The People v. Garner CA3

DISCUSSION

I. Defendant Must Seek Resentencing Under Proposition 36 Through a Petition for

a Recall of Sentence in the Trial Court Pursuant to Section 1170.126

Defendant contends this court should vacate his three strikes sentence and remand his case to the trial court for resentencing pursuant to amendments to sections 667 and 1170.12 of the three strikes law; the electorate enacted these amendments in November 2012 by passing Proposition 36.

As the People note, Proposition 36 reformed the three strikes law in two ways relevant here.

First, Proposition 36 now requires, with certain exceptions not pertinent here, that the third strike conviction be for a serious or violent felony. (See §§ 667, subd. (e), 1170.12, subd. (c).)

Second, Proposition 36 added section 1170.126 to the three strikes law. Section 1170.126 provides a resentencing option for “persons presently serving” a three strikes

2 sentence of 25 years to life, whose sentence under the Proposition 36 reforms would not have been a life sentence. (§ 1170.126, subd. (a).)

In asking us to vacate his sentence and remand the matter, defendant relies on the rule of retroactivity set forth in In re Estrada (1965) 63…