Opinion
F087700
12-11-2024
THE PEOPLE, Plaintiff and Respondent, v. JOEL ALONZO BENNETT, Defendant and Appellant.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Ivan P. Marrs and Caitlin Franzen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County. No. SF015228A Kenneth C. Twisselman II, Judge.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Ivan P. Marrs and Caitlin Franzen, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PENA, J.
INTRODUCTION
In 2010, a jury convicted defendant Joel Alonzo Bennett of two counts of indecent exposure (Pen. Code, § 314, subd. 1; counts 1 &2). (Undesignated statutory references are to the Penal Code.) The court also found true allegations defendant suffered two prison prior terms (§ 667.5, former subd. (b)) and seven prior convictions that qualified as strikes. The court sentenced defendant to prison for 25 years to life on count 1 pursuant to the "Three Strikes" law plus a consecutive year pursuant to section 667.5, former subdivision (b) for one of the prison prior enhancements. The court also imposed a consecutive term of 25 years to life on count 2. The court denied defendant's motion made pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike his prior strike convictions.
In September 2023, defendant filed a petition for resentencing pursuant to section 1172.75. On February 22, 2024, the court held a resentencing hearing and dismissed defendant's now invalid section 667.5, former subdivision (b) enhancement. The court ruled it did not have authority to reconsider a Romero motion and was required to impose consecutive 25-year-to-life sentences on counts 1 and 2.
On appeal, defendant argues the superior court misunderstood its discretion at resentencing to reconsider his Romero motion and/or to resentence defendant pursuant to the Three Strikes Reform Act of 2012 (the Reform Act or the Act), so the matter should be remanded. Relatedly, he contends People v. Superior Court (Guevara) (2022) 97 Cal.App.5th 978, review granted March 12, 2024, S283305-which held, for a defendant currently serving a sentence, a section 1170.126 proceeding is the sole mechanism for relief under the Reform Act-was wrongly decided. He also argues his punishment violates the federal and state constitutional prohibitions against cruel or unusual punishment. The People agree the matter must be remanded for resentencing.
We agree the court erred in failing to consider defendant's Romero motion during the resentencing hearing and remand for further proceedings on that basis.
FACTUAL AND PROCEDURAL HISTORY
In March 2010, a jury convicted defendant of two counts of indecent exposure (§ 314, subd. 1, counts 1 &2). The court found true allegations defendant had previously suffered seven prior serious felony convictions that qualified as strikes within the meaning of sections 667, subdivisions (c) through (j), and 1170.12, subdivisions (a) through (e). The court also found defendant had served two prior prison terms (§ 667.5, former subd. (b)).
In April 2010, the court sentenced defendant to two concurrent terms of 25 years to life for the indecent exposure convictions, to be served consecutive to the sentence defendant was serving at the time he committed the offenses. As to the sentence on count 2, the court imposed an additional one-year term for one of the section 667.5, former subdivision (b) prison prior enhancements and dismissed the other prison prior enhancement. The court denied defendant's motion to strike his strike prior convictions, noting it had considered a variety of factors including "the circumstances of the defendant's criminal history, the circumstances of the current offenses" and it did "not find that it would be in the interest of justice or in the furtherance of justice to dismiss the prior convictions, strike priors in this case." The court noted "defendant's criminal history is substantial. He's had no significant period where he has not been crime-free. And the nature of the current offenses, although we might have a debate as to how serious they are, nonetheless, the Court finds that the evidence was substantial in support of the felony convictions. And the Court does not find good cause to dismiss any of the priors, nor do I find that the sentence-within the meaning of the Three Strikes Law, I don't find the potential sentence to be cruel and unusual punishment." One month later, the court amended the sentence to two terms of 25 years to life, to run consecutive to one another plus the one-year section 667.5, former subdivision (b) enhancement.
