Under Proposition 36, in considering whether the defendant’s current offense is serious or violent, the court should consider the nature of the offense under current law. In 1999, Braziel was convicted of assault by force likely to inflict great bodily injury, assault with a deadly weapon, and making a criminal threat; he had two strike priors. He was sentenced to 25 years to life. In May 2013, Braziel petitioned for resentencing under Proposition 36, the strike reform law. He was found ineligible and appealed. The Court of Appeal treated his appeal as a petition for writ of mandate and denied it. Under Prop. 36, if a defendant’s current offense is not serious or violent, the court is generally required to resentence defendant to a two-strike term. Here, the criminal threat count was not a serious felony when appellant was convicted, but is now based on Prop. 21, effective March 8, 2000. Based on the plain language of Penal Code section 1170.126, subdivision (e)(1), an inmate is eligible for resentencing if the current offenses are not serious or violent felonies. The use of the present tense supports the conclusion the court should “use the current, post-Proposition 36 definitions of serious and violent felonies,” not the applicable classification at time of conviction. This is consistent with the voter’s intent in enacting the section—to reduce prison crowding while retaining in custody the most violent offenders.

The trial court’s denial of Braziel’s petition did not violate ex post facto laws. Section 1170.126 “does not increase the punishment for a previously committed offense. It make certain defendants eligible for a decreased punishment.” Thus, determining whether the commitment offense is a violent or serious felony may be based on current law, not the definitions in place at the time the offense was committed.

A defendant inmate serving time for multiple offenses is not eligible for recall of his three strikes sentence where any of the commitment offenses are serious and/or violent. Section 1170.126, subdivision (a) states the resentencing provisions are applicable to a defendant presently serving an indeterminate prison term whose sentence would not have been indeterminate under current law. A defendant whose current offense is serious and/or violent would receive an indeterminate term. Thus, if any of the commitment offenses were serious and/or violent, the defendant is ineligible for resentencing.