prohibited a defendant convicted of escape from being paroled until he serves
at least two calendar years upon being returned to prison after being convicted
of escape.  (Id. at p. 743.)

                        A month before Estrada
was sentenced, the Legislature amended both statutes, reducing the penalties
imposed on a conviction for escape.  (>Estrada, supra, 63 Cal.2d at p. 743.) 
The Supreme Court stated the issue as follows:  “A criminal statute is amended after the
prohibited act is committed, but before final judgment, by mitigating the
punishment.  What statute prevails as to
the punishment—the one in effect when the act was committed or the amendatory
act?”  (Id. at p. 742.)  The court
concluded that “[i]f the amendatory statute lessening punishment becomes
effective prior to the date the judgment of conviction becomes final then, in
our opinion, it, and not the old statute in effect when the prohibited act was
committed, applies.”  (>Id. at p. 744.) 

                        The
Estrada court based its conclusion on
legislative intent.  “When the
Legislature amends a statute so as to lessen the punishment it has obviously
expressly determined that its former penalty was too severe and that a lighter
punishment is proper as punishment for the commission of the prohibited
act.  It 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.  The
amendatory act imposing the lighter punishment can be applied constitutionally
to acts committed before its passage provided the judgment convicting the
defendant of the act is not final.  This
intent seems obvious, because to hold otherwise would be to conclude that the
Legislature was motivated by a desire for vengeance, a conclusion not permitted
in view of modern theories of penology.” 
(Id. at p. 745.)href="#_ftn4" name="_ftnref4" title="">[4]  The court noted that the Legislature could
indicate a desire that a defendant be punished under the law in existence at
the time the offense was committed, if it enacts savings clause spelling out
such an intent.  “[I]f the savings clause
expressly provided that the old law should continue to operate as to past acts,
so far as punishment is concerned that would end the matter.”  (Id.
at p. 747.)  On the other hand, “[i]f
there is no savings clause [the defendant] can and should be punished under the
new law.  [Citation.]”  (Ibid.)

                        Because
the inevitable inference of legislative intent was that the Legislature
intended the ameliorative statute to apply to all those to whom it may
constitutionally apply, section 3’s default position—“no part of the Penal Code
‘is retroactive, unless expressly so declared’”—was not controlling.  (Estrada,
supra, 63 Cal.2d at p. 746, fn.
1.)  “[W]here the amendatory statute
mitigates punishment and there is no saving clause, the rule is that the
amendment will operate retroactively so that the lighter punishment is
imposed.  Neither a saving clause such as
section 9608 of the Government Code nor a construction statute such as section
3 of the Penal Code changes that rule. 
This is the rule followed by a majority of the states, and by the United
States Supreme Court. (Calder v. Bull,
3 U.S. (3 Dall.) 386, 390.)”  (>Estrada, supra, 63 Cal.2d at p. 748, fn. omitted.)

                        In
In re Pedro T. (1994) 8 Cal.4th 1041,
the Legislature amended Vehicle Code section 10851 effective January 1,
1990.  The amendment increased the
maximum punishment from three to four years for unlawfully taking another’s
automobile.  The amendment also provided
the increased punishment would remain for a three-year period and, unless the
Legislature directed otherwise in the interim, the previous maximum punishment
would be reinstated on January 1, 1993. 
(Id. at p. 1043.)

                        In
1991, after the amendment went into effect, the minor violated Vehicle Code
section 10851.  The juvenile court judge
suspended execution of sentence and placed the minor on probation for a second
time.  When the minor violated probation,
the court ordered him committed to the California Youth Authority for six years
and six months.  A four-year maximum term
for violating Vehicle Code 10851 was used in calculating the minor’s
commitment.  The minor contended that
once the sunset provision of Vehicle Code section 10851 became effective and
the maximum possible punishment of three years was reinstated, he was entitled
to the benefit of the ameliorative sentence under Estrada.  (>In re Pedro T., supra, 8 Cal.4th at p. 1044.)

