People v. Super. Ct. (Guevara) ( 2023 )

Filed 12/8/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d. Crim. No. B329457
(Super. Ct. No. 1183843)
Petitioner, (Santa Barbara County)
v.
THE SUPERIOR COURT OF
SANTA BARBARA COUNTY,
Respondent;
EDGARDO ORTIZ GUEVARA,
Real Party in Interest.
The role of the judiciary is to interpret statutes, not to draft
them. Our opinion follows this dictum.
Edgardo Ortiz Guevara was sentenced to 28 years to life
under the “Three Strikes” law. His third strike was a nonserious,
nonviolent felony. Guevara also had prior prison term
enhancements. When the Three Strikes Reform Act of 2012
(Prop. 36) (Reform Act) was enacted by California voters,
Guevara petitioned the trial court for relief from his life sentence
pursuant to Penal Code section 1170.126. 1 The trial court
denied the petition in February 2015. In January 2023, Guevara
moved to have his prior prison term enhancements struck
pursuant to section 1172.75. 2 Guevara claimed that the
resentencing provision of section 1172.75, subdivision (d), entitled
him to have his three strikes life term reduced to eight years,
double the term for his current offense, notwithstanding the
denial of his section 1170.126 petition. The trial court agreed
with Guevara and reduced his life term to eight years. The
People petitioned this court for a writ of mandate or prohibition
seeking to direct the trial court to recall its sentence and
reinstate Guevara’s 25-years-to-life sentence. We issue the writ.
FACTS
In 2009, Guevara was convicted of felony spousal abuse
(§ 273.5, subd. (a)) and misdemeanor child endangerment (§ 273a,
subd. (b)). Felony spousal abuse is not a serious or violent felony
as defined in sections 667.5, subdivision (c), and 1192.7,
subdivision (c). Guevara also admitted to two prior strike
convictions within the meaning of the Three Strikes law (§§ 667,
subd. (e)(2)(A), 1170.12, subd. (c)(2)(A)) and three prior prison
terms (§ 667.5, subd. (b)). The trial court sentenced Guevara to
25 years to life under the Three Strikes law plus three years for
the prior prison term enhancements. We affirmed. (People v.
Guevara (Sept. 13, 2010, B218153) [nonpub. opn.].)
1 All statutory references are to the Penal Code unless
otherwise indicated.
2 Effective June 30, 2022, the Legislature renumbered
section 1171.1 to section 1172.75. (Stats. 2022, ch. 58, § 12.)
There were no substantive changes to the statute. Throughout
this opinion, we cite to section 1172.75 for ease of reference.
2
In 2013, Guevara petitioned for resentencing under the
Reform Act. The trial court denied him relief, finding that
resentencing would pose an unreasonable risk of danger to public
safety. (§ 1170.126, subd. (f).) We affirmed. (People v. Guevara
(Apr. 7, 2016, B262954) [nonpub. opn.].) In upholding the trial
court’s public safety determination, our opinion noted:
“Guevara’s criminal record, record of discipline, and the
testimony of the witnesses support the trial court’s finding.
Guevara has an extensive criminal history, which includes five
felonies, multiple prison and jail sentences, and probation and
parole violations. Although his prior strikes are remote and did
not involve personal infliction of violence, he recently possessed
deadly weapons in prison. In 2011, a correctional officer searched
his cell and found three metal ‘inmate manufactured’ weapons
hidden in two bars of soap. Two of the weapons were sharpened
to a point. In 2014, while this petition was pending, Guevara was
disciplined for possessing a deadly weapon when a piece of a
razor blade was found in the common area of his shared cell. He
testified at the resentencing hearing he had no good time or work
time credits.
“A gang expert testified that Guevara is a member in good
standing of Casa Blanca, a southern Hispanic and Sureno gang.
Prison records from 2001 show that he was working with the
Mexican Mafia in prison. He was the ‘shot caller’ for members of
southern Hispanic gangs from the ‘Inland Empire.’ He was
placed in administrative segregation in 2001 because the Inland
Empire gangs under his influence were ‘the major obstacle’ to a
negotiated truce between northern and southern gang members.
In 2012, a prison gang roster showed Guevara was still a
3
southern Hispanic gang member in good standing.” (People v.
Guevara, supra, B262954).)
In 2021, the Legislature passed Senate Bill 483 (2021-2022
Reg. Sess.) adding what is now section 1172.75 to the Penal Code.