In October 2014, defendant filed a petition for recall of his sentence pursuant to section 1170.126, asserting he met the criteria for relief under the Reform Act. The People opposed the petition to recall sentence. They argued defendant posed an unreasonable risk of danger to public safety, asserting defendant had "a very violent criminal record including convictions for violations of ... sections 211 with a firearm, four counts of 207(a) for kidnapping a family after escaping from prison, 212.5(c), and 211," and he had "been escalating in sex crimes while inside of prison." The People noted defendant had received 54 Department of Corrections and Rehabilitation (CDCR) rules violation reports in prison since 1993 (47 of which were for indecent exposure). The People also detailed, in part, defendant's criminal conviction history, the circumstances of defendant's seven strike prior convictions, and the numerous rules violations defendant had suffered while incarcerated, which included over 40 violations for indecent exposure. They also noted defendant had been diagnosed with exhibitionism; he often refused treatment; and he was kept by the CDCR "in the Secured Housing Unit (SHU) because [of] how dangerous he is and [because] his sexually deviant behavior poses a serious threat to staff and other inmates."
Defendant filed a "Request for Judicial Notice and to Incorporate Prior Record by Reference" on June 17, 2024, asking our court to take judicial notice of and incorporate by reference "[t]he record on appeal in People v. Joel Alonzo Bennett, No. F071015, including the one volume, 122-page clerk's transcript and one volume, 35-page reporter's transcript filed on March 18, 2015" and "[t]he four volume, 911-page augmented clerk's transcript filed on June 12, 2015." Our court granted the request.
On reply, defendant argued the court should exercise its discretion to resentence him because he did not pose a current risk of danger to public safety. He asserted his "record of rules violations shows a decrease in the seriousness of his violations and an improvement in his conduct and self-awareness." He argued, since receiving mental health treatment related to his disorders, his violation record had markedly improved.
The court held a hearing on defendant's petition to recall sentence pursuant to section 1170.126 at which defendant testified. The court denied defendant's petition, finding defendant's release would result in an unreasonable risk of danger to public safety. Our court subsequently affirmed the trial court's order denying defendant's request for recall and resentencing under section 1170.126 in an unpublished opinion. (See People v. Bennett (Jan 6, 2017, F071015.)
In 2023, defendant filed a petition for resentencing pursuant to section 1172.75 and Senate Bill No. 483 (2021-2022 Reg. Sess.) (Senate Bill 483) in which he asked the court to dismiss the section 667.5, former subdivision (b) enhancement and resentence him to a term of two years doubled to four years because a violation of section 314 "is not a serious or violent felony" and he "should not have been treated as a 3 strike candidate." Thereafter, in January 2024, defendant filed a "Sentencing Statement," attaching evidence of the rehabilitation classes he had participated in while incarcerated.
The court held a hearing on defendant's petition for relief on February 22, 2024. The court granted the petition to strike the legally invalid enhancement under section 667.5, former subdivision (b). It noted defendant had also asked it to strike his prior convictions pursuant to Romero. The court explained it considered the case People v. Superior Court (Guevara), supra, 97 Cal.App.5th 978 (Guevara), review granted, which held "the resentencing under ... Section 1172.75 does not allow the Court to dismiss a three-strikes sentence and that nothing in Section 1172.75 can change the 25-years-to-life sentence mandated by the Reform Act, which relates to three strikes." The court noted it also considered People v. Dain (2024) 99 Cal.App.5th 399, review granted May 29, 2024, S283924, which "held that the statute granting the trial Court authority to dismiss the sentencing enhancement based on a prior conviction that's more than five years old did not authorize the trial Court to dismiss a prior strike conviction for active gang participation under the Three Strikes Law."