The Supreme
Court stated the basis of its “decision in Estrada
was our quest for legislative intent.”  (>In re Pedro T., supra, 8 Cal.4th at p. 1045.) 
The court found Estrada did
not apply in a case involving a sunset provision.  “Ordinarily 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. In the case of a ‘sunset’ provision attached to a
temporary enhancement of penalty, the same inference cannot so readily be
drawn.”  (Ibid.)  In temporarily
increasing the maximum punishment for violations of Vehicle Code section 10851,
the Legislature specifically stated its finding that public safety required
increasing the punishment, albeit for a defined period of time.  (In re
Pedro T., supra, 8 Cal.4th at p.
1046.)  Moreover, knowing the increased
punishment would remain in effect for three years until the sunset provision
came to fruition, the Legislature could reasonably have concluded the existence
of the increased possible punishment was necessary as a deterrent to
individuals who might consider taking another’s motor vehicle.  (Ibid.)

 

Keeping in mind
that in determining whether a statute should be applied retroactively or
prospectively a court searches for the answer in the legislative intent at the
time of the enactment, the court stated that the lack of an express savings
clause does not end the inquiry and that “what is required is that the Legislature demonstrate its intention with
sufficient clarity that a reviewing court can discern and effectuate it.”  (In re
Pedro T., supra, 8 Cal.4th at p.
1049.)  The court then observed the
intent at the time the Legislature amended Vehicle Code section 10851 (and
provided a three-year sunset clause) was to increase
the penalty for a three-year period.  (In re
Pedro T., supra, 8 Cal.4th at p.
1048.)  Thus, the situation presented in >Pedro T. was materially different from >Estrada, where the legislative enactment
mandated a reduced penalty.  Consequently, the minor in >Pedro T. was not entitled to the reduced
penalty that went into effect before his judgment was final, but after his
criminal conduct had occurred.  “The
purpose of the temporary increase in penalties under the former law was to
punish more severely, and thereby deter, vehicle thefts.  Application of the temporarily increased
penalties to those who, like Pedro T., were convicted of vehicle theft during
the effective period of the enhanced penalties, even though their convictions
were not final until after the sunset date, advances the purpose the
Legislature sought to achieve.”  (>Id. at p. 1052.)  Consequently, the court found “>Estrada is not implicated on these
facts.”  (Id. at p. 1046.)

            The Supreme Court again addressed
the issue of the retroactive application of an ameliorative amendment in >People v. Nasalga (1996) 12 Cal.4th
784.  There, the defendant was convicted
of grand theft.  The prosecution proved
the loss amounted to $124,000.  In
addition to a 16-month state prison sentence for the theft, the court imposed a
two-year enhancement based on the large amount of the loss.  At the time of her offense, section 12022.6
provided a two-year enhancement where the loss was in excess of $100,000.  Prior to her sentencing, however, the
Legislature amended section 12022.6, increasing from $100,000 to $150,000 the
amount of loss necessary to trigger the two-year enhancement.  The defendant claimed the trial court should
not have imposed a two-year enhancement because she was entitled to the
ameliorative effect of the amendment under Estrada.  (People
v. Nasalga, supra, 12 Cal. 4th at
pp. 789-790.)href="#_ftn5" name="_ftnref5"
title="">[5]

The court
stated Estrada’s rule “is not
implicated where the Legislature clearly
signals its intent to make the amendment prospective, by inclusion of either an
express savings clause or its equivalent.” 
(People v. Nasalga, >supra, 12 Cal.4th at p. 793, italics
added and fn. omitted.)  However, finding
no clear indication of an intent to have the amendment apply only
prospectively, a plurality concluded the defendant was entitled to the benefit
of the amendment.  “In light, therefore,
of Kirk^[href="#_ftn6" name="_ftnref6" title="">^[6]]
and Estrada, the Legislature’s
acquiescence in these opinions and, most especially, its failure in amending
section 12022.6 to express its intent that the amendments apply prospectively
only, we adhere to the well-established principle that ‘where the amendatory
statute mitigates punishment and there is no savings clause, the rule is that
the amendment will operate retroactively so that the lighter punishment is
imposed.’  [Citations.]”  (People
v. Nasalga, supra, 12 Cal.4th at
pp. 797-798.)href="#_ftn7" name="_ftnref7"
title="">[7]

