Hubbard

DISCUSSION

Eligibility Under Section 1170.126 Is Determined by the Judgment as a Whole and Not Per Offense

The language in section 1170.126 is not pellucid about the statute’s application to a petitioning defendant who is presently sentenced to a hybrid indeterminate life sentence composed of indeterminate life terms for both qualifying and disqualifying offenses. It declares its intent to apply “exclusively to persons presently serving an indeterminate term of imprisonment . . . whose sentence . . . would not have been an indeterminate life sentence” under the 2012 amendments to section 667. (§ 1170.126, subd. (a), italics added.) It then authorizes “[a]ny person serving an indeterminate term of life imprisonment” under former section 667 “upon conviction . . . of a felony or felonies that are not defined as serious and/or violent felonies” to file a recall petition for sentencing under the present provisions. (§ 1170.126, subd. (b), italics added.) The petition must include “all of the currently charged [sic] felonies[ ] [that] resulted in the sentence” presently served, along with all the findings of prior serious or violent felony convictions.

3 (Id., subd. (d), italics…