Defense counsel argued Romero allowed the court to look at everything that had happened "both previous to the defendant coming to court in this case and as a result of 1385 and other cases, and allows the Court to ... look at the rehabilitative efforts that a defendant has done. And the Court can weigh those and you can exercise your discretion under Romero to strike strikes, and then give him a sentence which would be more in tune with sentences people are getting at this time because of the changes to the sentencing law." He asserted, in defendant's first few years in prison he was being treated in the mental health system so he was "somewhat limited in the type of classes" he could take, "but he has been able to work on his education," noting the education, programming, and workshops defendant had participated in. Counsel noted, "[a]t this time the crimes that he's in prison for on this particular case are not serious nor violent felonies." He asked the court "to take into consideration all of the things he's done since he's been in prison and the fact these are nonserious, nonviolent felonies and to find that he is not someone who should be sentenced under the spirit of the Three Strikes Law and to sentence him as if he were-only as if it were a double sentence. And these carry with it a 16, 2, or 3." Specifically, defense counsel requested the court resentence defendant to the middle term of two years doubled, plus one-third the middle term doubled on the two counts. The People disagreed, asserting the court "should strike the 667.5(b) but maintain the sentence."
The court stated it was "going to deny the Romero motion" and it was "not going to go through an analysis of what's in the interest of justice" because it found "that the Romero motion is not a proper motion to be made at this resentencing, that the Court does not have the authority to strike the priors that support the 25-years-to-life sentence." Accordingly, it denied defendant's Romero motion.
The court found no circumstances in aggravation and one circumstance in mitigation-an enhancement based on a prior conviction that was five years old. It stated it considered "all of the other law changes which provide for ameliorative relief, such as .. Section 654, 1385, 1170(b)(6) and 1170.1(b)(2)," but it found "justification for the sentence recommended," which did not change "from the original sentencing consistent with the intent of the Three Strikes Law." Accordingly, it resentenced defendant to two consecutive terms of 25 years to life for the two indecent exposure counts, to be served consecutive to defendant's sentence in Orange County Superior Court case No. 06WF1968 and San Bernardino Superior Court case No. FSB057879. After a request from defense counsel, the court found defendant did not have the ability to pay fines and fees that were not mandatory.
DISCUSSION
I. Resentencing Proceedings Under Section 1172.75
In October of 2021, the Governor signed Senate Bill 483, effective on January 1, 2022, which added section 1171.1 to the Penal Code, subsequently renumbered as section 1172.75. This section declares: "Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense . is legally invalid."
Section 1172.75 establishes a mechanism to provide affected defendants an avenue for relief from now invalid prison prior enhancements. Subdivision (b) directs the Secretary of the CDCR and the correctional administrator of each county to "identify those persons in their custody currently serving a term for a judgment" that includes a now legally invalid prior prison enhancement. (§ 1172.75, subd. (b).) After the trial court receives from the CDCR and county correctional administrator the information included in subdivision (b) of section 1172.75, "the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a)," and if so, "recall the sentence and resentence the defendant." (§ 1172.75, subd. (c).)
When resentencing a defendant under section 1172.75, the court must "apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing." (§ 1172.75, subd. (d)(2).) "The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant's risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice." (§ 1172.75, subd. (d)(3).)
II. Three Strikes Law and Romero
"'[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts' discretion in sentencing repeat offenders.' [Citation.] To achieve this end, 'the Three Strikes law ... establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme."'" (People v. Carmony (2004) 33 Cal.4th 367, 377.) "[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (Id. at p. 378.)
A trial court has discretion under section 1385, subdivision (a) to strike prior felony conviction allegations in cases brought under the Three Strikes law. (Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to strike a prior felony conviction allegation, the court 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 [Three Strikes] scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
We review a trial court's decision to deny a motion to strike prior strike allegations for an abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 374.)
"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citations.] Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony, supra, at pp. 376-377.)
"Because the circumstances must be 'extraordinary ... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (People v. Carmony, supra, 33 Cal.4th at p. 378.)