Recently, in >People v. Brown (2012) 54 Cal.4th 314,
the Supreme Court addressed the issue of whether an amendment to section 4019,
increasing the rate at which detained defendants acquire conduct credits prior
to sentencing, applies retroactively to defendants sentenced prior to the
amendment.  The amendment went into
effect on January 25, 2010, days after the Court of Appeal upheld the
defendant’s conviction.  Four days after
the amendment went into effect, the defendant petitioned for rehearing, raising
the issue of the retroactive application of the amendment.  The Court of Appeal granted the petition and
issued a new opinion finding the defendant was entitled to additional
presentence conduct credits.  The Supreme
Court granted review to determine whether defendants who served time in local
custody prior to the operative date of the amendment were entitled to
additional credits pursuant to the amendment. 
(People v. Brown, >supra, 54 Cal.4th at p. 319.)

The court noted
the starting point in deciding “[w]hether a statute operates prospectively or retroactively
is, at least in the first instance, a matter of legislative intent.”  (People
v. Brown, supra, 54 Cal.4th at p.
319.)  If the Legislature has made its
intent clear, the court holds in accordance with the expressed, clear
intent.  If the intent is not clear, the
default set by the Legislature in section 3 applies.  (People
v. Brown, supra, 54 Cal.4th at p.
319.)

That being
said, the court explained the role Estrada
plays in the deciding issues of “prospective versus retrospective
operation.”  (People v. Brown, supra,
54 Cal.4th at p. 324.)  The court stated,
“Estrada is today properly
understood, not as weakening or modifying the default rule of prospective
operation codified in section 3, but rather as informing the rule’s application
in a specific context by articulating the reasonable presumption that a
legislative act mitigating the punishment for a particular criminal offense is
intended to apply to all nonfinal judgments. 
[Citation.]”  (>People v. Brown, supra, 54 Cal.4th at p. 324.) 
As section 4019 affects the rate at which prisoners acquire conduct
credits and does not mitigate the punishment for any offense, the principle
announced in Estrada was not
applicable.  (People v. Brown, supra,
54 Cal.4th at pp. 325-326.)

In the final
analysis, if a statute is amended to reduce the punishment for a crime and
there is no savings clause (or its equivalent) clearly indicating the amendment
is to apply only prospectively, a defendant whose conviction for that crime is
not yet final at the time of the amendment is entitled to the benefit of the
ameliorative amendment.  (>Estrada, supra, 63 Cal.2d at p. 745.) 
On the other hand, when a statute has an ameliorative effect but does
not reduce the punishment for a crime, the statute applies prospectively only
in accordance with section 3, unless the amendment contains a clear statement
that the amendment is to apply retroactively. 
(People v. Brown, >supra, 54 Cal.4th at p. 325.)

 

2.  Defendant
is Entitled to be Resentenced

                        Against this backdrop of
Supreme Court decisions we turn to the present issue.  As noted above, the issue is presently
pending in the Supreme Court.  There is,
however, a remaining published case that addressed the question presented
herein.  In People v. Yearwood (2013) 213 Cal.App.4th 161 (Yearwood), our brethren in the Fifth Appellate District concluded
defendants who were sentenced prior to the effective date of the Reform Act,
but whose sentences were not yet final at that time, must petition the court to
recall their sentences.  (>Id. at p. 172.)