In January 2023, the Department of Corrections and
Rehabilitation identified Guevara as being eligible to have his
prior prison term enhancements stricken pursuant to section
1172.75, which retroactively invalidated such enhancements
imposed prior to January 1, 2020.
In June of 2023, the trial court held a hearing to determine
whether Guevara was entitled to have his sentence recalled and
be resentenced. The People agreed that the prior prison term
enhancements must be stricken but disagreed with Guevara on
the scope of resentencing.
Section 1172.75, subdivision (c), provides that if the current
judgment includes a prior prison term, “the court shall recall the
sentence and resentence the defendant.” Section 1172.75,
subdivision (d)(2), provides that at the resentencing hearing, “the
court shall 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.”
The People argued that striking the prior prison term
enhancements did not affect Guevara’s three strikes sentence of
25 years to life. Guevara argued that he must be resentenced
under the Reform Act because section 1172.75, subdivision (d)(2)
expressly requires the court to “apply . . . any other changes in
the law that reduce sentences.” Because his third strike was not
a serious or violent felony, Guevara argued that the sentence for
his current felony should be only doubled. (§§ 667, subd.
(e)(2)(C), 1170.12, subd. (c)(2)(C).)
4
The trial court expressed its concern for public safety, but
believed it was compelled by law to resentence Guevara. After
striking the three prior prison term enhancements, the court
resentenced Guevara to eight years, double the upper term on the
felony spousal abuse count. This would make Guevara eligible
for imminent release. The People sought a stay and a writ of
mandate and appealed to challenge the resentencing. We issued
a stay and elected to review the matter in the writ proceeding to
expedite its resolution.
DISCUSSION
Under the original Three Strikes law, a defendant with two
or more prior serious or violent felony convictions would be
sentenced to a life term for a current felony conviction even if the
current conviction was not for a serious or violent felony.
(Former §§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(C).) Voters
enacted the Reform Act, as Proposition 36, in 2012. Under the
Reform Act, a defendant with two or more prior convictions for
serious or violent felonies, whose current conviction was for a
nonserious or nonviolent felony, would no longer receive a life
sentence. Instead, the term for the current offense would be
doubled. (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).)
The Reform Act also provides that any person currently
serving a life term pursuant to the Three Strikes law for
conviction of a felony that is not serious or violent may petition
for resentencing. (§ 1170.126, subd. (b).) 3 The petition must be
filed within two years of the effective date of section 1170.126,
November 7, 2012, or on a later date upon a showing of good
cause. (Ibid.) If the petitioner satisfies the criteria for
resentencing, the petitioner shall be resentenced as a second
3 Section 1170.126 is a codified portion of the Reform Act.
5
striker “unless the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of
danger to public safety.” (§ 1170.126, subd. (f).)
Guevara sought resentencing under section 1172.75.
Section 1172.75, subdivision (a), provides that a prior prison term
enhancement imposed prior to January 1, 2020, is invalid, except
for an enhancement imposed for a prior conviction for a sexually
violent offense. Section 1172.75, subdivision (c), provides that if
the court finds that the defendant’s current judgment includes an
invalid prior prison term enhancement, the court must recall the
sentence and resentence the defendant. Crucial to Guevara’s
argument is section 1172.75, subdivision (d)(2): “The court shall
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.”
Guevara’s view of section 1172.75, subdivision (d)(2),
automatically mandates the trial court to reduce his
indeterminate life term imposed under the Three Strikes law to a
determinate term of eight years. Under this view, section
1172.75, subdivision (d)(2), renders 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.
In other words, contrary to the express words of section 1170.126,
subdivision (f), the trial court must release Guevara even though
his release has been found to pose an unreasonable risk of danger
to public safety.
6
Article II, section 10, subdivision (c), of the California
Constitution provides: “The Legislature may amend or repeal a
referendum statute. The Legislature may amend or repeal an
initiative statute by another statute that becomes effective only
when approved by the electors unless the initiative statute
permits amendment or repeal without the electors’ approval.”
In other words, the Legislature may not amend a statute
enacted by initiative unless the initiative allows such an
amendment, and then only upon such conditions the voters
attach. (People v. Superior Court (Pearson) (2010) 48 Cal.4th
564, 568.)
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(b).)
Senate Bill 483 (2021-2022 Reg. Sess.), codified as section
1172.75, did not pass the senate with a two-thirds vote. (Cal.