III. The Three Strikes Reform Act
"On November 6, 2012, the California electorate approved Proposition 36, otherwise known as the Three Strikes Reform Act of 2012 (the Act), which became effective the next day. Before the Act's passage, the 'Three Strikes' law provided that a recidivist offender with two or more qualifying strikes was subject to an indeterminate life sentence if the offender was convicted for any new felony offense. [Citation.] The Act amended the Three Strikes law so that an indeterminate life sentence may only be imposed where the offender's third strike is a serious and/or violent felony or where the offender is not eligible for a determinate sentence based on other disqualifying factors. (. §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).)" (Teal v. Superior Court (2014) 60 Cal.4th 595, 596-597.)
"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. (... § 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.'" (People v. Conley (2016) 63 Cal.4th 646, 653 (Conley).)
In Conley, the California Supreme Court rejected the defendant's contention that he and others whose judgments were not final as of the effective date of the Reform Act were entitled to automatic resentencing under the revised penalty provisions of the Act. (Conley, supra, 63 Cal.4th at pp. 657-659, 661-662.) The Conley court explained, "unlike the statute at issue in [In re Estrada (1965)] 63 Cal.2d 740, the Reform Act [was] not silent on the question of retroactivity. Rather, the Act expressly addresse[d] the question in section 1170.126, [its resentencing provision,] the sole purpose of which is to extend the benefits of the Act retroactively." (Id. at p. 657.) And that provision "dr[ew] 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." (Ibid.) The Conley court further explained, "the nature of the [Reform Act's] recall mechanism and the substantive limitations it contains call into question the central premise underlying the Estrada presumption," namely, that the lawmaking body "categorically determined that 'imposition of a lesser punishment' will in all cases 'sufficiently serve the public interest.'" (Conley, at p. 658.) Rather, instead of mandating lesser punishment in all cases, voters conditioned relief on a judicial assessment of the risk that resentencing would pose to public safety. (Ibid.; § 1170.126; accord, People v. DeHoyos (2018) 4 Cal.5th 594, 602.)
IV. Analysis
Here, defendant argues the resentencing court abused its discretion in refusing to consider his Romero motion during the section 1172.75 resentencing hearing. He contends the court erroneously relied upon Guevara, supra, 97 Cal.App.5th 978, review granted, because that case was "wrongly decided, as conceded by the Attorney General in an amicus curiae brief filed in the Court of Appeal." Defendant also argues the "superior court erred by concluding that section 1170.126 was the exclusive mechanism for recalling third strike sentences, and that [defendant] could not challenge the three strikes sentence pursuant to section 1172.75." He asserts, "[t]he court should have reconsidered the Romero motion based upon [his] mental health recover [sic] and antirecidivist programming in prison, and should have reconsidered the finding that he posed an unreasonable risk to public safety under current law as defined in section 1385, subdivision (c)(2), requiring proof by clear and convincing evidence." The People agree that defendant was entitled to a full resentencing and the court misunderstood the scope of its discretion. They also agree that, upon remand, the trial court should resentence defendant according to the Reform Act as a second strike offender.
Pursuant to Evidence Code section 452, defendant has asked us to take judicial notice of the Attorney General's amicus curiae brief filed on August 2, 2023, in Guevara, supra, 97 Cal.App.5th 978, review granted. He contends "a central issue" in this case is "whether a prior denial of a section 1170.126 petition for resentencing prohibits a defendant from petitioning for resentencing under section 1172.75," and "[t]he Attorney General's amicus brief filed in .. Guevara, conceding the issue, is necessary to establish the historical facts of the case." In the declaration in support of the request, defendant argues our court should take "judicial notice of the Attorney General's concession on the identical issue raised in appellant's case." The People have not responded to or opposed defendant's request, but the Attorney General concedes defendant should be automatically resentenced under the Reform Act during the section 1172.75 resentencing in this case. Thus, judicial notice of the amicus curiae in Guevara is unnecessary to consideration of the issues in this case. Accordingly, we deny the request. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [declining to take judicial notice of materials that are not "necessary, helpful, or relevant"]; People v. Kim (2009) 45 Cal.4th 1078, 1106, fn. 18 [denying request for judicial notice of materials that were superfluous and supported argument that it was unnecessary to address]; accord, People v. Green (2024) 104 Cal.App.5th 365, 369, fn. 3 [declining to take judicial notice of amicus curiae briefs filed in Guevara, concluding judicial notice was "unnecessary to the resolution of this appeal"].)
