Defendant whose appeal was pending when Proposition 36 (Three Strikes Amendment) was enacted is not entitled to new sentencing hearing and must instead file a petition for recall in the trial court. Defendant was convicted of various offenses related to a drunk driving incident. The trial court sentenced him to 25 years to life under the Three Strikes Law. While defendant’s appeal was pending, Proposition 36, which imposed new limits on three strike sentences, was enacted. If the defendant had been sentenced after the new law went into effect, he would not have been subject to a three strikes sentence. In a petition for rehearing, the defendant sought the benefit of the change in law by asking the court to vacate his sentence and remand the matter for a new sentencing hearing. The Court of Appeal denied rehearing but modified the opinion to explain that defendant was not entitled to a new hearing. The trial court correctly sentenced the defendant based on the law applicable at the time of sentencing. The presumption of People v. Estrada (1965) 63 Cal.2d 740 did not apply because Proposition 36 is not silent on retroactivity. Proposition 36 added Penal Code section 1170.126, which provides the procedure for the resentencing of persons presently serving an indeterminate life sentence under the Three Strikes Law who would not be subject to such a sentence under the new law. A person serving a three strikes sentence for a current conviction that is not a serious or violent felony or a limited number of other felonies may file a petition for a recall of sentence within two years of the statute’s effective date or later upon a showing of good cause to request resentencing in accordance with the new law. If the prisoner is eligible, the trial court will resentence the defendant unless the trial court determines that resentencing the defendant would pose an unreasonable risk of danger to public safety, taking into consideration a number of factors set forth in section 1170.126, subdivision (g). Because defendant is presently serving a three strikes sentence, his case is governed by section 1170.126. Further, prospective application of a statute that lessens punishment does not violate equal protection.

[Editor’s note: Appointed counsel is pursuing additional review in this case. An article by J. Richard Couzens, Judge of the Superior Court, Placer County (Ret.) and Presiding Justice Tricia Bigelow, Second Dist. Court of Appeal, Div. 8, “The Amendment of the Three Strikes Sentencing Law,” is now available and concludes that Estrada should apply: “Clearly the new law will apply to all crimes committed on or after the effective date. It also appears the new sentencing provisions will apply to any case not final as of November 7, 2012. As to cases not final as of November 7, 2012, the defendant will not be required to submit a petition for resentencing under section 1170.126, discussed in Section IV, infra. These defendants simply must request sentencing or resentencing under sections 667 and 1170.12 as they now exist.” See: https://www.capcentral.org/criminal/prop36/docs/3XAmendmentAnalysis_by_Couzens_Bigelow.pdf.]