Legislative Information (2021-2022) SB-483 Sentencing:
resentencing to remove sentencing enhancements [as of Dec. 8,
2023] archived at https://perma.cc/S692-K4XX.)
An amendment changes an existing initiative statute by
adding or taking away from it some particular provision.
(Pearson, supra, 48 Cal.4th at p. 571.) Here 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 prior prison enhancement. In
People v. Conley (2016) 63 Cal.4th 646, 658, our Supreme Court
recognized that in passing the Reform Act, the voters intended to
balance ameliorating the harshness of the original Three Strikes
law with protecting public safety. (Conley, supra, 63 Cal.4th at
p. 658.) Guevara’s interpretation of section 1172.75, subdivision
7
(d), unconstitutionally eliminates the public safety half of the
balance.
Guevara cites People v. Buycks (2018) 5 Cal.5th 857, 893
(Buycks), for the proposition that when a sentence is recalled, the
court has jurisdiction to modify every aspect of the sentence, and
not just the portion subjected to the recall. But Buycks concerned
Proposition 47 (approved November 4, 2014) reclassifying certain
drug and theft offenses from felonies and wobblers to
misdemeanors. The question was whether it was appropriate to
strike felony-based enhancements after the underlying offenses
were reduced to misdemeanors. Buycks did not involve
resentencing procedures for three strikes inmates under the
Reform Act. We will not speculate what the Legislature may
have intended in enacting section 1172.75, subdivision (d). Even
if it did intend to provide for complete resentencing for such
inmates as Guevara, the statute would not miraculously become
constitutional.
Guevara claims that not applying the resentencing
provisions of section 1172.75, subdivision (d), to those in his
circumstances would violate equal protection. The Fourteenth
Amendment to the United States Constitution prohibits the
states from denying any person equal protection of the laws. A
claim under the equal protection clause requires a showing that
the state has adopted a classification that affects two or more
similarly situated groups in an unequal manner. (Cooley v.
Superior Court (2002) 29 Cal.4th 228, 253.)
Guevara argues: “A nonserious nonviolent three striker
whose sentence is recalled is similarly situated to a three striker
whose commitment offense is a serious or violent felony for
purposes of equal protection. Allowing a full resentencing and
8
imposition of a lawful sentence after recall for the latter group,
but not for the former, cannot logically be justified, under any
level of scrutiny.”
If Guevara is suggesting that under section 1172.75 an
offender with a serious or violent third strike could receive a
reduction in his 25-years-to-life sentence, he cites no supporting
authority. The Reform Act did not repeal the original Three
Strikes law. It amended the Three Strikes law for nonserious,
nonviolent felonies only. The original Three Strikes law was
enacted by the Legislature and also enacted by the voters as
Proposition 184 on November 8, 1994. The original Three Strikes
law does not allow the Legislature to amend it by statute except
by a vote of two-thirds of the membership of each house. (Prop.
184, § 4.) The resentencing provision of section 1172.75,
subdivision (d), cannot affect the 25-years-to-life sentence for
either serious or violent third strike offenders, or for nonserious,
nonviolent offenders whose petitions for relief have been denied
under section 1170.126.
The two statutory schemes are not so inconsistent that they
cannot coexist. Guevara’s prior prison term enhancements were
struck pursuant to section 1172.75. He petitioned for relief from
his Three Strikes life term under section 1170.126. Guevara’s
petition was denied out of concern for public safety. Guevara
received all he was entitled to under both statutes.
The dissent is premised on the theory that when the trial
court found Guevara eligible for relief under section 1172.75, his
sentence was vacated and he was no longer presently serving an
indeterminate term of imprisonment. This leap in logic misses
the point. Guevara’s three prior prison term enhancements were
9
vacated, but not his 25-years-to-life term mandated by the
Reform Act.
Guevara was sentenced to 25 years to life under the
original Three Strikes law. The Reform Act allows resentencing,
but only for those found not to be a danger to the public.
Guevara was found to be a danger to the public. Thus the
Reform Act mandates that Guevara remains sentenced to 25
years to life. Section 1172.75 was passed by less than two-thirds
of the members of both houses of the Legislature. It may not
vacate that sentence.
The dissent states that its view comports with the voters’
intent in passing Proposition 36: to require life sentences only
when a defendant’s current conviction is for a violent or serious
crime. But the voters’ intent was that a defendant serving an
indeterminate term for a nonserious, nonviolent offense, should
not have his life sentence reduced if he is found to be a danger to
the public.