We agree the matter must be remanded to permit the court to exercise its discretion regarding whether to grant defendant's Romero motion. However, for the reasons that follow, we reject the parties' contention that defendant is entitled to automatic resentencing under the Reform Act during resentencing.
A. The Court Erred in Failing to Consider Defendant's Romero Motion at Resentencing
Initially, we agree with the parties that the court erred in concluding it could not consider defendant's renewed Romero motion once it had recalled defendant's sentence and proceeded with resentencing pursuant to section 1172.75. "By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly 'invalid' enhancements." (People v Monroe (2022) 85 Cal.App.5th 393, 402.) "[T]he full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant." (People v. Valenzuela (2019) 7 Cal.5th 415, 424-425.)
Here, the record reflects the court believed it did not have discretion to consider defendant's Romero motion at resentencing. And it is settled that "'[d]efendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
Accordingly, because we cannot conclude the record here "clearly indicates" the court would have imposed the same sentence had it been aware of the full scope of its discretion, remand on this basis is appropriate.
B. The Court Did Not Err in Failing to Automatically Resentence Under the Reform Act
Nevertheless, we reject the parties' arguments that, on remand, the court should automatically resentence defendant to a second strike sentence under the Reform Act. As discussed, in Conley, the California Supreme Court rejected the argument the In re Estrada, supra, 63 Cal.2d 740 (Estrada) presumption requires automatic application of the Reform Act to nonfinal judgments. (Conley, supra, 63 Cal.4th at p. 661.) Rather, the Conley court expressly held "voters intended for previously sentenced defendants to seek relief [pursuant to the Reform Act] under section 1170.126." (Ibid.) Accordingly, "[p]risoners 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 determination of whether resentencing would pose an unreasonable danger to the public," as provided for in section 1170.126. (Conley, at p. 661.) Thus, under Conley, as an individual who had previously been sentenced, defendant was not entitled to automatic resentencing under the Reform Act during the section 1172.75 resentencing.
Indeed, Conley's reasoning that its understanding of the recall mechanism was reinforced by the statutory scheme squarely applies here. (Conley, supra, 63 Cal.4th at p. 658; § 1170.126; People v. DeHoyos, supra, 4 Cal.5th at p. 602.) As Conley noted, the Reform Act established "a new set of disqualifying factors" related to the nature of the defendant's current offense that preclude a third strike defendant from receiving a second strike sentence, and these factors have to be "'plead[ed] and prov[ed]' by the prosecution." (Conley, at p. 659, quoting § 1170.12, subd. (c)(2)(C).) The Reform Act did not, however, specify how that requirement was to be satisfied in the case of a defendant who had already been sentenced. (Conley, at p. 659; DeHoyos, at p. 602.) This omission reinforces the conclusion the voters had not contemplated that previously sentenced individuals, like defendant, would be resentenced automatically under these new sentencing procedures, but instead intended that such defendants would seek relief under the Reform Act's resentencing provision, which contained no comparable pleading and proof requirements. (Conley, at pp. 660-661; DeHoyos, at pp. 602-603; see People v. Padilla (2022) 13 Cal.5th 152, 168 ["Of course, courts may assess the practical operation of an ameliorative law in determining whether it was intended to apply retroactively to all nonfinal cases, as Estrada presumes"].)