                        As
we observed earlier, section 1170.126, enacted as part of the Reform Act,
provides that any person serving an indeterminate life term under the Three
Strikes law who would not be eligible for such a sentence under the Reform
Act—i.e., the offense upon which the prisoner was sentenced was not a serious
or violent felony—“may file a petition for a recall of sentence . . . before
the trial court that entered the judgment of conviction in his or her case, to
request resentencing in accordance with the provisions of subdivision (e) of
Section 667, and subdivision (c) of Section 1170.12, as those statutes have
been amended by the act that added this section.”  (§ 1170.126, subd. (b).)  The Yearwood
court concluded Estrada was not
applicable because section 1170.126 “operates as the functional equivalent of a
savings clause.”  (Yearwood, supra, 213
Cal.App.4th at p. 172.)  We respectfully
disagree.

                        We begin our analysis
with the general rule established in Estrada:  “[W]here the amendatory statute mitigates
punishment and there is no saving clause, the rule is that the amendment will
operate retroactively so that the lighter punishment is imposed” (>Estrada, supra, 63 Cal.2d at p. 748) on defendants whose judgments are not
final as of the date the amendatory provision was enacted (id. at p. 744).  The reason
for this rule is that it “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.”  (Id. at p. 745.)  The court
marked the constitutional limit as those cases in which the judgment is not yet
final.  (Id. at pp. 742, 744-745.)  A
judgment becomes final when the availability of an appeal and the time for
filing a petition for certiorari have expired. 
(People v. Kemp (1974) 10
Cal.3d 611, 614.)

                        As the >Yearwood court would agree, if the
Reform Act did not contain section 1170.126, defendants whose sentences were
not yet final on November 7, 2012, would unquestionably be entitled to
automatic resentencing under the Reform Act. 
(Yearwood, supra, 213 Cal.App.4th at p. 173 [“courts have departed from the >Estrada standard ‘only when new
legislation has included an express savings clause or its equivalent or when
some other consideration clearly dictated a contrary result’”].)  As noted above, that is because we presume
the legislative agency, here the electorate, intend the ameliorative amendment
to apply to all those to whom it can constitutionally apply.  (Estrada,
supra, 63 Cal.2d at p. 745.)  The electorate knows how to provide a savings
clause (People v. Warner (1988) 203
Cal.App.3d 1122, 1126 [article I, section 28,

 

subdivision
(d) of the California Constitution and added by Proposition 8 contained a
savings clause]), but did not provide one here (Yearwood, supra, 213
Cal.App.4th at p. 172).  Neither did the
Reform Act refer to individuals whose judgments were not final at the time the
Reform Act was enacted.  (>Ibid.)

                        We do not view section
1170.126 as the equivalent of a savings clause. 
Here, rather than simply amend sections 667 and 1170.12 to require that
a new crime must be a serious or violent felony to sentence a defendant to an
indeterminate life term in state prison under the Three Strikes law—in which
case only those defendants whose
convictions were not yet final at the time of the amendment and individuals
prosecuted for crimes occurring after the effective date of the Reform Act
would benefit (Estrada, >supra, 63 Cal.2d at p. 745)—the
electorate decided to provide a remedy for even more individuals.  In fact, the electorate provided a potential
remedy to every defendant ever
sentenced to an indeterminate life sentence under the Three Strikes law for a
felony that was not serious or violent.href="#_ftn8" name="_ftnref8" title="">[8]  Section 1170.126 provides a remedy to
individuals whose judgments have been final
for more than 19 years; the Three
Strikes law was first enacted in March 1994.

                        In addition to providing
a possible remedy to all individuals sentenced to an indeterminate life term
under the initial Three Strikes law for an offense that was neither serious nor
violent, including those sentenced as far back 1994, section 1170.126 further
provides:  “Nothing in this section is
intended to diminish or abrogate any rights or remedies otherwise available to
the defendant.”  (§ 1170.126, subd.
(k).)  The remedy of automatic
resentencing under Estrada would be
“otherwise available” to individuals in defendant’s position.  We cannot say the electorate’s enactment of section
1170.12, a

 

statute
intended to provide a remedy to those who would not otherwise be entitled to
the

benefit
of the amendment to sections 667 and 1170.12, was intended to deny the benefit
of the amendments to individuals who would otherwise receive them.