The dissent relies on section 1172.75, subdivision (d)(1),
which provides: “Resentencing pursuant to this section shall
result in a lesser sentence than the one originally imposed as a
result of the elimination of the repealed enhancement, unless the
court finds by clear and convincing evidence that imposing a
lesser sentence would endanger public safety. Resentencing
pursuant to this section shall not result in a longer sentence than
the one originally imposed.” (Italics added.) The dissent states
that the italicized portion of section 1172.75, subdivision (d)(1),
shows that section 1172.75 does not eliminate the public safety
element.
But section 1172.75, subdivision (d)(1), requires a finding of
public danger by clear and convincing evidence. The finding of
10
danger to the public in the Reform Act is by the lesser standard
of the discretion of the court. (§ 1170.126, sud. (f).) Moreover,
nothing in section 1172.75 can change the 25-years-to-life
sentence mandated by the Reform Act.
The dissent suggests that section 1170.126 is not the sole
mechanism for an inmate serving an indeterminate sentence for
a nonserious, nonviolent felony to be released from prison. That
is true. If, for example, Guevara believes he is no longer a danger
to the public, he may apply for parole. But because section
1172.75 was not enacted by a two-thirds vote of both houses of
the Legislature, it is not the mechanism for relief for those
serving an indeterminate term pursuant to the Reform Act.
We need not refute the dissent point by point. No matter
how the dissent attempts to rationalize the application of the
resentencing provisions of section 1172.75, to Guevara and those
similarly situated, the result is an unconstitutional amendment
of section 1170.126. That is why Guevara is relying on section
1172.75. He wants to amend the sentence imposed on him
pursuant to section 1170.126.
Finally, the dissent acknowledges how unfair it would be to
provide relief only to those inmates serving an indeterminate
term with prior prison term enhancements and to exclude relief
to those with a lesser criminal history. We agree with this
acknowledgement. If the Legislature intended to reward
defendants serving a prior prison term and not those who had not
served prior prison terms, we would agree with Mr. Bumble in
Dickens’s Oliver Twist that “the law is a ass – a idiot.” We in the
majority wish to state on the record the law is not “a ass.”
11
DISPOSITION
Let a peremptory writ of mandate issue directing the
superior court to vacate its order recalling Guevara’s sentence
and imposing a second strike sentence, and to reinstate
Guevara’s three strikes sentence of 25 years to life in prison.
This court’s temporary stay order of June 13, 2023, shall dissolve
upon the respondent superior court’s compliance with the
peremptory writ.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
I concur:
YEGAN, J.
12
BALTODANO, J., dissenting:
I respectfully dissent. The trial court correctly concluded
that Guevara is entitled to have the three prior prison term
enhancements stricken from his sentence pursuant to Penal
Code 4 section 1172.75. (Maj. opn. ante, at pp. 2, 9.) I also believe
the court was correct in concluding that Guevara is entitled to
the benefit of “any other changes in law that reduce sentences or
provide for judicial discretion.” (§ 1172.75, subd. (d)(2).) I would
accordingly deny the district attorney’s writ petition.
The Three Strikes law
“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 provided as
punishment for the current felony conviction.’ ” (People v. Conley
(2016) 63 Cal.4th 646, 652 (Conley).) “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.” (Ibid.)
In 2012, the electorate passed Proposition 36, which
changed the Three Strikes law’s penalty provisions. Relevant
here, “many third[-]strike defendants are [now] excepted from the
provision imposing an indeterminate life sentence [citation] and
are instead sentenced in the same way as second[-]strike
defendants [citation]: that is, they receive a term equal to ‘twice
the term otherwise provided as punishment for the current felony
conviction’ [citation].” (Conley, supra, 63 Cal.4th at p. 653; see
§ 1170.12, subd. (c)(2)(C).) A defendant does not qualify for
Statutory references are to the Penal Code.
4
second-strike sentencing, however, if prosecutors plead and prove
one or more disqualifying factors, including, for example, that
they intended to cause great bodily injury when committing their
current offense. (See § 1170.12, subd. (c)(2)(C)(iii).)