Notably, multiple appellate courts have reached this same conclusion, relying upon Conley to hold a defendant is not entitled to automatic resentencing under the Reform Act when a defendant is resentenced pursuant to section 1172.75. (See Guevara, supra, 97 Cal.App.5th at pp. 984-987 [Ct. App., Second Dist., Div. Six], review granted; People v. Santos (2024) 100 Cal.App.5th 666, 675-676 [Ct. App., Third Dist.], review granted May 29, 2024, S284341; People v. Kimble (2024) 99 Cal.App.5th 746, 750-751 [Ct. App., Third Dist.], review granted Apr. 24, 2024, S284259; People v. Superior Court (Williams) (2024) 102 Cal.App.5th 1242, 1261-1267 (Williams) [Ct. App., Sixth Dist.], review granted Aug. 28, 2024, S286128.) Santos and Kimble reasoned we are bound by Conley's conclusion that, with regard to the application of the revised penalty provisions in the Reform Act, the Estrada rule was overridden by section 1170.126. (See Santos, supra, at p. 675; Kimble, supra, at p. 758.) Accordingly, "even during a full resentencing, the Reform Act cannot be applied retroactively to entitle [a defendant] to automatic resentencing outside of section 1170.126." (Santos, at p. 675; accord, Kimble, at pp. 753, 758.)
Defendant urges us to adopt the position of the Guevara dissent, which asserts, in part, that section 1172.75 does not unconstitutionally amend section 1170.126 and argues we should presume section 1172.75 is an alternate sentencing mechanism for third strike defendants rather than a modification of section 1170.126's procedures. We are not persuaded. Rather, we conclude that interpreting section 1172.75, subdivision (d) as requiring automatic resentencing under the Reform Act "would unconstitutionally amend the Reform Act by eliminating the public safety inquiry required to avoid imposing a mandated third strike sentence of 25 years to life on defendant." (People v. Santos, supra, 100 Cal.App.5th at p. 676, review granted; accord, Guevara, supra, 97 Cal.App.5th at p. 985, review granted [Guevara's proposed interpretation of § 1172.75, subd. (d) "unconstitutionally eliminates the public safety half of the balance" voters intended in passing the Reform Act].) It would "render[] void for those lucky enough to have had a prior prison term enhancement the provisions of section 1170.126, requiring the filing of a petition, the deadline for filing the petition, and the trial court's discretion to deny the petition on the ground of an unreasonable risk to public safety [based on a lower evidentiary standard]. In other words, contrary to the [Reform Act's resentencing procedure, requirements, and the] express words of section 1170.126, ... the trial court must release [the defendant] even though his release has been found to pose an unreasonable risk of danger to public safety." (Guevara, supra, at p. 984; accord, Williams, supra, 102 Cal.App.5th at p. 1261, review granted.) Accordingly, it would carve out an exception to section 1170.126's applicability by permitting certain defendants currently serving an indeterminate term of imprisonment, namely those whose sentence includes a now invalid prison prior enhancement, automatic relief, thereby circumventing section 1170.126's requirements. (See Guevara, supra, at p. 985 ["Guevara's interpretation of section 1172.75, subdivision (d), would result in a wholesale repeal of section 1170.126 for those inmates serving an indeterminate term with a [now invalid] prior prison enhancement"].) But the Reform Act allows the Legislature to amend it by statute only if the statute passes each house of the Legislature by a vote of two-thirds of the membership. (Prop. 36, § 11, subd. (b).) And Senate Bill 483 did not pass with the requisite two-thirds vote. (Official Cal. Legis. Information Web site <https://leginfo.legislature.ca.gov/faces/billVotesClient.xhtml?bill_id= 202120220SB483> [as of Dec. 11, 2024].) Thus, even if we were to speculate that, in passing section 1172.75, subdivision (d), the Legislature intended defendants to be sentenced anew under the three strikes law in effect at the time of the section 1172.75 resentencing, its attempt to do so would unconstitutionally amend section 1170.126.
Defendant also relies on the Guevara dissent to assert, when the court recalled defendant's sentence pursuant to section 1172.75, subdivision (d), defendant was no longer "'presently serving' an indeterminate Three Strikes term." (Guevara, supra, 97 Cal.App.5th at p. 992 [dis. opn. of Baltodano, J.], rev. granted.) "He was an unsentenced defendant, and therefore section 1170.126 no longer applied to him ...."
