Error and/or relief
On resentencing under section 1172.75, the court erred in not applying the ameliorative provisions of the Three Strikes Reform Act of 2012.
First Holding:
PEN 1172.75
Authority:
Under the Three Strikes Reform Act of 2012, a defendant with two or more strikes will be sentenced to a doubled term rather than to a life term (that carried a minimum of 25 years or longer, depending on the offense) that was required for a third strike (regardless of the nature of the new felony) under the original Three Strikes law, unless the new offense is a serious felony, as defined. [There are some exceptions to the Reform Act not applicable here, essentially related to large quantities of drugs, sex offenses, use of or armed with firearms or other deadly weapons, or the intent to cause great bodily injury, or if the prior convictions were of the sort enumerated as disqualifying.]
Second Holding:
PEN 1170.12
PEN 667(e)
PEN 1170.126
Authority:
ADD AUTHORITIES HERE
Third Holding:
In Guevara, the Supreme Court held that, as a matter of constitutional avoidance, section 1172.75 incorporates section 1170.126’s discretionary public safety override as a condition for nonserious, nonviolent third strike offenders to obtain resentencing under the revised penalty provisions of the Reform Act. It remanded to the Court of Appeal with instructions to remand the case to the superior court to determine whether sentencing that defendant (Guevara) under the revised penalty provisions of the Reform Act would pose an unreasonable risk of danger to public safety. If it so determined, the superior court was to reimpose the indeterminate term. If the superior court did not determine that resentencing Guevara would pose an unreasonable risk of danger to public safety, and Guevara was otherwise eligible under the Reform Act, the court shall resentence him pursuant to the revised penalty provisions of the Reform Act.
[GARY NOTE: The Guevara court did not limit the determination of public safety risk to the definition subsequently enacted in conjunction with Proposition 47, which did define it in section 1170.18. The standard to be applied was the pre-Proposition 47 definition that had traditionally been applied under the Three Strikes Reform Act. That was necessary for the two sets of provisions to be constitutionally reconciled. This aspect was not mentioned in the unpublished opinion summarized here.]Authority:
People v. Superior Court (Guevara) 18 Cal.5th 838, 878