Proposition 36 also established procedures for resentencing
inmates, like Guevara, who were previously sentenced as third
strikers and who would be entitled to second-strike sentences
under its provisions because their third convictions were not for
serious or violent felonies. (Conley, supra, 63 Cal.4th at p. 653;
see § 1170.126.) These procedures “apply exclusively to persons
presently serving an indeterminate term of imprisonment” under
the Three Strikes law (§ 1170.126, subd. (a)), and permit the
filing of “a petition for a recall of sentence before the trial court
that entered the judgment of conviction” (Conley, at p. 653). If
the court finds that the person “would have qualified for a shorter
sentence under the [amended] version of the law,” they “ ‘shall be
resentenced . . . unless the court, in its discretion, determines
that resentencing [them] would pose an unreasonable risk of
danger to public safety.’ ” (Ibid.)
In short, Proposition 36 divided defendants with two prior
strike convictions who commit a third nonserious, nonviolent
felony into one of two groups. The first group includes those
persons “presently serving” an indeterminate sentence under the
pre-Proposition 36 version of the Three Strikes law. They are
subject to the provisions of section 1170.126. (Conley, supra, 63
Cal.4th at pp. 655-661.) The second group includes those
sentenced after the passage of Proposition 36. They are subject
to the provisions of section 1170.12. (Conley, at pp. 652-653.)
2
Section 1172.75
In 2021, the Legislature passed Senate Bill No. 483 (2021-
2022 Reg. Sess.) (Senate Bill 483), adding what is now section
1172.75 to the Penal Code. (Stats. 2021, ch. 728, § 3; see also
Assem. Bill No. 200 (2021-2022 Reg. Sess.), Stats. 2022, ch. 58,
§ 12 [renumbering § 1171.1 as § 1172.75].) Section 1172.75
requires the Department of Corrections and Rehabilitation
(CDCR) to inform trial courts of inmates serving sentences with
one or more now-invalid prior prison term enhancements.
(§ 1172.75, subd. (b).) Once a court receives this information and
confirms that the inmate’s sentence includes an invalid
enhancement, it “shall recall [their] sentence and resentence”
them. (Id., subd. (c).) During resentencing, “[t]he court shall
apply . . . any . . . changes in law that reduce sentences or provide
for judicial discretion” (id., subd. (d)(2))—i.e., the court shall
conduct a full resentencing (People v. Christianson (2023) __
Cal.App.5th __, __ (Christianson) [2023 WL 7982571, at pp. *5-
9]).
“Resentencing pursuant to [section 1172.75] shall result in
a lesser sentence than the one originally imposed as a result of
the elimination of the repealed enhancement, unless the court
finds by clear and convincing evidence that imposing a lesser
sentence would endanger public safety.” (§ 1172.75, subd. (d)(1).)
“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
3
interest of justice.” (Id., subd. (d)(3).) “Unless the court
originally imposed the upper term, [it] may not impose a sentence
exceeding the middle term unless there are circumstances in
aggravation that justify the imposition of a term of imprisonment
exceeding the middle term[] and those facts have been stipulated
to by the defendant[] or have been found true beyond a
reasonable doubt at trial by the jury or by the judge in a court
trial.” (Id., subd. (d)(4).)
Analysis
In 2009, a jury convicted Guevara of felony domestic
violence (§ 273.5, subd. (a)) and misdemeanor child
endangerment (§ 273a, subd. (b)). He subsequently admitted that
he had suffered two prior strike convictions (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)) and served three prior prison terms
(former § 667.5, subd. (b)). The trial court sentenced him to 28
years to life in state prison: 25 years to life for his domestic
violence conviction pursuant to former section 1170.12,
subdivision (c)(2)(A)(ii), plus three years for his prior prison
terms pursuant to former section 667.5, subdivision (b).
In 2013, Guevara petitioned the trial court for resentencing
pursuant to section 1170.126. The court denied his petition two
years later, finding that he posed an unreasonable risk of danger
to public safety.
In 2023, CDCR notified the trial court that Guevara was
serving a sentence with now-invalid one-year prison prior
enhancements. Upon verifying that information, the court was
required to recall Guevara’s sentence and resentence him.
(§ 1172.75, subd. (c).) Once it did that, Guevara’s sentence of 28
years to life in prison was vacated. (People v. Padilla (2022) 13
Cal.5th 152, 163 (Padilla) [“once a court has determined that a
4
defendant is entitled to resentencing, the result is vacatur of the
original sentence, whereupon the trial court may impose any
appropriate sentence”].)
My colleagues posit that only the prior prison term
enhancements were vacated from Guevara’s sentence, obviating
any need for a full resentencing. (Maj. opn. ante, at pp. 8-10.)