In People v. Padilla, supra, 13 Cal.5th 152, the California Supreme Court held, when a sentence is vacated as a result of a collateral attack by way of habeas corpus, Proposition 57 (the Public Safety and Rehabilitation Act of 2016)-which "amended the law governing the punishment of juvenile offenses in adult criminal court by requiring hearings to determine whether the offenses should instead be heard in juvenile court"- should apply at resentencing. (Padilla, supra, at p. 158; see id. at p. 168.) In reaching this conclusion, the high court relied on Estrada, supra, 63 Cal.2d at page 745, which held that laws mitigating punishment are presumed to apply retroactively to nonfinal cases. (Padilla, at pp. 160-161.) The Padilla court explained "Proposition 57 reflects a decision by California's voters that the range of punishments meted out in criminal court is too severe for most juvenile offenders. In accord with Estrada, our presumption is that the voters wanted that reduction in punishment to stretch '"as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not."' [Citations.] Nothing about this presumption is undermined when a case is nonfinal because the defendant's sentence has been vacated rather than because the initial review of the sentence has not yet concluded." (Id. at p. 162.)
Accordingly, to the extent the recall and resentencing under section 1172.75 here resulted in vacatur of defendant's judgment, it rendered it nonfinal as discussed in Padilla, and Conley expressly held Estrada does not require automatic application of the Reform Act to nonfinal judgments. (Conley, supra, 63 Cal.4th at pp. 657-661; see People v. Padilla, supra, 13 Cal.5th at pp. 161, 162 [affirming that "vacatur of ... sentence made the judgment . nonfinal" and declining to distinguish for Estrada purposes "cases that are nonfinal because the defendant is undergoing . resentencing and those . cases 'not yet final on initial review'"].) Rather, "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 determination of whether resentencing would pose an unreasonable danger to the public." (Conley, at p. 661.) "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." (Id. at pp. 661-662.)
Because we are bound by Conley's conclusion that a defendant whose conviction is not final is not entitled to automatic resentencing under the Reform Act, we cannot conclude the court erred in failing to automatically resentence defendant as a one-strike offender during the section 1172.75 resentencing. (See Conley, supra, 63 Cal.4th at p. 659; see also Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Thus, we reject the parties' arguments that defendant should be sentenced as a second strike defendant under the Reform Act during the section 1172.75 resentencing hearing.
Defendant also argues the court "abused its discretion in declining to dismiss the prior serious felony enhancement," asserting the determination of whether he poses an unreasonable risk to public safety must be made pursuant to section 1385, subdivision (c)(2) at resentencing, which "requires proof by the higher standard of clear and convincing evidence that the defendant is a danger to public safety." This argument appears to be misplaced as defendant was not found to have suffered a prior serious felony enhancement (§ 667, subd. (a)) in the instant criminal prosecution.
V. Defendant's Cruel or Unusual Punishment Claim Is Premature
In his final contention, defendant argues the imposed sentence is unconstitutional because, given his "mental illness, including schizophrenia and bipolar disorder, his behavior resulting from a sexual compulsion and his life-long history of alcohol and drug abuse, it violates the protection against cruel or unusual punishment afforded by article I, section 17 of the California Constitution, and by the Eighth Amendment." The People contend the issue was forfeited because defendant failed to object to the imposed sentence in the trial court. Irrespective, they contend the imposed sentence was constitutional under the state and federal Constitutions.
In light of our remand to permit the trial court to exercise its discretion with regard to the Romero motion, this claim is premature. If defendant wishes to pursue it, he should raise it in the trial court when he is resentenced. (See People v. Baker (2018) 20 Cal.App.5th 711, 720; People v. Speight (2014) 227 Cal.App.4th 1229, 1247-1248.)
DISPOSITION
The court's resentencing order is reversed and the matter is remanded for a new resentencing hearing consistent with this opinion.
WE CONCUR: DETJEN, Acting P. J., SNAUFFER, J.