                        While we cannot tell the
electorate how a savings clause must be structured  (In re
Pedro T., supra, 8 Cal.4th at pp.
1048-1049), we may properly hold—consistent with Estrada—that if the Legislature or the electorate enact an
ameliorative amendment reducing a criminal penalty and intend the amendment to
only apply prospectively, that the intent be clearly expressed in order to
overcome the “inevitable inference” that it must have intended the amendment
apply retroactively.  Section 1170.126
does not clearly express such an
intent.

                        We also note that while
the Attorney General argues the Reform Act’s amendments to sections 667 and
1170.12 cannot be applied retroactively, she concedes the amendments would
apply to any individual who committed a felony prior to the enactment of the
Reform Act but sentenced after the Reform Act became effective.  However, when a defendant is sentenced under
a statute for a crime that occurred prior to the statute’s enactment, such an
application is by its very nature retroactive. 
To claim the amendment is applied prospectively so long as the
sentencing date occurs after the effective date of the enactment is
meritless.  When a statute increases the
punishment for a particular offense and the statute is applied to a crime that
occurred prior to enactment, that application violates ex post facto clauses of
the federal Constitution and the state Constitution because it is applied
retroactively.  (Collins v. Youngblood (1990) 497 U.S. 37, 43 [legislatures cannot
enact “retrospective” laws increasing punishment for offenses that have already
occurred]; Tapia v. Superior Court
(1991) 53 Cal.3d 282, 288 [same]; see also People
v. Trippet (1997) 56 Cal.App.4th 1532, 1544-1545 [Proposition 215, the
compassionate use act may be “retroactively” applied to cases pending at time
initiative became effective].)  While the
constitutionality of a retroactive penalty provision turns on

 

whether
the penalty increases or decreases punishment, the retroactive nature of the
application does not.

                        Lastly, the Attorney
General asserts that applying the Reform Act retroactively to one in
defendant’s situation would deny the prosecution the ability to demonstrate the
defendant may have qualified for an indeterminate life sentence under one of
the exceptions listed in subdivision (e)(2)(C).href="#_ftn9" name="_ftnref9" title="">[9]  In People
v. Figueroa (1993) 20 Cal.App.4th 65, the defendant was convicted of
selling drugs and received a three-year enhancement because the sale occurred
within 1,000 feet of a school.  While his
case was pending on appeal, the Legislature amended the enhancement statute
(Health & Saf. Code, § 11353.6, subd. (d)), adding a requirement that the
criminal act must occur while school is in session or while minors are using
the facility.  The defendant contended he
was entitled to the benefit of the amendment because his conviction was not
final at the time of the enactment.  (>People v. Figueroa, supra, 20 Cal.App.4th at
p. 69.)  Relying on Estrada, the Court of Appeal agreed.  (Id.
at p. 71.)  Pertinent to the Attorney
General’s argument, the court concluded that while the defendant was entitled
to the ameliorative effect of the statute, the prosecution was entitled on
remand to introduce any evidence it may have that the school was in session or
that minors were using the facility at the time of the offense.  (Id.
at pp. 71-72.)  As the Attorney General
does not suggest defendant has prior convictions that would otherwise make him
eligible for an indeterminate life sentence, there is no need to consider
remanding this matter for the purpose of permitting proof of any such prior
convictions.

 

 

 

 

III

DISPOSITION

                        The cause is remanded
for the trial court to resentence defendant pursuant to section 667,
subdivision (e)(1), (2)(C) and section 1170.12, subdivision (c)(1),
(2)(C).  In all other respects, the
judgment is affirmed.

 

 

                                                                                   

                                                                                    MOORE,
J.

 

WE CONCUR:

 

 

 

RYLAARSDAM, ACTING P. J.

 

 

 

IKOLA, J.