But “ ‘a criminal sentence is, like an atom, indivisible: “An
aggregate prison term is not a series of separate independent
terms, but one term made up of interdependent components.” ’ ”
(Christianson, supra, __ Cal.App.5th at p. __, alterations omitted
[2023 WL 7982571, at p. *7].) “ ‘ “The invalidity of one
component infects the entire scheme.” ’ ” (Ibid.) “ ‘By correcting
one part of a . . . sentence, the trial court is resentencing the
defendant and, in so doing, is not only permitted, but also
obligated[,] to look at the facts and the law in effect at the time of
that resentencing, including “ ‘any pertinent circumstances [that]
have arisen since the prior sentence was imposed.’ ” ’ ” (Ibid.,
alterations omitted.)
Because the trial court recalled his sentence, Guevara was
no longer “presently serving an indeterminate term of
imprisonment” (§ 1170.126, subd. (a), italics added); in the words
of the court below, Guevara was an “un-sentenced [d]efendant,”
so section 1170.126 no longer applied to him (§ 1170.126, subd.
(a) [section 1170.126 applies “exclusively” to those serving
indeterminate terms (italics added)]). Instead, when the court
resentenced Guevara pursuant to section 1172.75, subdivision
(d), it was required to do so pursuant to section 1170.12. (See
§ 1172.75, subd. (d)(2).)
In my view, sentencing Guevara pursuant to the provisions
of section 1170.12, as required by the plain language of sections
5
1170.126 and 1172.75, comports with the Legislature’s intent in
passing Senate Bill 483: “to eliminate disparity of sentences”
(§ 1172.75, subd. (d)(2), “to promote uniformity of sentencing”
(ibid.), and “to ensure equal justice and address systemic racial
bias in sentencing” (Stats. 2021, ch. 728, § 1). It also comports
with the electorate’s intent in passing Proposition 36: to
“requir[e] life sentences only when a defendant’s current
conviction is for a violent or serious crime” and to “[m]aintain
that repeat offenders convicted of [nonviolent], [nonserious]
crimes . . . will receive twice the normal sentence instead of [a] life
[sentence].” (Prop. 36, § 1, approved Nov. 6, 2012, eff. Nov. 7,
2012, italics added.) Domestic violence is not listed as a violent
or serious crime.
The district attorney claims that Conley, supra, 63 Cal.4th
646, bars resentencing Guevara pursuant to section 1170.12. I
disagree. The issue in Conley was whether In re Estrada (1965)
63 Cal.2d 740 required the retroactive application of section
1170.12 to nonfinal indeterminate sentences imposed under the
pre-Proposition 36 version of the Three Strikes law. (Conley, at
p. 655.) The Supreme Court held that it did not because
Proposition 36 was “not silent on the question of retroactivity”
but instead included a retroactivity provision—section 1170.126.
(Conley, at p. 657.) That section applies to all persons “ ‘presently
serving’ ” indeterminate sentences, final and nonfinal alike.
(Ibid.) In other words, section 1170.126 “prescrib[ed] the scope
and manner of [Proposition 36’s] retroactive application.”
(Conley, at p. 658.) That served to overcome Estrada’s
presumption of retroactively applying section 1170.12 to nonfinal
sentences. (Conley, at pp. 657-658.)
6
I believe similar principles require applying section 1170.12
here. Once the trial court recalled his sentence, Guevara was not
“presently serving” an indeterminate Three Strikes term—final
or nonfinal. (Padilla, supra, 13 Cal.5th at p. 163.) Conley thus
does not prohibit the court from resentencing Guevara under
section 1170.12. To the contrary, resentencing under section
1170.12 is required; just as Proposition 36 was not silent on the
issue of retroactivity, Senate Bill 483 is not silent on which laws
apply during Guevara’s resentencing. (See § 1172.75, subd.
(d)(2).)
Conley also noted that applying section 1170.126 to persons
sentenced before Proposition 36’s effective date aligns with the
electorate’s desire to “strike a balance between the[] objectives of
mitigating punishment and protecting public safety.” (Conley,
supra, 63 Cal.4th at p. 658.) The district attorney interprets this
passage as barring the application of section 1170.12 here
because doing so would jettison the public safety valve in section
1170.126. But this interpretation, endorsed by my colleagues
(maj. opn. ante, at pp. 7-8, 10-11), presumes that section 1172.75
resentencing is automatic—i.e., that it requires striking invalid
enhancements and then mechanically applying any other
ameliorative changes in the law without considering the effect on
public safety. I do not believe it does.
“It is a settled principle of statutory construction that[]
courts should ‘strive to give meaning to every word in a statute
and to avoid constructions that render words, phrases, or clauses
superfluous.’ ” (In re C.H. (2011) 53 Cal.4th 94, 103.)
Subdivision (d)(1) of section 1172.75 states that resentencing
“shall result in a lesser sentence than the one originally
imposed . . . unless the [trial] court finds by clear and convincing
7
evidence that imposing a lesser sentence would endanger public
safety.” (Italics added.) Were section 1172.75 resentencing
automatic, the italicized portion of subdivision (d)(1) would be
superfluous. So, too, would subdivision (d)(3), which permits a
court to consider postconviction factors when deciding whether to
impose a lesser sentence, and subdivision (d)(4), which guides the
court’s selection of the upper, middle, and lower terms. Read as a
whole, I interpret section 1172.75, subdivision (d) as requiring
trial courts to resentence defendants to lesser terms by applying
laws that reduce sentences or provide for judicial discretion—
unless doing so would endanger public safety.
The district attorney claims this public safety consideration
is not possible for inmates like Guevara because applying section
1170.12 will always require reducing indeterminate sentences.
That is not accurate. Subdivision (c)(2)(C) of section 1170.12
permits the imposition of indeterminate sentences for defendants
with two prior strike convictions who commit a third nonserious,
nonviolent felony if prosecutors plead and prove one or more
disqualifying factors.
The district attorney also claims that applying section
1170.12, subdivision (c)(2)(C) during section 1172.75 proceedings
will require holding “mini-trials” on alleged disqualifying factors,
something Conley eschewed. (See Conley, supra, 63 Cal.4th at
pp. 659-661.) But the Conley court acknowledged that such
mini-trials “would not be unprecedented.” (Conley, at p. 660.)
And it did not hold that Proposition 36 banned these trials; it
simply noted that conducting them was not something
contemplated by the electorate when it passed Proposition 36.
(Conley, at pp. 660-661.) That further undermined the Estrada
8
inference of retroactively applying section 1170.12 to nonfinal
sentences. (Conley, at pp. 659-661.)
Here, the issue is not whether the electorate intended to
have mini-trials on disqualifying factors under section 1170.12,
but whether the Legislature has required them under section
1172.75. I believe it has.
Section 1172.75 directs a trial court to analyze the effect of
resentencing on public safety, postconviction factors, and whether
factors in aggravation have been proven such that imposition of
the upper term of imprisonment is permitted. (See § 1172.75,
subd. (d)(1), (d)(3), & (d)(4).) It also requires the court to apply
changes in law that reduce sentences or provide for judicial
discretion. (§ 1172.75, subd. (d)(2).) This includes Senate Bill
No. 620 (2017-2018 Res. Sess.), which grants the court the
discretion to strike firearm enhancements, and Senate Bill No.
1393 (2017-2018 Res. Sess.), which permits the striking of serious
felony enhancements. (People v. Monroe (2022) 85 Cal.App.5th
393, 398-402.) Inherent in the exercise of this discretion is
allowing prosecutors to show that granting an inmate’s request to
strike these enhancements is not in the interests of justice. (Id.
at pp. 396-397.) In many cases the evidence supporting this
showing will overlap with evidence indicating the inmate is
disqualified from a second-strike sentence under section 1170.12,
subdivision (c)(2)(C). This largely mitigates Conley’s concern
about section 1170.12’s pleading-and-proof requirements.
I also disagree with the district attorney’s argument,
adopted by my colleagues, that applying section 1172.75’s
resentencing provisions would unconstitutionally remove the
public safety assessment required by section 1170.126 for
inmates like Guevara. A legislative enactment is
9
unconstitutional if it “prohibits what [an] initiative authorizes[]
or authorizes what the initiative prohibits.” (People v. Superior
Court (Pearson) (2010) 48 Cal.4th 564, 571.) But “ ‘[t]he
Legislature remains free to address a “ ‘related but distinct
area’ ” [citations] or a matter that an initiative measure “does not
specifically authorize or prohibit” ’ ” without running afoul of our
Constitution. (Ibid.)
Here, no one argues that section 1172.75 prohibits
anything that section 1170.126 authorizes. Nor does section
1172.75 authorize anything that section 1170.126 prohibits 5;
instead, section 1172.75 simply renders section 1170.126
inapplicable for inmates like Guevara who are no longer
“presently serving” indeterminate life sentences—something
section 1170.126 explicitly permits. (§ 1170.126, subd. (k)
[“[n]othing in this section is intended to diminish or abrogate any
rights or remedies otherwise available to the defendant”].) That
is constitutional. (See, e.g., People v. Lopez (2022) 82 Cal.App.5th
1, 18-25 [Assem. Bill No. 333 did not unconstitutionally amend
Prop. 21 by changing applicability of gang conspiracy statute];
People v. Lee (2022) 81 Cal.App.5th 232, 240-245, review granted
Oct. 19, 2022, S275449 [Assem. Bill No. 333 did not
unconstitutionally amend Prop. 21 by restricting those eligible for
gang-murder special circumstance]; People v. Cruz (2020) 46
The California District Attorneys Association, as amicus
5
curiae, argues section 1172.75 authorizes a court to recall a
sentence before evaluating a defendant’s public safety risk,
something section 1170.126 prohibits. This argument presumes
that section 1170.126 provides the sole mechanism for an inmate
serving an indeterminate sentence for a nonserious, nonviolent
felony to be released from prison. I do not believe it does.
(§ 1170.126, subd. (k).)
10
Cal.App.5th 740, 754-759 [Sen. Bill No. 1437 did not
unconstitutionally amend Prop. 7 by limiting those eligible for
increased murder penalties].)
Conclusion
I recognize that the trial court in 2015 found that Guevara
posed an unreasonable risk of danger to public safety when it
denied his section 1170.126 resentencing petition. But that
finding is now nearly a decade old. And if the district attorney
believed that Guevara continues to pose such a risk he was free
to plead and prove that Guevara should be disqualified from a
second-strike sentence by, for example, showing that he intended
to inflict great bodily injury when he committed domestic
violence. (§ 1170.12, subd. (c)(2)(C)(iii).) He chose not to do so
during the proceedings below.
I also recognize that my reading of section 1172.75 is
potentially unfair to inmates serving indeterminate sentences for
nonserious, nonviolent felonies that do not include a now-invalid
prior prison term enhancement. (Cf. Presbyterian Camp &
Conference Centers, Inc. v. Superior Court (2019) 42 Cal.App.5th
148, 154, review granted Jan. 22, 2020, S259850, affd. (2021) 12
Cal.5th 493 [courts should avoid statutory interpretations that
lead to absurd results].) While “certainly troubling,” this
potential unfairness is “not so absurd that we must override the
plain meaning of the statutory language” in sections 1170.12,
1170.126, and 1172.75. (In re D.B. (2014) 58 Cal.4th 941, 948.)
Most of these inmates have presumably petitioned for section
1170.126 relief and were found to pose an unreasonable risk of
danger to society. Prosecutors can show that section
1172.75-eligible inmates like Guevara similarly pose a risk to
public safety. (§ 1172.75, subd. (d)(1).) And the Legislature is
11
free to develop other avenues to rectify any unfairness to section
1172.75-ineligible inmates—as it has done by enacting other
recall and resentencing provisions. (See, e.g., § 1170.91 [military
veterans]; § 1172.1 [inmates identified by CDCR]; § 1172.2
[inmates with serious illnesses]; § 1172.7 [inmates with
now-invalid drug enhancements].) I thus do not believe the
conclusion I reach here is “so unreasonable the Legislature could
not have intended” it. (In re D.B., at p. 948.)
CERTIFIED FOR PUBLICATION.
BALTODANO, J.
12
Von T. Nguyen Deroian, Judge
Superior Court County of Santa Barbara
______________________________
John T. Savrnoch, District Attorney, and Marguerite
Clipper Charles, Deputy District Attorney, for Petitioner.
Gregory D. Totten for California District Attorneys
Association as Amicus Curiae on behalf of Petitioner.
No appearance for Respondent.
Tracy Macuga, Public Defender, and Laura Arnold, Deputy
Public Defender, for Real Party in Interest.
Michael S. Romano for Three Strikes Project, David Mills,
George Gascón, Heidi Rummel and Michael Vitiello as Amici
Curiae on behalf of Real Party in Interest.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri, Theresa A. Patterson, Wyatt E.
Bloomfield and Christopher G. Sanchez, Deputy Attorneys
General, for the Attorney General as Amicus Curiae, upon the
request of the Court of Appeal.